To Benjamin Franklin from the Massachusetts House of Representatives, 25 June 1771
From the Massachusetts House of Representatives
LS: University of Virginia Library and Harvard University Library2
Province of the Massachusetts-Bay, June 25th: 1771.
Sir,
At the present Session of the General Court, Application has been made to the Court by some of the Grantees of Townships to the eastward of Penobscot River, praying that further Time may be allowed them to procure the King’s Approbation of the Grants that have been made to them. The General Court have divers Times already lengthned out the Time for that Purpose, and the two Houses think it reasonable that still further Time should be allowed them: but the Governor’s Speech at the opening of the present Session has induced the two Houses to postpone that allowance and render the Grantees a more essential Service by writing to you on the Subject of their Grants.3
In March 1762 after repeated Petitions for that Purpose, the General Court granted Twelve Townships of the Contents of Six Miles square to be laid out on, and to the Eastward of Penobscot River, all of them contiguous; the Grantees to return to the said Court for further Confirmation a Plan of the same (taken by a Surveyor and Chainmen on Oath) by the last of July then next following: to hold to them, their Heirs and Assigns as Tenants in Common, subject to certain Reservations, Provisos and Conditions in the Grants mentioned. And afterwards Vizt in February 1763, the Governor, Council, and House of Representatives executed under the Province Seal to the Grantees Deeds of the said Townships, wherein among other Things it is provided, that these Grants shall be of no Force or Effect until his Majesty, his Heirs or Successors shall signify his or their Approbation of them. Now altho’ according to this Proviso the Grantees could not acquire any Right in the granted Premises without such Approbation, yet from an Apprehension that their Settling the said Townships without Delay would recommend them to the Favor of his Majesty, and facilitate the obtaining his royal Approbation, they immediately proceeded to settle them accordingly; and it was not only with the Knowledge of the then Governor, Mr. Bernard that they did so, but they were encouraged thereto by his Example: who as soon as might be after the Grant of the Island of Mount Desart, made to him by the General Court, February 1762, under the same Proviso of obtaining the King’s Approbation, laid out Land for a Settlement, built Mills &c., and thereby incurred a great Expence: which he has since urged, and successfully urged as a Reason for obtaining that Approbation.4
These Circumstances it is apprehended will serve to place the Grantees in a favorable Light with his Majesty; especially if it be further considered, that they have most of them laid out their whole Substance on those Lands, and been clearing and improving them for divers Years past with great Labor, whereby from a State of Nature they are coming to be a well inhabited, and valuable Part of his Majesty’s Dominions: from which should the Grantees be removed, the Removal would operate, not only to the diminishing the Value of that Territory, but to the utter Ruin of a very great Number of His Majesty’s Subjects.
The principal Reasons inducing the General Court to grant those Townships, were , to retain within the Province some Part of such Inhabitants, as after the Reduction of Canada, appear to have a Disposition for migrating: also, by taking effectual Possession of that Country, during the War, to drive the Indian Enemy to a greater Distance, and thereby better secure our Eastern Settlements against their future Depredations. To secure these Ends the General Court took Care to annex certain Conditions to the said Grants; some of which were, that the Grantees shall within Six Years after they shall have obtained His Majestys approbation of such Grants (unless prevented by War) settle each Township with Sixty good protestant Families, build Sixty Houses, clear and cultivate five Acres of Land on each Share fit for Tillage and mowing; build a House for the publick Worship of God; settle a Learned Protestant Minister; and make Provision for his comfortable and honorable Support &c. And if any of the Grantees or Proprietors of such Township shall neglect within the Term of Six Years, as aforesaid, to do and perform the Conditions aforesaid, as shall respect and belong to, his Share or Right, such Share or Right shall be intirely forfeited, and shall enure to the Use of this Province.
And as a further Security a Committee was appointed to take, and accordingly did take Bonds from the Petitioners for the faithful Performance of the said Conditions; all which will appear by the Extracts from the Records of the General Court herewith sent; by which may be observed the great Care taken by the Court, that the said Townships should be effectually settled, the good Ends aforesaid answered, and so valuable a Territory secured to his Majesty. Complaints have heretofore been made, that the Province have neglected to defend and improve this Territory, and in Consequence of them, Attempts have been made to deprive the Province of its Rights in it. This was the Case when Mr. Dunbar took Possession of it in behalf of the Crown in 1729. If Neglect to defend and improve this Country would be a good Reason for a Forfeiture of Right, the actual Defence and Improvement of it must be a good Reason for the Continuance and Confirmation of Right. That the Province had not neglected it, appears by the Proceedings that occasioned the Royal Order for Mr. Dunbars Withdraw:5 And that the Province has defended it, the Forts of Pemaquid and George’s River, Fort-Western and Fort Halifax on Kennebeck River; and Fort Pownall at Penobscot sufficiently demonstrate; and with respect to Improvement, what better Improvement, and we may add, what better Defence could there be, than stocking it with Inhabitants; to effect which the General Court has done all that was in their Power to do, by granting the twelve Townships aforesaid; and by incorporating the Inhabitants of divers other Towns within the same Territory, on their applying for Acts of Incorporation. As contrary and inconsistent Reasons have at different Times been urged to create a Forfeiture of the Province Right, it induces an Apprehension, that we are not informed of the real Reason why the aforementioned Grants are not confirmed.
