Enquiiy ,.. .grant of the Legislature of Connecticu" to --Jidrew '.lard and Jeremiah Halsey, I Hart ford, 1829 D[ ''I^^ive tJiefi £.aoks fo3i} the fot^nixhgefu Coliegt o^^iM^fyiit^J From the Library of THOMAS MILLS DAY, Y '37 Gift of his children 1927 AN ENaUIRY, CONCJERNING THJE GBAJTT OP THE Eeflfsilatttre of eonnecticut, TO ANDREW WARD and JEREMIAH HALSEY: AND THE HIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THE SAME. HARTFORD : P. CANFIBID, PKINTEK. 1829. obligation is cast upon him, to wit, to make restitution of the consideration he may have received. And here we remark, that this is the extent to which the state has gone in .relation to the contract with Ward and Halsey, without iocJuding costs and interest. If the cases are similar, we admit that llie state is tinder no obligation to do any thing more ,fi)r any of the members of the Gore Company. In the case suppos ed, the contract was lawfully made, but by subsequent events its performance became unlawful. The contract with Waxd and Halsey was lawful and no subsequent event as between the parties has impugned, in any degree, either its mco-ality, or legality, nor has any event occurred, or state of things ex isted, to justify the state in renouncing the Gore. The eon- sequence is, ample justice has not been done to the Gore Company. The Gore Company has indeed long since beep dissolved, but some few of its members etiU survive the lapse of time. They, or rather one of them, for whose sake tteeee enquiries are made, we confidently believe is entitled to fur ther consideration, whether we adliere to law or appeal to equity, or submit ourselves to the mandates of morality. But he thinks not of the value of the Gore lainds as on a contract broken, nor of the price for which the ^Sore was renounced.. He is sensible that high interests were at stake, and that a degree of necessity existed, and led the way to the saita-ifice of individual rights on the altar of the re,piiibUc, nor can be in the full blaze of glory which that sacrifice still sheds upon ti)^ state, but participate in the compjacency enjoyed by the pub lic in contemplating the fund gathered from its Ei&he^i ; and happy will he be if the moral culture which the energies of that fund have already diffused, should restofie to hiea a porti^s ofhis rights. Feeling as we do, that this appeal is made to tim supreme power of the state, over which no earthly tribunal can hold jurisdiction, in his behalf (whose petitjon is pending,) the iMi- guage of supplication is adopted. We solicit for one old, poor, and worn wijlj^ care, who once had prospects that fortune's minions might haye prii^d, wha .claimed a domain in the Gore sufficient for tjbousands I9 dwell upon, in affluence and ease. — But these are gone. Whatever course may be adopted, whether it be to con sider the rights of the Gore Company as upon a contract broken, without any equitable ameliorations, or to sdmii the intervention of high and important public interests, not in AN EJVaUIRY, &c. The following is a copy of the Deed of the State of Connecticut to Andrew Ward and Jeremiah Halsey. " State of Connecticut, one of the United States of America — " To all to whom these presents shall come, GREETING: " KNOW YE, That I, Samuel Huntington, Governour, and- Commander in Chief, in and over the State of Connect icut aforesaid, by virtue of the powers and authorities to me given and granted by the General Assembly of said State of Connecticut, by an act of said Assembly passed at their ses sion begun and held at Hartford, on the second Tuesday of May, in the year of our Lord one thousand seven hundred and ninety-five, me thereto enabling and directing, for, and in consideration of the sum of forty thousand dollars, well and truly secured to be paid to said State of Connecticut by Andrew Ward and Jeremiah Halsey, Esquires, both of said State of Connecticut, the said Samuel Huntington, in the name and behalf of said State, and Governour thereof, doth by these presents, release, remise and forever quit-claim un to the above named Andrew Ward and Jeremiah Halsey, Esquires, their heirs and assigns, all the right, title, interest and estate, which the State of Connecticut hath in and to a certain tract or parcel of land, bounded and described as fol lows, viz : said land situated and lying within the original charter limits of this State, on the north of, and adjoining up on the north line of Pennsylvania, as the same is now claimed by the Commonwealth of Pennsylvania, and south of the original charter south line of the Commonwealth of Massa- chusetts, extending from the north-east corner of said Com monwealth of Pennsylvania, and abutting on the north line of Pennsylvania, as aforesaid westward, until it comes to the east line of a tract of land sold by these United States to said Commonwealth of said Pennsylvania, and bounded northerly on the south line of the Commonwealth of Massachusetts, as before expressed. " To have and to hold, unto them, the said Andrew Ward and Jeremiah Halsey, Esquires, their heirs and assigns for ever ; so that neither the State of Connecticut, nor any per son or persons from, by, or under the said State, shall, or by any means hereafter, have, claim, challenge, or demand of any estate, right, title or interest of, in or to the premises, or any part thereof, but from all and every action, right, estate, title, interest, or demand of, in or to the premises, or any part thereof, shall be utterly excluded and debarred forever, by these presents. " In witness whereof, the State of Connecticut hath caused these letters to be made patent, and signed by the Gover nour, and the public seal of said State to be affixed this 25th day of July, in the year of our Lord one thousand seven hun dred and ninety-five, and in the '20th year of the Indepen dence of the United States of America. "SAMUEL HUNTINGTON." Immediately upon the execution of the Deed* of which the above is a Uteral copy, Messrs. Ward and IJalsey admitted sundry persons to become partners in the purchase, and from that time they and their associates were denominated the Gore Company. The consideration in the deed, $40,000, was paid, in the building of the State-House in the City of Hartford. The Company also entered upon and took aU ne cessary measures to bring their lands into market. Sundry actions of ejectment were instituted before the Circuit Court of the United States, for the District of Connecticut, against people in possession, claiming title under the State of New- York. They were also compelled to defend against a peti tion for an injunction against the prosecution of these suits, before the Supreme Court of the United States in Phila delphia ; in which the petitioners claimed that the Circuit Court in the District of Connecticut ought not to hold juris diction, because the lands in question belonged to, and were situated in the State of New York, and not in the District of Connecticut. The Court, however, was of opinion, that the lands were situated in the District of Connecticut, and that the Federal Court there had jurisdiction. This event gave new vigour to the Gore Company, and everything was prepai-ed,in the fullest confidence of