A State of the Right in Fee, the Inhabitants of the Province of the Massachusetts Bay have to all the Lands, by them not granted, lying West of Connecticut River and adjoining thereon, and East of the East Boundary Line of the Province of New York, running
North of the Point or Station in the late run Jurisdiction Line between the Bay Province and New Hampshire which constitutes the supposed Northwest Corner of that Part of the Massachusetts Province lying South of New Hampshire, South Boundary Line as it was called when run West as far as the East Borders of New York Government and extending North as far as a Line drawn East of Fort William Henry, running East to the Western Banks of Connecticutt River, at Windsor in the County of Cumberland all which lyeth in the Jurisdiction of New York Government by an order of the King in Council 20th July A.D. 1764.
For the Discussion whereof it may not be amiss to premiss the following Facts.
Cabot. H. 7
1st. The Continent of N. America was discovered by one Sebastian Cabot1
in Behalf of the English Crown in the Reign of H. 7. under Commission from him from the 40th to 67th deg. N. Lat. within which Limits, the Land under Consideration and the whole Government of Mass. Bay lieth. The Truth whereof it is supposed None will contradict.
1606. J. 1st. 2. In 1606. K. James the first, of England, granted all the Continent from 34 to 45 Deg. of Northerly Lat. which he divided into two Colonies, the Southern Virginia to certain Merchants of London, the Northern, N. England to Merchants of Plymouth in the County of Devon in England.
1607 3. In 1607. Some of the Patentees of the Northern Colony, began a Settlement at Sagadahoc, George Popham President. He died soon. Seven other eminent officers came over with him and about 100 People more, to settle the Country. The Winter being hard and 1608 severe, what survived returned to England in 1608 and so the design of settling the Country by them was at an End, and it seems none did much in reviving the design of settling for 9 or 10 years after. But
4. In 1620 Novr. 3d. King James made a new Patent incorporating the Adventurers to the Northern Colony, by the Name of the Council of Plymouth for the settling, or Planting, Ruling, ordering and governing New England in America, and to their Successors and
Assigns all that Part of America lying and being in Breadth from 40 deg. of Northerly Lat. from the Equinoctial Line to the 48 deg. of N. Lat. inclusively and in Length of and within all the Breadth aforesaid throughout, all the main Land from Sea to Sea, together with all the firm Lands &c. which includes the whole of the above first described Lands, and all other the Lands, within the Limits of the Bay Province in its first utmost Dimensions, equally.
1628 5. The Council of Plymouth, A.D. 1628 made a Grant of the same Lands above at first described with all the other Lands, in the last mentioned Province (i.e.) the Bay Province), of which them Lands are Part, Roswell & Young unto Sir Henry Roswell and Sir John Young Knights and four others, named in the Grant, and to their Heirs and Assigns and to their Associate forever by their Deed indented of Bargain and Sale for valuable Consideration under their common Seal as a Corporate Body Politick, who undertook to see to the Settlement of New England in America, the Patentees having engaged to accomplish it, as the meritorious Consideration of the Deed, at the Expence of the Adventurers without any Cost and Charge of the English Crown to enlarge the British Empire, populate so great a Territory in such a distant and remote Part of the Kings Dominions, the Atlantic 1000 Leagues lying between, a vast Number of Savage Barbarous Indians to encounter and Subdue all at their own Expence, to do and perform all which seems to have been the great Object in View both by the Royal Granter of the Premisses to said Council and the said Council's in their Grant by their said Indenture to said Roswell and his associates above mentioned being six Grantees in the whole.
1629. March 4. Car. 1.
6. Who having joined 20 more Associates with the Six Grantees mentioned in the Deed indented as aforesaid, the Year following viz. 4 March 1629, they obtained a confirmatory Corporation Grant of the same Land, to themselves and their Heirs and assigns, included in the said Deed indented, the Northern Boundary whereof is expressed, “Three Miles northward of Merrimack River, or to the Northward of any and every
, and East and West bounded from the Atlantic to the Pacific Ocean, within which Limits the Lands first mentioned are all included.
