made when the privy seal was brought to the great seal, to be passed into a grant.

On the whole matter, we humbly submit it to your Majesty's consideration, whether that it will not be reasonable that your Majesty's title should be established by the Court of Chancery, before any grant should be made of the premises; and if any grant should be made, we most humbly submit it to your Majesty, whether the claims of purchasers or grantees under Mr. Penn, who have improved part of the said three lower counties, should not be established; but if Mr. Penn should have a title to the three lower counties, by virtue of the two grants made to him by the late King James, in 1682, when Duke of York, we have not received any answer why he should not account, according to his covenant, in the last of the said deeds, for the moiety of the rents, issues, and profits, raised by virtue of that grant.

October 21, 1717.

EDW. NORTHEY.

WM. THOMPSON.

(2.) OPINION of MR. WEST on the King's Right to the Woods in the Province of Maine. 1718.

To the Right Honourable the Lords Commissioners for Trade and Plantations.

MY LORDS,-In obedience to your Lordships' commands, I have perused and considered of the several papers relating to the memorial of John Bridger, Esq., Surveyor-general of his Majesty's Woods in America, and I do find that the title which Mr. Elisha Cook doth, by his memorial, claim to be in the province of Massachusetts Bay, in opposition to the right of his Majesty, to all trees fit for masts, of the diameter of twenty-four inches and upwards at twelve inches from the ground, growing within the province of Maine, in America, is founded upon a supposed purchase of the said province of Maine, by the province of the Massachusetts Bay, of and from the assignees of Sir Ferdinando Gorges, the person to whom the said province was originally granted from the Crown.

I must beg leave to observe to your Lordships, that King Charles I. did incorporate the assignees of the patent, which King James I. did, in the eighteenth year of his reign, grant to the

Council established at Plymouth, in the county of Devon, by the name of the Governor and Company of the Massachusetts Bay, in New England, by which charter the said King did grant unto the said corporation power to have, take, possess, acquire, and purchase any lands, tenements, or hereditaments, or any goods or chattels, and the same to lease, grant, demise, alien, bargain, sell and dispose of, as other our liege people of this our realm of England, or other corporation or body-politic of the same, may lawfully do.

In the fifteenth year of King Charles I., the province of Maine was granted to Sir Ferdinando Gorges, his heirs and assigns, which province did descend unto Ferdinando Gorges, son and heir of John Gorges, who was son and heir of the said Sir Ferdinando Gorges, which Ferdinando Gorges did, in the year 1677, in consideration of the sum of £1,250, give and grant all his right and title in and to the said province, unto John Usher, of Boston, merchant, his heirs and assigns; but whether it was by way of absolute sale, or way of mortgage, doth not appear; and the said John Usher did afterwards, in the year 1678, convey the same unto the said corporation, as appears by the printed journal of the House of Representatives of that province which was sent to me by Mr. Dummer, their agent. It may, my Lords, be made a question in law, whether that corporation, which was created by King Charles I., could legally purchase the said province of Maine, inasmuch as the clause of license does go no further than that they might purchase lands, &c., as any other corporation or body-politic in England might lawfully do; and take it to be clear law, that no corporation whatsoever, in England, can purchase any lands which shall inure to themselves, unless an express license for that purpose be inserted in their charter of incorporation, or otherwise. Your Lordships will be pleased to observe, that this corporation is, by the charter, only subjected to the same laws as the corporations in England are; and that there is no license to purchase lands granted to them by express words. I need not observe to your Lordships, that nothing but express words is, in law, sufficient to take away the King's prerogative; but, indeed, I should not have made use of any argument of this nature, did I not think the maintaining the royal prerogative, in relation to the naval stores in America, of the

utmost consequence to the kingdom; and that, therefore, any advantage, in point of law, ought to be taken, which does not injure any private persons.