success, for the final trial of the ejectment suits, which, in consequence of an act of the Legislature of the State of Connecticut in 1800, were abated, upon the plea, "that since the last con tinuance of those actions, the State of Connecticut had re nounced for ever, for the use and benefit of the United States, and of the several individual states who may be therein con cerned respectively, and of those deriving claims or title from thein, or any of them, all the territorial and jurisdictional claims whatever, under any grant, charter or charters, what soever, .to the soil and jurisdiction of any, and all lands what ever, lying west ward, of the east line of New- York." Here the hopes of the Gore Company terminated, and all their prospects of gain under the grant of the State vanished in a moment ; indeed they had already paid the consideration in the deed, cuid in addition to that sum had expended the further sum of $20,000 in prosecuting for, defending, and bettering their supposed estate, and both these sums, as well as the expected profits of the purchase, were wholly lost to them, or rather now depended solely on the voluntary and sove reign will of the State. After the trial of the injunction, and before the cession by the state, sundry new members were admitted into the Gore Company, and others were desirous of being admitted, upon an estimation of the value of their lands, at the sum of $250,000. The act above referred to, and the deed of cession was as is recited in the Deed of the United States to the State of Connecticut, confirming in the latter the title to the Western Reserve as follows, viz. " John Adams, President of the United States of America : — To all who shall see these preserits, GREETING : " WHEREAS, The Congress of the United States, at their session begun and holden at the city of Philadelphia in the State of Pennsylvania, on Monday, the second of Decem ber, 1799, passed an act to authorize the President of tbe United States to accept for the United States, a cession of jurisdiction of the territory west of Pennsylvania, commonly called the Western Reserve of Connecticut, in the words following, viz. " ' Be it enacted by the Senate and House of Representa tives of the United States of America, in Congress assem bled, that the President of the United States be and he here by is authorized to execute and deliver letters patent, in the name and behalf of the United States, to the Governour of the State of Connecticut, for the time being, for the use and benefit of the persons holding and claiming under the State of Connecticut, their heirs and assigns forever, whereby all the right, title, interest, and estate, of the United States to the soil of the tract of land lying west of the west line of Penn sylvania, as claimed by the State of Pennsylvania, and as the same has been actually settled, ascertained, and run, in con formity to an agreement between the said State of Pennsyl vania, and the State of Virginia, and extending from said line westward, one hundred and twenty statute miles in length, and in breadth throughout the said limits in length, from the completion of the 41 st degree of north latitude, un til it comes to the 42d degree and 2 minutes north latitude, including all that territory commonly called the Western Re serve of Connecticut, and which was excepted by said State of Connecticut out of the cession by the said State heretofore made to the United States, and accepted by a resolution of Congress of the 14th of September, 1786, shall be released and conveyed as aforesaid to the said Governor of Connecti cut, and his successors in said office, for ever, for the purpose of quieting the grantees and purchasers under said State of Connecticut, and confirming the titles to the soil of the said tract of land. Provided, however, that.such letters patent shall not be executed and delivered, unless the State of Con necticut shall within eight months from passing this act, by a legislative act renounce for ever, for the use and benefit of the United States, and the several individual States, who may be therein concerned respectively, and all those deriving claims or titles from them or any of them, all territorial and jurisdictional claims whatever, under any grant, charter or charters, whatever, to the soil and jurisdiction of' any and all lands whatever, lying westward, northwestward, and south- westward of those counties in the State of Connecticut, which are bounded westwardly by the eastern line of the State of New York, as ascertained by agreement between Connecti cut and New York, in the year 1733, excepting only from such renunciation, the claim of said State of Connecticut, and of those claiming from or under the said State, to the soil of said tract of land herein described under the name of the Western Reserve of Connecticut. And provided also that the said State of Connecticut shall within the said eight months from and after passing this act, by the agent or agents of said State, duly authorized by the Legislature thereof execute and deliver to the acceptance of the said President of the United States, a deed expressly releasing to the United States, the jurisdictional claim of the said state of Connecticut to the said tract of land herein described under the name of the Western Reserve of Connecticut, and shall deposite an exemplification of said act of renunciation under the seal of the said State of Connecticut, together with said deed releasing said jurisdiction in the office of the Department of State of the United States ; which deed of cession, when so deposited, shall vest the jurisdiction of said territory in the United States : Provided, that neither this act, nor any thing contained therein, shall be construed so as in any manner to draw into question the conclusive settlement of the dispute between Pennsylvania and Connecticut by the decree of the Federal Court at Trenton, nor to impair the right of Pennsyl- vania or any other state, or of any person or persons claiming under that, or any other state, in any existing dispute con cerning the right either of soil or jurisdiction, with the State of Connecticut. And provided also, that nothing herein con tained shall be construed in any manner to pledge the United States for the extinguishment of the Indian title to the said lands, or further than merely to pass the title of the United States thereto. " And whereas the General Assembly of the State of Con necticut, at their session holden at Hartford on the second Tuesday of May, 1800, passed the following act, viz. ' At a General Assembly of the State of Connecticut, holden at Hartford, on the second Tuesday of May, 1800. An act re nouncing the claims of this State to certain lands thereiu mentioned : Whereas, the Congress of the United States, at their session begun and holden in the city of Philadelphia, on the first Monday of December, in the year 1799, made and passed an act in the words following, viz. An act to authorize the President of the United States, to accept, for the United States, a cession of jurisdiction of the territory west of Penn sylvania, commonly called the* Western Reserve of Connec ticut." (Then follows an exact copy