(25.) The opinion of the Attorney-General Harcourt, on the Queen's right of escheat, to an estate in Jamaica. My Lord;

In obedience to your Lordship's commands, I have perused an Act, passed in Jamaica, to enable Cary Bodle and others, to sell lands &c., and am humbly of opinion, that Act is not fit to be confirmed.

The Act recites that King Charles the Second granted two parcels of land, containing one thousand one hundred acres, and four hundred acres to Dorothy Bannister, and her heirs forever; and that Dorothy Bannister conveyed the same to Dorothy Wait and her heirs forever; and that Dorothy Wait afterwards married with Theodore Cary, Esq.

The Act likewise recites, that King Charles the Second granted five hundred acres of land to Theodore Cary and his heirs, and that Theodore Cary died without heirs; and that King James the Second, by his letters patent of escheat, dated the 14th day of January, in the fourth year of his reign, granted to Dorothy Cary, and John Bodle, and their heirs, the said five hundred acres.

The Act likewise recites, that John Bodle intermarried with Elizabeth, the grand-daughter of the said Dorothy Cary, and had issue by her (Cary) John and Thomas, and that Dorothy Cary, by her will, gave to John and Thomas six hundred pounds each, at their ages of oneand-twenty, and all the rest of her estate, lands, tenements &c., to the said Cary Bodle, for his life, and to the heirs of his body, lawfully to be begotten, with such remainders over, in default of issue of Cary, as in the will are mentioned. The Act likewise recites, that John Bodle, the father of the said Theodore, had con

tracted great debts in endeavoring to improve the estate; and that Cary Bodle, by reason of the entail in Dorothy's will, could not sell, without an act of the Assembly for that purpose; and, thereupon, trustees are appointed to sell one thousand one hundred, four hundred, and five hundred acres, and the purchasers are, by the Act, secured in the enjoyment thereof. This Act I take to be liable to the following objections:

1st, The five hundred acres are recited to have been escheated to the Crown, on the death of Theodore Cary without heir, and the grant thereof, by King James, is mentioned to be after his abdication, viz: on the 14th day of January, in the fourth year of his reign. If no sufficient grant has been made since the escheat, the title remains still in Her Majesty.

2d, Supposing Dorothy Cary to have a good title, and the three several parcels well devised by her will, yet I see no necessity for an Act of Assembly to enable Cary Bodle to sell; for though the first words in her will devised the estate to him during his life only, yet the immediate following words (and to the heirs of his body lawfully to be begotten,) enlarge his estate, and make him tenant entail, and, consequently, he has power to sell without the aid of an Act.

3d, I conceive the want of a saving clause in this Act, to be a further objection against Her Majesty's approving the same.

July 12, 1707.

SIM. HARCOURT.

(26.) The opinion of Mr. Jackson on the King's right to the white pine trees growing on the Kennebeck River. To the Right Honorable the Lords Commissioners for Trade and Plantations.

May it please your Lordships;

In humble obedience to your Lordships' commands, signified to me by Mr. Pownall's letter of the 16th instant, I have taken into consideration the paragraph extracted from a letter of the Surveyor-General of His Majesty's woods, in America, inserted therein, together with the two law reports accompanying the same.

The paragraph states a claim made by the proprietors of an extensive tract of land upon both sides of Kennebeck River, on which there is an abundant growth of the best pine timber, and which tract the proprietors allege to be private property; not, as I conceive, because it is parcel of the province of Maine, (within which only part of it lies,) but because it is not the property of the Province of the Massachusetts Bay, nor indeed of any other corporate body, but is the property of a set of private parties.

I have, likewise, considered the question stated in Mr. Pownall's letter, namely, whether, by the provisions of the statute of the second of George the Second, Cap. 35. white pine-trees, of the diameter of twenty-four inches or upwards at twelve inches from the ground, growing upon any tract of land possessed under a grant of the Council of Plymouth, may or may not be felled, without a licence from the Crown: and am humbly of opinion, that in case the soil or tract on which such white pine trees grow was private property before the 7th of October, 1690, they may be cut without a licence from the

Crown, notwithstanding any provision of the statute of the 2d of George the Second.

That Act appears to me to have been intended to obviate the doubt that gave occasion to the question stated in 1726, to the then Attorney and Solicitor-General for their joint opinion, whose answer is contained in one of the reports transmitted to me: that doubt arose upon the 8th Geo. I., which was alleged to amount to a release of the Crown's right to part of the reservation contained in the Charter of the Massachusetts Bay. This doubt is now totally removed, and the single question that can occur on the 2d Geo. II., is, whether the soil in question was actually private property, before the 7th of October, 1690; not whether it is within, or not within a township.

The claim of the Kennebeck company (the proprietors mentioned in the Surveyor-General's letter) is founded on a grant from the Council of Plymouth, long antecedent to the 7th October, 1690, and I am, therefore, of opinion, that in case their title be well derived, (of which I do not pretend to judge,) they are exempt from the penalties of the 2d Geo. II. I should have been inclined to think so, had that company been a corporation, but this is not now the question, as they are a mere partnership.

But I think it my duty to remark to your Lordships, that although white pine-trees, growing upon the soil possessed by private persons, under a grant of the Council of Plymouth, are not the objects of preservation under the 2d of Geo. II; yet, in case they do not grow within the limits of some township, they seem to come within the provisions of the 8th of Geo. I., Cap. 12. RICH. JACKSON.

May 23, 1771,

(27.) The opinion of the same counsel on the construction of the 8 Geo. I., for the preservation of the white pine trees in New England.

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

My Lords;

In obedience to your Lordships' commands, which I had the honor to receive from Mr. Pownall the 30th of last month, I have considered the clause of the Act of the 8th of Geo. I., Cap. 12, intended for the preservation of white pine trees, in several Provinces therein named, in America, and am of opinion, that white pine trees, growing on any lands in the Province of Massachusetts Bay, not erected into a township, cannot, under the provisions and reservations of that statute, be, in any case, cut, felled or destroyed, without a licence from the Crown.

I beg leave to add, that I conceive the statute of 2d Geo. II., Cap., 35, has not removed the restrictions imposed by the former Act, but has, on the contrary, still narrowed the right of felling, to such white pine trees only, as grow on private property: and (by an explanation of the Province Charter) in the case of trees of a certain description, to such as grow on land that was private property, before the 7th of October, 1690, I take it, that as the law now stands :

1, No man can cut white pine trees in any part of America, without a license, unless they grow on private property.

2, Not in Nova Scotia, New England, New Jersey, or New York, unless they grow within a township. 3, That in the Province of Massachusetts Bay, no man