Court of Vice Admiralty, Boston, March 1773
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
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?
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 description begins Francis N. Thorpe, ed., The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America, Washington, 1909; 7 vols. description ends 1827–1840.
“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.”
“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).
4. That is, “private persons” in the language of the Charter of 1691 and applicable statutes, text at notes 2, 12, below. For earlier arguments that land held by proprietors in common was not held by “private persons,” see Knollenberg, Origin of the American Revolution description begins Bernhard Knollenberg, Origin of the American Revolution: 1759–1766, N.Y., 1960. description ends 131.
5. The date set by statute. See text at note 16 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 description begins Charles McLean Andrews, The Colonial Period of American History, New Haven, 1934–1938; 4 vols. description ends 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).