of the above recited act of the Congress of the United States, and after that as fol lows.) " Therefore in consideration of the terras, and in com pliance with the provisions and conditions ofthe said act, , " Be it, enacted by the Governor and Council and House of Representatives in General Court assembled, that the State of Connecticut doth hereby renounce forever, for the' use and benefit ofthe United States, and of the several individual states, who may be therein concerned, respectively, and of all those deriving claims or titles from them, or any of them, and ter ritorial and jurisdictional claims whatever, under arty grant, charter, or charters, whatever, to the soil and jurisdiction of any and all lands whatever, lying westward, northwestward, and southwestward of those counties in the State of Connec ticut, which are bounded westwardly by the eastern line of the State of New York, as ascertained by agreement between Connecticut and New York, in the year 1733 ; excepting only from this renunciation the claim of said State of Con necticut, and of those claiming from or under the said State of Connecticut, to the soil of said tract of land, in said act of Congress described, under the name of the Western Reserve of Connecticut. "And be it further enacted, that the Governour of this State, for the time being, be, and hereby is empowered, in tbe name and behalf of this state, to execute, and deliver, to tbe accep tance of the President of the United States, a deed of the form and tetior directed by the said act of Congress, expressly* releasing to the United States the jurisdictional' claims ofthe State of Connecticut, to all that territory called the Western Reserve of Connecticut, according to the descriptitwi thereof in said act of Congrfess,in as full and amfde ataanner as therein is required;" {Then follows a declaration that the Governor of Connecticut on the 30th day of May, 1800, released'to the President of the United States the jurisdictional claim of the state to the Western Reserve, and that an exemplification of the act of renunciation and said release was accepted on the 9th day of June, 1800, and thereupon the instrument con cludes with a release on the jpart of the United States of the right of soil to the lands in the Western Reserve. See State* Rec. 5 Vol. p. 178. In the further prosecution of our enquirifes, it will be ne- cessary to bear in mind what was renounced and conveyed, and what was received by the State of Connecticut under the deed of the United States above recited, and the act and deed ofthe State copied therein. The Colony of Connecti cut, under lhe charter of Charles II. dated 1662, granted all the lands " bounded on the east by Narraganset River, com monly called Narraganset Bay, where the said river falleth into the sea ; and on the north by the line of the Massachu setts Plantation ; and on the south by the sea ; and in lon gitude as the hue of Massachusetts Colony, running from east to west, that is to say, from the said Narraganset Bay on the east, to the south sea on the west." No doubt was ever entertained but that the Gore and Western Reserve, as well as all the lands further west, extending to the Pacific Ocean, were contained within these bounds. The lands east in Con necticut, as well as the lands west of Connecticut River to the west line of Litchfield County, and also a part of the Gore lands were taken up and settled by the Colony of Con necticut upon this title. Westward of the Gore, neither the- Colony or the State of Connecticut had, anterior to the trans fer of the Gore to Ward and Halsey, made any settlements, or estabhshed any government. The title of the state to the Gore lands, was therefore strengthened by actual possession, and if that title could not have been defended, what claim could she have set up to the Western Reserve ? The lands west of the Mississippi, by the revolution of empires, had long been lost to her. On this side, she had to contend with a multi tude of difficulties. The assigns of the Duke of York in one place had set up their claims, and in another the descendants of William Penn, and since the adoption of the Fede ral Constitution the United States had become parties to the strife. The territory which did not belong to any of the States belonged to the United States. Pennsylvania and New York each came in and carved " a monstrous cantle out." and each denied the validity of the Connecticut title, while the United States, jealous, as we have at all times seen, of the claims of individual states, stood ready upon the defeat of title to lands in the actual possession ofthe state, to claim the balance of king Charles' Patent, where no possession had ever been taken, and over which the jurisdiction of the state had never been extended.* New York had declared a war * The ejectment suits were for lands lying in the county of Westmoreland. In 1776, the United States relinquished to Pennsylvania the land lying west 2 10 of extermination against tiie settlers upon the Gore under the title of Connecticut ;* and it was manifest that the interest of the state to lands not in possession, depended in a good degree upon the result of the trial of her title to the Gore. A negotiation was therefore opened, and resulted in the le- -gislative acts -and the execution of the two deeds above re cited. 1st. On the part of the state, the act by which she " renounced to the use and benefit of the United States, and of the several individual states who might be therein con cerned respectively, and of all those deriving claims or titles from them or any of them, all territorial and jurisdictional claims whatever, under any grant, charter or charters what- of the line, as described in the deed to Ward and Halsey, and east pf the Reserve. This was deemed an infraction of the rights of Connecticut. Afterwards, in 1786, with a view no doubt to eompromit the United States upon the claims of Connecticut, under her charter, she prevailed on Congress to accept a deed of cession of the lands west of the Reserve. She also in 1788, sold a tract of land on the Reserve, measuring three miles by two antJ a half miles, but did not extend her jurisdiction over this tract, and after selling in 1796, the remainder of the Reserve, she refused upon the applica tion ofthe purchasers to establish her government there. * Upon hearing of the grant to Ward and Halsey, the legislature of New York resolved " to oppose and prevent all entry, sale, or purcha,se of thos;e lands, under any claim or pretence of title from the State of Connecticut ," and directed the Governor to make proclamation as follows, which was done in February, 1796, viz. — " Now therefore, I do expressly charge and com mand all the magistrates and dther citizens of this state, to oppose and pre vent, by all legal means in their power, any such intrusion, entry, sale, or purchase, as are mentioned in the above resolution ; and to give due notice of all such practices as may come to their knowledge ; to the end that proper measures rnay thereupon be immediately taken, to maintain the authority of the laws, and to bring the oifenders to an exemplary punishment. " JOHN JAY." And on the 1 1th of March