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Full text of "The Warwick patent"

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The Warwick Patent 



The WARWICK 
PATENT ^ ^ 



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C I D ID C C C C II 



THf Lie.lAKY OF 
CONGRESS, 

T'vo CupiEo Received 

OOPVHIOHT ffNTHY 

VvLcu-\ IT- fci 01. 
Ct ASS^Ct xXa No 

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Seventh Publicatton 



ONE HUNDRED AND TWO COPIES PRINTED 



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Copyright by the Acorn Club 
1902 



H a r t f r d Press 
The Case, Lockwood & Brainard Company 



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ACORN CLUB 



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Donald Grant Mitchell, Honorary, New Haven 

Frederick Woodward Skiff, . West Haven 

William Newnham Chattin Carlton, Hartford 

John Murphy, . . . New Haven 

Albert Carlos Bates, . . Hartford 

Charles Lewis Nichols Camp, . New Haven 

Charles Thomas Wells, . • . Hartford 

George Seymour Godard, . Hartford 

Frederic Clarence Bissell, . . Willimantic 

Joline Butler Smith, . . New Haven 

William Fowler Hopson, . New Haven 

Frank Addison Corbin, . . New Haven 

Henry Russell Hovey, . . Hartford 

Frank Butler Gay, . . Hartford 

Mahlon Newcomb Clark, . Hartford 

William John James, . . Middletown 

Lucius Albert Barbour, . . Hartford 

Martin Leonard Roberts, . . New Haven 

Charles Yale Beach, . . Bridgeport 

Addison Van Name, . . New Haven 



Deceased 
Charles Jeremy Hoadly 



ON the nineteenth day of March in the year 
1632, according to the present mode of 
beginning the year with January, Rob- 
ert, Earl of Warwick, conveyed to sun- 
dry lords and gentlemen a considerable tract of land 
situated in America. The land was a part of the ter- 
ritory embraced in the Great Patent of New England 
granted by King James I., November 3, 1620, to 
forty persons, under the name of The Council es- 
tablished at Plymouth in the County of Devon, for 
the planting, ruling, ordering, and governing of New 
England in America. The original deed from War- 
wick was not brought to this country ; it is not prob- 
able that it is now in existence, nor is any certified 
copy known, the most authentic being the copy of 
that copy which was shewed to the people in Connec- 
ticut by Mr. George Fenwick, found in i66r by 
Governor Winthrop among Mr. Hopkins' papers in 
London, and now among the State archives. 

In his grant to the patentees of Connecticut the 
Earl, who had been president of the Council before 
mentioned, did not state the source whence his title 
was derived, nor is it certainly disclosed in those por- 
tions of the records of that council now known to 
exist. Dr. Benjamin Trumbull, writing of the old 
patent, says in his History of Connecticut, that the 



[8] 

Council of Plymouth in 1630 granted this whole tract 
to the Earl of Warwick and it had been confirmed 
to him by a patent from King Charles I. He took 
the statement from an older writer, perhaps from 
Dr. Douglass' Summary, which was published in 
1753' o^' ^^ "^^y ^^' ^^^"^ Neal's History, published in 
1720, but it is pretty certain that the only patent of 
Connecticut granted by a king of England was the 
charter to the Governor and Company granted by 
Charles II., dated April 23, 1662. 

The grantees named in the Warwick patent or 
deed were : Lord Saye and Sele, Lord Brooke, Lord 
Rich, eldest son of the Earl of Warwick, Hon. Charles 
Fiennes of the family of Lord Saye and Sele, Sir 
Nathaniel Rich, one of those named in the great pat- 
ent for New England, who died in 1636, Sir Richard 
Saltonstall, one of the Massachusetts patentees 1629, 
Richard Knightly, who died in 1639, John Pym, 
John Hampden, John Humphrey also one of 
the Massachusetts patentees, and Herbert Pelham.' 
From the commission given to the younger Winthrop, 
July 18, 1635, we learn the names of four more of the 
associates : Henry Lawrence, Henry Darley, Sir 

' Robert, Earl of Warwick, William, Viscount Saye and Sele, 
Robert, Lord Brooke, Sir Nathaniel Rich, and John Pym, were 
interested in the Bahamas. Brown's Genesis of the United States, 
886. Lords Saye and Sele and Brooke were also interested in New 
Hampshire. V{nx.c\\mson's History of Massachusetts,!, io^. Ed. 
1764. 



[9] 

Arthur Haselrig, and George Fenwick. Lion Gardi- 
ner names also Sir Matthew Boynton. Edward Hop- 
kins seems to have been of the company, as, perhaps, 
were also Robert Harrington and Philip Nye. 

Of these, John Humphrey, Herbert Pelham, 
George Fenwick, and Edward Hopkins came to 
America after the date of the Warwick patent, but 
only the two latter came to Connecticut ; Sir Richard 
Saltonstall came over in 1630, but returned the next 
year ; ^ Charles Fiennes is supposed to have made a 
brief visit to Massachusetts in 1630, as his name is 
signed to the address from on board the Arabella, of 
April 7, in that year ; and, possibly, ^ John Hampden 
had visited Plymouth in 1622-3. Others of the pat- 
entees contemplated emigration, as Sir Matthew 
Boynton, who sent over cows, sheep, and goats, with 
two servants, and purposed to bring a great family. 

One Mr. Jessup was the clerk of the patentees. 
The Warwick patent was simply a deed of feoffment 
of certain lands. It did not purport to convey any 
powers of government nor to create the patentees a 
corporation ; it was not in the power of the Earl ot 
Warwick to do either. The grantees were simply 
joint tenants of the lands conveyed. As such they 

* It is not unlikely that Saltonstall's representation of the 
fruitfulness of the Connecticut valley had considerable to do with 
the grant by the Earl of Warwick. Brodhead's History of the 
State of New York, i, 211. 

3 Quite doubtful. 



[10] 

acted when six of them July 7, 1635, in their own 
names and in the name of the rest of the company, 
concluded certain articles with John Winthrop the 
younger. So they did when on the 18th of the same 
month five of them, in their own names and in the 
name of the right honorable Viscount Saye and Sele, 
Robert, Lord Brooke, and the rest of their company, 
commissioned Winthrop as governor of the river Con- 
necticut with the places adjoining thereto for the space 
of one whole year. There was no recital of a vote for 
the purpose, nor was there affixed a common seal, but 
only their five individual seals impressed on one large 
piece of wax. 

In the year 1635 the attention of many was 
turned to New England, and the Warwick grantees 
took steps to colonize their territory. The first 
attempt was by Sir Richard Saltonstall, who sent over 
a bark of forty tons, the Christian (or Christopher), of 
London, John White master, with twenty servants 
under the superintendence of Francis Stiles.'^ The 
ship sailed the latter part of March, and arrived at 
Boston June 16, 1635. After a stay of about ten 
days there. Stiles and his men sailed for what is now 
Windsor, where they were to impale 2,000 acres for 
Sir Richard, but they were interfered with by Mr. 
Ludlow and others from Dorchester, who were pur- 

4 Their names may be seen in Massachusetts Historical Society 
Collections, 2d Series, viii, 252, or Drake's Founders oj New Eng- 
land, 14. 



[ 11 ] 

posing to make a settlement. Stiles returned to Eng- 
land to report. In July Bamabas Davis sailed in the 
Blessing for Boston, whence a few days after his arri- 
val he came on foot to Connecticut as agent for Wil- 
liam Woodcock, for whom Stiles was to impale 400 
acres and build a house. Finding Stiles gone Davis 
also returned to England with letters from Mr. 
Hooker to Lord Saye and to Mr. Woodcock. 

