The Catholic University of America, Columbus School of Law CUA Law Scholarship Repository Scholarly Articles and Other Contributions Faculty Scholarship 1972 A History of Connecticut's Long Island Sound Boundary Raymond B. Marcin The Catholic University of America, Columbus School of Law Follow this and additional works at: https://scholarship.law.edu/scholar Part of the Legal History Commons Recommended Citation Raymond B. Marcin, A History of Connecticut's Long Island Sound Boundary, 46 CONN. B.J. 506 (1972). This Article is brought to you for free and open access by the Faculty Scholarship at CUA Law Scholarship Repository. It has been accepted for inclusion in Scholarly Articles and Other Contributions by an authorized administrator of CUA Law Scholarship Repository. For more information, please contact [email protected]. 506 CONNECTICUT BAR JOURNAL [Vol. 46 A HISTORY OF CONNECTICUT'S LONG ISLAND SOUND BOUNDARY By RAYMOND B. MARciN* THE SCENEt Long before remembered time, ice fields blanketed central India, discharging floes into a sea covering the Plains of Punjab. The Argentine Pampas lay frozen and still beneath a crush of ice. Ice sheets were carving their presence into the highest mountains of Hawaii and New Guinea. On the western land mass, ice gutted what was, in pre-glacial time, a stream valley near the northeastern shore. In this alien epoch, when woolly mammoth and caribou roamed the North American tundra, the ice began to melt. Receding glaciers left an inland lake where the primeval stream valley had been. For a time the waters of the lake reposed in bo- real calm, until, with the melting of the polar cap, the level of the great salt ocean rose to the level of the lake. In in- stant metamorphosis, the glacial lake teemed with life and became a Sound.' For millennia, generations of nameless, unremembered seacoast dwellers watched as the Sound waxed secure. Men later chronicled as Pequot, Mohawk, and Mohegan shared the bounty of the Sound. Adventurers challenged its buffet- ing caps. Then, some twelve thousand years after its birth, the Sound was mute witness to the systematic and organized occupation of its shores. With that, its legal history began. * Of the Hartford Bar; member, Editorial Board, CONNECTICUT BAR JOURNAL; Assistant Professor of Law, the Catholic University of America. t For a discussion of the history of Connecticut's inland boundaries, see Bowen, The Boundary Disputes of Connecticut; James R. Osgood and Co., Boston, 1882; and Hooker, Boundaries of Connecticut; Connecticut Tercentenary Commission; Yale University Press, 1933. 1 See Simpson, ICE AGEs (1938 Annual Report to the Smithsonian Insti- tution) at 289 et seq., and Flint, GLACIAL GEOLOGY OF CONNECTICUT (State Geological and Natural History Survey, 1930), at 34, 217, 218. 1972] LONG ISLAND SOUND BOUNDARY THE CONFLICTING PATENTS The climate which gave the Sound its birth was no less chaotic than the legal climate which drifted to its shores in the early seventeenth century. The initial and obvious question as to the territorial rights of the native occupants of the coastal lands of the "New" World was settled sum- marily by European consensus: [A]ccording to principles of international law, as then understood by the civilized powers of Europe, the Indian tribes in the new world were regarded as mere temporary occupants of the soil, and the absolute rights of property and dominion were held to belong to the European nation by which any2 particular portion of the country was first discovered. Territorial boundaries depended upon often conflicting letters patent, treaties, and land ,grants from various Euro- pean Crowns, and, consequently, overlapped considerably. The coastal boundary of Connecticut seems to have been rooted in three separate documents: The Warwick Patenit of 1631, the Charter of Connecticut of 1662, and the York Patent of 1664. The State of New York, however, has ad- vanced two other patents as supportive of its claims with respect to Long Island Sound: A patent to the Earl of Sterling in 1614 and a York patent of 1674.1 Further com- plicating the situation was the Treaty of Hartford of 1650 between the Colony of Connecticut and the States General of Holland, in which the Dutch gave Connecticut all of 4 Long Island itself east of Oyster Bay. The Warwick Patent is dated March 19, 1631. Robert, 2 Martin v. Waddell, 41 U.S. (16 Pet.) 367, 409 (1842). 3 See Report of the New York Commissioners Appointed to Settle the Disputed Boundary Lines with the State of Connecticut, 1880 New York State Assembly Documents, vol. 3, no. 53, at 7. 