wards in diameter, growing on lands not theretofore granted to private persons, 
were reserved to the crown for naval purposes. 300 This charter provision 
was supplemented by acts of Parliament (9 Anne, c. 17, 8 Geo. I, c. 12, and 2 
Geo. 11, c. 35) for the preservation of white pine trees in the northern colonies 
361 The background of Leighton v. Frost is found in the hostile attitude 
of the Massachusetts inhabitants toward the royal policy of reservation under 
the charter and acts of Parliament. 362 In 1730 one Ralph Gulston was licensed 
by the crown to cut down a specified number of trees reserved to the crown. 
As agent for Gulston, William Leighton then entered upon lands in York 
County included within the charter reservation and cut down several trees 
of the diameter reserved by the charter, as well as some smaller. In March, 
1732/3, an action of trespass was brought against Leighton by John Frost, 
owner of the lands, in the Inferior Court of Common Pleas of York County; 
a plea in bar being overruled, judgment for the plaintiff was given in April, 
1734, for ,£l2l damages and £2 costs. Upon appeal to the Superior Court 
of Judicature, the judgment was affirmed on June 19, 1734, with costs, 
and an appeal to the King in Council was denied. 363 We have already seen 
Pub. Col. Soc. Mass. 246-64; Schlesinger, 28 
Pol. Science Quart., 434-37; Washburne, Imperial 
Control of Administration of justice, 
116— 19. Cf. 1 Boudin, Government by judiciary 
(1932), 526-30. 
360 1 Acts and Res. Prov. Mass. Bay, 20. Some 
ambiguities existed in the clause wording. A 
literal reading of the clause would seem to 
mean only trees twenty-four inches in diameter 
at the time of the granting of the charter, 
whereas the intent was probably to include all 
trees ever obtaining such dimension. Cf. an 
Act for Better Preservation of His Majesty's 
Woods in America, 2 Geo. 11, c. 35, s. 2. The 
interpretation by Davis is that the diameter 
was to be determined as of the time of the 
charter grant {op. cit., 2 AHR 230). A second 
cause of controversy was the meaning of the 
words "not heretofore granted to private 
persons." The York County inhabitants claimed 
that their county had been granted to Sir Ferdinand 
Gorges and by him to John Usher, so that 
it was granted to private persons before the 
second charter. Yet when Usher granted this 
land to the Massachusetts Bay Company in 
1677, it ceased to be the property of private 
persons and upon the quo warranto proceedings 
reverted to the crown (Shirley to the 
Lords Commissioners of the Admiralty, Oct. 
1, 1743; Adm. 1/3817)- 
361 9 Anne, c. 17 is numbered c. xxii, in 9 
Statutes of the Realm (Record Commission, 
1822), 480. 
362 See Albion, Forests and Sea Power (1926), 
c. vi; Lord, Industrial Experiments in the 
British Colonies of North America (1898), 
Part 11, c. ii; Mayo, The King's Woods, 54 
Mass. Hist. Soc. Proc, 50-61. 
363 Leighton pleaded in bar the royal charter 
and license, but the Court overruled the plea 
and called upon the defendant to make some 
other plea. Upon defendant's refusal to plead 
over, the court gave judgment without any 
proof or jury inquest as to the quantum of 
damages. The Superior Court of Judicature 
was of the opinion that the defendant's plea 
containing sundry matters of fact triable by a 
jury should have concluded to the country or 
defendant should have pleaded the general 
issue and given the special matter in evidence 
(3 APC, Col., #345). The reasons of appeal 
filed by Leighton were three in number: (1) 
the judgment was wrong and erroneous; (2) 
the action ought to have been barred upon 
the plea in bar reserved; (3) the trees mentioned 
in the plaintiff's writ as cut down and 
hauled away by appellant were not the property 
of the plaintiff, but belonged to the crown, 
whence the appellant had lawful power and 
authority to cut down and haul away the 
same {Suffolk. County Court Piles, #37,205).