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Browsing: Legal Papers of John Adams, Volume 2


Docno: ADMS-05-02-02-0007-0003

Surveyor General v. Logs, Kennebec Company, Claimant

DocGroupNo:

1772–1773

Docno: ADMS-05-02-02-0007-0003-0001

Author: UNKNOWN
Date: 1773-03

Questions Presented1

Court of Vice Admiralty, Boston, March 1773

Questions.
1. Whether King James's Letters patent to Lodowick Duke Lenox and others,2 are allowed to be good and sufficient to vest the lands thereby granted in the Grantees in Fee simple?
2. Whether their grant to Bradford is also good, and sufficient to vest the lands thereby granted either in him and his heirs in fee simple, or in the Colony of New Plymouth so called, by virtue of the said grant and his surrender.3
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3. Whether it is granted that there are now living lawfull heirs of the said Bradford.
4. Whether it is contended, that private persons, mean private persons in opposition to Tenants in common or joint Tenants?4
5. Whether the Duke of Lenox et al. are to be considered as private persons within the meaning of the Charter and Statutes?
6. If a mere Trespasser should cut Masts on land, which was indisputably the property of private persons before 1690, and was, by the King, prosecuted for the penalty could he legally, give in evidence, that the soil on which such trees grew, was the property of private persons before the 7 of October 1690,5 and thereby prevent the Statutes operating against him?
7. If lands were duly granted to a private person or persons before 7 Octr. 1690 and one, not the Owner of such lands, should cut Masts on said lands, could the King by virtue of the Charter and Statutes recover said trees or masts?
8. Whether the Council of Plymouth ever surrendered their patent,6 and when?
9. Whether it is conceded that by force of the Charter or the Stat• { 267 } utes, the Claimants are obliged to derive their title from a date prior to 7 October 1690?
1. In an unidentified hand. Adams Papers, Microfilms, Reel No. 185.
2. That is, the patent of 3 Nov. 1620, to Lenox and other worthies, by which James I incorporated them as “the Councill established at Plymouth, in the County of Devon, for the planting, ruling, ordering, and governing of New-England, in America,” and granted to this council “and their Successors and Assignes forever,” all of New England from 40° to 48° North Latitude, and “from Sea to Sea, . . . to be holden of Us, our Heires, and Successors, as of our Manor of East-Greenwich, in our County of Kent, in free and common Soccage and not in Capite, nor by Knight's Service; yielding and paying therefore,” one-fifth of all gold and silver found to the Crown for “all Dutys, Demands and Services whatsoever.” 3 Thorpe, Federal and State Constitutions 1827–1840.
3. In Jan. 1630 the New England Council, reciting its patent, note 2 above, granted to
“Wm. Bradford, his heires associates and assignes for ever,” both the lands in Massachusetts on which the Plymouth Colony was settled, and a tract “which lyeth within or between and Extendeth it self from the utmost of Cobest-cont alias Comasecont Which adjoyneth to the River Kenibeck alias Kenebeckick towards the Westerne Ocean and a place called the falls of Nequamkick in America aforesaid and the Space of Fifteen English milles on Each Side of the said River Commonly called Kenebeck River and all the said River Called Kenebeck that Lyes within the said Limitts and Bounds Eastward Westward Northward and Southward Last afore mentioned.”