The following Articles were made between the 
Right Honorable the Lord Viscount Saye and Sele, 
Sir Arthur Haselrig, Baronet, Sir Richard Saltonstall, 
Knight, Henry Lawrence, Henry Darley, and George 
Fenwick, Esquires, on the one part, and John Win- 
throp, Esq., the younger, of the other, the 7 July, 

1635- 

First, That we, in our names and the rest of the 

company, do by these presents appoint John Win- 
throp the younger Governor of the river Connecti- 
cut in New England, and of the harbor and places 
adjoining, for the space of one year from his arrival 
there. And the said John Winthrop doth undertake 
and covenant for his part, that he will with all con- 
venient speed repair to those places and there abide as 
aforesaid for the best advancement of the company's 
service. 

Secondly, That so soon as he comes to the Bay he 
shall endeavor to provide able men, to the number of 
fifty at the least, for making of fortifications and 
building of houses at the river Connecticut and the 



[ 12 ] 

harbor adjoining : first for their own present accom- 
modations, and then such houses as may receive men 
of quahty ; which latter houses we would have to be 
builded within the fort. 

Thirdly, That he shall employ those men, accord- 
ing to his best ability, for the advancement of the 
company's service, especially in the particulars above 
mentioned, during the time of his government ; and 
shall also give a true and just account of all the mon- 
ies and goods committed to his managing. 

Fourthly, That for such as shall plant there now 
in the beginning, he shall take care that they plant 
themselves either at the harbor or near the mouth of 
the river, that these places may be the better strength- 
ened for their own safety ; and to that end that they 
also set down in such bodies together as they may be 
most capable of an entrenchment : provided that there 
be reserved unto the fort for the maintenance of it, 
one thousand or fifteen hundred acres, at least, of 
good ground as near adjoining thereunto as may be. 

Fifthly, That forasmuch as the service will take 
him off from his own employment, the company do 
engage themselves to give him a just and due consid- 
eration for the same. 

In the same summer of 1635, Lion Gardiner, engi- 
neer and master of works of fortification in the legers 
of the Prince of Orange in the Low Countries, through 
the persuasion of Mr. John Davenport, Mr. Hugh 
Peters, with some other well affected Englishmen of 



[ '3] 

Rotterdam, made an agreement with the forenamed 
Mr. Peters for ^loo per annum for four years, to 
serve the company of patentees, namely the Lord Saye, 
the Lord Brooke, Sir Arthur Haselrig, Sir Matthew 
Boynton, Sir Richard Saltonstall, Esquire Fenwick, 
and the rest of their company. He was to serve 
them only in the drawing, ordering, and making of a 
city, towns, or forts of defence. 

Sergeant Gardiner came from Holland to London, 
and thence to New England in the Bacheler, a small 
north-sea boat of twenty-five tons. With him came 
his wife Mary, their maid servant Eliza Coles, and 
William Job or Jope, his master workman. Except 
the master and crew, eight in all, there were no other 
passengers. The vessel brought provisions, iron work, 
and other things useful for the contemplated fortifica- 
tion ; she arrived at Boston November 28, 1635'. 

In October preceding, in the Abigail, came John 
Winthrop the younger with his commission as gov- 
ernor, men and ammunition, and ^2,000 in money, 
to begin a plantation at the mouth of the Connecticut. 
With him also came Hugh Peter and either in the 
same ship or in the Defence which arrived about the 
same time, Henry Vane. Before the arrival of Gar- 
diner, Winthrop had sent a bark of 30 tons and about 
twenty men, carpenters and other workmen under 
command of Lieutenant Gibbons and Sergeant Wil- 
lard, with all needful provisions, to take possession 
and to begin some buildings. They were none too 



[ H] 

early, for the Dutch about this time sent a sloop to 
seize the river's mouth, to which they pretended some 
claim, but were not suffered to land. 

The Dutch had in 1633 established a small fort at 
Hartford which they continued to hold for about 20 
years, and they challenged the territory to the west 
bank of the Connecticut as a part of New Nether- 
lands, though the English repudiated their preten- 
sions. Our ancestors were Englishmen and settling 
where they did had no idea of changing their allegi- 
ance. In 1641, Sir William Boswell, the British resi- 
dent at the Hague, had advised that the English at 
Connecticut should " not forbear to put forward their 
plantations and crowd on, crowding the Dutch out of 
those places," and this policy was pursued from the 
first settlement here. 

In the summer and autumn of 1635, a number of 
persons from Dorchester and some other places in 
Massachusetts began settlements in Windsor, Hart- 
ford, and Wethersfield. They were attracted by the 
superior fertility of the lands in the valley of the Con- 
necticut, and the milder climate. They did not come 
hither under the encouragement of the patentees but 
were rather intruders upon their territory, and to them 
the agents of the patentees addressed this letter : 

Dear Friends : Whereas there is a patent lately 
granted to certain persons of quality (friends to New 
England) of the River of Connecticut with the places 
adjoining, together with liberties and prerogatives as 



[ 15] 

in such cases are usual, so that, by virtue thereof, they 
conceive they have full power, right and authority, to 
govern and dispose of all persons and affairs that shall 
fall within the circuit and limits of the said grant : it 
is therefore conceived requisite, by the agents of the 
said patentees now present in New England, to lay 
forth the claims and rights of the said personages to 
such as here in New England it may concem : to the 
end, if any thoughts or designs of others have been 
heretofore, or may be hereafter, prejudicial or injuri- 
ous to the right or possessions of the said patentees, 
they may so far take notice of the same as, whatever 
hath happened in the by past, or may befall for the 
future, any way derogating from the former claims, 
may seasonably meet with a loving and friendly pre- 
vention; at least, every one that seems to be inter- 
ested herein may declare and give reasons of their 
titles and pretensions thereto, that so, in so weighty 
an enterprise, the business may be carried to an end 
with order, justice, peace, and joint power and strength 
for the accomplishing of the same and fruition of it 
with blessing and love. 

Upon consideration of the premises we conceive 
that the present face of affairs of Connecticut, as it 
now appears, will admit or require a punctual and 
plain answer to these necessary queries from the towns 
that are lately removed from the Massachusetts Bay 
to take up plantation within the limits of the fore- 
said patent. 



[ 16] 

Imprimis, whether they do acknowledge the right 
and claims of the said persons of quality, and in testi- 
mony thereof will and do submit to the counsel and 
direction of their present governor, Mr. John Win- 
throp the younger, established by commission from 
them in those parts. 

Secondly, under what right and pretence they 
have lately taken up their plantations within the pre- 
cincts forementioned, and what government they 
intend to live under, because the said country is out 
of the claim of the Massachusetts patent. 

Item, what answer and reasons we may return to 
the said patentees, if the said towns intend to intrench 
upon their rights and privileges and justify the same. 

These things we tender to you as our truly re- 
spected brethren, and do desire you earnestly to take 
them into your serious and Christian consideration, 
with as much secrecy as may be, so that we may re- 
ceive your speedy and loving resolutions, that, by the 
present opportunities which now present themselves 
for returning your answers into England, we discharge 
our trust, which we have lately been put in mind of. 
And thus we commend you to the guidance and pro- 
tection of our good God, and remain, your loving 
friends, H. Vane Jun. 

John Winthrop, 
Hugh Peter. 

To our loving and much respected friends, Mr. 
Ludlow, Mr. Maverick, Mr. Newberry, Mr. Stough- 



[ 17 J 

ton, and the rest of our friends engaged in the busi- 
ness of Connecticut plantations in the town of Dor- 
chester. 

