216 | State of the Facts Bearing on Massachusetts’s Title to Sagadahoc

    [Apr. or May 1763]

    A State of the Facts upon which the Massachusets Title to the lands between Penobscot & St Croix depends.

    1621 James the 1 granted to Sr William Alexander the Province of Nova Scotia, of which St Croix is made the western boundary

    1664 Charles the 2d granted to James Duke of York all that part of the main land of New England beginning at a certain place called or known by the name of St Croix next adjoining to New Scotland in America & from thence extending &c to the river of Kennebeck.

    The Duke of York in 1676 appointed a Governor over this Country & having not aliened it in 1684 became King.

    Charles the second by the Treaty of Breda, ceded that part of Acadia which the French had been before possessed of to France: in which cession The Fort of Pentagoet lying on the East side of Penobscot river is the most westerly place mentioned.813

    In 1690, War being declared between France & England, The Colony of Massachusets fitted out an armament at their own expence & conquered the whole Territory between Penobscot & St Croix, & entirely removed the few french who were settled there from thence

    In 1691 The Massachusets being in the peaceable possession of this Country, by conquest, King William & Queen Mary erected the Colony of Massachusets & the Colony of Plimouth &c into one Province & granted to them among other things all the lands between the River Sagadehock & Nova Scotia (being the same Lands which were before granted by Cha. 2 to the Duke of York, except a small alteration in the inland Western boundary) then called Acadia, & thereafter to be called The Territory of Sagadehock; by which name it is distinguisht to this day.

    By the Treaty of Ryswick King William ceded to France all conquered places in America: but this Tract was not named, nor did the French ever take possession of or make any settlement upon it.814 During Queen Anns War The Massachusets made it a continual object of their Arms, having fitted out two expensive Expeditions against that Country & Nova Scotia, before it was finally conquered by a regular Army assisted by the Massachusets forces815

    By the Treaty of Utrecht This Country was ceded to England under the Name of Acadia, by which it had been before granted to the Massachusets by King William. The Massachusets immediately resumed their jurisdiction over the Country & in 1713 received the submission of the Indians thereof as subjects of that Province. In 1717 Govr Shute held a treaty with the Eastern Indians among whom were sevral of the Penobscots, who renewed their subjection to Great Britain under the Massachusets. In 1722 a War broke out with the Penobscot & other Indians which continued 4 years at the expence of the Massachusets much greater than the whole Value of the lands between Penobscot & St Croix. In 1727 Peace was concluded with those Indians, who renewed their submission to the Massachusets. And since that there have been many other instances of such acknowledgements.

    The Province has heretofore been prevented settling this Country by the continued intrigues of the french Missionaries among the Indians, but had determined to do it at the end of the War. For which purpose in 1759 Governor Pownall with a large armed force erected a Very respectable fort on the river Penobscot, took a formal Possession of that Country in the right of the Massachusets on the east side of the river, & having called the Penobscot Indians together, declared his intentions of settling that Country & threaten’d them with his resentment if they dared to attempt to interrupt him. And accordingly in 1761 Proposals were made to the General Court for settling 12 Townships of 60 families each on the East side of Penobscot: and 6 of the said Townships have been surveyed & Grants of them have passed to be submitted to his Majesty according to the Terms of the Charter.

    Arguments in favour of the Massachusetts Title

    And [now] ^Upon the aforesaid Grants being tenderd for the Kings Confirmation^ a Question is made whether The Provinces Right under the Charter by the Treaty of Breda, was not originally Void or since evoided by the Treaty of Breda & Ryswick or either of them ? to which another Question may be added, whether if their Title is not good in strictness of Law, it ought not to be perfected upon principles of Equity or of Policy. And taking both these questions as one, We will consider it in four ways 1 Common Law. 2 Civil Law. 3 Equity. 4 Policy.

    1 Common Law. Evry Grant contains in it implied Warranty, which Warranty is a perpetual Bar to the Heir of the Grantor. Nor will it alter the Case if the Grantor had no other title but possession. For if a disseisor816 makes a grant & his heir, as his heir, acquires the legal title, they shall be barred by the implied Warranty of the Grantor. Let K William possessor of this Country by Conquest be considered a Disseisor at common Law, The rest of the Argument follows. The Reason of the Law is that No one shall be allowed to defeat the grant of his Ancestor, under whom he himself claims

    2. Civil Law. By the right of Postliminium Where a Country, that formerly belonged to a state, is recovered from the Enemy, all private rights are restored. Or in the Words of Puffendorf Lib 8 ca 6 sec 26817 “If a part of a people be recoverd by the people they were for some time divided & torn from, they again incorporate with the old Body and return to the place & rights they had before.”

    3. Equity. As this Province has for above 70 years acted under a royal grant & in consequence thereof expended in the defence of this land more than ten times the Value of it, if their Title is imperfect, the King is obliged ^ought^ in equity to make it good complete.

    4. Policy. The Great Purpose in America is to bring forward the peopling & improving the Wast lands there. If, where Lands lie between two Provinces, One of them is ready to people ^settle^ these lands & really wants them for the use of their supernumerary people, and the other neither can nor ought not in prudence to settle them, having allready much nearer their head quarters lands sufficient to employ them for at least 100 years to come, It surely would not be right Policy to prevent one Province extending its population to add to the allready immense desarts of the other.

    ADft, AC BP, 10: 83-86.

    The cover to Jackson indicates that this manuscript constitued two parts of a three-piece report justifying Massachusetts’s title to Sagadahoc. The first part was “Consideration of an Objection to the right of the Province of Massachusetts Bay” authorized by the General Court; the document printed here comprises the second and third parts and discusses in much more depth some of the points FB raises in the annotations he made to the copy of the “Consideration” that he enclosed in No. 176. For the historical background to the province’s claim, FB probably relied heavily on Thomas Hutchinson, who had a leading role in the preparation of Brief State of the Title of the Province of Massachusetts-Bay to the Country between the Rivers Kennebeck and St. Croix and later discussed the claim in History of Massachusetts, 2: 84.