The grantees were to pay one fifth of all gold and silver found to the Crown, and another fifth to the grantors, “for all Services and demands Whatsoever.” Morison, “The Mayflower's Destination and the Pilgrim Fathers' Patents,” 38 Col. Soc. Mass., Pubns. 387, 407–413 (1959). See 1 Andrews, Colonial Period 293–296. Bradford held directly from the King by virtue of the requirement of the Statute of Quia Emptores, 18 Edw. 1 (1290), which had not been waived in the 1620 patent. Id. at 335. Known as the “Plymouth Patent,” this grant was the foundation of the Kennebec Company's land claims in the 18th century. See Doc. II below. The “surrender” of the patent was the act by which Bradford, on 2 March 1641,
“by the free and full consent, approbacion, and agreement of the . . . old planters,” who had joined him in financing the early days of the colony, did “surrender into the handes of the whole Court, consistinge of the freemen of this corporacion of New Plymouth, all that ther right and title, power, authorytie, priviledges, immunities and freedomes granted in the said lettres patentes by the said right honorable counsell for New England, reserving his and their personall right of freemen, together with the said old planters aforesaid, except the said lands before excepted [certain tracts previously agreed to be reserved for the old planters], declareing the freemen of this present corporacion, together with all such as shalbe legally admitted into the same, his associates.” Records of the Colony of New Plymouth, 2:10–11 (Boston, ed. N. B. Shurtleff, 1855).
The patent was actually surrendered “in publick Court” and returned to Bradford for safekeeping. Id. at 11. See Morison, “Pilgrim Fathers' Patents,” 38 Col. Soc. Mass., Pubns. 397–398.
4. That is, “private persons” in the language of the Charter of 1691 and applicable statutes, text at notes 228, 1238, below. For earlier arguments that land held by proprietors in common was not held by “private persons,” see Knollenberg, Origin of the American Revolution 131.
5. The date set by statute. See text at note 1642 below.
6. Presumably, “the Councill established at Plymouth, in the County of Devon,” note 2 above, rather than the Plymouth Colony. The Council surrendered its patent to the Crown on 7 June 1635. Records of the Council for New England 75–80 (Cambridge, Mass., 1867). This action was part of an effort by Sir Ferdinando Gorges, moving force in the Council, to halt the infringement of the Massachusetts Bay Company upon his domains in New England. Charles I accepted the surrender in July 1637, shortly after the Crown had obtained a judgment in quo warranto in the King's Bench against the Massachusetts Bay charter. Gorges' plan was to divide the Council's patent among its members, the whole to be under a royal government loyal to the Crown. Only Gorges' own patent for a part of Maine was confirmed, however, as the onset of the civil war involved the other participants in different concerns. See 1 Andrews, Colonial Period 417–424; Barnes, “Land Tenure in English Colonial Charters,” in Essays in Colonial History Presented to Charles McLean Andrews 29–30, 34–35 (New Haven, 1931).