1684. Q. whether this Decree affected Roswells Indenture.2
7. That Patent of King Charles the first was vacated in 1684.
8. The Inhabitants of the Massachusetts Bay Province was Re-incorporated by a Charter of King William and Queen Mary A.D. 1691. with new Plymouth and other Colonies, by which all the Lands at first described, were granted and confirmed to the said Inhabitants and their Successors, and infranchised with the Powers of Government and impowered to make Grants of the Lands, within the Same, not before by them granted, in Consequence whereof.
9. The Inhabitants of the Province of Mass. Bay, have purchased a considerable Part of those Lands, at first described, of the Indian Natives, West of the Western Banks of Connecticutt River, the greatest Part of the Space from Northfield up Northward towards Windsor, West of, and granted upon the River.
10. And granted some Part of the same lying in Hindsdale in said Tract, more than one Hundred Years since.
11. And Also made Grants of Six other Townships, a long time since, sundry of which more than Sixty Years since.
12. The Grantees whereof taken Possession of these Lands upon the faith of their Grants under the Bay Government, and the Authority derived from their Charter so made them to Grant the same, and the Purchasers under them have a long Time since, entered upon those very Lands and occupied them at a vast Expence and vast Numbers of People are now cultivating the same all upon the Faith of the Government of the Massachusetts Bay.
13. The Inhabitants whereof have done much to defend their Possession and Improvements, through the long Series of long protracted bloody French and Indian Wars at the Expence of much of their Blood and Treasure, Houses and Barns by them being burnt, their Cattle killed, many of them captivated, others slain by
the sword all in defence of their said Possessions and Improvements.
Fort Dummer & No. 4.
14. In Addition to the Defence the Inhabitants so made in Time of War, it all being too weak, by no means answering their Hopes, the Massachusetts Province erected two Forts, the one call'd Fort Dummer, the other No. 4.4
in Defence of the Lands contained in their Charters aforesaid as well as in said Roswells Deed, the former upon the very Lands at first described, the other so near them, that only Connecticutt River is between it and said Lands and maintained them Forts at the Expence of two hundred and seventy odd Thousand Pounds Currency.
15. Upon Remonstrance and Petition of the Massachusetts Bay Province to the King and Council of their Grievance in having the Jurisdiction of those Lands given to New Hampshire, had an order of the King and Council, to have them reannexed to the Province again or that New Hampshire should reimburse that Sum to the Bay Province, but neither of which hath been performed.5
In 1677 Mass. disputes before the Lords of the Privy Council with John Mason Propr. 1639 of N. Hampshire & Ferdinando Gorge respecting their Boundary of their Patent from C. 1. in which dispute they viz. the Mass, before & on the 16 July 1677 before the Lords of the privy Council claimed all those Lands 3 Miles N. & S. of the two Rivers Charles and Merrimack
16. Some Disputes having arisen, between the prov. Mass. Bay and Captn. John Mason as Proprietor of New Hampshire and Ferdinando Gorge who had a grant from King Charles the first in 1639 of a Tract of Land then called the Province of Main, which adjoined to N. Hampshire on the North East, beginning at Piscataqua Harbour and running from thence N. East along the Sea Coast to Sagadahock and extending inland 120 Miles, and a Question arising as to Extent and Limits of their several Boundaries specified in their respective Grants, the said Mason and Gorge petitioned his Majesty in Council to have these disputes determined; and it having been referred to a Committee of Council they with the Assistance of two Lords Chief Justices, Rainsford and North
entered into Consideration thereof, and heard all Parties, and the said Province of the Massachusetts Bay having claimed before them to be intituled to all the Lands within two Parrallell Lines to be drawn from the Atlantic Sea on the East Part to the South Sea on the West Part, three Miles South of every Part of
Charles River and three Miles North of every Part of Merrimack River, the said two Parrallel Lines to be the South and North Boundaries of the said Province of Massachusetts Bay. whereupon,
1677. 16. July. order of K. & Council upon the Report of the Comtee. of Privy Council.
