Early Land Grants & Title Controversy

EARLY LAND GRANTS & TITLE CONTROVERSY By Devro E. Porrnn

The Township of Clarendon was originally claimed under three different titles: First:John Henry Lydius, an Albany based Indian ttader, claimed by a 1732 deed from the Mohawk Indians, a tract of land 24 miles wide extending 60 miles south from the mouth of Otter Creek. This deed was confirmed to him by Gov. Shirley of Massachuse tts in 1744. The entire parcel of land was divided into 35 townships each containing 36 square miles. Present day CIar- endon contained one Lydius township called Durbam, and the southern por- tion of two others called Fairfeld, and Canzbrid.ge (which included present day Rutland Town and City). Many of the eatly Clarcndon settlers arrived from Rhode Island with leases acquired from Lydius. The terms of these leases were generous by today's standards. Lydius' indentures required rent of one pepper corn a year f.or the first 20 years, and 5 schillings a yeat for each yeat thereafter per 100 acres of improvable land. Second: Gov. Benning Wentworth of New Hampshire granted the township of Clarendon Sept. 5, 1761. This is generally the territorial bound- ary and title which prevailed after an extended period of dispute in early Clarendon history. Third: New York Gov. Dunmore attempted to achieve title to the region by the grant of. Socialboro April 3, 1771 (this included the northern parc. of. Clarendon, Rutland, and Pittsford). Later, on Jan. 7, 1772, Gov. Tryon issued a Neu York patent 0f Darham that included the rest of present day Clarendon.

It is easy to appreciate the confusion and disputes that arose from com- petition between three separate claims to the same territory. The first com- petitor to fall wasJohn Lydius. Although some historians consider him an Indian exploiter, he may have had the fairest claim to the land since he was supposedly the first to explore it and acquire it by deed. But in Dec. 1761 Lydius was brought to court in New York for issuing leases under his claim. His argument that the territory in question was not under New York jurisdiction was disallowed by the tribunal, and Lydius' claim was voided under threat of substantial fine. The original Lydius settlers of Clarendon were thus left looking east toward New Hampshire or west toward New York in order to establish clear title to their property. To complicate the picture, people started moving in from both New Hampshire and New York to claim the same piece of land, perhaps already occupied by a Lydius lease- holder. 10 7761 - Cr-enpr.rooN, Vunrvroxr - 1976 From 1771 until 1785 land disputes flourished in Clarendon, which perhaps more than any other single town in the state symbolized the struggle between New Hampshire and New York interests for control over Vermont territory. In the summet of 1771, the land interests of New York sent Will Cockburn to survey the grant of Socialboro (including northern Clarendon). Cockburn was confronted by settlers under the New Hampshire title and driven rudely back to New York. Two early Clarendon settlers to support the New York interests were Jacob Marsh and Benjamin Spencer. Marsh bought 600 acres in North Clarendon from the New York grantees of Socialboro. Additionally, he was appointed aJustice of the Peace with authority to implement New York justice in the County of Charlotte which extended from western New York state into present day Clarendon. Spencer lived in the southern part of Clarendon and was an active for the New York speculators in the ^gent Durham grant. The activities of both Marsh and Spencer eventually succeeded in raising the ire of the Green Mountain Boys, who steadfastly supported the interests of the New Hampshire titleholders. A showdown occurred in the autumn of 1773 when a group of 20-30 Green Mt. Boys led by Ethan Allen and Remember Baker took Mr. Spencer into custody. A trial was convened "in order to inspect and set things in order and see that there should be no intruders on the grants. Durham had become a hornets nest which must be broken up." Spencer chose to be tried at his own doorstep. The judges were Allen, Baker, Seth Warner, and Robert Cockran. Before alarge crowd they listened to accusations charging Spencer with "cuddling with the land jobbers of New York to prevent the claimants of the New Hampshire rights from holding their lands, and with issuing a waffar.t and acting as a justice of the peace under New York." The fudges found him guilty, declared his house to be a nuisance, and ordered it should be burned to the ground. Spencer pleaded that should his house and store of dry goods be destroyed, his family would be the great sufferers. Considering this plea, the iudges decided it unnecessary to desroy the entire building, reasoning that if the roof alone was taken off and replaced again under a New Hampshire title, justice would be served. Under the circumstances, Spencer agreed to these terms, and the Green Mt. Boys took off the roof "with great shouting and much noise and tumult." At about the same time, Jacob Marsh was returning to Clarendon from New York via Arlington. Here he was detained and threatened with a stern application of the "beech seal." After being released in Adington, he proceeded to Clarendon where he too found his house had been unroofed along with considerable other damage to his personal property' Eenr-v LeNo Gr.eurs & Trrr-n CoNrnovBnsv 11

