CHAPTER I II III IV V VI VII VIII IX X XI XII XIII XIV XV XVI XVII XVIII XIX XX XXI ]
CHAPTER VI.
ORGANIZATION OF CUMBERLAND COUNTY
Early Boundaries of New York — Controversy concerning the New Hampshire Grants — Proclamations of Lieut.-Gov. Colden and Gov. Wentworth — Order in Council — "Unlimited County of Albany" — Proposals to establish Counties on the "Grants." — Additional Officers appointed in Albany County — Cumberland County established by Charter — Provisions of the Charter — Road Law — Bradford — Extravagant Grants by the Crown — Repeal of the Act establishing Cumberland County — Cumberland County re-established by Letters Patent from the King — Observations of Cadwallader Colden — Laws to prohibit the cutting of Masting Timber — Conduct of Gov. John Wentworth, the Surveyor-General — Arrest of Willard Dean and William Dean Jr. — Arrest of Ebenezer Fisher — His Release — Voluntary Surrender of Capt. William Dean — Friendly Interference of Col. Samuel Wells and John Grout — The Deans imprisoned in New York — Gov. Wentworth's Letter and Memorial — Report of the Committee of the Provincial Council of New York.
WHILE New Netherland was a Dutch province, its northern limit had been placed at the river St. Lawrence, and the Fresh* river had washed its eastern boundaries. When Charles II. gave the province of New York to his brother James, its area included "all the land from the west side of Connecticut river, to the east side of Delaware bay." The governments of Massachusetts and Connecticut had in several instances encroached upon the territory claimed by New York, but the difficulties resulting from these trespasses had usually been amicably settled or at least temporarily adjusted. Never until now had there been an attempt to deprive New York, by systematized action, of rights and domains which she claimed as her own. As has been previously stated, Governor Wentworth of New Hampshire had, as early as 1750, made grants of land west of Connecticut river and north of the Massachusetts line. At the close of the French war he renewed the same course,
* Connecticut.
1763.] PROCLAMATIONS. 129
and pursued it with so much vigor, that at the end of the year 1763 he had, with but little show of discretion, divided almost the whole of the New Hampshire Grants into townships, and distributed them among flatterers, followers, and adventurers. In some cases the names of deserving men had appeared in the patents, but the proprietors were mainly speculators, who cared for little else than to sell at advanced prices the lands which they had obtained by gift.
The government of New York had for some time observed with dissatisfaction the course which Governor Wentworth was pursuing, and had to no purpose remonstrated against it. The time for more strenuous measures had now arrived. On the 28th of December, 1763, a proclamation was issued by Lieut.-Governor Cadwallader Colden of New York, declaring Connecticut river to be the eastern boundary of that province, and commanding "all judges, justices, and other civil officers" holding commissions under New York "to exercise jurisdiction in their respective functions, as far as to the banks of Connecticut river." He also enjoined the sheriff of Albany county, within whose shrievalty the district in question was comprised, to return to him the names of all persons "who under the grants of the government of New Hampshire" then held or should continue to hold possession of any lands west of Connecticut river, that they might be proceeded against according to law.*
Governor Wentworth, nowise intimidated by this manifest, which he termed "very extraordinary," published a counter-proclamation on the 13th of March, 1764, for the purpose of asserting the rights of New Hampshire, and encouraging those who had begun settlements under charters from that province, "to be industrious in clearing and cultivating their lands agreeable to their respective grants." In Governor Wentworth's commission from the King, dated July 3d, 1741, the southern boundary line of New Hampshire was described as extending west, "till it meets with our other governments." The western limits of Massachusetts and Connecticut were within twenty miles of Hudson river. These were the limits of his Majesty's "other governments," and Wentworth declared that it was
* Doc. Hist. N. Y., iv. 558-560. At the date of this proclamation, the inhabitants in the country between Lake Champlain and Connecticut river were "very few, and almost entirely confined to the townships of Hinsdale, Westminster, Bennington, and Rockingham." — MS. Deposition of Joseph Blanchard, March 1st, 1771.
9
130 HISTORY OF EASTERN VERMONT. [1764, 1765.
right that the western extent of the province of New Hampshire should be as great. While making these statements, he was careful to omit an important explanation. By trespass, Massachusetts and Connecticut had stretched their limits far beyond the line assigned them by charter. But they had acknowledged the encroachment, and by treaties New York had ceded to them the lands over which they had attempted to usurp authority.
It was evident that neither of the governors would yield. Recourse was had to the King, and the whole subject was laid before him. By an Order in Council, dated July 20th, 1764, he declared "the western banks of the river Connecticut, from where it enters the province of the Massachusetts Bay, as far north as the forty-fifth degree of northern latitude, to be the boundary line between the said two provinces of New Hampshire and New York." This declaration was published on the 10th of April, 1765, by the Governor of New York. As to its import, it might seem that there could have been no difference of opinion. But the force of the infinitive was by no means definitive. "The government of New York supposed that the words to be gave the order a retrospective operation, and construed them as a declaration that the river always had been the eastern limits of New York; consequently that the grants made by the Governor of New Hampshire were invalid, and that the lands might be granted again.' On the contrary, the grantees under New Hampshire patents, understood these words in the future tense, as a declaration that the Connecticut river was to. be from that time forward only, the line of division between the two provinces, and consequently that their grants being derived from the crown, through the medium of one of its governors, were valid.'" Thus arose a fresh dispute, which for ten years continued to excite litigation and animosity, unfavorable to the progress of humanity, and prejudicial to the settlement and civilization of the disputed territory.*
At the time when the Order in Council was promulgated by the proclamation of Governor Colden, the lands east of the Green Mountains and west of Connecticut river, notwithstanding the numerous grants of Governor Wentworth, were but little cultivated, and very sparsely inhabited. According to some
* Doc. Hist. N. Y. iv. 570-572, 574, 575. N. Y. Colonial MSS. in office Sec. State N. Y., Monckton and Colden, 1763, 1764, vol. xcii.; Colden and Moore, 1764-1766, vol. xciii. Belknap's Hist. N. H., ii. 315, 316.
1765.] THE COUNTY OF ALBANY. 131
accounts the whole number of families settled within those limits were not over sixty. Other statements raised this number to seventy, and one supposition was, that there might be a hundred. Nor were all these the families of original proprietors. Most of them were purchasers under some of the letters patent which had been issued by New Hampshire for very small considerations, and some were settlers under the squatter's title which had cost nothing.*
The whole of the New Hampshire Grants, although not added to, was supposed to be included within the limits of the "unlimited county of Albany," and the sheriff of that county was authorized to exercise his authority from the banks of Connecticut river to the shores of Lake Champlain. The courts were held in the city of Albany, and hither, or to the city of New York, all were obliged to resort who wished to transact business with the officers of government. Their remoteness from these places, was an inconvenience most sensibly felt by the new settlers. The county of Albany appeared to them unreasonably large, and in its division they foresaw relief from the difficulties under which they labored. To effect a change, recourse was had to petitions. The first presented to Lieutenant-Governor
* Joseph Blanchard, who, in the year 1765, numbered the inhabitants from Brattleborough to Hartford, declared that on the New Hampshire Grants, east of the Green Mountains, "there were not, on a large Computation above Sixty Families settled as Claimants" under grants from that province; "that these Inhabitants were scattered in Eleven Townships lying on Connecticut River, and in three Townships lying back of the River on the Southermost Part of the whole Tract," and that even in these townships, cultivation was but just beginning, Hinsdale, Brattleborough, Westminster, and Putney being excepted, where more advance had been made. — MS. deposition, March 1st, 1771.