Docno: ADMS-05-02-02-0007-0003-0002

Author: Adams, John
Date: 1773-03-08

Adams' Minutes of the Argument1

Court of Vice Admiralty, Boston, 8 March 1773

Surveyor General vs. Loggs.
Kennebec Company. March 8. 1773.
Claim and Demurrer—which admits all in the Claim.2
Mr. Otis. In Event, as important a Cause as ever was decided in America.
The Navy, an important Object, without offence to any Sect or Party.
Charter. Reservation in it.3 We hold all we have under this Charter. No Gentleman will dispute the Validity of this Reservation.
A great deal of Talk and Scribbling about mutual Compact. Should as soon expect good and sound Law from N. Hampton in a N.W. Wind.4
Indian Natives had under God a Right to the Soil. That no good Title could be acquired by sovereign or subject, without obtaining it from the Natives.
No Man has a Right to a Foot of Land, who has not a good Purchase from the Natives, by a Licence from his lawfull Prince.
Proposal of large Forrests to be set apart, by Act of Parliament in Secula Seculorum.5
8. G. 1, c. 12, §5. 1721.6
2. G. 2, c. 35, §1. 2. No Trees to be cutt, excepting such as are the Property of private Persons. 1729.7
Plymouth Patent.
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Not in the Power of the King to grant Royalties. King deceived.8 Lit. §117. Socage Tenure. 1. Inst. 85. b.9
Sir F. Barnards Doctrine about holding as of our Manor of East Greenwich in the County of Kent.10
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Uncertain where the Bounds of the Patent are. What then?
Will it be said that the Patent is a Grant to private Persons? If so the Grant to Massachusetts, Province of Maine &c. are Grants to private Persons.11
1665 Grant to Boies &c.—a private Transaction.—Mem. by the Way Otis concedes tacitly at least we are within the Exception of Grants made to private Persons. Is forced to deny this to be a Grant to private Persons.12
This no Grant at all. No Estate passed by it. It is void.
Viner. Tit. Corporations B. pl. 1. “None but the King can make a Corporation.”13
E. pl. 1. a Name.14
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Mr. Fitch. 8. G.15 secures all Trees, let them be whose Property they will.
Boies had no Title.
Bradford—His associates could not take by the Grant. No Name of a Corporation.
The surrender is no Deed, nor Conveyance. Mem. our Law and Clause in the Charter.16
No Colony of New Plymouth.17
1. Inst. 295. b. “Confirmation doth not strengthen a void Estate.”18
Duely made, or any other lawfull Title.19
Law of Prov. 13. Wm.20
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. See p. 257, note 39 above.
3. The Province Charter of 1691, set out, text at note 228 below.
4. Perhaps a reference to Joseph Hawley, Northampton lawyer, who was disbarred from 1767 to 1769.
5. Such proposals, intended to free large tracts of forest for general use, had been made periodically during the 18th century. The most recent effort, by Wentworth himself, had received some support in England in 1769, and by 1773 the Surveyor General had made extensive preliminary surveys for it. Robert G. Albion, Forests and Sea Power 268–272 (Cambridge, Mass., 1926). Otis' point here would seem to be that until such a plan received legislative sanction, all forest lands were subject to the laws.
6. 8 Geo. 1, c. 12, §5 (1722), extracted by JA, text at notes 6–732–33 below.
7. 2 Geo. 2, c. 35, §§1, 2 (1729), extracted by JA, text at notes 12–1738–43 below.
8. Both the patent of the Council for New England (note 2 above) and the Plymouth Patent (note 3 above) included a grant of “Royalties,” or royal rights and privileges. See Cunningham, Law Dictionary, tit. Royalties. Otis here seems to be meeting an argument that this grant included the timber reserved to the Crown by the 1691 Charter and later statutes. Presumably he does not mean that the patentees “deceived” King James, but is using the term in the sense intended in Coke, Littleton 27a: “If the King by his Letters Patents giveth Lands or Tenements to a man, and to his heires males, the grant is void, for that the King is deceived in his grant, in as much as there can be no such inheritance of Lands or tenements as the King intended to grant.” Compare No. 45, text at note 2159.