The letter seems to have been thus addressed 
because the company which came to Windsor was 
the most numerous of those which came to the three 
river towns in 1635, or because they had interfered 
with the lands which one of the patentees was propos- 
ing to take up, or because Mr. Ludlow was the most 
prominent person engaged in the enterprise of plant- 
ing these towns. 

Sir Richard Saltonstall wrote to the younger Win- 
throp a letter expressing his dissatisfaction with the 
wrong done to him through Francis Stiles by the Dor- 
chester men, and Lord Saye wrote Governor Winthrop 
of Massachusetts expressing his opinion that those up 
the river had carved largely for themselves, which he 
thought they would after repent when they saw what 
helps they had deprived themselves of Lord Brooke 
also wrote to him on the subject. 

The Warwick patent being, as has already been 
said, only a conveyance of land and not an instru- 
ment of government: as government of some kind 
was a matter of necessity, and as those already gone 
to Connecticut were but a small part of those propos- 
ing to do so in the then coming summer: in conse- 
quence of the letter before cited and a conference of 
Mr. Vane and the other agents of the patentees with 
the magistrates of Massachusetts and the intending 



[ i8] 

emigrants, the General Court of Massachusetts at 
their session March 3, 1636, issued this commission : ^ 
Whereas upon some reason and grounds, there are 
to remove from this our commonwealth and body of 
the Massachusetts in America divers of our loving 
friends, neighbors, freemen, and members of New- 
town, Dorchester, Watertown, and other places, who 
are resolved to transplant themselves and their estates 
unto the river of Connecticut, there to reside and 
inhabit, and to that end divers are there already and 
divers others shortly to go : we in this present court 
assembled, on the behalf of our said members, and 
John Winthrop, jun., Esq., govemor appointed by 
certain noble personages and men of quality interested 
in the said river, which are yet in England, on their 
behalf, have had a serious consideration thereon, and 
think it meet that where there are a people to sit 
down and cohabit there will follow, upon occasion, 
some cause of difference, as also divers misdemeanors, 
which will require a speedy redress : and in regard of 
the distance of place this state and government can- 
not take notice of the same as to apply timely rem- 
edy or to dispense equal justice to them and their 
affairs as may be desired ; and in regard the said noble 
personages and men of quality have something en- 
gaged themselves and their estates in the planting of 
the said river, and by virtue of a patent do require 
jurisdiction of the said place and people, and neither 

s Records of the Massachusetts Bay, 1, 170. 



[ >9] 

the minds of the said personages (they being writ 
unto) are as yet known, nor any manner of govem- 
ment is yet agreed on, and there being a necessity, as 
aforesaid, that some present govemment may be ob- 
served ; we therefore think it meet, and so order, that 
Roger Ludlow, Esq., William Pynchon, Esq., John 
Steel, William Swaine, Henry Smith, William 
Phelps, William Westwood, and Andrew Ward, or 
the greater part of them, shall have full power and 
authority, to hear and determine in a judicial way, by 
witnesses upon oath examine, within the said planta- 
tion, all those differences which may arise between 
party and party, as also, upon misdemeanor to inflict 
corporal punishment or imprisonment, to fine and 
levy the same if occasion so require, to make and 
decree such orders, for the present, that may be for 
the peaceable and quiet ordering the affairs of the said 
plantation, both in trading, planting, building, lots, 
military discipline, defensive war (if need so require), 
as shall best conduce to the public good of the same, 
and that the said Roger Ludlow, William Pynchon, 
John Steele, William Swaine, Henry Smith, William 
Phelps, William Westwood, Andrew Warner, or the 
greater part of them, shall have power, under the 
greater part of their hands, at a day or days by them 
appointed, upon convenient notice, to convene the 
said inhabitants of the said towns to any convenient 
place that they shall think meet, in a legal and open 
manner, by way of court, to proceed in executing the 



[20] 

power and authority aforesaid ; and in case of present 
necessity, two of them joining together, to inflict 
corporal punishment upon any offender if they see 
good and warrantable ground so to do. Provided 
always, that this commission shall not extend any 
longer time than one whole year from the date thereof, 
and in the meantime it shall be lawful for this court 
to recall the said presents if they see cause, and if so 
be there may be a mutual and settled government 
condescended unto by and with the good liking and 
consent of the said noble personages, or their agent, 
the inhabitants, and this commonwealth; provided 
also, that this may not be any prejudice to the interest 
of those noble personages in the said river and con- 
fines thereof within their several limits. 

Although Massachusetts had no right to exercise 
powers of govemment outside the limits of her pat- 
ent, this commission was readily submitted to, 
because the then inhabitants of Connecticut, being 
but few in number, were not yet in a capacity to erect 
a form of government for themselves ; which if they 
had done, in strictness of law it would have been no 
more a legal govemment than the commission, since 
it was not derived from the crown, the fountain of 
power and only source of jurisdiction. 

The first court under this commission was held at 
Hartford April 26, 1636, and the first business re- 
corded relates to a complaint that Henry Stiles or 
some of the servants of Sir Richard Saltonstall had 
traded a gun with the Indians for corn. 



[ 21 ] 

The names of William Pynchon and Henry 
Smith, of Springfield, are found in the commission, 
for that town was at first regarded as within the lim- 
its of the Connecticut patent. We are not now con- 
cerned with the causes of its secession or with the 
bounds claimed by the patentees, remarking only 
that in October 1639, Fenwick, as their agent, wrote 
to Governor Winthrop of Massachusetts, that what- 
soever was concluded between that colony and the 
towns above (that is, Springfield, Windsor, Hartford, 
and Wethersfield), about bounds, without the patent- 
ees, he should account invalid and must protest 
against. 

Saybrook was not under the government estab- 
Hshed by the commission, nor did the younger Win- 
throp during the few months he remained there as 
governor apparently attempt to exercise any authority 
outside the limits of that plantation. All the build- 
ings within Saybrook fort were destroyed by a fire in 
the winter of 1647-8 in which the early records 
are supposed to have perished. Saybrook seems to 
have been an independent community until about the 
time of the confederation of the United Colonies in 
1643. However, before 1639 it had a very small 
population, few, if any, of its inhabitants not being in 
the service of the company or connected with the 
fort.^ 

In May 1636, Fenwick came over. About the 

6 Very likely its population, all told, did not exceed 50. 



[22 ] 

first of July^ he set out on horseback with Hugh Pe- 
ters for the upper towns on the riv^er and thence by 
water to Saybrook. By him Vane wrote to the 
younger Winthrop that, having been chosen governor 
of Massachusetts and Mr. Fenwick having come into 
the country, he should no ways interest himself in the 
matters of Connecticut any further than as a pubUc 
person of Massachusetts. Winthrop, whose wife had 
not accompanied him to Saybrook, probably finally 
left that place with Fenwick, who returned to Eng- 
land in the autumn of that year. Lion Gardiner then 
had charge of the fort, and he wrote to Winthrop : 
" It seems that we have neither masters nor owners, 
but are left like so many servants whose masters are 
willing to be quit of them." Indeed, the patentees 
were discouraged. The restrictions placed by the 
government upon emigration had prevented the send- 
ing of so many men as had been contemplated, and 
the plague visiting London in the summer of 1636 
scattered those interested into several parts, so that 
moneys did not come in to enable Mr. Hopkins, who 
managed that business, to send further supplies, I 
suppose nothing was sent by the patentees after the 
summer of 1636. The Pequot war soon followed, 
and the little band at Saybrook felt their weakness 
and isolation, so that John Higginson, the chaplain 

7 June, Winthrop's History of New England, Savage's edition, 
1, 470 ; July 1, Massachusetts Historical Society Collections, 3d 
Series, vi, 582. 