following, they enacted, " That if any person or persons shall intrude or settle on any ofthe waste or ungranted lands of this state, under or by virtue of any title or claim derived from Connecticut, they shall be considered as holding such lands under a foreign title, against the right and sovereignty of the State of New York. And it shall be the duty of the then Governor to remove by such means, and in such manner as he shall judge proper, all such persons so intruding, and to cause all the buildings of such persons to be destroyed ; and for that purpose in his dis cretion to order out any portion of the militia from any pa,rt of thi^ state, &c. and that any person who shall bargain, sell, or convey, or by any way, or means obtain, get or procure any pretended right or title, or make or take any promise, grant, or covenant, to have any right or title, of any person or persons, in or to any lands, under the said protended title frora tibe State of Connecticut, shall be deemed guilty of a public offence, and h^h misde meanour against the people of this State, and may be prosecuted for the same, and be punished by fine and imprisonment in the discretion of the Court," &c. II ever, lying westward" of the east boundary of the state of Nevv York, excepting therefrom the Western Reserve ; and 2nd. The deed releasing to the United States the jurisdic tional title to the Reserve. 3rd. The deed of the United States to the State of Connecticut. The intention of the parties to these instruments cannot be misunderstood. Had the state a right to convey her jurisdictional title without consent of her subjects to be thereby abandoned ? We should blush to hear it asserted that Connecticut is not a free, sovereign, and independent state. An attempt to reason upon this point would be an insult to the under standing as well as patriotism of those whose attention we wish to engage. Of the duties of such a state, a learned commentator remarks, " In the act of association, in virtue of which a multitude of men form together a state or nation, each individual has entered into engagements with all to pur sue the common welfare It is manifest that these recipro cal engagements can no otherwise be fulfilled, than by main taining the political association. The entire nation is then obliged to maintain that associatioti. — A body of a nation cannot then abandon a province, a town, or even a particular person, who has done his part; unless obliged to it from ne- cessity^ or unless it is made necessary by the strongest rea sons founded On the public safety."* Again, " A nation oUgbt to preserve itself; it ought to pre serve all its members ; it cannot abandon them ; and it is under an obligation to them^ of maintairimg them in the rank of members of the nation. It has not a right to traffic with their rank and Uberty, on account of any advantages it may propose itself from such a negociation. They are united to the society to be its members ; they acknowledge the author ity of tbe state to promote in concert their common welfare and safety, and not to be at its disposaly like a farm or an herd of cattle."* No such necessity as is above spoken of existed to justify the renunciation. Whatever the necessity was, it Was no more than the turning ofa trial balance, and in a few par ticulars might have been fully set down in a day book and leger. It was kideed a matter of great interest to the state but in principle only, trafficking in a farm and herd of cattle, for the sake of a proposed advantage. These principles have been recognized at all times by nations. *-VatteI. pp. 63, 64, id. pp. 179. 180. 12- and supported by enlightened civilians. The framers of the Constitution of the United States felt the force of them, and wisely for the preservation of the Union, made it a matter of stipulation by the several states, that they should not renounce or transfer their jurisdiction without consent of Congress. By art iv. §4, of the constitution, it is made the duty of Con gress to protect each state from domestic violence ; and § 3, prohibits the formation of new states without the consent of Congress. Neither the several states, nor the people of the several states, either severally or combined, therefore, can form new states, nor can a necessity exist to justify the re nunciation of jurisdiction by any state while the United States are able to exercise the powers granted to them ; nor can such a renunciation be made with the consent of Con gress, without the formation of a new state so long as the abandoned are capable of maintaining their natural right upon a renunciation without necessity, to form a new state, inde pendent both of the state to which they may be ceded, and of the United States. These provisions of the Constitution create no new rights either in the states, or the people of the states. They still remain under the control of that law which, while it admits a severance by mutual consent, denies the power of govern ments to renounce their subjects, and restrains the people fi-om desertion. The consent of Congress having been obtained, cannot therefore affect the result of our enquiries. Had the state a right to renounce her territorial title to the premises described in the act ? Having previously conveyed the Gore, was it not wrong to incumber the title of it by a subsequent grant or renuncia tion ? Was any thing to pass by the act ? The Reserve was specially excepted from its operation, and on this side of the. Reserve, what remained under the charter that the state had not already granted ? We will now inquire into the intent with which these laws were enacted, and these deeds were executed. We think they especially evince an intention by the parties enacting and contracting to defeat the operation of the deed to Ward and Halsey. The deed of the United States recites in full the enactment and deed of Connecticut. Its parts are, 1st, The act of the Congress, prescribing the form, and manner, and terms, and conditions on which the United States would accept the re- 13 nunciation of the jurisdictional and territorial title of the Gore, and a release of the jurisdictional title to the Reserve. 2d, The act of Connecticut, wherein is recited the act of Con gress, declaring the assent of the state to the terms and con ditions prescribed by the Congress, and renouncing the juris dictional and territorial title of the state to all lands west of the east line of the State of New York, excepting the West- em Reserve. Then follows a section, authorizing the Gover nor to release to the United States the jurisdictional title of the State to the Western Reserve.