THE CASE.

King James the First in the twentieth year of his reigne, by letters pattent, incorporated the Duke of Lenox and divers other persons, by the name of the great Councill of Plymouth, here in England, for the planting ruleing and governing New England, in America, and grants to them and their successors, all the lands, &c, in America, between forty and 48 degrees of northerly lattitude.

The said Councill of Plymouth, who never had possession of said land, the 2d of April, 1635, Grant to M. H.* and his heirs all that part and portion of the main lands of New England, beginning att the mouth of the Connecticutt river, and from thence to Narraganset river, to be accounted sixty miles in length and breadth, and all Islands within five leagues distance of the premises.

About the same time the said grant was made to M. H. or soon after, severall persons, his Majesties subjects, living in New England, (but without any notice or knowledge of the said grant to M. H.) purchased of the Indian Princes and others, the true and naturall owners and proprietors thereof, divers parcells of land, lying within the limits of the said grant to M. H. as is now pretended, particularly an Island called Rhoad Island, and great part of a tract of land called Connecticutt, Narragansett, Warwick and other places; and in the years 1659, and 1660, other parts of the Narragansett country, which places have been possessed by the said purchasers and those deriveing from them ever since the said severall purchases, and the said purchases have bin always approved by the severall Governments there, and never disallowed or disapproved of here, and severall towns have been built, many farms and plantations settled, great treasure laid out, and several discents cast.

M. H. nor his heir or any deriveing from him, have never had possession, nor laid out any thing upon the premises, nor made any claime in the said country untill the year 1683, which was about 48 years after the said grant, the said heir by his Attorney claimed the said lands at Boston in New England, which is above 70 miles from the premises, and in another country.

The heir of said M. H. after three score and two years, demands the said premises, or a quit rent.

1. Quere,—Whether the heir of said M. H, there haveirig been no possession in the said M. H. or heir, nor purchase by them from the Indians, the owners of said lands, nor any thing expended by them in the settlement thereof, may by law recover the premises, and oust or eject the said purchasers and proprietors who are now in possession, or force them to pay a quit rent.

Upon consideration of this case, I am of opin-ion that the purchasers of these lands and grounds, who bought of the Indian Princes, the heirs and assigns of those purchasers have a good right to those lands and grounds, and the buildings and improvements thereof, and that the heir of M. H. after such purchases, and so long and quiet enjoyment of them under those purchases, ought not upon such a state demand without any possession or claime (for I look upon that pretended claim at Boston, as idle and null) to recover any of the said lands or grounds, or quit rents out of them.

2. Quere.—Whether the said purchasers and those deriveing from them, haveing had so long and uninterrupted possession, under a purchase from the naturall owners, and with allowance and approbation of the said Governments there, and after so many towns built, treasure spent, and severall discents cast, have not an undoubted and unavoidable title to the said lands by them purchased and possessed.

I am of opinion, that these purchasers by vertue of their purchasers and so long uninterrupted possession under them, have an undoubted right and title to these grounds and lands, and the buildings and improvement of them, and ought not now after so much money laid out upon them, and such enjoyment of them, be disturbed in their possession of them.

3. Quere.—Whether if the heir of the said M. H. if he sues the said purchasers, ought not to sue them in New England, where the lands in controversy lye &c,

I think regularly by the rules of our laws, any action brought for these lands or grounds, and the houses and buildings on them, ought to be where the lands lie.

FR. PEMBERTON.