[23] 

there, out of the bitterness of his heart at their appar- 
ent desertion, wrote to the elder Winthrop, " O that 
the heavy curse of Meroz may never fall upon any of 
the lords." 

That the party which came to Connecticut with 
Hooker in the summer of 1636 did so under the en- 
couragement of the patentees can admit, as I think, 
of no doubt. Hooker corresponded with Lord Saye 
and Sele, and Sir Richard Saltonstall had proposed to 
build at Hartford and join with Mr. Hooker, who, as 
he knew, was intending to remove thither. 

Two of the patentees. Lord Saye and Sele and Sir 
Richard Saltonstall, in 1642, showed their interest in 
the colony by the complaints which they made to the 
Dutch ambassador at London of molestations and in- 
solences suffered by the English on the Connecticut 
from the Dutch. The Earl of Warwick did the same. ' 
The letter from Connecticut to Lord Saye and Sele of 
June, 1661, expressly refers to the former encourage- 
ments that our fathers and some of their then surviv- 
ing associates received from his honor to transplant 
themselves and families into these inland parts of this 
vast wilderness, where his honor was interested by 
virtue of patent power and authority. 

How the people of the three towns up the river 
were governed the first year has been shown. After 
the expiration of the commission there appears on the 

^Documents relative to the Colonial History of New York, 1, 
127, 128, 135. 
4 



[ 24] 

records a new form of government called the General 
Court. Hitherto only the magistrates named in the 
commission had held the courts, but now, besides the 
magistrates, were present Committees or deputies from 
the several towns. The first of these general courts 
was held at Hartford May i, 1637. Just how this 
was brought about is not so clear as is the fact that 
the govemment of those towns continued, as it had 
been from the beginning, a federated govemment; 
they were never in a state of independence one of an- 
other. On the 14th of January, 1639, the inhabitants 
and residents of the three towns established for them- 
selves a Constitution or form of govemment well 
adapted to their circumstances, under which they, with 
the towns afterward settled under combination with 
them, continued to live until, in 1662, they received 
from the crown a charter by which they were recog- 
nized a govemment in law as well as in fact. 

So, too, those who settled New Haven in 1638 
did it with the knowledge and assent of the patentees. 
We have already seen that Davenport was one of those 
by whose persuasion Gardiner entered into the service 
of the company. He was also a friend of Lord Saye 
and Sele. Hopkins, who in behalf of the patentees 
sent supplies to Saybrook, had married a daughter of 
Eaton's wife and came to America with Davenport 
and Eaton, although he himself took up his residence 
at Hartford. Guilford assuredly was settled with the 
knowledge, at least, of the patentees, for the first plant- 



[25] 

ers of that town came over with Fenwick on his sec- 
ond visit in 1639. Guilford, though proposing to set- 
tle in the southerly part of New England about Quin- 
nipiack, owed no allegiance to New Haven; neither 
did Milford. Those three towns were all on an equal 
footing: neither had authority over another; each es- 
tablished a government for itself and maintained a sep- 
arate and independent existence until 1643. They 
had not been associated together before their emigra- 
tion, nor were they settled simultaneously, like the 
river towns. The leaders of New Haven were Lon- 
doners and wished to found a city for trade ; the set- 
tlers of Guilford and Milford were agriculturists and 
they chose lands which were better adapted for hus- 
bandry than was that of New Haven. In the juris- 
diction of New Haven the organization of the towns 
preceded that of the colony, which, as we have seen, 
was not the case in Connecticut. ' 

On the eve of the projected planting of Connecti- 
cut Lord Saye, Lord Brooke, and other persons of 
quality submitted to Massachusetts certain proposals 
as conditions of their removing to New England, 
which are subjoined with the answers thereto : 

Demand 1 . That the commonwealth should con- 
sist of two distinct ranks of men, whereof the one 

9 The supreme court of this state in Webster v. Harwinton, 
34 Connecticut Reports, 131, held that towns have no original or 
inherent power. But the court did not take into account anything 
prior to the constitution of 1639. 



[26] 

should be, for them and their heirs, gentlemen of the 
country, the other for them and their heirs, freeholders. 

Answer. Two distinct ranks we willingly ac- 
knowledge, from the light of nature and scripture : 
the one of them called Princes or Nobles, or Elders 
(amongst whom gentlemen have their place), the other 
the people. Hereditary dignity or honors we willingly 
allow to the former, unless, by the scandalous and base 
conversation of any of them, they become degenerate. 
Hereditary liberty, or estate of freemen, we willingly 
allow to the other, unless they also, by some unworthy 
and slavish carriage, do disfranchise themselves. 

Dem. 2. That in these gentlemen and freeholders, 
assembled together, the chief power of the common- 
wealth shall be placed, both for making and repealing 
laws. 

Ans. So it is with us. 

Dem. 3. That each of these two ranks should, 
in all public assemblies, have a negative voice, so as 
without a mutual consent nothing should be estab- 
lished. 

Ans. So it is agreed among us. 

Dem. 4. That the first rank, consisting of gentle- 
men, should have power, for them and their heirs, to 
come to the parliaments or public assemblies, and 
there to give their free votes personally; the second 
rank of freeholders should have the same power for 
them and their heirs of meeting and voting, but by 
their deputies. 



[ 27] 

Ans. Thus far this demand is practiced among 
us. The freemen meet and vote by their deputies; 
the other rank give their votes personally, only with 
this difference, there be no more of the gentlemen that 
give their votes personally but such as are chosen to 
places of office, either governors, deputy governors, 
councellors, or assistants. All gentlemen in England 
have not that honor to meet and vote personally in 
parliament, much less all their heirs. But of this more 
fully, in answer to the ninth and tenth demand. 

Dem. 5. That for facilitating and dispatch of 
business, and other reasons, the gentlemen and free- 
holders should sit and hold their meetings in two dis- 
tinct houses. 

Ans. We willingly approve the motion, only as 
yet it is not so practiced among us, but in time the 
variety and discrepancy of sundry occurrences will put 
them upon a necessity of sitting apart. 

Dem. 6. That there shall be set times for these 
meetings, annually or half yearly, as shall be thought 
fit by common consent, which meetings should have 
a set time for their continuance, but should be ad- 
journed or broken off at the discretion of both houses. 

Ans. Public meetings, in general courts, are by 
charter appointed to be quarterly, which, in this in- 
fancy of the colony, wherein many things frequently 
occur which need settling, hath been of good use, but 
when things are more fully settled in due order, it is 
likely that yearly or half yearly meetings will be suf- 



[28] 

ficient. For the continuance or breaking up of these 
courts, nothing is done but with the joint consent of 
both branches. 

Dem. 7. That it shall be in the power of this 
parliament, thus constituted and assembled, to call the 
governor and all public officers to account, to create 
new officers, and to determine them already set up ; 
and, the better to stop the way to insolence and am- 
bition, it may be ordered that all offices and fees of 
office shall, every parliament, determine, unless they 
be new confirmed the last day of every session. 

Ans. This power to call governors and all officers 
to account, and to create new and determine the old, is 
settled already in the general court or parliament, only 
it is not put forth but once in the year, viz., at the 
great and general court in May, when the governor is 
chosen. 

Dem. 8. That the governor shall ever be chosen 
out of the rank of gentlemen. 