If there be no Design in Persons of Influence in England to procure a Part of this Country to themselves,6 we should apprehend the Preservation of the Mast Trees growing thereon, was the principal or only Reason of the non-confirmation of the said Grants.7 This is intimated in the Governor’s Speech, where it is said, “That a longer Neglect of effectual measures, on our Part, to prevent any further Intrusions, and to remove those already made will occasion the Interposition of Parliament to maintain and preserve the Possession of this Country, or District for the Sake of His Majesty’s Timber, with which it is said to abound.” And it is more fully expressed in his Excellency’s Message of the 19th. Instant to the House of Representatives, wherein it is declared, that “whether the Settlements there, be with or without Grants from the Court, in either Case the Settlers are alike Intruders, for none have the Royal Approbation; and that by means of such Intrusions Trespasses are easily committed without any great Danger of Discovery, let the Surveyors be ever so vigilant, and attentive to their Duty.”
The Preservation of the Mast Trees is a Matter of great Importance, which the General Court would do all in their Power to effect, if they knew the Means of doing it. The most likely Method we can Devise (unless the Parliament should interpose) is to settle that Country with Inhabitants. This was the Sense of the General Court formerly, in a similar Case, as more fully will appear by reading an Act, intitled An Act for preventing of Trespasses, made and passed in the Twelfth of George the First, which Mr. Bollan is perfectly acquainted with, and hath very much answered the Ends proposed.8 It is certainly very difficult to detect and convict Trespassers when positive Witnesses cannot be had; and this will always be the Case when the Land has no Inhabitants; but when the same is inhabited, the Case is and will be quite otherwise. It may be further remarked that the Trees reserved by Charter, are chiefly back of said Settlements, but few within them; and that had there none of these Settlements been made, it would have been impossible to have transported them to the Water side without incurring an Expence to the Crown of perhaps ten Times the value of the Masts.
Upon the whole, with Regard to the Grantees aforesaid; as also the Grantees of a Township since granted at a Place called Mallchias under the like Conditions and Restrictions,9 you are desired, and are hereby instructed, by Memorial to his Majesty, and in any other Way you shall judge proper, to use your best Endeavors to procure for them his Majesty’s Confirmation of the Grants made of the Townships aforesaid. And if any Attempts shall be made to deprive this Government of the Jurisdiction over, and Property in, the Territory within which those Townships are situated, you are also instructed to do your Utmost to frustrate it. And with regard to the Preservation of Mast Trees, you will endeavour to procure the best Regulations for that Purpose, consistent with the Charter Rights of the Province. This Letter of Instructions is agreed to by both Houses, to be sent to their respective Agents; between whom it is a further Instruction, that there be a Co-operation of Measures for the Purposes aforesaid. There will be sent to you herewith, a brief State of the Title of this Province, to the Country between the River Kennebeck and St. Croix printed 1762:1 which you will make such Use of as shall be necessary.
In the Name, and by Order of the House of Representatives; I am Sir your most obedient Servant,
Thomas Cushing Speaker
2. The first two pages of the MS are in one library, the remaining three in the other. If the letter came into Arthur Lee’s possession after BF left London in 1775, as seems likely, it may have been separated in the division of the Lee Papers in the nineteenth century, for which see Paul P. Hoffman, Guide to the Microfilm Edition of the Lee Family Papers... (Charlottesville, Va., 1966), p. 21.
3. For Gov. Hutchinson’s speech and message to the House, which accused the applicants of being trespassers, see Mass. House Jour., 1st session, May–July, 1771, pp. 9–10, 49–50, 67–8. The grants themselves, with one exception, contained the unusual provision that they would be void if not approved by the crown within eighteen months: Maine Hist. Soc., Documentary History of the State of Maine,... (24 vols., Portland, 1869–1916), XIII, 249–54, 257–64.