* 3d. A declaration that , the Governour of Connecticut, on the 30th day of May, 1800, executed to the President a deed releasing to the United States as prescribed by said act of Congress, the jurisdictional title to the Reserve. And, 4th, a release by the President of the United States to the State of Connecticut of all territorial title to the Reserve. Had the parties intended no more than what would have been accomplished by a commen quit-claim, why was not that form used ? Or if nothing more was intended, why do we find diflferent modes adopted for the transfer of the same kind of things. The territorial conveyance of the Reserve by the United States, is by release, while Connecticut re nounces her territorial, as well as jurisdictional title to the Gore, by a Legislative act, and releases by deed her jurisdic tional title to the Reserve. There is in the act of Connecticut not one of the usual terms, remise, release, quit-claim, give, grant, bargain, sell, or confirm, to convey the Gore. The ef fect of the law depends solely upon the import and meaning of the word renounce — a word never used in conveyancing, and having no signification in common with any words that are. It may be said that common convenience has introdu ced a imiformity in the language of conveyances, but that that uniformity is not absolutely necessary. We admit that a set form of words was not necessary, and that any words implying a transfer would have been sufficient. To give means to transfer, and so does each of the other words, * In 1786, Connecticut ceded all claims to the territory west of the Re serve, or in the language of the act, " to certain western lands, &o. whereby- all the right, title, interest, jurisdiction, and claim, of the State of Connecti cut to the lands lying west of said line, to be drawn as aftermentioned, one hundred and twenty miles west of the western boundary line of the Com monwealth of Pennsylvania." The Gore, therefore, was the only territory affected by the act of renunciation, except the lands claimed by Pennsylva nia, lying between that and the Reserve, 14 grant, bargain, sell, remise, release, and quit-claim ; confirm. means to ratify, and is never used alone ; other words having the same signification, would have had the same effect. To renounce the world and all its vanities is a christian duty, which, being performed by ever so many, would not increase the store of others. A man may renounce, that is, abandon, his possessions, but no one would thereby acquire a title to them ; so' one may renounce his title, or his claim of title, but who would consider that he thereby gave assurance of title to another. The whole of the Gore being claimed by New York, and the grantees of that state, the intention of the act must have been to remove all incumbrances to their title. For that purpose the state renounced for the use and benefit of New York, and those claiming under New Yorkj and made use of the strongest language possible to accomplish it. The state did not grant the title and interest that was in her to the Gore, but she renounced all claim under the charter of Charles, and other charters which she might have. Without a history of the Gore, and looking into this instrument mere ly, who would have inferred that the state ever had seizin, either in law or in fact. The reverse would have been infer red, because no title was conveyed, no possession was given up ; a claim only was spoken of, and that claim^Was renoun ced or abandoned. That jurisdiction, which is not a usual subject, as Well as territory. Was conveyed, could not have been a reason fof so entire a departure from the use of common terms because we find the word release is used to convey the jurisdictional title to the Reserve. This intent appears also from the description of the pro perty conveyed, the exception out of that property, and the proviso. The subject conveyed is described in the Connec ticut act tobe all territorial and jurisdictional claims, what.' ever, under any grant, charter, or (Charters ¦tuhatever, to the soil and jurisdiction, of any and all lands whatever, hiing, ^c. with, an exception from the renunciation thereof of the claim of Connecticut and those claiming under her to the Reserve. The proviso was prescribed by, and is a part of the act of the United States, and is in these words, "that this act, nor any thing contained therein shall be construed s& as in any manner to draw into question the conclusive settlement of the dispute between Pennsylvania and Cmi- necticut. bv the decree of the Federal Court at Trenton, nor 15 to impair the right of Pennsylvania, or any other state, or any person or persons claiming under that or under any other state, in any existing dispute concerning the right either of soil or jurisdiction, with the State of Connecticut, or with any person or persons claiming under the State of Connecticut." Were the rights of Ward and Halsey to the Gore saved by this proviso ? With the decision of the Federal Court at Trenton, the Gore Company had no concern, and after this act Connecticut could have had no interest or ability to draw in question that dispute, but New York might have had. She it will be remembered, was to have her claims satis fied, and what Connecticut had claimed of Pennsylvania, New York had claimed of Connecticut, and now as Connec ticut by a supreme act of sovereignty, was to renounce, not convey her title, the title of the Duke of York being older than that of Pennsylvania, might revive the dispute settled at Trenton between Connecticut and Pennsylvania, but New York, by this proviso was prevented from reviving the matter. Connecticut being a party to this proviso, we cannot by any reasonable construction conclude that she or any persons claiming under her were intended to be embraced in the benefit of the words, the right of Pennsylvania or any other state or any person or persons claiming under that or any other state in any existing dispute concerning the right eith er qf soil or jurisdiction with the Stat'- of Connecticut. Thus far the simple interpretation of the proviso is, that the righis and claims of all states, and of all persons claiming under them, except the State of Connecticut, and persons claiming under that state should not be impaired. Nor can the latter clause of th& proviso, " or with Emy person or per sons claiming under the State of Connecticut," vary this construction ; it will still be a proviso saving the rights of States and people other than the State of Connecticut and those claiming undeirher. That it refers to existing disputes with those claiming under the Connecticut title, is manifest, but it was made for the benefit of tho^e who claimed adverse ly to those who claimed under the Connecticut title, which claims might as well have been upon a covenant broken, as upon an ejectment. In short the proviso could not have been made in behalf of . Connecticut, and those claiming under her, because from that time she renounced all her claims, and of those claiming through her under the charter ; and because such a cxinstruc- IG tion would make the proviso repugnant to, the act by which the state renounces all territorial and jurisdictional claims whatever to the soil and jurisdiction ofthe lands in question, excepting only from such renunciation the claim of said state, and those claiming from or under her to the Reserve. The exception would thereby be extended to the whole sub ject matter renounced, and the act be made to read, Con necticut renounces all claims except her claims, and those claiming under her. Again, the uses for which the renunciation is made, and the things renounced, evince an intention to defeat the title of the Gore Company. They were made, 1st. to the United States ; 2d. To the