Ans. We never practice otherwise, choosing the 
governor either out of the assistants, which is our 
ordinary course, or out of approved known gentlemen, 
as this year Mr. Vane. '° 

Dem. 9. That, for the present, the Right Honor- 
able the Lord Viscount Say and Scale, the Lord Brook, 
who have already been at great disbursements for the 
public works in New England, and such other gentle- 
men of approved sincerity and worth as they, before 

^''1636. 



[29] 

their personal remove, shall take into their number, 
should be admitted, for them and their heirs, gentle- 
men of the country. But for the future, none shall be 
admitted into this rank but by the consent of both 
houses. 

Ans. The great disbursements of those noble 
personages and worthy gentlemen we thankfully ac- 
knowledge, because the safety and presence of our 
brethren at Connecticut is no small blessing and com- 
fort to us. But, though that charge had never been 
disbursed, the worth of the honorable persons named 
is so well known to all, and our need of such supports 
and guides is so sensible to ourselves, that we do not 
doubt the country would thankfully accept it, as a 
singular favor from God and from them, if he should 
bow their hearts to come into this wilderness and help 
us. As for accepting them and their heirs into the 
number of gentlemen of the country, the custom of 
this country is, and readily would be, to receive and 
acknowledge, not only all such eminent persons as 
themselves and the gentlemen they speak of, but oth- 
ers of meaner estate, so be it is of some eminency, to 
be for them and their heirs, gentlemen of the country. 
Only, thus standeth our case: Though we receive 
them with honor and allow them preeminence and 
accommodations according to their condition, yet we 
do not, ordinarily, call them forth to the power of 
election, or administration of magistracy, until they 
be received as members into some of our churches; 



[30] 

a privilege which we doubt not religious gentlemen 
will willingly desire, (as David did in Psal. xxvii, 
4.) and christian churches will as readily impart to 
such desirable persons. Hereditary honors both nature 
and scripture doth acknowledge, (Eccles. xix, 17), 
but hereditary authority and power standeth only by 
the civil laws of some commonwealths ; and yet, even 
amongst them, the authority and power of the father 
is no where communicated together with the honors 
unto all his posterity. Where God blesseth any 
branch of any noble or generous family with a spirit 
and gifts fit for government, it would be a taking of 
God's name in vain to put such a talent under a 
bushel, and a sin against the honor of magistracy to 
neglect such in our public elections. But if God 
should not delight to furnish some of their posterity 
with gifts fit for magistracy, we should expose them 
rather to reproach and prejudice, and the common- 
wealth with them, than exalt them to honor if we 
should call them forth, when God doth not, to public 
authority. 

Dem. 10. That the rank of freeholders shall be 
made up of such as shall have so much personal estate 
there as shall be thought fit for men of that condition, 
and have contributed some fit proportion to the pub- 
lic charge of the country, either by their disbursements 
or labors. 

Ans. We must confess our ordinary practice to 
be otherwise. For, excepting the old planters, i. e. 



[31 ] 

Mr. Humphry, who himself was admitted as an assist- 
ant at London, and all of them freemen, before the 
churches here were established, none are admitted 
freemen of this commonwealth but such as are first 
admitted members of some church or other in this 
country, and, of such, none are excluded from the lib- 
erty of freemen. And out of such only, I mean the 
more eminent sort of such, it is that our magistrates are 
chosen. Both which points we should willingly per- 
suade our people to change, if we could make it 
appear to them that such a change might be made 
according to God ; for, to give you a true account of 
the grounds of our proceedings herein, it seemeth to 
them, and also to us, to be a divine ordinance (and 
moral) that none should be appointed and chosen by 
the people of God, magistrates over them, but men 
fearing God (Ex. xviii, 21), chosen out of their 
brethren (Deut. xvii, 15), saints (1 Cor. vi, 1). 
Yea the apostle maketh it a shame to the church, if 
it be not able to afford wise men from out of them- 
selves, which shall be able to judge all civil matters 
between their brethren (ver. 5). And Solomon 
maketh it the joy of a commonwealth, when the 
righteous are in authority, and the calamity thereof, 
when the wicked bear rule. Prov. xxix, 2. 

Obj. If it be said, there may be many carnal men 
whom God hath invested with sundry eminent gifts 
of wisdom, courage, justice, fit for government. 

Ans. Such may be fit to be consulted with and 
5 



[32] 

employed by governors, according to the quality and 
use of their gifts and parts, but yet are men not fit to 
be trusted with place of standing power or settled 
authority. Ahithophel's wisdom may be fit to be heard 
(as an oracle of God) but not fit to be trusted with 
power of settled magistracy, lest he at last call for 
1 2,000 men to lead them forth against David, 2 Sam. 
XVII, I, 2, 3. The best gifts and parts under a 
covenant of works (under which all carnal men and 
hypocrites be) will at length turn aside by crooked 
ways to depart from God, and, finally, to fight against 
God, and are therefore, herein, opposed to good men 
and upright in heart. Psal. cxxv, 4, 5. 

Obj. If it be said again, that then the church 
estate could not be compatible with any common- 
wealth under heaven. 

Ans. It is one thing for the church, or members 
of the church, loyally to submit unto any form of 
govemment, when it is above their calling to reform 
it, another thing to choose a form of government and 
governors discrepant from the rule. Now if it be a 
divine truth, that none are to be trusted with public 
permanent authority but godly men, who are fit ma- 
terials for church fellowship, then from the same 
grounds it will appear that none are so fit to be 
trusted with the liberties of the commonwealth as 
church members. For the liberties of the freemen of 
this commonwealth are such as require men of faithful 
integrity to God and the state, to preserve the same. 



[33] 

Their liberties, among others, are chiefly these: i, To 
choose all magistrates, and to call them to account at 
their general courts. 2, To choose such burgesses, 
every general court, as with the magistrates shall make 
or repeal all laws. Now both these liberties are such 
as carry along much power with them, either to estab- 
lish or subvert the commonwealth, and therewith the 
church, which power, if it be committed to men not 
according to their godliness, which maketh them fit 
for church fellowship, but according to their wealth, 
which, as such, makes them no better than worldly 
men, then, in case worldly men should prove the 
major part, as soon they might do, they would as 
readily set over us magistrates like themselves, such 
as might hate us according to the curse, Levit. xxvi, 
17, and turn the edge of all authority and laws against 
the church and the members thereof, the maintenance 
of whose peace is the chief end which God aimed at 
in the institution of magistracy. 1 Tim. 11, 1, 2. 

The answers to these demands were written in 
1636 by Mr. Cotton after consultation with some of 
the leading men. Both are here inserted, because they 
give some of the ideas upon government entertained 
by the patentees, and because the general court of 
Connecticut on the 27th of March, 1643, took the 
following action : 

The court consenteth that the former answer shall 
be returned to the propositions made by the lords, 
the particulars at present not coming to view ; and if 



[34] 

it please Mr. Fenwick to join with the plantations it 
shall not infringe any of his privileges which belong 
to him. 

Had the particulars of the propositions come to 
their view we may safely presume that the answers 
given to them by the Connecticut general court would 
have differed considerably from those cited above. 
Confining the rank of freemen to church members 
only was not consonant to the polity adopted by 
Connecticut, though it was insisted on at New Haven, 
and when the former absorbed the latter Davenport 
wrote that in New Haven colony Christ's interest was 
miserably lost. However, it may be made a question 
whether it would have proved an unmixed blessing 
had the patentees actually come over and settled here. 

