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
Sir F. Barnards Doctrine about holding as of our Manor of East Greenwich in the County of Kent.10
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
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.
3. The Province Charter of 1691, set out, text at note 2 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 6–7 below.
7. 2 Geo. 2, c. 35, §§1, 2 (1729), extracted by JA, text at notes 12–17 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 description begins T. Cunningham, New and Complete Law Dictionary; or General Abridgment of the Law, London, 1764–1765; 2 vols. description ends , 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 description begins Edward Coke, First Part of the Institutes of the Lawes of England;or, Commentarie upon Littleton, 2d edn., London, 1629. description ends 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 21.
9. That is, Coke, Littleton description begins Edward Coke, First Part of the Institutes of the Lawes of England;or, Commentarie upon Littleton, 2d edn., London, 1629. description ends §117, appearing in 1 Coke, Institutes description begins Edward Coke, Second Part of the Institutes of the Lawes of England; containing the exposition of many ancient and other Statutes, London, 1642. description ends 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 12 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. description begins Colonial Society of Massachusetts, Publications. description ends 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. description begins Colonial Society of Massachusetts, Publications. description ends 487 note. Moreover, the colony’s grant of the Kennebec lands in 1661 was as of East Greenwich. See note 12 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 9 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. description begins Colonial Society of Massachusetts, Publications. description ends 483–498; 1 Andrews, Colonial Period description begins Charles McLean Andrews, The Colonial Period of American History, New Haven, 1934–1938; 4 vols. description ends 86–87 note; Goebel, “King’s Law and Local Custom in Seventeenth Century New England,” 31 Colum. L. Rev. description begins Columbia Law Review. description ends 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 17 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.
14. 6 Viner, Abridgment description begins C. Viner, General Abridgment of Law and Equity, Aldershot, 1741–1753; 23 vols. description ends 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 6–8 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 description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 9–10. The “law” to which JA referred was probably the Act of 30 Oct. 1697, 1 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 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 description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 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 description begins Charles McLean Andrews, The Colonial Period of American History, New Haven, 1934–1938; 4 vols. description ends 296 note; 1 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 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. description begins Colonial Society of Massachusetts, Publications. description ends 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 description begins Edward Coke, First Part of the Institutes of the Lawes of England;or, Commentarie upon Littleton, 2d edn., London, 1629. description ends 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 16 above, is of no effect here. The Charter did provide, however, that no grant should fail for want of form. 1 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 10.
20. Presumably the Act of 26 June 1701, 1 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 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 12 above.