17. By order of the King and Council, reciting a Report made by the Committee of the Privy Council, and the said Lords Chief Justices, taking among other Things that having examined the several Claims of the Parties &c. and after stating the two Grants from the Crown to the Massachusetts and the Province of Main, and that it was insisted that the Grant of Government to the Massachusetts could extend no further than the ownership of the soil—their Lordships reported “That See the printed State of the Case between Benja. Rolfe Esqr and the Town of Bow. page 2d. by De Grey & Wedderburn. 17626
it seemed very clear to them that the Grant of the Government by the Massachusetts Charter extended no further than the Boundaries expressed in their Patent and that those Boundaries could not be construed to extend further North along the River Merrimack, than three English Miles; for the North and South Boundaries of the Lands granted, so far as the Rivers extend are to follow the Course of the Rivers, which makes the Breadth of the Grant. And that the Words in the Charter describing the Length to comprehend “all the Lands from the Atlantic Ocean to the South Sea in all the Breadth aforesaid” did not warrant the overreaching those Bounds by imaginary Lines, as the same would be against the Intent of the Grant; the Words “of and in all the Breadth aforesaid” showing that the Breadth was not intended an imaginary Line laid upon the broadest Part; But the Breadth respected the Continuance of the Boundaries by the Rivers as far as they go; but when the known Boundary of Breadth determined it must be carried on by imaginary Lines to the South Sea. And were of Opinion as to the Powers of Government, that the Massachusetts by the said Letters Patent had such Right of Government as is granted them by their Patent within the Boundaries of their Land expressed therein, according to such description as their Lordships had thereof made as aforesaid; and give the like opinion as to Gorge's Right of Government over the Province of Main, which Report was approved and con•
firmed by his Majesty in Council and all Parties ordered to acquiesce therein.
18. In 1729 David Dunbar Esquire, came over from England and took Possession of the Fort at Pemaquid Vid. Appendix to the Votes of the House 1762. A brief State of the Title of the Prov. to the Country bet. Kennebeck & St. Croix. p. 10. 11.7
and claimed Jurisdiction over the Country at St. Croix, by Virtue of Authority from, and in Behalf of the Crown. The Proprietors allarmed at this Invasion of their Property, employed and impowered Samuel Waldo Esqr. to Petition the King that the said Dunbar might be removed, and that they might be quieted in their lawfull Possessions. Sir Bybye Lake a Proprietor in the Eastern Country, joined with Mr. Waldo in the Solicitation, and the Petition being referred to the Board of Trade, they called the Province Agent before them, and a State of the Case was ordered to be drawn up, setting forth the Provinces Claim, how little Expence the Province had been at in defending and improving this. The Conquest made in 1696 by the French, and the Reconquest in 1710, and the Lords of Trade, referred the State with the two following Queries subjoined to the Consideration of the Attorney and Solicitor General vizt. 1st. Whether the Inhabitants of the Massachusetts Bay if they ever had any Right to the Government, of the Tract of Land lying between St. Croix and Kennebec River, have not by their Neglect and even Refusal to defend and take Care of and improve the same, forfeited their said Right to the Government and what Right they had under the Charter and now have to the said Lands. 2. Whether the said Tracts being conquered by the French and afterwards Reconquered by General Nicholson in the late Queens Time, and yeilded up by France to G. Britain by the Treaty of Utrecht, that Part of the Charter relating thereto became vacated, and whether the Government of that Tract, and the Lands thereof are not absolutely revested in the Crown, and whether the Crown has not thereby, sufficient Power to appoint Governors and assign Lands to such Families as shall be desirous to settle there.
The Attorney and Solicitor General heard Council on Behalf of the Crown and on Behalf of the Province and Proprietors, and on 11. August 1731 made Report. vizt.
Report of Atty. & Solr. Genl. 19. That upon considering the said Case and Queries and the Evidence laid before them, and what was alledged on all Sides it appeared to them that the Tract of Land lying between the Rivers Kennebeck and St. Croix was (among other Things) granted by the said Charter to the Inhabitants of the Massachusetts Bay &c. also that the Right of Government granted to the said Province extended over this Tract of Land.