Plymouth, Massachusetts, Connecticut, and New 
Haven confederated together in May, 1643, under 
the title of The United Colonies of New England. 
The object was, to " enter into a firm and perpetual 
league of friendship and amity, for offence and defence, 
mutual advice and succor, upon all just occasions, both 
for preserving and propagating the truth and liberties 
of the gospel and for their own mutual safety and 
welfare." The articles of confederation were signed 
on the part of Connecticut by George Fenwick and 
Edward Hopkins, thus representing also the interest 
of the patentees. Mr. Fenwick, soon after his arrival 
in 1639, had expressed his willingness, with reserva- 
tions as to boundaries, that the colony of Connecticut 



[35] 

should proceed in the matter. The first movement 
toward this confederation had been made by Connec- 
ticut in 1638, but it proved abortive because of appre- 
hension that Massachusetts was inclined to subordi- 
nate the smaller colony to the larger one. However, 
in 1643 the condition of public affairs seemed to indi- 
cate the expediency, if not necessity, of the confeder- 
ation. The combination was of more importance to 
the two westem colonies, because they had no royal 
charter and because the territory occupied by them 
was claimed as a part of New Netherlands by the 
Dutch, who still retained the small fort they had built 
at Hartford. Now the third article of confederation 
provided for the peculiar jurisdiction among them- 
selves as one entire body of each of the confederating 
colonies. 

Similar reasons to those which induced the con- 
federation between the colonies had shortly before 
caused a combination to be entered into between 
New Haven, Stamford, Guilford, and Southold on 
Long Island, to which in October, 1643, Milford was 
joined ; and thus was formed the Colony or Jurisdic- 
tion of New Haven, The plantation of New Haven 
had purchased Totoket, now Branford, but it was not 
yet planted. Beyond the towns named the colony of 
New Haven was circumscribed by the colony of 
Connecticut, which claimed the remainder of the terri- 
tory comprising the present State. Connecticut's 
claim was based upon conquest and purchase from 
the Indians. 



[36] 

When the four years for which he had engaged to 
serve the company had expired Lion Gardiner re- 
moved to the island he had purchased, and which 
still bears his family name. In the same year, 1639, 
George Fenwick came over again and resided at 
Saybrook as agent for the patentees. With him 
came some who settled at Saybrook. He expected 
others of those interested in the patent to come and 
join him the next spring. The Long Parliament, 
which met in the autumn of 1640, setting upon a 
general reformation both of church and state caused 
all men to stay in England in expectation of a new 
world. A final stop was put to emigration. After 
waiting until there was no longer hope of seeing the 
lords and gentlemen as planters here, and the prospect 
of a rising city at the mouth of the river had van- 
ished, Fenwick was willing to dispose of his interest 
and return to his native country. 

His relations with the colony of Connecticut had 
always been friendly. In October, 1639, a few 
months after his arrival, he had been put in nomina- 
tion for election as a magistrate of Connecticut, pro- 
vided he became a freeman. As no church was gath- 
ered at Saybrook, his wife had joined that at Hartford 
and presented their child for baptism. At Hartford 
dwelt his friend Edward Hopkins, who from 1639 
until his departure from the country was in the mag- 
istracy of Connecticut, most of the time either as gov- 
ernor or deputy governor. At Hartford also settled 



[37] 

his brother-in-law, John CuUick, and became a prom- 
inent citizen 

A committee consisting of Governor Hopkins, 
Deputy Governor Haynes, Capt. Mason, Mr. Steele, 
Mr. Gaylord, and James Boosy, was appointed by the 
Connecticut general court, at the session of October 
25, 1644, to treat with Mr. Fenwick concerning the 
settling of the river's mouth, to know upon what 
terms we stand with him in that respect, and also to 
consider what they think meet to be done for matter 
of fortification there, and to take the first opportunity 
they could for the issuing of it, and to determine and 
conclude with him as they should judge meet. By 
articles agreed upon between the parties December 5, 
1644, -^'"- Fenwick conveyed to the use of the juris- 
diction of Connecticut the Fort at Saybrook, with 
certain appurtenances mentioned, and it was also 
agreed that all the land upon the river of Connecticut 
should belong to the said jurisdiction of Connecticut ; 
all which Mr. Fenwick engaged himself to make 
good to the jurisdiction aforesaid against all claims 
that might be made by any other to the premises, by 
reason of any disbursements made upon the place. 
This is all that Mr. Fenwick conveyed to Connec- 
ticut. " He promised, indeed, that all the lands from 

" If it be objected that the agreement with Fenwick was de- 
fective in form, not being under seal, the answer is, that it appears 
to have been satisfactory to Connecticut. Fenwick was chosen 
into the magistracy in 1644 and 1645. 



[38] 

Narragansett River to the fort of Saybrook, men- 
tioned in a patent granted by the Earl of Warwick to 
certain nobles and gentlemen, should fall in under the 
jurisdiction of Connecticut, if it came into his power : 
a contingency which does not appear to have hap- 
pened. 

Here is a difficulty : Why were not " the lands 
from Narragansett River to the fort at Saybrook " as 
much in Fenwick's power as the lands to the west of 
Connecticut River *? They were equally included in 
Warwick's conveyance. Why was it that all of the 
earlier settlements were made west of Connecticut 
River? Doubtless physical geography was to some 
extent a determinant factor, but why did Eaton's com- 
pany select New Haven instead of New London, 
when both places were vacant and the latter with its 
magnificent harbor was quite as well, if not better 
known than the former '? Pequot River was desig- 
nated as a place which might be selected for fortifica- 
tion by Winthrop in behalf of the patentees. Was 
the decision of Eaton's company to settle where they 
did influenced at all by Hamilton's claim and the 
fact that the marquis was not in political sympathy 
with them ? 

The patent was not assigned to Connecticut. It 
was not in Fenwick's power to do it. The patentees, 
as we have seen, were not a corporation and so could 
not by a vote authorize an agent to convey : they 
were joint tenants, and the signature of each one was 



[39] 

necessary to transfer his interest, and it was not prac- 
ticable to obtain these, the parties being numerous 
and scattered. The patentees simply abandoned 
their claim, leaving Connecticut in possession of the 
greater part of it together with the fort, which might 
be called a key to the situation. 

We are told on good authority that Fenwick gave 
to Connecticut the colony seal, of which the first use 
known to us is of the date of October 27, 1647. ^^ 
may have been brought over by Fenwick in 1639, 
when the lords and gentlemen were still in expecta- 
tion of establishing a colony on the territory covered 
by their patent. 

All this time the colonies of Connecticut and New 
Haven were without a charter from the king or par- 
liament of England. They were only governments 
de facto. In November, 1643, ^^ lords and commons 
assembled in parliament passed an ordinance "whereby 
Robert earl of Warwick was made Governor in 
Chief and Lord High Admiral of all those islands and 
plantations, inhabitated, planted, or belonging to any 
of his majesty's the king of England's subjects, within 
the bounds and upon the coasts of America, and a 
committee appointed to be assisting unto him, for the 
better governing, strengthening, and preservation of 
the said plantations, but chiefly for the advancement 
of the true protestant religion and further spreading 
of the gospel of Christ among those that yet remain 
there in great and miserable blindness and ignorance." 



