In explaining the process by which the soil of New England was distributed among the occupants, I have followed what seemed to be the natural order, stating first the origin of rights in the land, and then describing successively each link in the chain of title, grants from the Crown, grants from the Great Council, colonial grants, and finally the division of lands among the members of the land communities. Local ordinances and recognized customs have been treated as important parts of the system.

I.

ORIGINAL SOURCES OF TITLE.

1.-RIGHT OF THE CROWN.

In the New England colonies all titles to landed property were derived originally from an actual or constructive grant of the English Crown. The title of the Crown itself was based upon that union of discovery and possession which, in the opinion of English jurists, could alone give a valid title to a new country. Mere transient discovery indeed amounted to nothing unless followed in a reasonable time by occupation more or less permanent under the sanction of the State.' But these conditions, it was held, had been fulfilled by the discovery of the coasts of America by the Cabots in the years 1497-8, and the subsequent visit of Sir Humphrey Gilbert in 1583, when he formally took possession of the country under letters-patent. Long as was the interval, it was in the eyes of England not too long, and that nation always based and maintained her claims to possessions in America upon the grounds here given.2

The rights of the Crown were not merely those of the head of a State, or of the feudal lord paramount. The King was the

13 Kent Comm. 380, n.

2 Ibid., and Thurlowe, State Papers.

immediate owner and lord of the soil, and exercised unlimited power in the disposition of it. He made grants which could not be made under English law, as, for instance, when he authorized the proprietaries of Maryland and other colonies to erect manors, "anything in the Statute of 'Quia emptores' to the contrary notwithstanding." He claimed also the right to establish local governments, and conferred powers of legislation upon his grantees, whether these were colonists in America or groups of courtiers in England. The rights of private ownership and royal prerogative were in him too closely combined to be readily distinguished.

2.-RIGHT OF THE ABORIGINES.

But although it was the theory of the British Government and of the colonists that the absolute, ultimate title to land was in the sovereign, that title was subject to a right of occupancy in the Indians. This natural right of the natives was entitled to protection; but the sole right of acquiring it by purchase or by actual conquest was in the Crown or its grantees, and the natives had no right to dispose of it to any other.2

The colonial governments uniformly acted upon these principles, so that, although individuals were disposed to deal less liberally with the natives, and even such a man as Cotton Mather deemed it unnecessary to recognize in any way their title, the rights which the theory of the Government left to them received, as a rule, the protection required.

In Maine, owing to peculiar circumstances, the title conveyed by Indian deeds assumed especial importance, and a high degree of authority was accorded to such evidences of property. At about the time of the English Revolution, the colony of Massachusetts was striving vigorously to extend

its boundaries, and, in order to weaken its enemy Gorges and render him unpopular, the colonial government supported the theory that the native right must be superior to that conferred by such an extensive patent as his. Purchases from the Indians, which in consequence became frequent and of great extent, were regularly upheld by the local courts. When Massachusetts in 1716 appointed commissioners to record claims to lands, these Indian deeds were revived with other claims, and thus gained a standing as legal titles. The Government, however, became alarmed at their extent, and in 1731 passed an act forbidding all purchases from the natives without license of the Legislature, and declaring all deeds taken without such license to be null and void.

This enactment was merely an extension to new territory of a policy already generally adopted in New England. Massachusetts herself had in 1633 passed a restrictive law applying to the territory then held by her. Plymouth had done the same in 1643, and Connecticut made similar regulations at an early date."

That these laws were enforced is abundantly shown by the constant formal authorization of purchases, as well as by the recorded cases of refusal to confirm purchases made without authority. A grant of land, indeed, carried with it the right to extinguish the Indian title as of course, and no special authorization was needed. Yet even then, if the conditions of the grant were not fulfilled, the Government claimed the acquired title, if the planters had purchased.

Not only was the necessity of acquiring the Indian title uniformly recognized, but in some cases, especially when be

'Sullivan, Land Titles, 43.

? Acts and Res. of Mass. Bay.

3 Mass. Rec., I. 112.

4 Plym. Rec., Winslow's letter in Hazard, II. 531.

5 Conn. Col. Rec., I. 214, 364, 402.

6 Mass. Rec., II. 82, III. 225, etc.; Conn. Rec. I. 151, 418, 420, etc.

Ibid. IV. 427, 430, 440, etc.

Ibid. IV., Pt. II. 529.

yond the boundaries of an acknowledged local government, the colonists would seek no other titles, contenting themselves with that derived from the natives, without confirmation or authority from any other source. Roger Williams even took the ground that the planters could have no just title except what they derived from the Indians, in consequence of which heresy he was summoned before the court, and was also condemned by a council of ministers. But in the settlement of Rhode Island his principles were strictly followed, and it is possible that no grant would have been sought there, except at the hands of the actual possessors of the soil, had not some formal authorization of their acts of self-government been found essential to safety. Parliamentary and royal grants were then obtained.

Connecticut was settled and its government organized without any charter or grant, and the lands were purchased by the planters from the Indians as they had need of them. Mr. Trumbull says, "The settlers of the river towns had not -before or after the agreement with Mr. Fenwick—any right of jurisdiction, except such as grew out of occupation, purchase from the native proprietors, or (in the case of the Pequot territory) of conquest." Their policy seems to have been to dispose as quietly and as cheaply as possible of the claims of such as challenged their title, into the exact nature of which they were not disposed to provoke too close an investigation. But the General Court, as early as 1638, was given the sole power to "dispose of lands undisposed of," and regularly exercised the power.3

2

The titles to land in Nantucket and Martha's Vineyard originally were derived merely from Indian deeds, although the islands were soon placed under the jurisdiction of Massachusetts by the Congress of the United Colonies, and in 1692 were regularly incorporated by royal charter into the province

'Arnold, Hist. of R. I., I. 279.

2 Conn. Rec., I. 569.

3 Ibid. 25, etc.

of Massachusetts Bay.' Titles from the Crown were also acquired through the Earl of Stirling.

A careful examination of the records will satisfy a candid inquirer that there is no ground for materially modifying the statement of Chancellor Kent that "the people of all the New England Colonies settled their towns upon the basis of a title procured by fair purchase from the Indians with the consent of Government, except in the few instances of lands acquired by conquest after a war deemed to have been just and necessary." " Even where the title had been regularly acquired by purchase, the General Court of Massachusetts spoke of the native right as one "which cannot in strict justice be utterly extinct," and refused to dispossess the Indians, although it gave compensation in other lands to the town interested.3

2

II.

ROYAL GRANTS.

No fruitful attempts at colonization were made under the letters-patent granted to Gilbert, and after his death to his half-brother, Raleigh. But the zealous persistence of the latter, and the remarkable success of English merchants engaged in trading to distant lands-especially in connection with the operations of the famous Muscovy Company-prepared the minds of men for an enterprise in another quarter which promised great results, and, indeed, secured them, although not in the precise way expected. Gosnold's expedition in 1602, under the auspices of the Earl of Southampton, of which glowing reports were made by him and his companions on their return, was the immediate forerunner of a movement which resulted in the procurement of a charter,

'Sullivan, 38, 55.

23 Kent Comm. 391.

3 Mass. Rec., IV. Pt. II. 49.