several states ; and 3d. To all persons claiming from or under the several states or either of them. New York and those claiming under her, claimed the whole of the Gore, and the renunciation was not of what Connecticut then under existing contracts had, but of all right, title, and claim, which the charterof kingCharleshad conferred upon her. Hence arose the necessity of using terms unknown in con veyances. Terms of contract or of compact were insufficient. An act of supreme power was to be performed, and lan guage implying neither concert nor agreement was required. Having seen that the state, by a sovereign act, abandoned all claims, both jurisdictional and territorial to the Gore, whether acquired by charter or otherwise, without airy pro^ vision for, or saving ofthe rights of the Gore Company, and thereby defeated her former grant to Ward and Halsey, we are next to enquire, what were the benefits resulting there from, to the state. We cannot suppose that at the time the state conveyed the Gore to Ward and Halsey, she entertain ed any doubt as to the goodness of her title to the Reserve, or that she then contemplated transferring the jurisdictional, and much less the territorial title to the Gore, either to the state of New York or to the United States. These we ap prehend were ideas subsequently suggested by the exigencies of the case ; especially we think so, when we consider that the Gore was nearly equal in extent, and when conveyed to Ward and Halsey, was comparatively of a greater value than the Reserve.* But the Reserve was the consideration or * On examination of the various boundaries of the claimants to the Gore, and of the lands bordering thereon, we find that the sale to Ward and Hal sey extended from the northeast comer of Pennsylvania, about 240 miles to a tract of land next east of the Reserve, sold by the United States to Penn sylvania, and in width from the north line of Pennsylvania to lat. 41" 2" 17 equivalent received by the state for the renunciation of the Gore, and however great the losses and afflictions with which the Gore Company were thereby visited ; yet when the bank ruptcy and distress of its members shall have been forgotten, the page of History will extol the wisdom and the goodness of those who secured it ; and to the latest period children in our primary schools will be taught to call them public bene factors. The act which secured the Reserve to the State of Connecticut, will be viewed through its benefits rather than the vsTongs it did to others ; and those who performed it will ever be identified with the establishment of the school fund ; and thus to be identified is to be secure of fame. The con sideration received by the state for abandoning the Gore, may with propriety therefore, be estimated at the sum for which the Reserve was sold. The grant to Ward and Halsey having totally failed, in consequence of the abandonment of their rights by the state, whose duty it was to protect them, and the state having re ceived a great benefit therefrom, what remuneration ought to be made to satisfy the demands bf justice ? In the prosecu tion of this enquiry a more minute investigation of the condi tion of the parties and their representations, before and at the time" the contract was entered into, as well as the terms and subject matter of the contract, is necessary, fully to compre hend the intent of the parties and the true construction of the contract. Indeed were we to confine ourselves to techni cal legal rules, we should be obliged substantially to pursue this course, and having by these rules found the construction ofthe contract, it would be and ever remain uninfluenced by any changes and revolutions that might have occurred after the making of the contract. We are not however to suppose that subsequent events can in no case and in no degree absolve the parties from the execution of a contract, or from being responsible in damages for a breach of it. Such a conclusion would be too nice for the moral condition of man. That which is lawful and moral to-day may to-morrow be both un lawful and immoral. In such a case the obligor may and even is required to refrain from performance ; but a new north. In comparing the value of this territory with the Reserve, it must be remembered that the county of Westmoreland, on the Gore, was much of it settled. The United States sold the landa mentioned lying between the Reserve and the Gore as here described, without the consent of Connecticut, and one object of the renunciation, was to quiet the state of Pennsylvania in her title to that land. 18 obligation is cast upon him, to wit, to make restitution of the consideration he may have received. And here we remark, that this is the extent to which the state has gone in relation to the contract with Ward and Halsey, without including costs and interest. If the cases are similar, we admit that tiie state is under no obligation to do any thing more for any ofthe members ofthe Gore Company. In the case suppos ed, the contract was lawfully made, but by subsequent events its performance became unlawful. The contract with Ward and Halsey was lawful and no subsequent event as between the parties has impugned, in any degree, either its morality, or legahty, nor has any event occurred, or state of things ex isted, to justify the state in renouncing the Gore. The con sequence is, ample justice has not been done to the Gore Company. The Gore Company has indeed lotg since been dissolved, but some few of its members still survive th,e lapse of time. They, or rather one of them, for whose sake these enquiries are made, we confidently believe is entitle to fur ther consideration, whether we adliere to law or appeal to equity, or submit ourselves to the mandates of morality. But he thinks not of the vahie of the Gore lands as on a contract broken, nor of the price for which the Clore was renounced. He is sensible that high interests were at stake, and that a degree of necessity existed, and led the way to the saicrifice of individual rights on the altar ofthe re,public, nor can he in the full bkize of glory which tbat sacrifice still sheds upon the state, but participate in the comfJaceocy enjoyed by the pub lic in contemplating the fund gathered from its ci&hes ; and happy will he be if the moral culture which the energies of that fund have already difl^used, should restore to him a porti^JB ofhis rights. Feeling as we do, that this appeal is made to iJbe supreme power of the state, over which no earthly tribunal can hftld jurisdiction, in his behalf (whose petitioo is pending,) the J»n>- guage of suppUcation is adopted. We solicit for one old, poor, and worn 'w'Kh care, who once had prospects that fortune's minions might have priis^d, who claimed a domain in the Gore sufficient for tjljousaiids i^ dwell upon, in affluence and ease. — But these are gone. Whatever course may be adopted, whether it be to con sider the rights of the Gore Company as upon a contract broken, without any equitable ameliorations, or to admit the intervention of high and important public interests, not in contemplation of the parties at the time ol' contracting, ua wresting the case from tlie ordinary rules of law