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
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
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 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 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 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.
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 9 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 5 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.
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. description begins Massachusetts Historical Society, Collections and Proceedings. description ends 51.
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 5, 6, 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 15 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 13 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 7 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.