9. That is, Coke, Littleton §117, appearing in 1 Coke, Institutes 85b: “Tenure in Socage, is where the Tenant holdeth of his Lord the tenancie by certain service for all manner of services, so that the service be not Knights service: As where a man holdeth his land of his Lord by Fealty and certaine rent, for all manner of services: or else where a man holdeth his Land by homage, fealty, and certain rent, for all manner of services, for homage by it selfe maketh not Knights service. The patent of the New England Council (note 2 above), the Plymouth Patent (note 3 above), and the Plymouth deed of the Kennebec lands (note 1218 below), were all grants in socage, one of the four ancient feudal tenures. At this period the tenures had largely lost their military and political significance and were only descriptive of differing proprietary relationships. When they could, English rulers were glad to grant lands by Knight Service, which had profitable incidents such as scutage and wardship and marriage. Socage, under which there were few fixed requirements of service, had become much more common, however, especially in grants like these, where some inducement was necessary for the grantees. See Sir William Holdsworth, Historical Introduction to the Land Law 21–29 (London, 1927), Haskins, “Gavelkind and the Charter of Massachusetts Bay,” 34 Col. Soc. Mass., Pubns. 483–484, 496 (1943); Barnes, “Land Tenure,” Essays in Colonial History 7, 10, 33.
10. The reference to “Sir F. Barnard” remains unclear. The language is that of the New England Council's patent of 1620, note 2 above. Since the Plymouth patentees of 1630 (note 3 above) were “assignes” of the New England Council under its 1620 patent, it would seem that Haskins is in error in his conclusion that the Plymouth grant “was not as of East Greenwich.” As he notes, the leaders of the colony thought that they so held. Haskins, “Gavelkind,” 34 Col. Soc. Mass., Pubns. 487 note. Moreover, the colony's grant of the Kennebec lands in 1661 was as of East Greenwich. See note 1218 below. This was the common form of grant, designed to make clear that the tenant did not hold in capite, that is, “as of the Crown.” Although the King made the grant and received services in both cases, the fiction that the grant was from a lesser lord was adopted where the potential grantee had the bargaining power because, as in the case of tenure by socage, note 915 above, the incidents were far less onerous. Such grants had been made in England since the 16th century, with the “Manor of East-Greenwich” employed in most cases apparently as a convenient form, adopted because it was a favorite royal resort. The form was also used in about a dozen other colonial charters. Id. at 483–484, 489, 494–496; Barnes, “Land Tenure,” Essays in Colonial History 4–11. Modern historians generally agree that its only significance was as the description of a convenient relationship, and that there was no intention to incorporate the peculiar Kentish custom of gavelkind, or partible inheritance, a practice which made its way to some of the colonies independently. Haskins, “Gavelkind,” 34 Col. Soc. Mass., Pubns. 483–498; 1 Andrews, Colonial Period 86–87 note; Goebel, “King's Law and Local Custom in Seventeenth Century New England,” 31 Colum. L. Rev. 416 (1931). But see Richard B. Morris, Studies in the History of American Law 103–120 (Phila., 2d edn. 1959).
11. That is, the Massachusetts Bay Charter of 1629, and the grant of the Province of Maine to Sir Ferdinando Gorges in 1639. (As to the latter, see note 6 above.) In the former the grant was to individual patentees, who were then incorporated into the Massachusetts Bay Company. 1 Records of the Governor and Company of the Massachusetts Bay in New England 3–20 (Boston, ed. N. B. Shurtleff, 1853). In the latter the grant was to Gorges personally, but the lands were first constituted a Province or County Palatinate. 1 Province and Court Records of Maine 9–29 (Portland, ed. C. T. Libby, 1928). The Plymouth Patent, note 3 above, was, of course, in form only to individuals, with leave to incorporate themselves. See note 1723 below. The patent of the New England Council, note 2 above, was even less “private,” since the grant was in form to the Council which the patent had created. As to earlier claims for logs based on the Gorges patent, see p. 248, notes 5, 6, above.
12. Otis refers to the deed by which the General Court of Plymouth Colony conveyed the Kennebec lands to Antipas Boies, Edward Tyng, Thomas Brattle, and John Winslow, the predecessors in interest of the Kennebec Company. See p. 258, at note 40 above. The instrument, dated 27 Oct. 1661, but not delivered until 15 June 1665, had been recorded in Plymouth, probably on the latter date, and was recorded in York County, Maine, 22 Oct. 1719. After reciting the New England and Plymouth patents (notes 2, 3, above) and a consideration of £400, it proceeded to grant the lands conveyed to Plymouth by the New England Council, as well as lands in the same area which the colony had acquired by two Indian deeds, “with All our said lawful right in the lands Abovementioned Either by Purchase or Patent with All and Singular the Appurtenances priviledges and Immunitys thereunto belonging to Appurtaine to them the said [named grantees] to them and Every of them their and Every of their heirs and Assigns forever to be holden of his Majesty [as of] his Manner of East Greenewick in the County of Kent in free And Common Soccage And not in Capita Nor by Knights Service by the rents and Services thereof and thereby due and of right Accustomed.” The grant was warranted against all claims that might be made under the colony's title. 