That it did not appear to them that the Inhabitants of the said Province had been guilty of any such Neglect or Refusal to defend this Part of the Country as could create a forfeiture of their Subordinate Right of Government over the same, or of the Property in the soil that was granted to them by the said Charter, it being Sworn by several Affidavits that a Fort was erected there and for some considerable Time defended at the Charge of the Province &c.
And as to the Question stated in the Case upon the Effect of the Conquest of that Tract of the Country by the French and the Reconquest thereof by Genl. Nicholson they conceive that the said Tract not having been yielded by the Crown of England to France by the Treaty, the Conquest thereof by the French, created according to the Law of Nations only a Suspension of the Property of the former owners and not an Extinguishment, and that upon the Reconquest of it, by General Nicholson all the ancient Rights both of the Province and private Persons, Subjects of the Crown of Great Britain, did revive and were restored, Jure Postliminii.8
For which Reasons they were of opinion that the said Charter still remained in Force, and that the Crown hath no Power to appoint a particular Governor over this Part of the Province or to assign Land to Persons desirous to settle there &c.
20. About the Year 1718 Captn. Coram formed a Scheme for obtaining a Grant from the Crown of the Appendix to the Votes of the House 1762 Page 9.
Lands bet. Nova Scotia and the Province of Main and a Petition was signed by Wm. Armstrong and divers others praying such Grant might be made to them. The Petition being referred to the then Solicitor General, part of his Report thereon was a[s]
follows “The King
cannot make a Grant of these Lands, the Crown having already devested itself of its Rights.”
21. When Dr. Increase Mather was at England Agent for the Province, to obtain the last Charter of Wm. and Mary, he and two other Agents having signed a Petition to the King for a new Charter, the Rt. honble. Earl of Monmouth delivered it to the King with his own Hand, whereupon Mr. Mather obtained the Interposition of a great Personage, who prevailed with the King to refer the Affair unto the Consideration of the two Lords Chief Justices with his Majestys Attorney and Solicitor General, all of whom (from the Reasonableness of the Petition and the Equity of having it granted as will appear in the Sequel) had been brought into the New English Interest in the Premisses. So engaged were they, for a new Charter, as to meet 3 or 4 Times, in Consultation upon it. They all judged there was nothing unreasonable or prejudicial to the Kings Interest, in what was proposed. Whereupon the Ld. C. J. Holt presented it to the King, and the King ordered him to present it to the Council, who did accordingly, and from thence transferred to the Lords of the Committee for Trade and Plantation Affairs. Moreover Dr. Tillotson Archbishop of Canterbury and Dr. Burnett See the Book intituled Remarkables of Dr. Increase Mather page 124. 125. 6. 7. printed at Boston 17249
Bishop of Salisbury, both judging it to be most reasonable and just that they should have a new Charter, the latter, who besides many Real and weighty Expressions of his Kindness for this Country, told Mr. Mather that he would on the first Opportunity declare openly in the House of Lords “that there was a greater Sacredness in the Charter of New England, than in those of the Corporations in England, because those were only Acts of Grace whereas the Charter of New England was a Contract between the King and the first Patentees
: they promised the King on their Part to enlarge his Dominions on their own Charges, provided they And their Posterity might enjoy such Priviledges: They had performed their Part. Now for the King to deprive their Posterity, of the Priviledges therein granted them, would carry a Face of Injustice with it.
1736. Feby. 9. Order of his Majesty in Council on the Pet. of N. Hampshire for a Commission to issue to ascertain their Boundaries. Vid. the printed State of the Case Benja. Rolfe Esq and others vs. the Proprietors of Bow Township in N. Hamshire. p. 3.
22. Upon a Petition of New Hampshire to his Maj•
esty, praying that the Boundaries of that Province might be ascertained his Majesty was pleased by order in Council to direct a Commission to issue to mark out the dividing Line between the said Province of New hampshire and the Massachusetts Bay; but with an express Declaration in that order contained “to take Care that private Property Should not be affected thereby.”