and equity, it is equally important to ascertain the true construction of the contract. It has been said that the deed to Ward and Halsey was only a quit-claim. To this we reply, that at the time of the grant, Connecticut owned, and was in the actual possession of the Gore, and after giving the deed to Ward and Halsey, by a sovereign act renounced their rights under that deed, saving the rights of all other claimants, whether states or individuals, to the exclusion of all who claimed under Con necticut, and accompanied that renunciation with both the jurisdictional and territorial possession. It has also been said that Connecticut had only a doubtful title, and, that it was manifest the parties so considered it, frora the fact that a deed of quit-claim only was given. In the absence of all proof, we shall undoubtedly deny this in ference. Our daily experience is opposed to it. We often hear men, after expressing the fullest confidence in their title, refiise giving a warrantee, assigning this plain reason, that they do not choose to obligate themselves for things about which they have no knowledge, and that for a false r^resemtation of things with which they are acquainted, they are liable without a warrantee. But we have no occasion to call in conjecture to our aid ; the proof is ample, and readily made from the solemn records Of the state. And it ought to be remarked and borne in mind, that after the grant to Ward and Halsey, no new claim appeared adverse to the title of Connecticat, but all the claims that were then made by the State of New York or others, had for a series of years before the granrt, beea «rged, and on the part of Coanecticut had been repelled by a claim of paramount title, both territorial and jurisdictional. The precise period when she took actual possession of tbe Gore- k. uncertain, but that it was taken be fore I77i, is manifest, fro*M: a r^olve of the General Assem bly, passed in that y«ar, as well as from the fact, tbat in Jan uary 1774, a town was incorporated there by the name of Westmorelaad, and annexed fo the county of Litchfield ; and the population, in 1776, bad becom so great, it was then d^ecn^ aecessary to constitute a county there, which also took the name of Westmoreland. From 1774 until the re;- nnneiatiQn of the territoiy in 1800^ freemen ofthe state were there admitted, representatives to^ the General Assembly 20 were there chosen, and resident justices of the peace and judges were commissioned and exercised their jurisdiction ; indeed Westmoreland was to all intents, a component part of the State of Connecticut. During all these years, the Legislature of the state were by no means ignorant of the pretended claims of New York, Massachusetts, and Pennsyl vania, but took repeated opportunities to declare, in their cor porate capacity, the undoubted right of the state to the terri tory, and a determined resolution, on the part ofthe Govern ment, to defend that right against all threatened encroach ments. In May, 1771, the Legislature resolved, "that the lands west of the river Delaware, and in the latitude of that part of the colony westward of the province of New York, are well contained within the boundaries and description of the charter of King Charles II. to this colony.'' And in Oc tober, 1773, " That this Assembly at this time, will assert the claim to their lands contained within the limits and boundaries ofthe charter of this colony, which are westward ofthe pro vince of New York." In January, 1774, the Legislature passed a resolve, " au thorizing and desiring the Governor to issue a proclamation forbidding any person or persons, whatever, taking up, enter ing upon, or settling, any of the lands contained or included in the charter of this colony, lying westward of the province of New York, without liberty first had and obtained from the General Assembly of' this colony ;" and enacting also " that the inhabitants within the bounds of this colony on the west side ofthe river Delavyare be, and they are hereby made and constituted a town, with like powers and privileges as any other town in this colony by law have."* Thus at the time when the grant was made to Ward and Halsey, the state had not only for a long series of years, claimed title, but had also been and then was in the actual possession of the territory, exercising all the immunities of government over it. Are we then to doubt whether it was the intention of the state to grant to Ward and Halsey " all the right, title, interest and estate," in the Gore, in as full and ample a manner by the words " re mise, release, and forever quit-claim," as though she had used the terms, " give, grant, bargain, sell and confirm ?" She had in the most solemn manner, often declared, and by the re- * The county of Westmoreland, which included only a small part of the Gore, contained about 297,000 acres of land. cords of her Legislature made those declarations permanent and public evidence, that her right to the territory was abso lute, and in accordance therewith, had also from year to yeaf made its inhabitants freemen, judges, and legislators. It was under these representations, accompanied by the solemn de claration of the state, that she would still maintain her rights, that Ward and Halsey were induced, after many rejected offers of a less sum, to obligate themselves to pay to the state $40,000 for all her right, title, and interest in the Gore. May we not now assert, and shall we not be corroborated in the assertion, by the testimony of all who were conversant with the transaction, that the Legislature which directed the deed to be executed to Ward and Halsey, acted upon the ground, that the power of the state over the territory, was supreme, and her right to the soil incumbered only by Indian titles, and these subject to pre-emption, and such rights as individuals had acquired under the title and laws of this state, and that with these three exceptions, the whole right, title, and interest of the state in the Gore, by virtue of her charter, were to have been conveyed to them. Nor can it be believed that Ward and Halsey expected less. Had the state then declared that they had no right to govern, and no right to the soil of the territory, can it be supposed that Ward and Halsey would have made the contract, or had the state then but intimated that having executed the deed, and received the $40,000, she would thereupon dissolve her towns and counties, disfranchise her freemen, revoke the commissions of her judges and justices, and finally abandon the whole terri tory to a foreign power, even that power who had declared, that all the inhabitants of the territory, who had taken title under Connecticut, and erected houses, should he declared puhlic enemies, have their dwellings demolished, and them selves punished, at the discretion of the judge for high mt,y their agents, Thomas Bull, Joseph Woodbridge, Ezekiel "Williams, Jr. Spencer Whiting aed John Russ, dated May 1805. During the session of tbe Assembly, by which the grant was made, three of these agents, alarmed by the violent opposition to the claims of the Company, and fearing they were then and forever to be postponed, proposed tp the legis lature in behalf of their constituents, to accept the sum of $40,000, .accompanying however that proposition, with the declaration that it was made — not from their estimate of the value of the property, or a remuneration of their expenses.