9 York Deeds, fols. 226–228 (Portland, 1894). The sale was ratified by the General Court on 3 June 1662. 4 Plymouth Colony Records 17. See also id. at 38. JA's note to himself seems to mean that Otis has conceded that Boies et al. were “private persons” and is now forced to attack the sufficiency of the grant.
13. 6 Viner, Abridgment 259, tit. Corporations, B. 1. Quotation marks supplied.
14. 6 Viner, Abridgment 261, tit. Corporations, E. 1: “There ought to be a Name by which it ought to be incorporated.”
15. 8 Geo. 1, c. 12, §5, text at notes 6–832–34 below.
16. The last phrase is apparently JA's note of his own position made during Fitch's argument. The charter clause is presumably the provision of the Province Charter of 1691, by which the Crown, after granting all the lands formerly part of the colonies of Plymouth, Massachusetts Bay, Maine, and Nova Scotia to the inhabitants of the newly created Province, confirmed the titles to all lands “which any person or persons or Bodyes Politique or Corporate Townes Villages Colledges or Schooles doe hold and enjoy or ought to hold and enjoy within the bounds aforesaid by or under any Grant or estate duely made or granted by any Generall Court formerly held or by vertue of the Letters Patents herein before recited [those to the New England Council, note 2 above, and from the Council to the Massachusetts Bay Company] or by any other lawful Right or title whatsoever,” to be “by such person and Persons Bodyes Politique and Corporate Townes Villages Colledges or Schooles their Respective Heires Successors and assignes forever hereafter held and enjoyed” according to the terms of the original grant. 1 A&R 9–10. The “law” to which JA referred was probably the Act of 30 Oct. 1697, 1 A&R 299–301, which provides that “every person or persons who were possessed in his and their own proper right of any houses or lands within this province,” on 1 Oct. 1692, and their successors in interest, who continued in undisturbed possession until 1 Oct. 1704, should thereafter have title in fee simple, “provided, always, that there shall be a saving of his majesty's rights, and all publick lands belonging to the province not orderly disposed of.” An exception that titles in the Maine lands should remain open until five years after the conclusion of King William's War, then in progress, is not material, because that war ended on 30 Oct. 1697 with the Treaty of Ryswick, which was proclaimed at Boston on 10 Dec. of that year. See 1 A&R 767 note.
17. This argument is presumably based on the fact that the Plymouth colony was not directly constituted by the Crown; the Plymouth Patent of 1630 was in form a grant to William Bradford and his associates. See note 3 above. The colony was recognized as such by the Crown in various dealings, including the Massachusetts Charter of 1691, however, so that it may be said to have had some sort of de facto status. See 1 Andrews, Colonial Period 296 note; 1 A&R 8. Moreover, the government of the colony was sanctioned by both the so-called “Peirce Patent” of 1621 and the 1630 grant to Bradford. Morison, “Pilgrim Fathers' Patents,” 38 Col. Soc. Mass., Pubns. 402–403, 411. There was thus a corporate body in existence to take title to the lands, even if it was not technically a colony.
18. Coke, Littleton 295b. Quotation marks supplied. Coke adds, “for a Confirmation may make a voidable or defeasable estate good, but it cannot work upon an estate that is void in Law.” Ibid. Fitch is arguing that the confirmation of all titles in the Charter of 1691, note 1622 above, is of no effect here. The Charter did provide, however, that no grant should fail for want of form. 1 A&R 10.
19. The language of the Charter of 1691, note 1622 above.
20. Presumably the Act of 26 June 1701, 1 A&R 471, which provided that grants of land obtained “by any person or persons whatsoever” from the Indians without license of the General Court of Massachusetts or New Plymouth were void unless in confirmation of other valid titles in the purchasers. Fitch is arguing that the Kennebec Company's title cannot be supported on Indian deeds of the land in question to the Plymouth Colony. See note 1218 above.
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Docno: ADMS-05-02-02-0007-0003-0003