23. A Commission having been accordingly issued the Commissioners proceeded to examine into the Boundaries of the said Provinces: And a Distinction having been taken before them between the old and New Charters of the Massachusetts Bay for that the old Charter, not only declared the North Boundary of that Province to be 3 Miles Northward of the said River Merrimack but also to the Northward of any and every Part thereof; and under which old Charter the said Adjudication in 1677 had been made (Vid 17. before) which declared the North Boundary of that Province to be 3 Miles to the North along the River merrimack, and so far as that River extends to follow the Course thereof; but that in the latter or New Charter of the Massachusetts Bay, these Words (to the Northward of The Words of the Charter of W. & Mary are Proviso “that it shd be lawfull for the Govr & General Assembly to make and pass any Grant of Land lying within the Bounds of the Colonies of the Mass Bay, Plymouth and Province of Main as they might heretofore have done by Virtue of any former Charter or Letters Patent which Grants of Lands within the Bounds aforesaid (i.e. south of 3 Miles to the North of any and every Part of the River Merrimack the Words of the former Charter and Roswells Deed of Indenture from the Council of Plymouth) their Majestys did Will and ordain to be and continue forever of full force and Effect without our further Approbation or Consent. This Line cutts off from the Bay Province more than 253,440 Acres of Land, more than it would, had it run West 3 miles. North of the North Side of the Northernmost part a little west of the Mouth of the River Merrimack which is worth, in the State of Nature, as the New Yorkers sell their Lands of that Value in that Neighbourhood a dollar Per Acre, which amounts to more than seventy six Thousand Pounds lawfull Money, their being about 12 Townships so cutt off, which Adds to the Interest and Power of New York. That if taxed in the Bay at but 50£ per Annum per Township, adds to the Yearly Revenue of the Province 2400£ lawfull Money. And what is cutt off North in that District up to the Line of 3 Miles North of Merrimack River Crotch, according to the Report of the Commissioners in 1737 in favour of the Bay, if Wm. and Marys Charter gave all the Lands that were granted in the first Charter is 4 times that Quantity of Land and in a few Years will be worth at a Dollar per Acre 1,013,760 Dollars. 48 Townships at 50£ Tax per Annum Adds to the Yearly Revenue of this Province, when the Lands are brought into it and taxed that Sum per Town 9,600, lawfull Money per Annum.10
any and every Part thereof) are omitted. And a Doubt arising in Point of Law with the said Commissioners as to that Boundary, they determined specially, as follows (viz) “that if the said last Charter of King William and Queen Mary, granted to the Massachusetts all the Lands that were granted to them by the said former Charter of K. Car. 1. lying to the Northward of said Merrimack River, then the Commissioners determined that a Line should be run Parrallell with the said River Merrimack at the Distance of three English Miles North from the Mouth, beginning at the southerly side of the black Rocks, at Low Water Mark and thence to run to the said Parting of the said River, where the Rivers Pemigewassett and Winipissiake meet; and from thence due North 3 Miles, and from thence West towards the South Sea untill it meets with his Majestys other Governments; which shall be the Bound•
ary or dividing Line, between the said two Provinces of Mass. Bay and N. Hampshire on that side: But if otherwise then adjudged that a Line on the southerly side of N. Hampshire beginning at 3 english Miles North from the southerly side of the Black Rocks aforesaid and from thence Running due West up into the Main Land towards the South Sea, untill it meets with his Majestys other Governments should be the Boundary Line between the said Provinces on the Side aforesaid, i.e. the south side of N. Hampshire, which Point in Doubt they submitted to his Majestys Consideration.
[24.] His Majesty by order in Council made upon the said Report, and Hearing the Provinces by their Council was pleased, to adjudge that the Northern Boundarys of the said Province of Massachusetts Bay, are, and be, a Similar Curve Line pursuing the Course of the River Merrimack at 3 miles distance on the North Side thereof beginning at the Atlantic Ocean and ending at a Point due North of a Place called Pantuckett Falls, and a Strait Line drawn from thence due West across the said River till it meets with his Majestys other Governments.
Thus having recited the most important Facts that occur to my Mind at Present by which a General Idea of the Right of the Inhabitants of Mass.-Bay to the ownership of the Soil of those Lands, in the district above at first described containing about 48 Townships, except what was then granted, as well as the Right they have to claim the same and Petition the King and Council for the Jurisdiction of these Lands in full, according to their first Charter as well as from the Deed to Roswell &c. indented under the Common Seal of the Council of Plymouth 146 years since.
