modities and hereditaments whatsoever, with all and singular their appurtenances, together with all prerogatives, rights, royalties, jurisdictions, privileges, franchises, preeminences, liberties, marine power, as also the escheats and casualties thereof, with all the state, right, title, interest, claim and demand whatsoever, which the said President and Council, and their successors, of right ought to have, or claim, in or to the said portions of land, and other the premises as is aforesaid.

But this Grant being only sealed with the Council's seal, but unwitnessed, no seizin endorsed, nor possession ever given with the grant, Sir William Jones, the King's Attorney-General, concludes, that having no other confirmation but the Council's seal, and there being also no entry of them upon record, it is not good in law, neither according to the law of England nor of New England, they having no particular law of their own, (to his knowledge,) which differs from the law of England, as to the manner of passing lands; therefore, he saith, he doth not see how those Grants can be good; and further, he saith that Mr. Mason's rights to any of the lands which he claims, that lie within the jurisdiction of the Massachusetts, ought to be tried upon the place, liable to such appeals as the Charter allows, if it allow any; all which appears by a writing under his hand, bearing date 18th Sept. 1679, which he gave to the agents of New England, then present at London.

Besides the forementioned Grant, made to Captain John Mason for Cape Anne, he obtained another Grant from the said Council of Plymouth, bearing date August 10th, 1622, which was made both to him and to Sir Ferdinando Gorges, from Merrimack to Sagadehock,' a copy of which, it seems, is yet extant, although it appears not that ever the said Grant was signed, sealed, or witnessed, by any order of the Council.

There is another like copy of such a Grant, made to Sir Ferdinando Gorges and Captain J. Mason, bearing date the 17th of November, 1629.2

There was the copy of another Grant made to the said See page 216; Farmer's Belknap, p. 4; N. H. Hist. Coll. ii. 272.—н. 2 In Robert Mason's Petition to the King, Belknap, p. 441, we are told that John Mason, together with Sir Ferdinando Gorges, was enfeoffed by the Council of New England in lands by the name of Laconia, by their deed bearing date the 27th day of November, 1629, the said lands lying and bordering upon the great lakes and rivers of the Iroquois and other nations adjoining."- -H.

0

Captain John Mason for all the land from Naumkeag to Pascataqua River, bearing date April 22, in the 11th year of King Charles the First, sc. Anno 1635,' much what of the same tenor with the first grant, 1621.

At the Court of Pleas, held at Portsmouth, in New England, in February, 1682, this last Grant was principally insisted upon, in a suit commenced against one Mr. Wadley of Exeter, and it was there attested under oath, by Mr. Chamberlain, Secretary of the Province of New Hampshire, and by one Mr. Reynes, that they had compared the said Grant of April 22, 1635, with the original, and that it was a true copy, although it did not appear that the said Grant was either signed, sealed, or witnessed. It being manifest also, that the said Council of Plymouth was to consist of forty persons, who had the sole power of granting any lands in the country of New England from the degrees of 40 to 48 of north latitude, provided it was done by the major part of them, or of a major part of a lawful assembly of the said Council, under their common seal, which not appearing, and the lands questioned in that suit had been for a long time, viz. near fifty years, occupied by others, the jury found for the defendant; upon which the plaintiff appealed, the issue of which is yet depending, till it be heard and determined by the authority appealed unto.

But as to the lands between Naumkeag and Merrimack, demanded by Mr. Mason, although they are well known to be included within the limits of the Massachusetts, as appeared before the Lords Chief Justices, together with the rest of the honorable Commissioners, that had the hearing of the case concerning the bounds of the Massachusetts Patent, the whole case is thus determined by his Majesty's Attorney-General aforesaid. The Case of the Governor and Company of the Massachusetts Bay, in New England, in America.

3° Nov. 14° Jac. The whole tract of New England was granted to forty persons, Lords and others, by the name of the Council of New England established at Plymouth, whereby power is given them to set out lands and hereditaments to adventurers and planters, as should by

2 Joseph Rayn, Attorney

3 It should be 18° Jac.; it was Nov.

1 See this Grant in Hazard, i. 384-7.-H. General under Cranfield.-H. 3, 1620; James began to reign in 1603.—H.

VOL. VI. SECOND SERIES.

27

1620

CNE

618

:: 4 MAR CAR 4 = 16289 GENERAL HISTORY

a commission of survey and distribution executed, be named.'

19° Martii, 1628. The said Council grant the Massachusetts Colony to Roswell and others.

4° Martii, 4° Car. 1mi. The Grant to Roswell, &c., was by Letters-Patents confirmed to the said proprietors and others their associates, who were then incorporated, with power of government granted to them, and of making laws not repugnant to the laws of England.2

The Company, in pursuance of this Grant of the Council at Plymouth and Charter from the King, transport themselves and make a settlement upon the said lands, distributing the same, from time to time, freely to adventurers and planters, without any rent reserved to the Company, yet so that where the said lands were possessed by the natives, the planters did also purchase from them.