[40] 

Among the commissioners we find the names of Lord 
Saye and Sele, Sir Arthur Haselrig, Baronet, and John 
Pym, who were of the Connecticut patentees. George 
Fenwick was of the number in 1646. From this com- 
mission Rhode Island received a patent in March, 
1644. Judging the season opportune, the General 
Court of New Haven colony in October, 1644, saw 
cause to join with Connecticut to procure a patent 
from the parliament for these parts, and for that pur- 
pose desired Mr. Gregson to undertake the voyage 
and business. Gregson sailed from New Haven in 
January, 1646, but the ship was never heard of after 
and New Haven suffered a loss from which she did 
not recover for a long time. In the New Haven Case 
Stated, this action of that colony is said to have been 
taken " with the consent and desire of Connecticut to 
concur with New Haven therein," and that the pro- 
posed patent was to provide " for common privileges 
to both in their distinct jurisdictions." There is noth- 
ing found in the Connecticut records confirming these 
statements, but in May, 1645, Governor Haynes, dep- 
uty governor Hopkins, Mr. Fenwick, Mr. Whiting, 
and Mr. Welles were desired to agitate the business 
concerning the enlargement of the liberties of the pat- 
ent for this jurisdiction, which they had liberty to pro- 
ceed in at such reasonable charge as they should judge 
meet. In the following July it was ordered that there 
should be a letter directed from the court to desire Mr. 
Fenwick, if his occasions would permit, to go for Eng- 



[41 ] 

land to endeavor the enlargement of patent, and to fur- 
ther other advantages for the country. This would 
seem to have been an independent movement. How- 
ever, nothing came of it. Mr. Fenwick left the coun- 
try late in the autumn of 1645. 

The latest appearance in this country of a copy of 
the Warwick patent, before Winthrop procured one 
from Mr. Hopkins' executor, was when it was pro- 
duced before the commissioners of the united colonies 
at their meeting at Plymouth in September, 1648, at 
which time it was mentioned, as a thing not unknown, 
that this patent had been lately owned by the honora- 
ble committee of parliament, and equal respect and 
power given to it by them within the bounds therein 
mentioned as to the Massachusetts and Plymouth 
within their several limits, respectively. 

The news of the restoration of King Charles II., 
reached Connecticut early in August, 1660. At the 
next session of the General Court, in October, the sub- 
ject of addressing and petitioning the king was under 
consideration, but nothing was done about it. Mas- 
sachusetts had not, and Connecticut in general fol- 
lowed her lead. Massachusetts did, at a special court 
in December, 1660, order that addresses be made to 
the king and parliament. A special session of the 
Connecticut general court was called to meet at Hart- 
ford February 14, 1661. On account of a severe 
snowstorm, not an unusual event at that season, or for 
some other reason, a quorum did not assemble to form 



[42] 

a court, and, therefore, there is no account of the meet- 
ing to be found in the secretary's book, though it is 
alluded to in the record of the session held a month 
later. It was the result of the consultation of those 
magistrates and deputies who did meet February 14th, 
" that it is necessary for this colony to make a speedy 
address to his majesty our sovereign lord Charles the 
second, king of England, Scotland, France, and Ire- 
land, humbly to petition his majesty for his favor and 
for the continuance and confirmation of such privi- 
leges and liberties as are necessary for the comfortable 
settlement of this colony. They likewise resolved, 
that the deputies would commend it to their several 
towns, to consult and consider about what might be 
necessary in way of preparation thereunto, that at the 
next meeting of the general court might be consid- 
ered and settled the suitable means to effect the same 
in a fit and honorable way." 

At subsequent sessions the general court com- 
pleted arrangements for presenting a petition to the 
king, and on the 7th of June, 1661, approved a draft 
of Instructions to Governor Winthrop as their agent, 
of which draft the following is an extract : 

It is desired that you would be pleased to use all 
due means to procure a copy of the patent referring to 
these parts, granted unto those nobles and gentlemen 
whom Mr. Fenwick did represent in his act of sale 
to this colony. And in case the copy of this patent 
can by no means used be obtained, then you are de- 



[43] 

Sired to advise with the counsel forementioned, [Lord 
Saye and Sele, the Earl of Manchester, " Lord Brooke, 
and others named] what to do in reference to the heirs 
of Mr. Fenwick for the regaining such sums as have 
been disbursed for the purchase of Jurisdiction Right. 

And in case the forementioned patent can be pro- 
cured, our desire is, that you would be pleased to con- 
sider both what privileges, rights, and immunities are 
therein granted, and to compare it with the copy of 
the Bay patent ; and what is conducible in both to the 
well-being and future comfort of this colony our de- 
sire is may be inserted and comprehended in the pat- 
ent granted and confirmed to this colony. 

There was a clause in the draft which seems to 
have been canceled and something else substituted. 
The canceled clause read as follows : 

But in case upon representation of our purchase 
and moneys expended upon it the heirs of Mr. 
Fenwick, or any other the patentees, do tender the 
confirmation of the patent (that we conceive we 
bought), we shall rest satisfied with that patent, pro- 
vided it may be completed and the confirmation fin- 
ished without further expense to this colony. 

Now we cannot but believe that the committee 

" The Earl of Manchester and Lord Saye and Sele had, in July, 
1660, been appointed by the king members of a committee for 
plantation affairs, and in the following December members of the 
Council for Foreign Plantations. Documents relative to the Colo- 
nial History of New York, iii, 3<3, 33. 



[44] 

which prepared these instructions was very well aware 
that the Warwick deed or patent conferred, and could 
confer, no power of government. Jurisdiction right 
could only come from the supreme power. It does 
not seem at all probable that a charter from the crown 
would have been granted before a colony was settled 
or immediately about to be established : it could not 
be known who should be named in it as the first offi- 
cers. A charter may have been drafted, however. The 
New Haven Case Stated expressly says that a copy 
of a patent for Connecticut had been framed before 
any house was erected by the seaside from the fort to 
the Dutch, which yet was not signed and sealed by 
the last king (Charles I). There was an understand- 
ing with Fenwick in 1645, that he should procure a 
charter from the committee of parliament, which he 
failed to do. Bearing these things in mind we can 
better understand the instructions to Winthrop, the 
expressions in various papers about the purchase of 
jurisdiction right, and the reclamation from Fenwick's 
heirs of money paid therefor; for it cannot be pre- 
tended that the colony did not receive all that Fen- 
wick purported to convey in his agreement of De- 
cember 5, 1644, or that it was disturbed in the quiet 
enjoyment thereof by the patentees or any of them. 

The description of the tract conveyed March 19, 
1632, by the Earl of Warwick to Lord Saye and Sele 
and others is as follows : All that part of New Eng- 
land in America which lies and extends itself from a 



river there called Narraganset river the space of forty 
leagues upon a straight line near the sea shore towards 
the southwest, west and by south, or west, as the coast 
lieth towards Virginia, accounting three English miles 
to the league ; and also all and singular the lands and 
hereditaments whatsoever, lying and being within the 
lands aforesaid, north and south in latitude and breadth, 
and in length and longitude of and within all the 
breadth aforesaid, throughout the main lands there, 
from the western ocean to the south sea. 

About three years after, that is to say, April 2o, 
1635, the Council established at Plymouth in the 
county of Devon for the planting, ordering, ruling 
and governing of New England, granted to James, 
Marquis of Hamilton, all that portion of the main 
lands of New England, beginning at the middle part 
of the mouth or entrance of the river of Connecticut 
in New England, from thence to proceed along the 
sea coast to the Narraganset river or harbor, there to 
be accounted about sixty miles, and so up the west- 
ern arm of that river to the head thereof, and into the 
land northwestward till sixty miles be finished, and so 
to cross overland southwestwards to meet with the end 
of sixty miles to be accounted from the mouth of Con- 
necticut up northwest. 