The opinion of Simon Stevens, one of the members of the General Assembly of New Hampshire, was, that "there were not seventy families within the limits above described ;" that these "were scattered in about a dozen townships" on Connecticut river, and that "the Chief of them" were in Brattleborough, Westminster, Putney, and Rockingham. The same views were also held by Samuel Wells of Brattleborough, one of the judges of the Inferior Court of Common Pleas, and one of his Majesty's justices of the peace for the county of Cumberland. Oliver Willard, an assistant judge in the court above named, and an inhabitant of the town of Hertford as early as 1763, stated that "the Proclamations by the Governments of New York and New Hampshire notifying his Majesty's Determination of the Boundary between those Governments, were very Publickly known" at the time of their publication; that there might then have been "about one hundred Families settled in all that Country Eastward of the Green Mountains, formerly claimed by New Hampshire," and that "those Inhabitants were scattered through about Twenty Tracts or Townships of about six miles square each, and principally along Connecticut River." — Doc. Hist. N. Y., iv. 693, 696, 697, 701.
132 HISTORY OF EASTERN VERMONT. [1765.
Colden, was dated October 9th, 1765, and was signed by Thomas Chandler, Isaac Man, David Wooster, Daniel Jones, and Robert Harpur, "in behalf of themselves and their associates, inhabitants of the northern part" of the province of New York. They proposed that the "Grants" should be divided by a north and south line, which should follow the course of the ridge of the mountains; that two counties should be erected to the east of this line and three to the west; that the eastern counties should be divided by a line extending from the north-eastern corner of the township of Norwich to the line extending along the ridge of the mountains; that the most southern of the western counties should be bounded on the south by the northern line of Massachusetts extended as far west as the mouth of the Mohawk river at Half Moon, and on the north by a line drawn east from Fort Miller to the line of the mountains; that the middle county should adjoin the last mentioned county, and extend north to a line drawn from the north end of Lake George to the mountain line; that the other county should comprise all the land between the north line of the middle county and the forty-fifth parallel, and that the western limits of the three last mentioned counties should be left to the discretion of the governor. They further proposed that the lower county on Connecticut river should be called Colden, and that its county town, of the same name, should be located in the township of New Flamstead; that the upper county should be called Sterling, and that Newbury should be assigned as its county town, in the township of that name; that the southern county to the west of the Green mountains should be called Manchester, and that its county town should be located at Stillwater; that the middle county should be called Kingsbury, and that the county town should be situated in the township of Kingsbury; that the last county should be called Pitt, and that its county town should be fixed at Hospital Point on the east side of Lake Champlain, near Crown Point. Having detailed these propositions, they prayed that the counties and towns they had mentioned, might be established "under the restrictions appointed by his Majesty's instructions."*
This petition was on the 15th of October followed by another, in which the petitioners, in view of the unwillingness manifested
* MSS. Council Minutes, in office Sec. State N. Y., 1765-1783, xxvi. 22. Brattleborough Semi-Weekly Eagle, Thursday, September 27th, 1849. Doc. Hist. N. Y., iv. 578—580.
1765.] PETITIONS OF THE NEW SETTLERS. 133
by the Council of New York to erect the five counties before proposed, expressed their readiness to withdraw that request. At the same time they did not fail to assert their belief in the necessity of "some establishment" by which vice might be detected, and the inhabitants protected in recovering their just dues. To effect these results, they desired that a county by the name of Colden might be erected, to be limited on the east by Connecticut river, on the west by "the height of land," on the north by the forty-fifth parallel, and on the south by the north line of the province of Massachusetts Bay. They further requested that the county town might be located at New Flamstead, and that the county might be vested with such privileges as it had been usual to grant in similar cases.*
On the 22d of October, a third attempt was made to draw the attention of the Council of New York to the wants of the new settlers. "It is now near six months," said the petitioners, "since to our knowledge, we became inhabitants of this province, and have been ever since without law. Notwithstanding we have made application to be protected, as yet we are not answered. Should we be annexed to the county of Albany, as proposed by some, we shall still lye under such a disadvantage that justice cannot be had, and to appoint justices in some few of the towns, without proper officers to execute warrants, &c., we humbly conceive will never answer ye end; and in what way any officer (if they should be appointed) can execute his office, so far as to carry a delinquent to Albany, for our part we are at a loss [to determine], as there can be no passing from Connecticut river to Albany without going thro' the province of the Massachusetts Bay, and as soon as an officer gets across the line of the province, his office leaves him, and the delinquent makes his escape; and in what way any constables can be chosen to execute any small precept, &c., till the towns are incorporated, we must confess we cannot tell." Other arguments favoring the establishment of a new county were adduced, backed by urgent supplications for immediate action.
The committee to whom these applications had been made, unable longer to ignore the subject, submitted a report on the day in which this last petition was received. They declared that the accounts they had received had been "very contradictory
* MSS. Council Minutes in office See. State N. Y., 1765—1783, xxvi. 22. Brattleborough Semi-Weekly Eagle, Monday, October let, 1849. Doc. Hist. N. Y., iv. 580, 581.
134 HISTORY OF EASTERN VERMONT. [1766.
and unsatisfactory;" that the inhabitants of that portion of the province held their lands, as yet, by an equitable title only that they were wholly "unacquainted with the laws of the province, and the modes of dispensing justice therein;" that Portsmouth, the place to which they had previously resorted to attend the courts of justice, was at a greater distance than the city of Albany, and that should the committee "to suit a present convenience, advise the forming a part of the province so little known into a county, when it must shortly become expedient to new model it, private property would be greatly injured, by altering the seat of the courts of justice and other places of public resort." For these reasons the committee reported adversely to a new county, but recommended the appointment of a "competent number of fit persons for the conservation of the peace, and the administration of justice in that part of the province."*
In accordance with this suggestion, commissions were issued on the 20th of January, 1766, and twenty-one additional justices of the peace were appointed for the administration of the laws within the county of Albany. Of this number, Thomas Chandler, William Gilliland, Joseph Lord, Isaac Mann, Robert Harpur, Jacob Bayley, and Samuel Wells, were assigned of the Quorum,† and to all these newly commissioned officers, the sheriff and constables of Albany county were commanded to yield obedience. By an act of the British parliament which extended over the English colonies, all civil and military officers were required to take and subscribe their names to the oaths of allegiance, supremacy, and abjuration. Thomas Chandler, William Gilliland, and Isaac Mann, were empowered to tender and administer these oaths, and a Dedimus Potestatem confirmed to them this authority. At the request of Sir Henry Moore, Governor of New York, measures were taken to ascertain the number of men between Connecticut river and the Green Mountains capable of bearing arms. According to the report of Thomas Chandler, presented on the 20th of January, there were in the southern portion of that district about six hundred
* MSS. Council Minutes in office Sec. State, N. Y., 1765—1783, xxvi. 23. Brattleborough Semi-Weekly Eagle, Monday, October 1st, 1849; Thursday, October 4th, 1849. Doc. Hist. N. Y., iv. 581—584.
† Four years previous, fifty-five justices had received commissions in Albany county. The whole number now, was seventy-six. In the same county fifteen persons had been previously appointed of the Quorum. The whole number was now twenty-two. The duties of these offices were also performed by the members of the Council and by the Attorney General.
136 HISTORY OF EASTERN VERMONT. [1766.
least, the forms of justice. As the result of these measures, a better state of manners was observable in the new settlements.