4. In March, 1771, the Privy Council, after a long delay occasioned in part by the irregularity of a province’s giving land to its governor, had approved the grant of Mount Desert Island to Bernard; the other grants were not approved before the Revolution. See William O. Sawtelle, “Sir Francis Bernard and His Grant of Mount Desert,” Colonial Soc. of Mass. Pub., XXIV (1920–22), 197–254; Edward Channing and Archibald C. Coolidge, eds., The Barrington-Bernard Correspondence... (Cambridge, Mass., 1912), pp. 57, 81, 222, 224; Acts Privy Coun., Col., V, 220; VI, 484.
5. Massachusetts, even though its charter of 1691 confirmed its title to eastern Maine, had only a tenuous control over the area; its claim had been challenged on the grounds that it had not been implemented and that defense had been neglected. David Dunbar, appointed Surveyor General of royal woods in America in 1728, had been authorized to make land grants in the area while reserving mast trees (white pines of the size and quality required for naval masts) and a yearly quitrent for the King. But the settlers had sued him for trespass and won a reversal by the Privy Council, which confirmed the right of Massachusetts to the land. See ibid., III, 275–83; Cecil Headlam, ed., Calendar of State Papers, Colonial Series, America and West Indies, 1728–29 (London, 1937), pp. 110–12, 371–3, 549, 554–5; Channing and Coolidge, op. cit., p. 222; Robert G. Albion, Forests and Sea Power... (Cambridge, Mass., 1926), pp. 256–7; Wroth and Zobel, John Adams Legal Papers, II, 248–9. For the general background see Jack M. Sosin, The Revolutionary Frontier, 1763–1783 (New York, etc., [1967]), pp. 20–60.
6. The region, rumor had it, was about to become a new royal province with Sir Francis Bernard as governor. 6 Mass. Hist. Soc. Coll., IX (1897), 269. The Bostonians suspected that this design was part of a conspiracy against the province, and for once they had reason: Hutchinson and Bernard were doing their best to have the land east of the Penobscot detached from Massachusetts and either erected into a separate government or, that failing, annexed to Nova Scotia. See Hutchinson’s letters to Bernard and Hillsborough, Mass. Arch., XXVII, 60–1, 100, 105, 286.
7. The Massachusetts charter restricted the crown’s right to cut mast trees to lands outside established townships. The trees were of vital importance to the Admiralty, and the current Surveyor General, Gov. John Wentworth of New Hampshire, was inspecting large tracts in eastern Maine for royal preserves. Albion, op. cit. n. 5, pp. 268–9. This was the background of the Privy Council’s failure to act, as mentioned above, on the Massachusetts grants.
8. Jurisdiction over those who cut trees illegally, which the first White Pines Act of 1711 entrusted to a single justice of the peace, was transferred in a statute of 1722 to the Vice-Admiralty courts. Massachusetts responded with the trespass act referred to, which empowered the regular provincial courts to try any one who cut trees on private property without permission: Mass. Acts and Resolves, II, 383–5. The effect of the act, whatever the intent, was to embolden settlers on disputed land to prosecute contractors who cut trees for the crown. The House must have known that the King’s right to such trees in the wilds of Maine was wholly unenforceable; on this point see Albion, op. cit. n. 5, pp. 259–68; Wroth and Zobel, John Adams Legal Papers, II, 247–74; Joseph J. Malone, Pine Trees and Politics... (Seattle, 1964), passim. For more than thirty years William Bollan had been familiar with the problems involved. He had been attorney for a royal contractor in a celebrated case, and in the early 1740s had taken a leading part in trying to suppress the settlers’ illegal cutting of mast trees in Massachusetts; two decades later he had helped to frustrate an attempt to annex the province’s eastern lands to Nova Scotia. See Andrew M. Davis, “The Suit of Frost v. Leighton,” Colonial Soc. of Mass. Pub., III (1895–97), 246–64; John A. Schutz, William Shirley, King’s Governor of Massachusetts (Chapel Hill, 1961), pp. 65–6; 6 Mass. Hist. Soc. Coll., IX (1897), 269–70.
9. The Machias grant, which was made first in 1768 and again in identical terms in 1770, was also to be void if not approved within eighteen months. See Maine Hist. Soc., op. cit. n. 3, XIV, 80–2, 95–7.
1. The enclosure was an appendix to the Mass. House Jour. for the third session of 1762–63; it and the letter reached London while BF was absent on his tour. The similar letter that the Council sent to Bollan elicited a gloomy reply: he and BF had no legal standing and therefore no authority, without which they could not work effectively for the province. 6 Mass. Hist. Soc. Coll., IX, 274–5. Bollan did, however, submit to the Council a proposal of his for resolving the problems of the eastern lands; and he and BF agreed, after the latter’s return, to await their constituents’ reaction to this plan before taking any further steps. See BF to the Mass. Committee of Correspondence below, Jan. 13, 1772.