Now the interference of these grants is so obvious 
that it is not necessary to look upon the map to dis- 
cover it, and we cannot account for it by asserting the 
ignorance of the grantors as to the geography of New 



y 



[46] 

England. The grant to the Marquis of Hamilton 
takes in the whole of Connecticut east of the river, 
with parts of Rhode Island and Massachusetts. The 
Marquis asserted his claim before the royal commis- 
sioners in 1664-5. The claim was again renewed in 
1683, and also in 1697, by his son the Earl of Arran. 
At the last date, when the colony of Connecticut 
among other things pleaded the prior grant of the Earl 
of Warwick, Arran replied, according to Chalmers, 
«'that when they produced a grant from the Plymouth 
company to the Earl of Warwick it should have an 
answer." Now, although the colony regarded itself as 
the successor, by purchase, of Warwick's grantees, we 
know that the patent was never formally assigned to 
the colony, nor did the document itself nor even an 
authenticated copy of it come into the possession of 
the colony, although Mr. Hopkins, in 1649, offered to 
make oath as to the truth of the copy by him pre- 
sented before the commissioners of the united colonies. 
It could not be expected then that the colony would 
have the original deed from the Plymouth company 
to Warwick. There was no privity between the 
colony and the Earl. As the Plymouth company had 
been dissolved more than fifty years, Arran doubtless 
knew that the colony would be unable to shew the 
grant from the records of that company. 

So much of the records of the Plymouth Council 
for New England as now remains are printed with the 
Proceedings of the American Antiquarian Society for 



[47] 

April 1867 and October 1875. It consists of tran- 
scripts more or less complete from the original 
records which are now lost. These extracts extend 
from the last of May, 1622, to June 29, 1623, and 
from November 4, 1631, to November 1, 1638. 
Under date of Saturday, the last of May, 1622, is this 
entry : " The patents already granted, to be confirmed, 
and order is given for patents to be drawn for the earl 
of Warwick and his associates, the lord Gorges, Sir 
Robert Mansell, Sir Ferd. Gorges." There was pre- 
sented to the king, June 29, 1623, a plot of all the 
coasts and lands of New England, divided into twenty 
parts ; but Connecticut does not appear upon the map 
reproduced in the Proceedings of the American Anti- 
quarian Society for October, 1875, as having been 
allotted to any one, nor was the division then made 
confirmed. 

Among the Winthrop Papers is a letter from John 
Humphrey,'^ afterwards one of the grantees named in 
the Warwick patent, dated London, December 9, 
1630, and adressed to Isaac Johnson at Charlestown 
in New England, in which is this passage, "My lord 
of Warwick will take a patent of that place you writ 
of for himself, so we may be bold to do there as if it 
were our own." From another letter written three 
days later by the same to the same, printed in the 
same volume, it evidently appears that the southern 
part of New England was the place which both had 

^3 Massachusetts Historical Society Collections, 3d Series, vi, 4. 



[48] 

in mind. We can get no information on the subject 
from the council records because of the hiatus from 
June 29, 1623 to November 4, 1631. These letters 
imply that, so far as the writer's knowledge extended, 
the Earl of Warwick had not taken out a patent for 
what is now Connecticut from the council of New 
England before December 12, 1630. 

The council records have this memorandum under 
date of June 23, 1632: "The secretary is to bring 
against the next meeting a rough draught in paper of 
a patent for the E. of Warwick from the river of the 
Narrigants 10 leagues westward." At a meeting on 
the 26th of the same month : " The rough draught of 
a patent for the E. of Warwick was now read; his 
lordship upon hearing the same gave order that the 
grant should be unto Robert lord Rich and his asso- 
ciates A, B. &c. And it was agreed by the council 
that the limits of the said patent should be 30 English 
miles westward, and 50 miles into the land northward, 
provided it did not prejudice any other patent for- 
merly granted." Now this was a portion of the territory 
which the Earl had in the month of March preceding 
granted to Lords Saye and Sele, Brooke, Rich, and 
others. Had it been for the whole of it, we might 
have supposed that this last mentioned patent, — of 
which we hear nothing further, — was intended as a 
confirmation of title to lands which had previously 
been granted informally to the Earl, and that the in- 
formality of the original grant by the council was 



[49] 

perhaps the reason why the Earl made no mention of 
the source of his title in his grant to Lord Saye and 
Sele, etc. 

Whoever will examine the extant record of the 
I Council for New England will not fail, I think, to 

come to the conclusion that its affairs were very 
loosely managed and that records were not kept of all 
the grants made. For the latter reason it appears to 
have been that on the eve of its dissolution the coun- 
cil, on the 3d of February, 1635, made new grants of 
all the coast of New England from the 40th degree of 
north latitude. From Hudson's River to New Haven 
fell to the Duke of Lenox; from New Haven to 
Connecticut River, to the Earl of Carlisle ; from Con- 
necticut River to Narragansett River, to the Marquis 
of Hamilton, and so on. The whole was divided, 
"saving and reserving to every one that hath any 
lawful grant of lands or plantations lawfully settled in 
the same the free holding and enjoying of his right 
with the liberties thereunto appertaining." Not only 
Connecticut was thus regranted, but Massachusetts 
also, which in 1628 had been granted to Roswell and 
his associates and had received in 1629 a royal charter 
from King Charles L The object of this division 
seems to have been to cover all the territory embraced 
in the great patent of New England, if any had been 
ungranted or if any grants had been forfeited, so that 
no portion of it should lapse to the crown. '♦ 

'*The grants which were made, or pretended to be made, in 
1635, were the efforts of a number of the members of the council, 



L5°] 

It has been suggested by a late writer, '^ that the 
Warwick patent might have been a pious fraud, but 
it is difficult to believe that the Earl of Warwick or 
Lord Saye and Sele and the rest of the nobles and 
gentlemen who were his grantees, not to speak of the 
Winthrops, Hooker and others, would have lent 
countenance to any fraud, even a pious one, if such a 
thing could be. 

There are matters relating to the Warwick patent 
not easy to understand, and which I cannot clear up 
to entire satisfaction. Most of the difficulties are 
occasioned by the loss or imperfection of records; for 
some of the difficulties I hope that possible solutions 
have been suggested. Upon the whole, however, I 
am of the opinion that the Warwick patent or deed 
was one which the Earl had a right to give and did 
give. The legal presumptions are in its favor. The 
Earl was certainly in a position to obtain such a grant 
from the Council, of which he had been president. The 
authenticity of the patent seems to have been gener- 
ally admitted by those who lived at the time. With 
exception of that by the Marquis of Hamilton to a 
portion of the territory, we hear of no other claim on 

to secure some part of the dying interest to themselves and poster- 
ity, in which they all failed. Hutchinson's History of the Colony 
of Massachusetts Bay, Boston, 1764, i, 314. 

The great council of Plymouth had no power to transfer gov- 
ernment to any. — Opinion of judges. Hutchinson's History of 
the Colony oj Massachusetts Bay, i, 317. 
*5 Prof Johnston. 



[p ] 

the part of any of the English nation. The patent 
was recognized by the commissioners of the united 
colonies. It seems to have been recognized by the 
committee of parliament in July, 1647,'^ and after- 
wards by King Charles II., who in his letter of 
April 23, 1664, to the colony, speaks of "the time 
when we renewed your charter." '^ The grantees 
showed their faith in the patent to the extent that they 
were willing to invest money in it and some of them 
proposed to settle within its limits. 

**Winthrop's History of New England, n, 319. 
•7 Trumbull's History of Connecticut, 1, 523. 



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