May 1657. It is enacted by the laws of the placeThat any person who had, by himself, his grantees, or assigns, before the law about inheritances, 14th October, 1652, possessed and occupied, as his or their proper right, in fee simple, any houses or lands there, and should so continue without disturbance, let, suit, or denial, legally made, by having the claims of any person thereto entered with the Recorder of the County, and such claim prosecuted to effect, within five years next after the 20th of that present May, 1657; every such proprietor, their heirs and assigns, shall forever hereafter enjoy the same, without any lawful let, suit, disturbance, or denial, by any other claim of any person or persons whatsoever, any law or custom to the contrary notwithstanding.

No claim made of the lands in question within the time limited.

In 1635, the Pat. of || 3° || Novris. 14° Jac. surrendered.*

Mr. Mason's Title.

9th Martii, 1621. Mr. Mason, by grant from the Council at Plymouth, under their common seal, to his ancestor, John Mason, claims some ten towns within ||| 30 ||

See this Patent in Hazard, i. 103-18.-H. 2 In Chalmers's Polit. Annals, pp. 147-8, is "A copy of the docquet of the grant to Sir Henry Roswell and others, procured by the Lord Viscount Dorchester, Feb. 1628," (i. e. 1628-9.) The Patent is in Hutchinson's Coll. Papers, pp. 1-23.-н. See page 617, note 3.—H See page 227.-H.

the Massachusetts bounds of their Patent, to be called Mariana, to hold to him and his heirs, in free and commou soccage, &c., subject to the exceptions in the Grant to the Grand Council, yielding a fifth part of all ore found to his Majesty, and another fifth part to the Council, with a letter of attorney to the chief officer there for the time being, for delivery of possession and seizin to the grantee, Mason, or his attorney.1

Note. The Grant only sealed with the Council's seal, unwitnessed, no seizin endorsed, nor possession ever given with the Grant.

10 Aug. 1622. The said Council grant, alien, sell, and confirm to Sir Ferdinando Gorges and Captain John Mason, their heirs and assigns, all the lands lying between the Rivers §of § Merrimack and Sagadehock. Note, as in the Grant of 1621.

7 Nov. 1629. The said Council grant part of the premises to Captain John Mason, single, and his heirs, extending between the Rivers of Merrimack and Pascataqua.3

1631. Note as above. The same Council did again grant a small parcel of the premises, granted to Sir Ferdinando Gorges and Captain J. Mason, unto the said Sir Ferdinando and Captain Mason, with about six or seven others, their associates, lying on both sides the River of Piscataqua, upon which lands some settlement was made and some part thereof divided between the said grantees and adventurers after 1631.*

April 1635. Captain John Mason obtains a new Grant from the said Great Council, of all the lands from Naumkeag River to Piscataqua River, by the name of New Hampshire; at which time all that part of the lands so granted, which are now contained within the bounds of the Massachusetts, were actually distributed to, and planted by, the inhabitants of that Colony, by virtue of their Grants from the said Council, Anno 1628, 1629.

The whole matter in difference was referred to the two Lord Chief Justices, by his Majesty and Council. They, after a solemn hearing of counsel on both sides, reported unto his Majesty: That as to the right of the

6

1 See p. 614.-H. See p. 616.-H. 3 This Grant may be found in Hazard, i. 289-93.-H. See the substance of this Grant, dated Nov. 3, 1631, pp. 215–16.-H. See pp. 616-17.-н. See, in Farmer's Belknap, pp. 449-52, "the Report of the Lords Chief Justices," Richard Rainsford and Francis North, presented to the King and Council, July

20, 1677.-H.

soil of the Province of New Hampshire and Maine, they could give no opinion, not having proper parties before them, it appearing that not the Massachusetts Company, but the terre-tenants, had the right of soil and whole benefit thereof, and yet were not summoned to defend their titles.

As to Mr. Mason's right of government within the soil he claimed Their Lordships, and indeed his own counsel, agreed he had none, the Great Council of Plymouth, under whom he claimed, having no power to transfer government to any.

As to the bounds of the Massachusetts Colony: Their Lordships have, by their said report, excluded thereout the four towns of Dover, Portsmouth, Exeter, and Hampton, parcel of Mr. Mason's claim, but determined the remainder of his claim to be within their bounds; which report was confirmed by his Majesty in Council.

1 Quer. Whether Mr. Mason's Grant, being only under the Council of Plymouth's seal, unwitnessed, and without any entry or record of them anywhere, without seizin endorsed, and no possession having ever gone along with them, be valid in law, to out about fifty years possession, a title under the government of the Massachusetts, and a purchase from the natives?

[Ans.] I think it is not good, according to the law of England, and New England having no particular law of their own, (to my knowledge,) which differs from the law of England, as to the manner of passing lands, 1 do not see how many of these grants can be good.

Or admitting they be good in law:

2 Quer. Whether Mr. Mason be not estopt by the law of the place as above, having not made his claim thereto, within the time prescribed?

[Ans.] If Mr. Mason's estate do lie within the jurisdiction of the Assembly who made this law, and that this Assembly were rightly constituted, according to the power given by Charter, I think Mr. Mason was bound by this law, which I look upon to be a reasonable law, and agreeing in reason with the law of England.

And if Mr. Mason have right thereto :

|| ten tenants ||