Author: Adams, John
Date: 1773-03

Adams' Notes for His Argument1

Court of Vice Admiralty, Boston, March 1773

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.”2 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
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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
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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
§. 2.14 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 { 274 } 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.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185. Docketed by JA: “Masts” .
2. The Province Charter of 7 Oct. 1691, I A&R 20. Opening quotation mark supplied. Emphasis is JA's. The Charter continues,
“And Wee doe restraine and forbid all persons whatsoever from felling cutting or destroying any such Trees without the Royall Lycense of Us Our Heires and Successors first had and obteyned upon penalty of Forfeiting One Hundred Pounds sterling unto Ous Our Heires and Successors for every such Tree soe felled cutt or destroyed without such Lycense had and obteyned in that behalfe any thing in these presents conteyned to the contrary in any wise Notwithstanding.” Ibid.
3. See note 1117 above.
4. See note 3 above.
5. 9 Anne, c. 17, §1 (1711). Closing quotation mark supplied. Emphasis is JA's. JA has omitted at the “&c.” a recital of the areas in which the statute was applicable: The “colonies of New Hampshire, the Massachusetts Bay, and Province of Main, Rhode Island, and Providence Plantation, the Narragansett Country or King's Province, Connecticut in New England, and New York and New Jersey.” The penalty was £100 “for each such offense” unless royal license had been obtained. It was to be sued upon within six months before the nearest justice of the peace, and was to be divided, half to the Crown and half to the informer. The act was repealed as to white pine trees by 8 Geo. 1, c. 12, §6 (1722). See note 935 below.
6. 8 Geo. 1, c. 12, §5 (1722). Quotation marks supplied. Emphasis is JA's. JA omitted a recital of the colonies in which the act was effective, which was identical to that in note 531 above, with the addition of Nova Scotia.
7. 8 Geo. 1, c. 12, §5. Abstracted by JA. The figures in inches are the diameters of the trees. The penalties could be “sued for within six months after the offence committed, by plaint or information, upon the oath of one or more credible witness or witnesses, before the judge of the admiralty or his deputy, within the colony or plantation, where such pine tree shall be cut, felled or destroyed.” They were to be divided, half to the Crown and half to the informer.
8. 8 Geo. 1, c. 12, §5. Abstracted by JA. See p. 251, notes 814, 915, above.
9. 8 Geo. 1, c. 12, §6, repealing 9 Anne, c. 17, §1, note 531 above, as far as it applied to white pine trees.
10. That is, there were no private claims to the unincorporated lands. In these provinces a reservation of mast trees was contained in township grants. Mayo, “The King's Woods,” 54 MHS, Procs. 51.
11. For rulings of English law officers in 1726 that the Act of 8 Geo. 1 did not affect the charter reservation, and the problem of new townships, see p. 252, note 16, above.
12. 2 Geo. 2, c. 35, §1 (1729). Closing quotation mark supplied. Emphasis JA's. JA has omitted a clause reciting the areas in which the Act applies, which extends coverage from that in prior acts (notes 531, 632, above), to “any other province or country in America, that now belongs or hereafter shall belong to the Crown of Great Britain.” The final “&c.” covers the omission of “in any of the said colonies or plantations, without his Majesty's royal license for so doing first had and obtained.”
13. The last sentence is an insertion by JA with a different pen, suggesting that it was an afterthought. It may refer either to the exception for “the Property of private Persons,” in the statute, or to the lack of a forfeiture provision in the section. Section 2 of the act, which is quoted by JA below, is ambiguous, but arguably was intended to provide a penalty for section 1. See note 1541 below.
14. 2 Geo. 2, c. 35, §2, set out by JA in this and the next two paragraphs. Quotation marks supplied. Emphasis is JA's.
15. JA has here omitted: “abovementioned.” This reference to section 1 of the Act, as well as the use of the phrase “Property of private persons” from that section, suggests that this clause was intended to provide a penalty for section 1. See note 1339 above.
16. JA has here omitted: “or who shall be abiding and assisting therein, or in drawing away the said pine trees, after the same shall have been so cut and felled.”
17. JA has here omitted: “the said forfeitures to be recovered and applied in the same manner, as in the said act is particularly set forth and enacted.” For the penalties and enforcement provisions of 8 Geo. 1, c. 12, see text and note 733 above. In the MS a half-page is left blank. The notes resume on the facing page.
18. That is, of the old Charter of Massachusetts Bay, in 1684.
Cite web page as: Founding Families: Digital Editions of the Papers of the Winthrops and the Adamses, ed.C. James Taylor. Boston: Massachusetts Historical Society, 2014.
http://www.masshist.org/apde2/