Although the benefits resulting from the new system were not to be despised, yet many of the inconveniences before complained of still remained, nor did it appear that any of the means proposed could remove them, the formation of a new county excepted. As the road then ran, most of the inhabitants were distant from Albany one hundred and fifty, and some of them two hundred miles. In that city the courts and public elections were held, and thither it was absolutely necessary that a number of the settlers ahould annually resort. With difficulty could the sheriff of Albany county serve a process in the northern part of his bailiwick; and not without a guard of a dozen men, could he with safety convey a prisoner or a debtor through the woods and over the mountains to the jail at Albany. There were, it is true, civil and military officers in abundance in the new district, but the latter could not assist the former, even were their assistance needed, for the power of the former was not much regarded, and there were no places of confinement or means of punishment near at hand, as a terror to the evil-doers who might be arrested. Urged on by these potent considerations, a number of those who had formerly pleaded for a county, besought the Council of New York, on the 16th of June, for the same boon. On this occasion their request was seconded by the Governor, and the Council of New York responded favorably to the application. A portion of the New Hampshire Grants, situated between Connecticut river and the Green Mountains, was, on the 3d of July, erected into a county by the name of Cumberland, and its boundaries were duly established.* To the inhabitants
v. 312. Brattleborough Semi-Weekly Eagle, Monday, May 6th; Monday, May 27th, 1850. Doc. Hist. N. Y., iv. 586.
* The boundaries of Cumberland county, as first established, have been previously recited on pages 1, 2. In the act erecting the county of Cumberland, the following condition was inserted: "Provided always, and it is hereby enacted by the authority aforesaid, That if any lands lie within the County aforesaid, which are held by Grants under the Great Seal of the Colony of New Hampshire, by His Majesty in Council on the 20th day of July, 1764: such lands shall be and remain within, and be part of the County of Albany, anything herein contained to the contrary, notwithstanding." According to the terms of this proviso, the greater part of the territory comprised within the bounds of Cumberland county, would still have remained a part of the county of Albany.
1766.] ESTABLISHMENT OF COURTS. 137
were granted all the powers and privileges enjoyed by the other counties and towns in the province, excepting only the choice of members to represent the county in the Provincial Assembly, which privilege was withheld for the present.
In another portion of the act for the formation of the county of Cumberland, provision was made for the erection of a courthouse and jail. The freeholders and inhabitants of the county were authorized to elect supervisors, assessors, collectors, a treasurer, and other county officers, in order that the "public and necessary charges" of the province might be defrayed, the poor maintained, and vagabondism discountenanced. At the meeting next after their appointment, the supervisors were directed to levy and collect of those residing or sojourning in the county, a sum not exceeding two hundred pounds, to be applied in constructing a court-house and jail. Chester, "being the most convenient" among the townships, and "nearest the centre" of the county, was selected as the location for these buildings, and the sheriff was ordered to compute mileage from the court-house. By another act, passed July 15th, the "judges and justices duly authorized in that behalf," were directed to hold "yearly and every year" in the township of Chester, a court of Common Pleas, to hear, and according to the laws of England and the province of New York, "to try and determine all suits, quarrels, controversies and differences," which might arise, in the technical language of the ordinance, between any of the "loving subjects" of the county, "above the value of forty shillings." A court of General Sessions of the Peace was also established, and the first Tuesday in June and the first Tuesday in November in each year were selected as the days on which these judicatories were to commence their sessions. The length of each term session was limited to four days, and the two courts were authorized to sit at the same time, in order that business might be "constantly proceeded in and all unnecessary attendance avoided." Competent men were selected as judges and assistant justices of the court of Common Pleas. Justices of the peace and other county officers were appointed, and a foundation was laid for administering the law in accordance with the most approved methods.*
* New York Colonial MSS., in office Sec. State, N. Y., 1766,1767, xciv.; Book of Commissions, 1751—1770, v. 320; Council Minutes, 1765—1783, xxvi. 61. Doc. Hist. N. Y., iv. 587, 588, 594. Brattleborough Semi-Weekly Eagle, Thursday, June 6th, Monday, June 10th, Thursday, June 13th, 1850.
138 HISTORY OF EASTERN VERMONT.
To increase the facilities of communication between the different towns of the new county, the Legislature, on the 19th of December, passed an act "for laying out, regulating, and keeping in repair, common and public highways." By this act, the "freeholders and inhabitants" of the county, were authorized to choose at their annual town meetings, three freeholders in each town to serve as commissioners for laying out and regulating highways, and as many persons for surveyors and overseers of highways, as the majority of voters should deem best. Those chosen, were required to accept of the offices given them. To each overseer a portion of road was allotted, of which he was to have especial charge. The commissioners were empowered to construct such roads as they judged necessary, and in case of dispute as to the most convenient routes or the connection of roads between town and town, were instructed to call in three commissioners, one from each of the neighboring towns not interested, who were to determine where the road should run. If any road proved inconvenient, the commissioners of the town or towns through which it passed, were allowed to alter it or lay out another. The commissioners were not allowed to run a road through any person's land without his consent, and all disputes as to land damages were to be settled by certain fixed regulations which were detailed in the act. Any one who should "alter, stop up, or lessen" any road laid out by the commissioners, without their consent, forfeited forty shillings, to be applied by the surveyors towards repairing the roads. Public roads were not to be under two or over four rods in breadth. The breadth of private ones was fixed at twenty feet. Persons by or through whose lands public roads ran, were obliged to clear and maintain the same, by cutting down the wood, clearing and stubbing up the brush," and "digging up the stones" that could be carried off, to the width of one rod. The limbs of the trees overhanging the road were also to be lopped and taken away.
The inhabitants of each town were required to work on the roads six days in the year, or for as long a time as was sufficient to keep them in repair. For each day's neglect of this service, a penalty of four shillings was incurred. In road work, "a carriage and a man to manage it," were deemed equal to three days' work of a single person. The fine for neglect when a man was ordered out with his team, was fixed at twelve shillings per diem. Workmen were obliged to furnish "spades,
1766.] NEW SETTLEMENTS. 139
axes, crows, and pick-axes," or such tools as the surveyors might direct. In making road repairs, permission was given to use the trees "standing on the roads." When a highway "from any town or plantation to any meadows, mills or common landing places," ran through any person's land or meadow, he was allowed, by the approval of the town commissioners or the "major part of them," to "place and hang good, easy-swinging gates, on such highways," and keep them in repair at his own cost. By other regulations, it was enacted that an account of the highways "laid out, altered or stopped up," should be certified by the commissioners and entered in the county records that each commissioner should be allowed six shillings per diem, when engaged in official duties; that the surveyors should, within eight days after having received notice to that effect from a justice of the peace, warn the people to work on the roads, and that in case the surveyors should neglect to perform this duty, they should be mulcted forty shillings each. All fines were to be applied to the repair of the highways. The term of this act was limited to four years. The principles embodied in its paragraphs served as the foundation of the town regulations of this nature, which now obtain in the state of Vermont.*
The affairs of the new county having been satisfactorily arranged, Governor Moore directed his attention to the settlement of the adjacent country. With the approbation of the Provincial Council, a township was laid out for him and others associated with him, situated twelve miles distant from the north line of Cumberland county, "on a spot neither granted by New Hampshire, nor claimed by any persons."† He then announced his intention of giving the land comprised within this township to the families who would agree to colonize it, provided they would manufacture yearly a certain amount of potash, and plant a certain number of acres with hemp. On the fulfilment of these conditions, he declared that the fee of the land should be vested absolutely in the possessors. As soon as these terms were made known, applications were made by different persons for grants, and before the middle of the year 1767, fourteen families had settled in the new township,
* Act of 7th George III., in Laws N. Y., Van Schaack's ed. 1691—1773, pp. 487-490.