But more particularly to investigate their Right to this District and clearly show it by incontestible Argu•
ments from Law and Equity, I beg Leave to make some Observations upon the several Grants thereof, under the said Indenture to Roswell as well as those from the Crown. 2. Observe upon the several Reports, Constructions, and Adjudications of Commissioners, the most eminent Lawyers, Lords Chief Justices, Committees of the Lords of Trade and Plantation and Plantation Affairs and of those of the House of Lords in Parliament and also the orders of Kings and the Right honourable the Lords of their respective privy Councils, which have been made and exemplified at large and openly published to the World thereupon, and lastly shall attempt to show the Insufficiency of the Claim of New york, to the same Lands and endeavour to refute the Arguments they adduce in support of their pretended Right thereto.
1620 Grant of K. James to the Council of Plym.
The Grant of K. James 1st. by his Letters Patents to the Council established at Plymouth in the County of Devon of all the Land &c. from the 40th to the 48th degree of Northerly Latitude, from sea to sea, including If the Consideration pd. or given, by the Grantee is a Burden & Expence to the Grantee, and yields a Profit & Advantage to the Grantor it is good in Law. So if the Consideration be expressed to be valuable it is good & the Estate shall poss. a Penny or a Pepper Corn, is a meritorious Consideration to raise a Use. &c. Shep. grand Abr. Tit Bargain & sale. Hawk Abr. Co. Lit. 5. Noys Maxims 87. Hob. 230.11 When the Contract is by deed it shall not for Want of a Consideration be call'd in Question. Plowd. Com. 309.12 a fortiori in a deed of Indenture, the Law forcloses each Party Hawk Abr 77. A deed of Indenture is the best deed the Law knows, for this works by Way of estoppell. i.e. it shall bar Either Party to say any Thing by Way of Exception against any Thing contained in the Indenture. If a Lease be by Indenture both Parties are concluded13 to say the Lessor had Nothing in the Lands at the Time the Lease was made. See Shephards Abr. 540. Tit. deed. Plowd. Com. 134.
this District of Land, for the greatest and most important End, and End of the highest Concequence to the English Nation, in its first Formation, that ever was yet project and the Effect and the Operation thereof to the English Monarchy has incontestably demonstrated the Truth hereof, when duly considered with Respect to the design thereof expressly set forth in the Front of the Patent, for the planting &c. of New England in America from which so many flourishing Colonies that have spread themselves so far and wide on this large Continent, from the Example and Prudent Conduct of this Province, has induced so many Thousands to settle in America. When was there ever a Scheme set on foot by any King of England, that has proved so beneficial to the Nation as this Scheme of Planting New England—What an Additional Extent of English Territory—What Numbers of good and Loyal subjects—What Numbers of Thousands and Millions st. in Trade and Commerce—What vast Additions of Strength, in Arms Power and Glory, in the View of all Europe, and to the Dread Fear and Terror, of all her
Kings and Monarchs. The whole Weight of all this super structure is laid upon and securely rests on this ancient and important Projection of Planting New England. This Charter was the laying the solid Basis, and great Foundation of all those glorious Achievements. Therefore the Adventurers and first Settlers of this Country to whence this Council of Plymouth by their Deed indented under their common seal, by Bargain and sale, did give grant &c. this district with other Territory included within the Limits of their Grant, in settling this Continent before any others, did do it as a most rich and valuable Consideration paid the Crown. Never was so valuable a sum paid in Consideration for any Grant, by English subjects to their Sovereign as this was. Never did a Prince reap so great a Profit by a Purchase Consideration paid for Lands and Tenements as has accrued to the English Monarchy hereby. Therefore the Consideration of the Grant by the Indenture aforesaid is highly meritorious of the whole Lands included in the descriptive Limits of their Grant by said Indenture to Roswell.