But, admitting that corporation was fully enabled to purchase lands, yet that corporation is now extinguished, for the patent 4° Caroli primi, was, in the year 1684, reversed in Chancery, by a judgment upon a scire facias, and consequently the province, which was granted to that corporation, and all lands purchased by that corporation, were revested in the Crown; and, therefore, the inhabitants of New England can be no otherwise entitled unto the province of Maine, than by some new title which must have accrued unto them subsequent to their incorporation by King William, which it is impossible ever should have been, since there is no license granted unto them to purchase lands in or by their last charter. Their last charter was granted by the late King William, in the third year of his reign, in which charter, it is observable, that there is not a variation in the name of the incorporation, but in the thing itself. And so far is the old corporation from being revived, that, by this charter, they are not so much as erected into a corporation or body-politic, so as to be able to sue or be sued, &c.; but the very terms of the charter are, that the King does erect and incorporate the several countries mentioned in the patent, into one real province, by the name of our Province of the Massachusetts Bay, in New England. It is plain, to demonstration, that King William did, at the time of granting this patent, consider all the countries therein named, and particularly the province of Maine, as vested in himself, in the right of his crown, and, therefore, he does unite and incorporate all those countries, which were before several and distinct, into one real province, and does then grant all the lands included in that province, unto the inhabitants of the province of the Massachusetts Bay, in which denomination and grant the inhabitants of the province of Maine, &c., are as much included and concerned, as grantees, as the inhabitants of that part of the country, which was originally and singly known by the name of the Massachusetts Bay; all these provinces, therefore, are now to be considered as one, neither is it possible that one part of the province should be the private property of another. It is true that the King does grant a power unto the General

Assembly of the said province, to make grants of lands, uncultivated, lying within the bounds described in and by the charter; but that grant does noways extend to one part of the province more than another, but is equal to them all; and, therefore, subject to the last clause in the charter, by which all trees of the before-mentioned size are reserved to the Crown, and, consequently, the General Assembly of that province cannot make any grant of lands to private persons, without their being subject to that clause of reservation.

The Act of Parliament, Nono Anne, page 387, extends no further than the reservation in the charter does, only that prerogative, which before subsisted singly on the charter, is now confirmed and established by authority of Parliament; and therefore, upon the whole matter, I am of opinion, that the King is legally entitled to all trees of the prescribed size, growing in the province of the Massachusetts Bay, as it is described and bounded in the charter of King William, and particularly in the province of Maine, excepting only those trees situated in lands which were legally granted to private persons before the charter 4° Caroli primi was reversed; and which I humbly certify to your Lordships.

November 12, 1718.

RICH. WEST.

(3.) JOINT OPINION of the Attorney and Solicitor General, SIR DUDLEY RYDER and SIR WILLIAM MURRAY, on the King's Right to certain Waste Lands in New Hampshire. 1752.

[State of the case with respect to the property of the waste and

unimproved lands in the province of New Hampshire, within the limits of the grant made by the Council of Plymouth to John Mason, in the year 1629.]

King James I., by letters patent, dated the 3rd of November, 1620, granted all that tract of country, since called New England, lying between the latitude of 40 and 48 degrees north, to Sir Ferdinando Gorges, and thirty-nine others, under the name of the Council established at Plymouth, in the county of Devon, for the planting, ruling, and governing New England, in America.

The Council of Plymouth, by indenture under their common seal, dated 7th November, 1629, granted unto Captain John Mason, his

heirs and assigns, all that part of the mainland, in New England, lying upon the seacoast, beginning from the middle part of Merrimack River, and from thence to proceed northward along the seacoast to Piscataway River, and so forwards up within the said river, and to the farthest head thereof, and from thence northward until threescore miles be finished from the first entrance of Piscataway River, and also from Merrimack through the said river, and to the farthest head thereof; and so forward up into the land westward until threescore miles be finished, and from thence to cross overland to the threescore miles' end, accounted from Piscataway River. This tract of country was, in consequence, and by express direction of the patent, called New Hampshire; and the grantee obliged himself to establish such government therein, as should be agreeable, as near as might be, to the laws and customs of the realm of England, with liberty for any person aggrieved to appeal to the said Council of Plymouth.

In consequence of this grant, Captain Mason was (as is alleged by him) at considerable expense in sending over persons to plant and settle in this country, and in erecting forts and other buildings and habitations; and it does appear, from several testimonies made use of, in some actions brought by his grandson against the very persons he had sent over, that considerable improvements were made.

In 1635, the Council of Plymouth, by letters patent dated the 22nd of April, confirmed their former grant of New Hampshire to Captain Mason, with an extension of the limits, which, in the said letters patent, are described in the following words: "All that part, purpart, and portion of the mainland of New England, beginning from the middle part of Naumkeck River, and from thence to proceed eastwards along the seacoast to Cape Ann, and round about the same to Piscataway Harbour, and so forward up within the river of Newwickwannock, and to the furthest head of the said river, and from thence northward till sixty miles be finished, from the first entrance of Piscataway Harbour, and also from Naumkeck through the river thereof, up into the land west, sixty miles, from which period to cross, overland, to the sixty miles' end, accounted from Piscataway, through Newwickwannock River, to the land north-westward, as aforesaid."

The eastern limits of the second grant appear to be the same as