In the yeer 1631, Robert, erl of Warwick, president of the Plimouth company, granted to lord Say and Seal, and lord Brook, all that part of New England, extending from Naraganset river, the space of forty leegs on a strait line, neer the see coast, north and south in latitude and bredth, and in length and longitude of and within all the aforesaid bredth, throughout all the main lands from the western Ocean to the South See. This grant waz confirmed by the charter of Charles II. dated April 23, 1662, with a similar description of the territory.
In 1664, king Charles II. gave hiz brother a tract of land in America, the description of which iz not wholly consistent or intelligible; but one part of the grant interfered with the Connecticut patent, and disputes aroze, which were amicably settled by commissioners in 1683; the line between Connecticut and New York being fixed at Byram river, about twenty miles eest of the Hudson.
In 1680, Sir William Penn obtained from the crown a tract of land, extending from twelv miles north of New Castle, on the Delaware, to the forty third degree of latitude, and from the Delaware westward five degrees of longitude. This grant interfered with the patent of Connecticut, provided the grant to the guvernor and company of Connecticut should be extended west of New York, according to the words of that and the other grants of New England. Mr. Penn took care to gain a just title to hiz patent by bona fide purchases of the Indians, who possessed the soil. But the question iz, whether he had a right of pre-emption to lands before granted to other men; and whether the king's grant to him could be valid, so far az it cuvered lands alredy conveyed by the crown to a company, which had begun settlements upon the grant.
The Pensylvanians contended that, the geografy of this country being little known in England, az all the maps and charts at that time were imperfect and erroneous, it must hav been owing to an ignorance of the distance from the Atlantic to the South See, that the grants were made to run thro the continent: That Mr. Penn had acquired the best of titles to the lands in dispute by fair purchase from the nativ proprietors: And that Connecticut, by a settlement of her boundary with New York, had fixed her western limits, and relinquished all claim to lands west of New York.
While any part of Connecticut, eest of New York, remained unlocated, the inhabitants suffered their claims westward to lie dormant. But about the yeer 1750, the whole of this territory waz located, and the peeple began to think of forming a settlement west of Delaware river. They however knew that the lands were claimed by Pensylvania, and to remoov all douts az to the validity of their own title, requested the opinions of the most eminent council in England, upon their right by charter to the lands in question. They receeved for answer, that the grant to the Plimouth company, did extend to the westward of New York: That the settlement of the boundary line between New York and Connecticut, did not affect their claims to lands in other parts: And that, the charter of Connecticut being of a prior date to that of Sir William Penn, there waz no ground to contend, that the crown could make an effectual grant to him of that country which had been so recently granted to others. This answer waz so decisiv and cleer in favor of their claim, that they proceeded to locate and settle the lands on the Susquehanna river, within the latitude of the Connecticut charter. It seems however that a few scattering settlements had been made within the same latitude, on the opposit side of the river, under Pensylvania locations. The settlers soon came to an open quarrel, and both states became interested in the controversy. The dispute however subsided a few yeers during the war, til finally both states submitted their claims to the jurisdiction of the territory, to a federal court, which waz held at Trenton, in November, 1782. The decision of this court waz in favor of Pensylvania, and Connecticut acquiesced.
Dissatisfied with this decree, the settlers under Connecticut and individual claimants, determined to maintain their right to the soil, which they had possessed more than twenty five yeers; and to submit this also to a federal court. No court however waz ever held for the purpose; the claimants not finding any support from the guvernment of Connecticut. The settlers, amounting to many hundreds, remained upon the soil. Pensylvania, by a precipitancy arising out of an imperfect frame of guvernment, resolved to take possession of the lands, and sent an armed force for the purpose. This mezure waz rash, especially az the principal settlers had taken the oath of allegiance to that state, and were willing, if they could be quieted in their possessions, to becum good and peeceable citizens. Tumults followed; the history of which would be disagreeable to most reeders. At length, Pensylvania passed a law to quiet thoze who were actual settlers before the decree at Trenton, in the possession of their farms, amounting to about three hundred akers eech. The territory waz erected into a county, by the name of Luzerne, in honor of the French minister of that name. Colonel Pickering waz appointed Prothonotary[161] of the county. This gentleman haz suffered much in reconciling parties; but hiz integrity, zeel, prudence, and indefatigable industry, bid fair to meet with merited success in quieting disorders and establishing guvernment.
In this controversy, several questions arize. First, What right had the crown of England to the lands in North America?
I answer, the right of discuvery. This right, however the law of nations may hav considered it, does not in fact entitle a prince or state to the soil, even of an uninhabited territory; much less, of lands possessed by any of the human race. It entitles the discuvering nation to a preference in forming settlements or occupying vacant lands. And this right iz derived rather from the common convenience of nations, or the necessity of some principle by which to prevent controversy, than from any connection between discuvery and a title to property.
Secondly, What right could the grantees derive from a royal grant of lands in America?
I answer, merely a right of pre-emption, or a preference in purchasing the lands of the proprietors, the nativ Indians.