† Reference is undoubtedly had to the township of Bradford. A brief account of the early settlement of this place may be found on pages 123,124.
140 HISTORY OF EASTERN VERMONT. [1767.
and land had been allotted to ten other families in the city of New York, and to several persons in Connecticut and Massachusetts. At this stage of the undertaking, Governor Moore ordered a saw mill and a grist mill to be built for the use of the settlers, and a church to be erected, with a farm attached as a glebe for the minister who should occupy its pulpit. In aid of religion and education, a township was laid out and placed in the hands of trustees "for the use of the ministers of the gospel according to the communion of the Church of England," and another was set aside for the benefit of King's now Columbia College. While Governor Moore was in this manner studying to advance the interests of his subjects, many of them, who had formerly obtained land under New Hampshire titles, applied to him for confirmatory grants. These were in many instances bestowed, and the proprietors were quieted in their possessions by a secondary payment of fees. By the New Hampshire charters, a certain quantity of land in each township was reserved by Governor Wentworth for himself. These shares had in most instances remained uncultivated and unimproved. Care was now taken that this gubernatorial privilege should be no longer allowed, and the Governor's rights, as they were called, were by the confirmation charters of New York accorded to those who should clear and cultivate them.
Although it might have been supposed that the educated men in England, in the middle of the eighteenth century, would have been sufficiently acquainted with the topography of the English colonies in America, to have enabled them to speak and act with discrimination on matters pertaining to that subject, yet such was by no means the case. It was then customary for those occupying places of power and distinction, to apply to his Majesty for large grants of land in the colonies. These applications were generally received with favor, and the governors in the American colonies were then ordered to locate the amount of land which had been granted, in such places as the grantees might choose. By this mode of procedure, most extravagant demands were often made of the colonial governors, sanctioned by royal authority, and had these demands been in all cases satisfied, the result would have been pernicious in the extreme.*
* As instances of the manner in which lands were bestowed by the Crown, the following facts may be cited. On the 20th of September, 1765, "Walter Patterson in behalf of the Right Honorable Stephen Fox, Earl of Illchester; the
1767.] CUMBERLAND COUNTY. 141
Although the Council of New York judged themselves authorized to dispose of the territory between Connecticut river and Lake Champlain, they were still willing to hear the remonstrances which were frequently made by those in possession under New Hampshire grants. Various petitions had already been presented for tracts of land on the west side of Connecticut river, which had been previously granted in townships by the government of New Hampshire. The Council conceived that it would be improper to reply to these petitions, until they should be apprised of the interests which would be affected by the answer they might give. They therefore decreed, on the 12th of February, 1767, that all proceedings on the petitions which had been offered, should be suspended, "until the appearance before his Excellency in Council, of such principal proprietor or proprietors of each respective township duly authorized to sue out a grant for the same in behalf of all the persons interested therein, and sufficiently prepared to give the fullest information to the Board respecting the shares of the several claimants."*
Meantime, the act by which the county of Cumberland was established, had been, agreeable to the laws and statutes of England, "transmitted to his Majesty for his royal approbation or disallowance." Whether the act itself was informal, or whether the formation of a county without first consulting the home government was regarded as an encroachment on the kingly or parliamentary prerogative, does not appear. It is plain, however, that the conduct of the Governor and Council in this instance, was not viewed with favor. The lords of the Privy Council for plantation affairs reported adversely to the act, and pursuant to their advice, the King, on the 26th of June,
Right Honorable Henry Fox, Lord Holland; Charles Lee, Esq.; Clotworthy Upton and himself," petitioned Governor Henry Moore of New York, that the 20,000 acres of land which "His Majesty in Council" had been graciously pleased to order to be granted to each of them in the Province of New York," might be located as follows:— 20,000 acres in the townships of Fulham and Putney, 20,000 acres in the townships of Weathersfield and Windsor, 20,000 acres in the townships of Hertford and Hartford, 20,000 acres in the townships of Brattleborough and Guilford, 20,000 acres in the township of Fairlee, and between that and Newbury. Sir Henry Moore, who had lately been appointed Governor, did not arrive in New York until the 12th of November following, and Lieut.-Gov. Colden, in whose hands the administration of affairs was then placed, did not deem it expedient to obey the royal order, and the petition was laid aside. — N. Y. Colonial MSS., Land Papers, vol. xix.
* MS. Council Minutes, in office Sec. State, N. Y., vol. xxix. Doc. Hist. N. Y., iv. 588, 589.
142 HISTORY OF EASTERN VERMONT. [1767,1768.
declared it "void and of none effect." This decision was communicated to the Governor of New York, and by him was published to the inhabitants of the province, on the 3d of December following. This proceeding was shortly after followed by another equally unfavorable to the interests of New York. Owing to a number of representations which had been made by parties interested in the lands which had lately been declared to be part of that province, the committee of the Council for plantation affairs counselled the King to command the Governor of New York, by "the most positive orders," to desist from making any grants of that part of the territory lying west of Connecticut river, which had been chartered by Governor Wentworth. An order in Council to this effect was accordingly issued on the 24th of July, and his Majesty's "highest displeasure" was denounced against the Governor, in case he should fail to observe these instructions.*
When the repeal of the act by which the county of Cumberland had been established, became known, numerous applications, representing "the distress and great inconveniences" under which the inhabitants of that part of the country were laboring "through the want of a due administration of justice," were again made to Governor Moore, and relief was sought for in terms which could not well be denied. The subject was referred to the provincial Council, and as the result of their deliberations, the Governor was advised, on the 10th of February, 1768, to direct the Attorney-General to prepare a draft of an ordinance for erecting the lands which had been comprised within the former county, into another county of the same name. In accordance with the royal will, letters patent establishing the county of Cumberland were soon after presented to the Council, and after amendment were, on the 18th of March, ordered to be engrossed. To this instrument the "Great Seal" of the province of New York was affixed on the 19th, and the county of Cumberland was again a fact.† On the inhabitants were bestowed all the "powers, privileges, and immunities" enjoyed by the inhabitants of the other counties in the province, and permission was given them to erect at their own charge a court-house and jail to be located in the township of Chester, which being nearest to the centre of the county, was declared
* Doc. Hist. N. Y., iv. 608-611. MS. Council Minutes, in office Sec. State, N. Y., xxvi. 116; xxix. 250.
† The boundaries of Cumberland county under the second charter, have been previously recited on page 2.
1768.] LAWS RELATIVE TO FELLING TIMBER. 143
to be "most convenient for that purpose." To carry out the provisions of the new charter, courts were established on the same basis as before; civil officers were nominated to manage the affairs of the county; and with the approbation of the Council of the province, commissions were issued on the 7th of April, to those who had been selected for office.*
During the first quarter of the eighteenth century, the attention of the Board of Trade in England had been particularly directed to the evil results which would be likely to follow in case the inhabitants of the province of New York should be inhibited in the use of certain kinds of timber which to them were of especial value. "One of the methods already thought of for making this province more useful as to naval stores," wrote the learned Cadwallader Colden, in the year 1723, "is a severe prohibition of cutting any white pines fit for masts. No doubt the destroying of so necessary a commodity ought to be prevented, and it would be difficult to frame a law for that end with many exceptions or limitations, which could be of much use. On the other hand, when the literal breach of the law becomes generally unavoidable, it must lose its force. The lands of this province are granted, upon condition that the grantee, within three years after the grant, effectually cultivate three acres for every fifty granted, and it will not be supposed that it is the intent of the law to put a stop to cultivating the land, which, however, cannot be done without destroying the timber that grows upon it; One at first is ready to fear that the poor planter is under a sad dilemma. If he does not cultivate, he cannot maintain his family, and he must lose his land; if he does cultivate, he cuts down trees, for which he is in danger of
* Book of Commissions, in office Sec. State, N. Y., 1751—1770, v. 363, 374: Council Minutes, 1765-1783, xxvi. 116, 118, 119. Laws of N. Y., 1768, p. 469. Doc. Hist. N. Y., iv. 611.
