In an unidentified hand. Adams Papers, Microfilms, Reel No. 185.

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.

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.”

That is, “private persons” in the language of the Charter of 1691 and applicable statutes, text at notes 2 28 , 12 38 , 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.

The date set by statute. See text at note 16 42 below.

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).

In JA's hand. Adams Papers, Microfilms, Reel No. 185.

See p. 257, note 39 above.

The Province Charter of 1691, set out, text at note 2 28 below.

Perhaps a reference to Joseph Hawley, Northampton lawyer, who was disbarred from 1767 to 1769.

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.

8 Geo. 1, c. 12, §5 (1722), extracted by JA, text at notes 6–7 32–33 below.

2 Geo. 2, c. 35, §§1, 2 (1729), extracted by JA, text at notes 12–17 38–43 below.

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 21 59 .

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 12 18 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.

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 12 18 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 15 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).

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 23 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.

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.

6 Viner, Abridgment 259, tit. Corporations, B. 1. Quotation marks supplied.

6 Viner, Abridgment 261, tit. Corporations, E. 1: “There ought to be a Name by which it ought to be incorporated.”

8 Geo. 1, c. 12, §5, text at notes 6–8 32–34 below.

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.

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.

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 16 22 above, is of no effect here. The Charter did provide, however, that no grant should fail for want of form. 1 A&R 10.

The language of the Charter of 1691, note 16 22 above.

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 12 18 above.