Prov. Charter. Last Clause. “We do hereby reserve to Us, our Heirs and Successors, all Trees of the Diameter of 24 Inches
and upwards of 12 Inches from the Ground, growing
upon any Soil
or Tract of Land
within our said Province or Territory, not heretofore granted to any private Persons.”
The Old Charter of Mass. Bay, was a Grant to private Persons.3
“Growing” when? At the date of the Charter? According to this no Tree was reserved, but such as were then standing and 24 Inches diameter.
No Trees, growing on any “Soil” theretofore granted to any private Persons, are within this Reservation.
The Question is what is meant by the Words “granted to any private Persons” ? Granted by whom? And who are private Persons?
Answer, granted by the general Court either of Mass. Bay, or New Plymouth? To any individual, or Number of Individuals.
All the Lands in the Province, had been granted to Persons, and to private Persons, by the Council at Plymouth. The Patent to Bradford and his associates was certainly a Grant to private Persons4
—not to any Corporation according to Mr. Fitch's Doctrine.
1710. 9. Ann, c. 17, §1. “No Person, or Persons &c., do or shall presume to cutt, fell, or destroy, any white or other sort of Pine Tree, fit for Masts, not being the Property of any private Person
, such Tree being of the Growth of 24 Inches Diameter
, and upwards at 12 Inches from the Earth.” Penalty £100, before a Justice of Peace.5
1721. 8. G, c. 12, §5. “No Person or Persons, &c. do or shall presume to cutt, fell, or destroy any white Pine Trees, not growing within any Township
, or the Bounds, Lines or Limits thereof,” &c. without Licence, &c.6
Penalties. 12 Inches and under 3 feet from the Ground £5. From 12 to 18 Inches £10. From 18 to 24, twenty Pounds. From 24 and upwards £50—before the Admiralty.7
Trees, Masts or Logs, found cutt, or felled, forfeited and seized to his Majestys Use.8
§6. repeals 9. Ann, c. 17. So much of it as relates to cutting &c. such White Pine Trees.9
“Not growing” when? In 1721 or at the Time of cutting.
Here a Question is what the Legislature meant by a “Township” ? This Law was intended for the other Colonies, not for this Province. Not supposed that it could affect any private Property. In N. Hampshire, and N. York, where the K's Governor was giving away and selling Townships where he had not made a Township, it remained Crown Land.10
30 years intervened, between the Charter and the Act of 1721. Many Townships were erected in the mean Time which were not private Property before the act 1690. Therefore in all these Townships Trees might be cutt, even of 24 Inches Diameter, and upwards, for the Penalty in the Charter was void.11
1729. 2. G. 2, c.
35, §1. reciting the 8. G, c. 12. and that great Tracts, to evade the Act, had been erected into Townships, enacts that “No Person or Persons, do or shall presume to cutt, fell, or destroy any white Pine Trees, except only such as are the Property of private Persons
, notwithstanding the said Trees do grow within the Limits of any Township, laid out, or to be laid out.” &c.12
But no Penalty, nor any Forfeiture, by this Clause, nor any Seizure to the Kings Use.
This Exception defeats the Provision.13
recites the Reservation in the Massachusetts Charter, “of all Trees of 24 Inches Diameter and upwards at 12 Inches &c. growing upon any Soil or Tract of Land, &c. not theretofore granted to any private Person:” to make the Reservation more effectual
, enacted that “No Person or Persons within said Prov. of Mass. Bay
, or N. England
, do or shall presume to cutt, or destroy, any white Pine Trees of 24 Inches and Upwards at 12 Inches &c., not growing within some Soil or Tract
, &c. granted to some private Person, or Persons
, before 7. Oct. 1690.
“And every Person so cutting &c. such white Pine Trees, not being the Property of private Persons
, in any of the Colonies &c.15
“And likewise every Person cutting &c. any white Pine Trees of the Diameter of 24 Inches or upwards at 12 Inches &c., growing in any Tract &c. in said Prov. of N. England or Mass. Bay, not granted to some private Person or Persons
before 7 Oct. 1690, &c.16
shall be subject to such and the like Penalties and Forfeitures respectively, as
are provided in 8. G. 1. for such Persons as cutt &c. Pine Trees, not growing in any Township &c.”17
If the Words in the Charter “not herefore granted to any private Persons,” should be construed to mean only, not granted by Titles which were then good, valid and legal, the Words will mean nothing. For if the Vacation of the Charter18
dissolved the Basis and superstructure together, there was not at the Time of the Charter an Inch of private Property in the Province, it all being revested in the Crown, and the Consequence is that every Pine Tree in the Prov. 24 Inches, is reservd to the Crown.
On the contrary, if they mean, ever granted, and by any means, all the Trees in the Province are excepted out of the Reservation, and the Crown has no Right to one Tree.
The Clause in 2. G. 2, c. 35. “not growing within some soil &c. granted to some private Person or Persons before 7 Oct. 1690,” is liable to all the Difficulties in the Clause in the Charter, and to the same Construction. The Intention must have been, to except out of the Reservation all the Lands which had at any Time before been granted by any General Court, Either of Mass. or N. Plymouth, to private Persons, in short. Many had made great Improvements upon Lands, had cleared them, built Houses upon them &c.