Little is known concerning the court and county records of Cumberland county before the year 1775. That there were such records, there can be no doubt. On a deed which is still extant, made by Thomas Chandler of Chester to Ebenezer Holton, is inscribed this technical endorsement: "Received for Record, January ye 8th, 1770, and Recorded in the Records of Deeds for the County of Cumberland, Lib. A. Folio 79, and examined. John Chandler, Clerk." The Hon. Harry Hale of Chelsea, Vt., in a letter to the author, dated December 1st, 1852, conveys the following information on this subject:— "In 1833-4-5," he writes, "I was county clerk of Orange county, and recollect seeing some curious records of the old Cumberland county in the clerk's office, where they may, probably, now be found." Further enquiry has elicited no new facts on this subject, and it is doubtful whether the "curious records" are now in existence.
144 HISTORY OF EASTERN VERMONT . [1763-1768.
being undone by prosecution and fines. The inhabitants cannot build houses without pine for boards and covering, nor send vessels to sea without masts. It cannot surely be the intent of the Legislature to put the inhabitants under such extreme hardships by denying us necessary timber while we live in the midst of such forests as cannot in many ages be destroyed — and the more that the King for whose use these trees are reserved, does not, nor has not made use of one tree for many years in this province.
"But suppose," continued this prudent adviser, "the people could be restrained from cutting any white pines, it will not answer the end for which it was designed, for if the King were to send people to cut down masts in the place where they grow, and to transport them to such places where they can be carried by water, the charge will amount to treble the sum they might be bought for at New York, if the carrying of them were left to the inhabitants themselves. The King in this case must have a great many hands and overseers in constant pay. He must buy horses, oxen and carriages, and maintain them or hire them after the most chargeable manner, whereas the country people carry these trees in the winter upon the snow and ice when they cannot labor in the ground, and are glad to make a little profit at any rate."*
With such reasoning as this, did one in whose mind were ever uppermost the interests of the province of which he was a citizen, and over which he was subsequently stationed — with such reasoning as this, did he strive to hinder the passage of a law whose evil effects he plainly foresaw and correctly foretold. Notwithstanding these efforts, the restriction was promulged, and became afterwards a favorite measure in the short-sighted policy of the home government towards the American colonies. In the charters which were subsequently issued by Governor Wentworth of New hampshire, in the King's name, granting by townships the land lying between Connecticut river and Lake Champlain, a special condition was inserted, by which "all white and other pine trees" fit for masting the royal navy, were to be "carefully preserved for that use," and none were to be "cut or felled" without special license. In case of disobedience, the right which the grantee might have in the township where the offence was committed, was to revert to the King, and the offender was also declared "subject to the penalty of
* Doc. Hist. N. Y., i. 719, 720.
1763-1768.] CONDUCT OF GOVERNOR WENTWORTH. 145
any act or acts of Parliament" which were then or might thereafter be enacted. A similar clause was inserted in the confirmation and other charters which were afterwards issued by the province of New York. To the "Surveyor-General of his Majesty's Woods" was entrusted the enforcement of this restriction, and the prosecution of those who should disobey it.
In answer to the proclamation of Lieutenant-Governor Colden, issued on the 28th of December, 1763, asserting the right of New York to jurisdiction as far eastward as Connecticut river, founded on the grant of Charles II. to the Duke of York, Governor Wentworth, as has been before stated, had published a counter-proclamation, on the 13th of March, 1764, declaring that the grant to the Duke of York was obsolete, and that the western bounds of New Hampshire were co-extensive with those of Massachusetts and Connecticut. When by a special Order in Council, under date of July 20th, 1764, the title of the Duke of York was confirmed, and Connecticut river was fixed as the dividing line between New York and New Hampshire, Wentworth, in his gubernatorial capacity, submitted to the decision. In his private conduct, however, he showed especial favor to those who still acknowledged the jurisdiction of New Hampshire over the "Grants," as the territory west of the Connecticut was called. John Wentworth, who, on the 11th of August, 1766, succeeded his uncle, Benning Wentworth, as Governor of New Hampshire, succeeded him also in the office of "Surveyor-General of His Majesty's Woods in all and singular His Majesty's Colonies and Plantations in North America." The former Governor, as Surveyor-General, "had been charged with neglect of duty, and with indulging his deputies in selling and wasting the King's timber." The new Governor, unwilling to incur a similar imputation, determined to pursue a different course. For the purpose of becoming acquainted with the condition of the wooded land, with the care of which he as surveyor was charged, "he frequently traversed the forests," and thus obtained the information which he needed, by personal examination. But the spirit of malice which had actuated the uncle in his conduct towards those settlers on the "Grants" who acknowledged the jurisdiction of New York; was not wanting to the nephew. The proof of this will hereafter appear.*
* Doc. Hist. N. Y., iv. 558-560, 570-572, 574, 575, Belknap's Hist. N. H., ii. 337, 338, 345. Thompson's Vt., Part II. p. 224.
10
146 HISTORY OF EASTERN VERMONT. [1763-1768.
The township of Windsor had received its first charter from the province of New Hampshire, on the 6th of July, 1761. After the passage of the order in Council of July 20th, 1764, another charter had been granted by New York, on the 7th of July, 1766, and with it eight hundred acres of land additional. Although the second patent had been bestowed on the motion of some of the most influential citizens in the place, yet many of the inhabitants were opposed to the jurisdiction of New York, and denied the authority of the courts which were afterwards established by that province. In this township, situated on the west side of Connecticut river, and in the township of Cornish, situated on the opposite bank, there were growing, in the year 1768, the finest forests of white pine trees to be found on the borders of that stream. The owners of the land whereon these forests grew, being for the most part friendly to the jurisdiction of New Hampshire and opposed to that of New York, found it easy to obtain from the Surveyor-General or his deputies, certificates permitting them to fell certain trees "unfit for his Majesty's service," and to appropriate them to their own use. Thus were they busy, day after day, in cutting and putting into the river, timber which was afterwards to be floated to the most convenient markets. Among those who refused to join with their neighbors in denying the authority of New York, were Capt. William Dean and his sons, Willard Dean and William Dean Jr. Wishing to procure some pine timber, not reserved by law, and observing with what ease certificates were obtained, Capt. Dean applied to Daniel Jones, a justice of the peace, residing at Hinsdale, New Hampshire, Benjamin Whiting of Newbury, and others of the Surveyor-General's deputies, to survey some trees for him and give him a permit to cut such as they might deem unfit for his Majesty's service. These applications were in all cases accompanied by the customary offering of fourteen shillings, proclamation money, per diem.
After vain solicitations on the part of Capt. Dean, at various times during four months, for a written permission, Whiting gave him verbal leave to cut such white pines as were unfit for the King's use. Dissatisfied with this license, Capt. Dean repaired to Governor Wentworth, the Surveyor-General, informed him of the efforts he had made to procure a proper certificate from the deputy surveyors, and of the ill success he had met with, and desired that a special deputy might be appointed to make the necessary examination and grant his lawful request.