Consider next the Words of the Grant, The said These words make a Fee simple, to the Grantees. Hawk Abr. 13. Plow. Com. p. 28. bottom. Council in their Corporate Capacity, did by their deed indented under their common seal &c. “give, grant, bargain, sell, enfeof, alien and confirm, to Sir Henry Roswell &c. their Heirs and Assigns, and their Associates forever.” Words the most proper, full and copious of any known in the Law.
a Confirmation is not good, when made by him who has nothing Com. Dig. Tit Confirmation D. 4. p. 366.14 a Confirmation by him who has nothing at the time, is worth nothing 1. Roll. 482. 1. 8. as if T. in Tail and issue in T. join in a grant of the next avoidance; and T. in Tail dies: This is not a Confirmation by the issue in Tail for he had nothing at the Time. R. Roll Abr. 482. 1. 10.
Consider next the Northerly Limit and Boundary of the Estate, Domain, or Property so granted, by clear, precise, certain and most obvious Boundary, least subject to Mutation, being durable and permanent, bounded within the Space of 3 English Miles to the Northward of the great River call'd Monomack alias Merrimack to the Northward of any and every Part thereof, &c.
N.B. mention is made only of the Northern Boundary of the Grant, because from thence ariseth all the Contest about the Premisses, now the subject of Litigation with New York. Now compare this Boundary so precisely and certainly established with the Report of
Rainsford and North, 2 Lds. C. Justices in 1677—see No. 17. which Report was approved and confirmed, by his Majesty in Council and all Parties ordered to acquiesce therein. See how inconsistent thereto the order of the King and Council was in 1740—see No. 24.15
and how hard the order of the King and Council against the Interest and Rights of Mass. Bay, of 20 July 1764—see Page 1st. of this state.
Said Lands also, shall by said Deed indented be holden of said Roswell and the other Grantees, in free and common socage, and not in Capite, nor by Knights service. Now by stat. 12 of Car. 2d. Chap. 24. All Tenures, are turned into free and common socage. that to this Tenure in socage there is incident Fealty, Ayd, and Relief—Co. Lit. ss. 107. 108 Shep. Abr. 388. Tit. Lord and Tennant—Fealty, Ayd and Relief, yielded to the Sovereign, who is Lord Paramount of the soil, is all that is now due to him by Common socage. Enough has been said to show the Validity of the Bargain and Sale, by the Indenture to Roswell &c.—our N. York opponents dont seem to encounter the Validity of it, from its Fabrication, but they say the Vacation of the Charter, vacated the Mass. Right to the soil, which We deny, but of this hereafter.
This Deed executed 19 March in the 3d. Year of Car. 1, the next Year on the 4 March the same King by Letters Patent under the great seal, granted and confirmed the same Territory to said Roswell and his Associates he and they being 26 in Number, by the same Limits and Boundaries as by the Indenture, he and they had the same granted and confirmed to them and their Heirs and assigns forever by which Words of Grant &c. as in the said Indenture, the legal Operation whereof is a vesting of them &c. of an Estate of Inheritance See, on the Petition of Wm. Armstrong, and the Report of the Solicitor General thereupon that the King cannot make a Grant of the Land he petitioned for the Crown having divested itself of its Right thereto already, See No. 20.
in Fee simple, and it must have opperated so to the Grantees &c. had it not there have been out of the Crown to convey, the Council having then 8 Years before granted the same Lands to the Council of Plymouth, who the Year before this Charter of 4. Car. had by their Indenture aforesaid bargained and sold the Premisses to Roswell and his Associates &c. There•
fore this Charter respecting the Domain or Property of the soil cant opperate to the Grantees thereof only by a Confirmation of the Crown, of the same Estate it had a little before granted, altho the same Charter as to Franchisement and Powers of Government did opperate necessarily as a Grant thereof to the Grantees, (No Powers of Government to them having before been granted,) as a Body Politic, incorporating of them as such which was the principal End of the Crown by said Letters Patent, the Grantees having the Property of the Soil granted them by said Deed of Bargain and Sale before by those to wit Council of Plym. who had a Crown Grant thereof.
Hence it seems clear and incontestible, that the Vacation of that Charter in 1684–36th. of Car. 2d. could not affect the Title of the Land, confirmed as aforesaid; because the Grantees by the said Deed were seized in Fee of the Land immediately of those who had a Grant thereof immediately of the Crown, antecedent to this Charter. For the Crown cant grant, what it hath not. Therefore this Charter as to the Soil or Fee of the Land, cant enure, only by Way of Confirmation of the Crown to the Grantees therein, and of the said Indenture.