4 The treaty is mentioned in Keyser v. Coe, 14 Fed. Cas. 442, 445 (No. 7,750) (C.C.D. Conn. 1871). The Federal Circuit Court for the District of Connecticut, while not called upon to vindicate Connecticut's claims to Long Island itself, nevertheless observed that it was well known that long prior to the York Patent, Connecticut did in fact exercise jurisdiction over a large part of Long Island. CONNECTICUT BAR JOURNAL [Vol. 46 Earl of Warwick, derived his title to the patent lands from the Council of Plymouth by a grant made to him in 1630 and confirmed by a patent from Charles I. The Council of Plymouth, in turn, held the lands under the Great Patent of New England from James I, dated November 3, 1620. In relevant part, the lands granted by the Warwick Patent include: All that part of New England, 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, ac- counting three English miles to the league; and, also all and singular the lands and hereditaments whatsoever, ly- ing and being within the lands aforesaid, north and south, in latitude and breadth, and length and longtitude, of and within all the breadth aforesaid, throughout the main lands there, from the Western Ocean to the South Sea, and all lands and grounds, place and places, soil, wood and woods, grounds, havens, ports, creeks and rivers, waters, fishings, and hereditaments whatsoever, lying within said space, and every part thereof; and, also, all islands lying in America aforesaid, in the said seas, or either of them, on the western or eastern coasts or parts of said tracts of lands by these presents mentioned to be given, granted ....5 So Warwick gave not only Long Island Sound, but also Long Island itself to Connecticut. Right? Not quite. Al- though the Great Patent of New England (out of which the Warwick Patent was carved) granted to the Council of Plymouth the whole region from the fortieth to the forty- eighth degrees of north latitude, "with all the seas, rivers, islands, creeks, inlets, ports, and havens within those de- grees,"' and although the Charter of Connecticut of 1662 bounded the Colony "south by the sea" (ocean), another patent was in conflict. On March 12, 1664, Charles II granted to his brother, the Duke of York, 5 Quoted in Keyser v. Coe, supra n. 4, at 443. Old. at 445. 1972] LONG ISLAND SOUND BOUNDARY . all that island or islands commonly called by the several name or names Matowacks or Long Island . together with all the lands, islands ... harbors, . fishings, . to the said several islands, lands, and premises belonging and appertaining, with their and every of their appurtenances .... The double grant of Long Island was settled in November of 1664, when a royal commission (attended by Connecti- cut delegates, including the Colony's governor) decreed . that the southern boundary of his majestie's colony of Connecticut is the sea, and that Long Island is to be the government of his royal highness the Duke of York ....8 HIGH SEAS, TERRiTORiAL WATERS, OR INLAND WATERWAY From the settlement of 1664 to the latter part of the nine- teenth century, the question as to whether Long Island Sound was (1) high seas and, therefore, the common prop- erty of all nations, (2) territorial waters and, therefore, subject to federal jurisdiction, or (3) an inland waterway owned by New York, Connecticut, or both was as unsettled as ever a question has been. In 1765, in an action of trespass for cutting timber on Great Captain's Island in Long Island Sound, the Connecti- cut Superior Court found that the island in question was within the colony of Connecticut, and not New York.' In 1810, a federal court in New York, drawing on the Charter of Connecticut of 1662 and the York Patent of 1664, found that the Sound belonged neither to Connecticut nor to New York, although it did not reach the question whether it was a territorial sea appertaining to the United States or a part of the high seas and common to all nations. ° In 1843, a federal district court in New York attempted 7 Id. at 444. 8 Id. at 4 45. 9 Id. at 447, discussing Bush v. Anderson, Connecticut Superior Court, February 23, 1765. 10The Sloop Elizabeth, 8 Fed. Cas. 468, 469 (No. 4,352) (C.C.D.N.Y. 1810). 510 CONNECTICUT BAR JOURNAL [Vol. 46 to resolve the controversy when it ruled that Long Island Sound was an arm of the sea under the maritime jurisdiction of the United States: The Sound is an arm of the sea, within the common law acceptation of the term, being navigable tide-water (cita- tions), and more specifically an arm of the sea than mere rivers, bays or inlets; because in addition to its tide- water and navigable quality, it is without the territorial limits of any county (citation).