1769.] PROSECUTION OF THE DEANS. 147
Whiting, who was present on this occasion, promised Capt. Dean in the presence of the Governor, that he would survey the timber for which he had applied, and give him a certificate within a fortnight from that time, specifying the trees which he might deem unfit for the King's use. On returning home, Capt. Dean found that his sons, in consequence of the verbal license obtained from Whiting, had felled seventeen trees, much inferior in size to many which had been cut by his neighbors, and to all appearance unsuited for naval purposes. Information of this circumstance having been carried to Governor Wentworth, he immediately set out for Windsor, for the purpose of punishing the Deans. On his way thither, "he rode through a pine forest in Cornish and dined in the midst thereof at the house of Samuel Chase, Esq., and must thereby have had a view of the notorious destruction of the same, as the pines, felled, lay on the ground on each side of the road, and around for many acres." Still these sights did not withdraw his attention from the end which he had proposed. The friendship of the Deans towards the government of New York was to him a graver offence than that suggested by the evidences of destruction which surrounded him, and the opportunity of satisfying a grudge by the use of apparently legal means, was too good to be postponed to causes which should have demanded his most serious attention.
A prosecution for "trespassing against his Majesty by cutting, felling, and destroying many white pine trees" on lands in Windsor, was commenced against the Deans in the court of Vice-Admiralty for the province of New York. Writs were granted by the Hon. Richard Morris, Judge of the Vice-Admiralty, and were placed for execution by Thomas Ludlow, Provost Marshal in the same judicatory, in the hands of Whiting, who at the same time was made Deputy Marshal. Armed with the authority of the law, and a brace of pistols, Whiting, on the 29th of August, 1769, entered the dwelling-house of Capt. Dean, who was at that time at Springfield, Massachusetts, and without any opposition arrested his two sons. On the evening of the same day he delivered the prisoners to the care of his assistants, Benjamin Wait and Samuel Patrick, whom he supplied with pistols and ammunition; and having commanded them to fire on the prisoners if they should endeavor to escape, or take advantage of any attempted rescue, he departed. Wait and Patrick remained on guard until the next morning, when the former delivered his pistol to James Rosebrook.
148 HISTORY OF EASTERN VERMONT. [1769.
During the day, while the prisoners were preparing for their journey to New York where they were ordered to appear for trial, they were watched by Patrick and Rosebrook. Towards evening, Solomon Emmons and David Getchel made their appearance, and informed the last mentioned keepers, that by the order of Israel Curtis, a justice of the peace, they had come to stand guard during the night. The pistols were accordingly delivered to Emmons and Getchel, with orders to fire as before.
On the morning of the 31st, as William Dean Jr. was standing in the outer doorway of his house; in which he had for two days been a prisoner, Israel Curtis came up. Dean desired him not to enter. Curtis, upon this, seized Dean, and pushing him a considerable distance, vociferated, "You blockhead, you rascal, how dare you bid me not to come into your house? Don't you know that I am a justice of the peace? I have a right to break into your house and break all the locks that are in it, and have a right to pull your house down over your head, and by the living God, I will make you know it in less than one month." Thereupon, Curtis took the pistols from the guards, and gave them to Enoch Judd and Elnathan Strong, with orders to fire the prisoners through, or "break their bones with clubs" should they attempt to escape. Terrified by such language and commands, Mrs. Dean, the wife of the prisoner, "fell into a fit," from which she did not recover for several hours. A little before noon of the same day, Whiting came again to the house, and having placed the prisoners in the care of Wait and Rosebrook, ordered the party to proceed to Hinsdale on their way to the city of New York. This order they obeyed.
On the evening of September 1st, the guards with their prisoners having reached Westminster, were there met, at the inn of Ephraim Ranney, by one John Grout, an attorney-at-law in Cumberland county. Having been informed by the Deans of the misery of their condition, of the ill usage they had received, and of the restraint under which they had been kept, Grout asked the guards whether the prisoners had behaved improperly or shown a disposition to escape. Being answered in the negative, he declared that prisoners ought not to be carried under the "terror of death," nor "threatened with beating," provided they conducted with decorum while in custody, and were submissive to their keepers that Whiting
1769.] PROSECUTION OF THE DEANS. 149
was much at fault, in suffering the prisoners to be treated in such a barbarous manner; and that they, the prisoners, had the right, should they choose to exercise it, of bringing an action against the guards for abusing the privileges of their office. The conversation being renewed on the morning of September 2d, Grout asserted that prisoners taken on a mesne process, "ought not to be carried to prison under terror of fire-arms, and that in case they should attempt to escape, their keepers would have no right to kill them, or to disable them by firing on them." He then asked the Deans whether they would promise not to make any attempt to escape. To this question they replied affirmatively. He then endeavored by threats and promises to persuade the guards to unload their pistols. In this attempt he succeeded, but was unable to make them burn their ammunition. He also counselled the guards to treat the prisoners with kindness, and the prisoners to be obedient to their keepers, and by no means to attempt to escape. The prisoners, who were almost destitute of money, requested Grout to repair to Springfield, Massachusetts, and obtain for them pecuniary assistance from their father. Having accepted the commission he soon after started on his journey. The guards with their prisoners were not long in following, and on arriving at Hinsdale in the evening, were rejoined by Grout, who had arrived before them.
While Wait and Rosebrook were engaged in conducting their prisoners from Windsor to Hinsdale, Whiting, on information presented to Governor Wentworth by Daniel Jones, a deputy surveyor, had, with the assistance of Amos Tute, one of the coroners of Cumberland county, arrested Ebenezer Fisher of Brattleborough, on Saturday, September 2d, charged with the same offence which had been imputed to the Deans. On the evening of the same day, Whiting went with his prisoner to the house of Samuel Wells, who resided in Brattleborough, and who was one of the judges of the inferior court of Common Pleas. Having informed him of the arrests he had made on process from the court of Vice-Admiralty, he told him that he should expect his aid as a magistrate, provided there should be occasion for it. In reply, Wells expressed his dislike to the proceedings, and said that they were "spiteful or malicious actions," and were owing to Governor Wentworth's dislike, to the people on the west side of the Connecticut. Continuing the conversation, Wells asked Whiting by which way he intended
150 HISTORY OF EASTERN VERMONT. [1769.
to carry his prisoners to New York; whether through Massachusetts and Connecticut, or through the woods to Albany. Whiting made answer that he was undecided as to the route he should pursue, and remarked that Jones and Grout had told him, that by the laws of Massachusetts there were regulations by which officers of other governments could convey prisoners through that province, if necessary. Wells replied that he knew of no such regulations, but if there were any such, he should advise him to go by that way, as the travelling would be much easier than by the road through the woods to Albany, which was but little travelled, and for a part of which a guide would be indispensable. Having learned on whose information Fisher had been arrested, and Fisher having stated that he had taken only such trees as had been blown down years before, and such as were partly decayed, Wells told Whiting that he was inclined to believe the prisoner's statement, as he knew of his having such logs in his possession, and that he had brought none other than such to his saw-mill. He added, moreover, that the conduct of Jones appeared to him "malicious and vexatious." Whiting then observed that he had no power to release Fisher, but that Jones probably had and desired Wells to meet him and Jones at the house of Amos Tute in Hinsdale,* on the Monday following, for the purpose of consulting in reference to the prisoner's enlargement. To this proposition Wells assented.