^'^ But Bull and Woodbridge refused to join in the proposal, and so many were dissatisfied, the Company refused to comply,and never did comply with the conditions of the grant. Notwith standing which, as tho' the State was oonscjoas these condi- 24 tions ought not to have been annexed to her grant, the money was paid. These facts are deemed to be an estopple to an enquiry into the merits of the case. What now, say those who urge this objection, can these people expect ? They nam ed themselves the sum with which they would be satisfied. They received that sum, and shall the State never be dis charged from their demands ? Let us hold them to their bar gain. They have no cause of complaint : the records of the State shew that their demands have been fully and justly sat isfied. Here we desire to rest the question — whether fully and justly satisfied ought to be in issue. But upon an appeal to the sovereignty of the State, these facts cannot be estab lished by estopples, releases and discharges. Arbitrary as the rules of law are, they declare estopples generally, odious, even when set up between individuals possessing equal pow ers and advantages for protecting their rights. Releases and discharges also are looked upon with jealousy, and instead of being extended by construction, are narrowed by extraneous evidence to those subjects only that were contemplated by the parties. If justice has been done, why should any mate rial facts be obscured ? Why should a veil be drawn over the truth ? Reasons of poHcy have made estopples, releases, and discharges, conclusive evidence only upon the presump tion that an inequality of power has not been exerted to ob tain them, and that the parties were equally possessed of all the material facts in the matter. But when a question oc curs between a government and an individual, between su preme power and its subjects, the conclusiveness of this evi dence becomes hostile to liberty, and the expediency of the presumption ceases, as power, when willing, is ever able to administer justice. The facts before us deraonstrate the cor rectness of these remaks, and present the claims of the Gore Company in the most forcible and interesting light. By the rules of law, the state could not have made a subsequent effi cient deed. By law, upon the failure of the deed to Ward and Halsey, by her own act, the state would have been re sponsible in damages to the full value of the Gore lands ; and had the parties been equal in power, or rather, if the sove reignty of the state had not been paramount to the authority of the courts established under its auspices, the rights of the Gore Company would have been estabhshed upon these prin ciples by a tribunal bound in the administration of justice by those rules of law. It is in vain for anv man to shut his eves upon the merits of the case, or to mistake the motiveswhich actuated the state, from time to time, in relation to the Gore. The conveyance to Ward and Halsey, made no doubt in good faith, brought forth a host of assailants, powerful as they were arrogant, obscuring the justice of the cause, and rendering its issue doubtful. Connecticut had but one title to the Reserve and to the Gore. If the title to the Gore, over which she had long exercised the immunities of government, could not be sustained, there was no reason to suppose she could establish her title to the Reserve, over which her government had nev er extended. The parties were powerful, and to obtain a grant from Congress of the Reserve, it was necessary to con ciliate New York and Pennsylvania, and that could be done only by recognizing the superiority of their claims to the ter ritory renounced. After the renunciation was made, the Gore company having lost thereby the benefits of their deed, and all the expences they had incurred, they incessantly petitioned until the grant was made, incumbered by those severe conditions with which they refused to comply. Shall the question now be, whether the claims set up by the members of the late Gore Company are just and equitable; or shall they be told, — ^you took the money, and shall be heard no more. The time has now arrived, when petitions upon this sub ject may be granted, without a fearful looking forward to consequences ruinous to the state. The Reserve has been secured. There is no danger that the original claims of the Gore Company will be again set up. The Company itself is no more. Most of its members have paid the debt of na ture, and of those that survive, the claims of no one are equally fortified hke his whose Petition is pending by the magnitude of his losses and the vicissitudes of his fortune. His case is peculiarly impressive, and while the circum stances relating to the Gore are remembered, and he is be held in the vale of life, the world behind him, and only want before, who that perceives on the one hand justice, and hu manity on the other, will deny his Petition. Finally, we submit to our candid and impartial readers whether the following propositions are not established by the facts in the case, viz. 1. That when the state conveyed to Ward and Halsey, she had a valid title to the Gore. 2. That by the deed to Ward and Halsev, she conveyed -that title to them. 4 26 3. That] the state, by her subsequent act of sovereignty, renouncing her title under^the charter, entirely defeated her deed to Ward and Halsey. 4. That by law, in analogy to the rights of individuals, and in justice and equity she thereby became liable to them in the full value of the Gore, at the time of renunciation. 5. That the state has not paid to the Gore Company the amount the Gore cost them, including interest and expenses and nothing fOr the value of the purchase : and, 6. That admitting'^the exigencies of the case justified the renunciation, ample justice has not been done. Dr. 1796. May. To Cash pd. E do. J. do do. 1797. May, Connecticut Gore Lands in Account with Thomas Bull. Cr. Dolls. 2000,00. 1805. July 1st. By Installment out of Grant of 40000, 2750, 00. ujr. J ^^ ^^ ^g^g^ 2750,00. do. "pd. 1807 2750, 00. do. pd. 1808 2750, 00. balance to debt, new account, 36317, 47. Colt. do.do. 4080.3720. 2204,87. 1802.1805, 1798.1799. 1800. 1801. 7 6 6 4 1 To B. Prescott's Bond and Scrip.* 10,004,87. 4500,00. Dolls. 7, 50, on 51 Scrips. 1002. 6520,00. Cash " 2035. do. " 2850. \ do. " 3300. > do. « 1450. S 9635,00. Dolls. To pd. Taxes, 12, 50, and To pd. for Scrip, To 9 years interest on 12004,87 6480. 8 do. on 4500, 2160. do. on 2035, 850. do. on 2850, 1078. do. on 3300, 990. do. on 1450, 348. S _ & 9 mo. int. on 6520, 669,60. ) 12665,60. Interest on Credits from 1805 to the time of payments. 1 year on 2750, 165. ) 2 do. on do. 330. > 3 do. on do. 495. S 990. V Dolls. 47317, 47. 1805. July 1st. To balance above account, 36317, 47. DoUs. 47317, 97. * The whole number of scrip was 400. — Bull's interest therefore was about 1-8 ofthe whole, and when the money was paid by the State he owned 120 Scrip or 3-10 ofthe whole.