And Q. by common Law, after the Crown has divested itself of its Right to the soil, by the Grant thereof to the said Council of Plymouth, whether it can by any Subsequent Deed, so much as confirm the same, during the Validity of its prior Grant, by Charter or Letters patent of Jas. 1. to the Council of Plym. for the Consideration therein mentioned vizt. for the planting, or settling &c. of New England in America. See Marginal Note foregoing Page.16
The Consideration, in the old Charter, is expressed by the following Words, tho not recited in Wm. and Marys Charter “have for diverse good Causes and Considerations us moving (these Words are left out of the new Charter and the Words for the Considerations therein mentioned put in) granted and confirmed, and by these Presents, of our especial Grace, certain Knowledge and mere Motion, do grant, &c. unto said Sir H. Roswell and five more Grantees and their associates
20 more all by name, their Heirs and Assigns forever &c. The Consideration expressed, is the Grantees undertaking, to see to the settling or planting of N. England, all at their own Cost, without any Disbursement from the Crown—as appears by a Letter—Collection of Papers &c. page 3217
account of the ships, Persons, Expence &c. “The Company of N. England consisted of many worthy Gentlemen (meaning Roswells associates and first Adventurers) in the City of London, Dorchester and other Places, aiming at the Glory of God, the Propagation of the Gospell of Christ, the Conversion of the Indians, and the Enlargement of the Kings Majestys Dominions in America. And being authorized by his Royal Letters Patents for that End At their very great Costs and Charges furnished 5 Ships to go to N. England for the further settling of the English Plantation that they have already begun there. The Names of the 5 Ships were as followeth, the first is call'd the Talbot &c. 300 Tons. 2 the George 300 tons. 3d the Lions Whelp, a neat nimble ship 120 tons, the fourth called the four &c. of about 300 tons 5. the Mayflower &c.”
This Consideration was so great, that Dr. Burnet in 1691 said, that he would on the first Opportunity declare, in the House of Lords that there was a greater Sacredness in the Charter of New England, than in those of the Corporations in England &c. see No. 21.
But if there had been no Consideration paid, or given, or expressed, the Words (of our especial Grace, certain Knowledge and mere Motion) in common Charter or Crown Grants, where no valuable Consideration is advanced by the Grantee for the Benefit of the Crown, shall lead the Construction of the whole Charter, to be in favour of the Grantees most strongly, according to the legal Construction of the Grants of subjects—for their Grants shall always be construed most strongly against the Grantor and in favour of the Grantee. And in this Charter much more so, on Account of the Consideration by the Grantees advanced. Crown Grants, with the Words “Special Grace &c., shall be construed most favourably for the Grantees. Plowd.
Com. 330. Besides this see an express Clause at the Close of the old Charter “shall be construed, reputed and adjudged in all Cases most favourably on the Behalf and for the Benefit and Behoof of the said Governor and Company and their Successors.”
See Plowdens Comment. 330. 331. a Comment, or Paraphrase upon the Words Sp. Grace &c.
In the Claim of N. York to those Lands against the Right of the Mass. Bay, they will construe the Charter to opperate most in favour of the Crown. But see Com. Dig. 458 Tit. Grant, if the Kings Grant be ex certa scientia &c. and Mero Motu it shall be taken more strongly against the King, and beneficial for the subject; as if the K. Pardon a sheriff all Contempts, he shall be excused of a false Return. 36. H. 6. 24. b. 37. H. 6. 21. b. Co. Ent.18
384. so if he pardons A.B. all Debts, Ex certa &c., Debts as sheriff are discharged as well as all others. R. 2. Roll 37. a. 1. Hales Hist. Pleas of the Crown 7. 13. a.19
agrees 1. Coke 49. a. So a Grant ex certa &c. dispenses with Uncertainties per Manwood forest Law 3. Edn.20
See also the very Words of the Charter that the Construction shall be most favourable for the Grantees.