In connection with the conversation above detailed, Wells asked Whiting whether he had any means of procuring the attendance of witnesses, and who the witnesses were. Whiting answered that he had with him blank subpśnas, which he should fill up with the names of those who could prove what was alledged against the prisoners, and serve. According to the terms of these subpśnas, witnesses were required to obey the directions they contained under the penalty of one hundred pounds. This representation having given rise to debate, Wells read from Jacob's Law Dictionary under the title Subpśna, to the effect that the penalty was inserted "in terrorem," and was not recoverable of the witness in case he should not attend agreeable to the summons. It further appeared in the course of conversation, that the witnesses, although commanded to appear in the city of New York, were to receive but two or three
* Now Vernon.
1769.] PROSECUTION OF THE DEANS. 151
shillings to compensate them for their loss of time, and defray the expenses of their journey.
At the close of this conference, Whiting proceeded to Hinsdale, where he found Grout in consultation with the Deans, who with their keepers had that day come from Westminster. Turning to Whiting, Grout endeavored to persuade him to go with his prisoners through the provinces of Massachusetts and Connecticut. In support of this advice he mentioned the difficulties which beset the way through the mountains to Albany, the excellence of the other route, the license contained in the laws of Massachusetts and Connecticut, allowing officers of other jurisdictions to convey prisoners through those provinces, and the legal right which the guards would have, should they adopt the course recommended, to require the assistance of the people of the county through which they might be passing, in case an attempt should be made to rescue the prisoners. Wait then told Whiting that Grout had said at Westminster that he, meaning Whiting, "had no right to carry fire-arms when he had any prisoner in his custody." Upon hearing this statement, Grout not only acknowledged it as his own, but reiterated it, and added that he would make Whiting comprehend its meaning.
On Sunday morning, September 3d, Whiting informed Grout that he intended to set out for Albany with his prisoners, on the Tuesday following, by the way of the woods. Grout in reply acquainted Whiting with his business at Springfield, and desired him to tarry at Hinsdale until his return, which he fixed on Tuesday night. Whiting made no promise, and Grout soon after set out on his journey down the river.
Early on the morning of the 4th, by previous agreement, Wells repaired to Hinsdale and there met Whiting and Fisher. As the object of this meeting was to consult with Jones, the deputy-surveyor, in regard to the release of Fisher, and as Jones resided on the opposite side of the river, Whiting, in company with Major John Arms, the High Sheriff of the county, crossed over to find him. During their absence, Wells took the prisoners into an adjoining orchard and engaged them in conversation. Meantime, Wait observed the whole proceeding, as he stood before the door of the house where his party were lodged. The interview being ended, Wells inquired of Wait concerning the route by which he supposed the prisoners would be conveyed to New York. On being told that they would probably be taken across the mountains, he remarked that it would be easier
152 HISTORY OF EASTERN VERMONT. [1769.
to go down the river, as they would thus gain the advantage of "a good road all the way." Wait then remarked that Whiting had not decided when he left Windsor, upon the course he should pursue in travelling. Wells answered, that if Whiting had decided to pass through Massachusetts, and Grout had known of it before his departure, he would probably have lain in wait at Springfield and rescued the prisoners. Such a transaction Wait declared would only have created trouble and increased the costs of the trial, as the prisoners would have been pursued, and again arrested. By this time Whiting and Arms had returned. Satisfactory explanations having been given, Fisher was by Jones's direction released, and allowed to depart without any recognizance. Wells then repeated, in substance, to Whiting what he had before said to Wait in reference to the intended journey, telling him among other things, "that he would never get across the woods, and had much better go down the river where he could go in a canoe or have a good road all the way." He however advised him, in case he should go by the mountain road, to get one Stockwell for a pilot, who, he said, was reputed to know the way well.
On the afternoon of the 5th, which was Tuesday, Whiting and his party started on their journey. At the time of their departure Grout was still absent. On their way through Brattleborough they met Sheriff Arms at Wells's saw-mill, which was situated beside the highway, and from him received an invitation to stop at his house when they should reach it, and take some refreshment. On arriving at his house, a dinner was provided for them, and on sitting down at the table, they discovered that Wells and Daniel Whipple were also guests of Major Arms. During the repast, Wells sent to his house for rum, "and having made some liquor they all drank and conversed freely together." At the request of Whiting, Wells advised the prisoners, as they had but little money with them, to give Whiting an obligation under their hands, for the repayment of what he should expend for them on the road. To this proposal they agreed, and Wells having written the obligation, they executed it. As conversation became less restrained, owing in part to the excellence of the "liquor," Wells told Whiting that had he gone through Massachusetts, he thought Grout would have arrested him on behalf of his prisoners for false imprisonment, and that the prisoners would have been set at liberty. In the same manner, others of the company bantered him, until growing
1769.] A RESCUE THREATENED. 153
angry, he intimated that Wells had sent Grout on his errand to Springfield, told him "he was a pretty devil of a judge to attempt to serve him in that manner," and further declared, that it was his duty as a magistrate, "rather to assist an officer with prisoners, than to try to lead him into a snare." To these uncourteous remarks Wells replied, "that, so far from leading him into a snare, he never knew that Grout had gone to Massachusetts, until Whiting had so informed him." "Had I sent Grout to Springfield," said he, "do you think I would have advised you not to go that way ?" Changing his tone, he declared that the arrest of the Deans was "but a bad or a spiteful action," that he was determined to assist them to the extent of his power, and intimated his regret that he was not able to set them free. Whiting seemed satisfied with the former part of this explanation, and, the dinner being ended, requested Wells to accompany him two or three miles and show him the road to Albany, with which request he complied. As they were proceeding on their journey, the prisoners on foot being unable to keep pace with Whiting who was on horseback, were told by him, that unless they travelled faster, he would fasten them together with ropes or straps, and throwing them across his horse would carry them in that way, or would tie them to the animal's tail in order that they might learn the proper step. Wells then counselled them to make as much haste as they could conveniently, to be obedient to their guards, and by no means to attempt an escape. With this advice they promised to comply. Before parting, Whiting remarked to Wells that his advice had caused the prisoners to walk much faster, and thanked him for all the favors he had shown him.
Whiting conveyed his prisoners that day as far as Marlborough, and obtained lodgings at a kind of a half, inn kept by one Stowell. During the night, the small log-house which they occupied was beset by a body of men from Brattleborough and Guilford, who broke into the lower part and behaved in a very riotous manner, swearing they would release the Deans or pull down the building, and at the same time uttering many violent threats against Whiting. This tumult was owing to the language which Whiting had used to his prisoners in the presence of Wells, and which Wells had reported on his return home. When the mob had been informed that the Deans had not been treated with the violence which had been threatened, they made no further trouble.
154 HISTORY OF EASTERN VERMONT. [1769.
On the morning of the 6th, Wells, who had received a message from Sheriff Arms, announcing the tumult of the preceding night, immediately mounted his horse, and with the sheriff rode to the place where Whiting and his party had lodged. Being assured that the people had dispersed without committing any acts of violence, and having collected such information as suited their magisterial purposes, they returned. Warrants were soon after issued for the arrest of the three principal leaders, and two of them having been taken, were bound by recognizance to appear at the next general session of the county court. Wells declared openly that those engaged in the disturbance ought to be severely punished, and that he would do all within his power to bring the guilty ones to justice.
Grout, who had left Hinsdale on Sunday morning, arrived at Springfield the next day, and informed Capt. Dean of what had befallen his two sons, of their extreme destitution, and of the determination of Whiting to leave with them for New York by the way of the woods on the noon of the following Tuesday. On account of a cause depending before the inferior court of Common Pleas then sitting at Springfield, to which Dean was obliged to attend, he was not able to reach Hinsdale until Tuesday night. Finding that Whiting had left with the prisoners, Dean proceeded to Brattleborough, where on Wednesday morning he saw Wells. Understanding by him and others, that the process issued from the court of Admiralty was against him as well as his sons, he, by Wells's advice; set out for New York to surrender himself to the Marshal, and take trial with his sons. When within about thirty miles of that city, he overtook Whiting, who placed him in custody, and on arriving at the place of destination, lodged him and his sons in jail.