The last New York justice of the peace in Durham to encounter Green Mt. Boy authority was Benjamin Hough. He was tried in Jan. 1775 by a severr man tribunal headed by Ethan Allen, Seth Warner, and others. Hough was senrenced to recieve two hundred lashes on the naked back and depart the New Hampshire Grants never to return again. With the sentence executed, he carried the "beech seal" back to New York where he bemoaned the story ofhis trial, sentencing, and punishment to the proper authorities, This resulted in the New York Assembly ofering large rewards for the apprehension of all judges involved in Hough's trial. None of rhe posted rewards were ever executed, as nooe of the defiant Green Mt. Boys were ever captured. This incident climaxed the efort of the colonial govern- ment of New York to exert its influence over the New Hampshire Grants. The conflicts and uncertainties of the American Revolution soon came to dominate the local as well as national scene. With the power struggle between New York and New Hampshire interests forceably settled by the Green Mt. Boys, the Revolution once again served to divide Clarendon inhabitants into two groups: Whigs and Tories. Clarendon apparently had its share of both. V/ith the movement of the British under Burgoyne down the Champlain Valley in 1777, and following the defeat at Hubbardron, the town was mostly deserted since American patriots had fled sourhward toward Bennington and Manchester ahead of the advancing British. Some Tories, however, chose to remain in Clarendon and seek protection papers from the British. With the subsequent defeat of the British forces at Sararoga, those who had sought protection from the invaders earlier, soon found themselves the object of Patriot vengeance. Legal roubles started for the Tories March 26, 1778 when the Governor and Council through the authority of the Vt. General Assembly appointed a Court of Confiscation to "order the sale of estate both real and personal belonging to the Enemies of the United States." The Court of Confiscation met on April 23, 1778 and issued the following statemeot in part, "having maturely considered the several proofs that were exhibited therein have by the notorious treasonable acts committed againsr rhis and the United States of America forfeited the whole of their real and personal estate . . . and the money arising from such sales . . be put into the public treasury of this state." The following list of Clarendon estates were ordered confiscated: Oliver Colvin Thomas Brayton Elijah Osbourn Solomon John Daniel Walker Daniel Hill Daniel Hill Jr. Benjamin Spencer Haselton Spencer Timothy Bull Thomas Green Moses Bowdish Daniel Marsh Simpson Jenny Jerimiah Spencer Jerrimiah Parker William Sutton John Lee Joshua Mattison Philip Nichols Gideon Brayton T2 176l - Cr.annNooN, Vanrr.roNr - L976

Samuel Richardson John Curtice Barnard Spencer Amariah How James Clark Joseph Brayton Joseph Lewis Comfort Curtice Timothy Hill Next, the Vermont Legislature on Feb. 26, 1779 passed "An Act To Prevent the Return To This State of Certain Persons Therein Named, and Others, V/ho Have Left This State, or Either of the United States, and Joined the Enemies Thereof." Penalty for returning the first time was 20-50 lashes on the naked back. A second return would result in being put to Death. Sixteen of the above named Clarendon residents were proscribed by this Act. It was repealed on Nov. 8, 1780. With their property, possessions and citizenship stripped away, many moved away to distant Tory strongholds where they sought security and compensation from the Crown for their losses. A few chose to return and contest the seizure of their lost property and attempt to restore their public rrust. One such Clarendon resident was Daniel Marsh. Soon after Marsh's return, the towo "voted to receive him as a good, wholesome inhabitant" on Dec. 16, 1782. His farm had been occupied after sequestration by one Silas Whitney, and Marsh carried on a running battle for several years in the courts and on the land itself to regain title ro his property. During the sruggle one party would sow and the other reap, one place a tenant and the other evict him. On one occasion, Whitney mowed several acres of hay on a disputed meadow, and while he was eating dinner, Marsh, with the assistance of others, drew it all away. On Feb 23,1782 che General Assembly passed "An Act Enabling Daniel Marsh Late A Prisoner, Taken By American Troops From Within the Enemy Lines, To Return To His Farm In Clarendon, and Take Peaceable Possession Thereof." However, by 1784 Marsh had lost two local lawsuits and u'as still not in possession of his farm. In that same year he ran for Clarendon Town Representative and was elected. In the legislature he lobbied steadfastly on behalf of himself and all parties who had lost land title during the Revolution. As a result the General Assembly passed what eventually came to be known as the "Quieting Act of June L7,1785." This was a long law which allowed that persons left without valid title to their supposed property (because of grant controversy or confiscation) on which they had at some time accomplished betterments, were entitled to compensation in the courts for the cost of those betterments. This piece of legislation generally helped to stem the land controversies statewide , and Marsh himself regained title to his property a second time through a special act passed on his behalf the next day. It was titled; "AN ACT TO SECURE DANIEL MARSH IN THE POSSESSION OF A CERTAIN FARM, UNTIL HE SHALL HAVE THE OPPORTUNITY OF RECOVERING HIS BEfiERMENTS AND NULLIFYING SEVERAL JUDGEMENTS AGAINST HIM,'' Eenr-v LeNo GnaNts & Trrr.e Coxrnovpnsv 13

Daniel Marsh took possession of his farm at this point. However the story does not end here. The First Council of Censors, established by the Constitution to review legislative directives, but whose findings were non binding, severely censured the special Marsh Act on Oct. 25, 1785. Listing five reasons, they recommended immediate repeal. It probably was no coincidence that the First Council of Censors was chaired byJudge Increase Mosely of Clarendon. The Legislature chose to disregard the council findings, and the Act was not repealed untll 1792, long afrcr the land controversy gradually subsided. Marsh remained Clarendon Town Represeotative through 1788 and is buried near his Clarendon farm. He encountered opposition in his re- election bid of 1786. A petition signed by 34 Clarendon residents, including Silas Whitney and Increase Mosely, questioned his credentials because of his earlier alleged Tory activities. He was, however, successfully seated for the term. It is also interesting to note Marsh was granted status as a Revolu- tionary soldier. In Feb. 1787 he successfully petitioned the General Assembly to consider his service of 16 days in providing hay, horses, and transportation fot Capt. Oliver Porters Co. to Montreal during the Canadian Expedition of 1775. This service occurred before his alleged Tory activities. Thus ends the story of Daniel Marsh, a complex man, living in very uncertain times.

SOURCES: (l) Vermont Historical Gazetteer by Abbie Hemenway, 1877. Vol. III - p. 552-576. (2) State Papers of Vt. ed. by Mary Nye 1941. Vol. VI p.14-17; 38; 78-80; r03. (3) St"te Papers of Vt. ed. by William Slade 1823. P. 500; 5f S. (4) State Papers of Vt. Vol. VIII p. 336-7. (:) N.v. C6uncil Minutes, vol. 25, p. 412 (courtesy Carmine Pacca)