On the application of Capt. Dean and his sons, James Duane of the city of New York, who believed the prosecution to be hard and unjust, undertook their defence as Proctor in the Vice-Admiralty court. Being of opinion that they could not be held to bail on such a prosecution, he moved that they should be discharged on entering their appearance. This motion the court overruled, and ordered them to be held to bail in a large sum. Not being fortunate enough to procure the specified bail, they were imprisoned. Finding that they should be utterly unable to pay the expenses of a trial, they petitioned the judge of Admiralty to give judgment against them, which
1769, 1770.] AN EXECUTION ISSUED. 155
was done. Being equally unable to pay the fines and costs which were imposed on them as the result of their default, they were recommitted to prison, where they remained for several months. During this time, as the little money they had brought with them, and received from the sale of their horses, was expended, and as they had no means of purchasing food, they desired Duane to intercede with the judge of the Admiralty in their behalf, and by his order to procure for them an allowance of bread and water, to which they were entitled as prisoners at the suit of the Crown. The judge having declared that he had no right to direct such a supply, Capt. Dean entered into negotiations with his friend Wells for the sale of his effects on his farm at Windsor, in order to raise money therefrom for the support of himself and his sons. In answer to Wells, who consulted with him on the subject, Duane expressed his approbation of the act as one that was both legal and philanthropic. That no disadvantage through misrepresentation or otherwise, might attach to Wells on account of the share which he would bear in the transaction, Duane waited upon the judge of the Admiralty, and laid the whole matter before him. The judge made no objection to the proceedings, nor did he in any manner evince his dislike thereto. In consequence of this information, Capt. Dean, on the 14th of November, pending the suit, gave Wells a bill of sale of all his household goods and personal estate, the proceeds from which enabled him to support himself and his sons in prison. When the trial came on, the judge having decided that the defendants had been guilty of the charges alledged against them, and therefore had incurred the penalties of the statute in that case provided, directed an execution against their goods and chattels, but these having been previously alienated to Wells, the recovery of the penalties was rendered impossible.
While matters were in this condition, Governor Wentworth, on the 10th of February, 1770, wrote to Lieutenant-Governor Colden, condemning in strong terms Wells's conduct. After summing up his misdemeanors, he concluded on that subject in these words: "Attempting to mislead an officer, countenancing open, daring trespassers, and aiding in throwing the charge of their prosecution on the Crown, are so heinous in any subject, but in a judge so highly ruinous and dishonorable to the service, that I think it my duty to the king, herein again to assure you, that every public mischief must result to the department of
156 HISTORY OF EASTERN VERMONT. [1770.
Surveyor of Woods, if Mr. Wells cloath'd with the power and influence of magistracy, may still be an example of counteracting and frustrating such useful and essential laws with impunity." The remainder of the letter was occupied with eulogiums on the "just, legal, and impartial administration of the court of Vice-Admiralty," regrets at the unhappy state of feeling then existing among the inhabitants of the New Hampshire Grants, and promises of assistance in supporting law and order.
Accompanying this communication was a memorial of the same date from Governor Wentworth as Surveyor-General to Lieutenant-Governor Colden and the Council. In defence of the proposal which was to follow, he declared that by "the express terms" of the charters issued "under the public seal of New Hampshire," lands were to revert to the king, "with right of re-entry" when those who held them were guilty of cutting the pine trees with which they abounded, without first obtaining a license. In conformity with this stipulation, he desired that the lands in Windsor where the trespass had been committed, might be taken from the Deans and escheated to the king. He further remarked, that by such a course the laws for the preservation of his Majesty's masting timber would be more effectually enforced. If other measures, he added in conclusion, shall be pursued, "that penalty of the statute which was wisely formed, and which by the experience of nearly half a century has in other provinces been found effectual," will be eluded and defied.
These documents having been read before the Council of New York on the 14th of March, an answer to that portion of them in which Wells was charged with misconduct, in advancing money on the personal effects of the Deans, was deemed just and proper. Governor Wentworth was in consequence informed on the 21st of March, "that the persons who assigned the goods were then in prison; that having no means of subsistence, Mr. Duane, their counsel at law, advised the assignment of the goods as necessary for their support, which were of small value, and were sold to Mr. Wells, and the monies applyed accordingly; that Mr. Wells declined taking the goods, until Mr. Duane assured him he might do it with safety; and that his acceptance of the goods was therefore rather to be considered as an act of humanity, than prejudicial to the Crown."
On the 14th of August, a committee consisting of William
1770.] REPORT OF THE COMMITTEE. 157
Smith, Henry Cruger, and Henry White, were appointed by an order of the Governor and Council of the province of New York, to consider the letter and memorial of Governor Wentworth, and the accompanying documents. In answer to the first charge brought against Mr. Wells, namely, that he endeavored to frustrate the arrest of certain persons lawfully prosecuted, the committee, after examining his own declaration and the depositions of a number of witnesses, replied in these words:— "We cannot see sufficient cause to advise, either a removal of Mr. Wells from the places he holds, or any prosecution against an officer, who we are informed sustains a fair character, even in a district where there are not wanting some persons, to whom, from their attachment to the unjustifiable claim of the province of New Hampshire, and his zeal in asserting the right and jurisdiction of this colony, he must be peculiarly obnoxious." To the other charge alledged against Mr. Wells, namely, that he had taken a conveyance of the effects of the offenders, pending the suit, to prevent a recovery of the penalty which they had incurred, the committee made answer, that "parties prosecuted, had by law a right to convey away their effects, and Mr. Wells's acceptance of the grant, with the caution, and in the circumstances, and for the ends proved by Mr. Duane, we cannot conceive to be in the least degree criminal." The committee further advised, that copies of the depositions then in their hands should be sent to Mr. Wentworth, "in justification of the conduct of this government, and to show his Excellency our readiness to make diligent examination into the matters of his complaint."
In answer to the request contained in the memorial, that the lands of the trespassers might be declared forfeited, the committee, in concluding their report, replied:— We "conceive that advantages of broken conditions expressed in royal grants, are to be taken in a legal course, by regular prosecutions against the patentee; and that it would be manifestly improper to order any steps for that purpose in the present case, because we consider the grant which his Excellency refers to, as merely void for want of authority in the government of New Hampshire, to issue patents for lands (as has been done in many instances) on the west side of Connecticut river."
In this manner ended the foolish attempt of Governor Wentworth to gratify his feelings of dislike towards the inhabitants of the "Grants," who acknowledged the jurisdiction of New
158 HISTORY OF EASTERN VERMONT. [1770.
York, by persecuting a few harmless individuals, who, if they had committed any wrong by trespass, had been driven to it by the neglect of the Surveyor-General's deputies. It does not appear that the prosecution against the Deans was, continued after the Council of New York had expressed their opinion so plainly on the subject, and it is more than probable that the suit was abandoned, when it was found that the real motives of Governor Wentworth, in pursuing the course he had adopted, were more deserving of reprobation than of praise.*
* Doc. Hist. N. Y., iv. 621-633, 645-660. MS. Deposition of Ephraim Ranney and Silence, his wife, March 23d, 1770; also of Rachel Dean, wife of William Dean Jr. MS. Council Minutes, in office See. State N. Y., 1770, pp. 179, 181, 193, 195-197.