miffion to decide, whether the commonwealth is feized of any ato declare what the proportion is. 1 part of the Old State-Houfe, and Their award will be in the nature of an interlocutory judgment. They have not a difcretionary power to leave the law of the land, and to decide on the broad ground of the equity of the cafe, though the fubmiffion might have been expreffed, fo as that the prefent decifion fhould have been final.+ A title to the foil in Maffachufetts was by the patent to Sir Henry Rofewell and his affociates, and by the charter of Charles I. vefted in the Old Colony. It is a rule of the common law, that at the diffolution of a corporation, all the lands of which it is poffeffed fhall revert to the donor. But if while in existence it has conveyed land to others, that land in the poffeffion of the grantees will not at the diffolution of the corporation revert to the original donor. If then the old colony conveyed lands of which it was lawfully feized and during the existence of its charter, the diffolution of that corporation will not affect the title of its grantees, or of their affigns. The inhabitants of Boston are lawfully feized of the foil on which the town ftands. We muft view the law and the tranfactions of the times, when Maffachusetts was first fettled, according to the language and views of thofe times. Our anceftors brought with them fuch principles of the common law of ↑ The parties finally agreed to interpret the rule, fo that the referees fhould decide the cafe on its moft equitable grounds, England as were applicable to their fituation. In incorporating a town, however laconick the act of incorporation, they meant to convey all thofe rights and privileges, which were well known by them to belong to towns. When the government of the colony ordered this peninfula to be called Bofton, they in reality conferred on it, in the fimple manner of that day, the immunities of a corporation. To grant lands was one of the prerogatives of the government. But when a town had received a name, the government never affumed the right, except in the folitary inftance to Blaxton, to difpofe of the lands within its limits. After the fettlements had multiplied, and the lands had become valuable, the boundaries of the towns were fixed. This fimple mode of conferring the rights of a corporation fuited the circumstances of thofe times. It will be vain to fay, that towns could not be thus created. When government gives any thing, the grantee acquires by the gift power to receive. Such gift deftroys the incapacity, if any previously exifted. There is then a reasonable certainty, that the foil on which the house was built belonged to the town. It has not been fhewn, that this spot was originally referved by the colony for the fcite of a fort, or for any publick purpofe. The first house was undoubtedly erected at the expenfe of the town. If that house was used by the colony for 'legiflative purposes, it was without question with the confent of the town, who did at that time and have ever fince continued to derive advantages from this ap propriation of the building. But can it be pretended, that the fpecial occupation of a house for a particular purpose by government or by an individual, for any length of time, will convey to the occupant a general right to the foil? If the town ever conveyed this eftate, or any part of it, let the grant be fhewn. The town having exhibited a title, the burden of proof is fhifted upon the commonwealth. It is a well known maxim, that a grant fhall not be prefumed where records exift, and, during the whole time which this controverfy embraces, regular records have been kept by the government, the county,and the town. The expenfes of repairing this building were, it is true, divided between the parties. It is but equitable, that the occupants of a building fhould repair it but because government contributed to the repairs, does it follow, that it is entitled to the foil on which the house is built? The commonwealth has now the fame right in this building, which it has had ever fince the year 1711. It may be ftill ufed by the government for legislative purposes, but for no other. This title to an appropriate ufe was founded on a good confideration, and may be claimed by a prefcriptive right. We admit, that the commonwealth has a right to the use of certain parts of this building for certain purpofes. If it is feized in common of any part, it must be for general purposes, and for this part a writ of partition would lie. But a writ of partition will not lie, where the petitioner has but a right to the ufe of the thing, not to the thing itself. Partition may not be made of any thing, which by the partition would be destroyed. We may expect, that the evidence relative to recent events fhould be clear and fatisfactory: but where facts, to be afcertained, are involved in the obfcurity of ancient times, we must be content to obtain reafonable evidence. Vain is it to infift on certainty, where demonftration is impracti cable. The ATTORNEY GENERAL. He firft confidered the law relative to partition. Neither tencould be compelled at common ants in common nor joint tenants law to make partition. The statlaw to make partition. The statutes of 31 Hen. viii. c. 31, and of 32 Hen. viii. c. 32, provided a writ for this purpose. By the common law parceners could always be compelled to make partitions. In all cafes where a writ common law, or by thofe ftatutes of partition may be brought at of Hen. viii., partition may be had under the ftatutes of this commonwealth. The attorney general then noticed the rule and the facts which led to the fubmiflion. The referees were not, he confidered, to be confined to thofe ftrict legal principles, which would govern a court of law: but in conformity to the fpirit of the rule and the with of the parties, their award fhould be founded on the equity of the cafe.* The advocate for the common wealth here produced the report of a committee, confifting of Dr. William Euftis and William Smith, Efq. appointed by the town to confider the fubject, On what was the right of the town to the foil originally founded? The naming of a town could not convey to its inhabitants the foil, for it would be a grant but by implication and contrary to all legal ideas. Neither did it inveft the rights of a corporation. The colony was originally a body with the rights of a corporation. Till 1634 there was no government, but that of the governour and affiftants. Bofton was then first organized, and before that year had not the powers of a corporation. The grant to Blaxton proves, that the government did claim and exercife the right to difpofe of lands in a town, after having given it a name, and thereby invefted it, as the counfel on the oppofite fide contend, with the immunities of a corporation. Does the commonwealth own any part of this building? In 1711, when the province defignated this fpot, on which to erect a State-Houfe, and the town agreed to it, nothing was faid of the right and to report to whom the Old State House belonged. They reported, that the foil and one quarter of the building belonged to the town, one half to the commonwealth, and the remaining quarter to the county of Suffolk. Mr. Lowell-"This committee were never acquainted with the extent of the legal rights of the town in this property. They never investigated them. The ftatement in the report is erroneous; and it is well known, that the errour of a party fhall not injure him." Mr. Parfons" This paper contains only the opinion of thofe gentlemen. It is however neither a grant, nor the evidence of one." Attorney General-" I do not confider it as either. The report was fubmitted to the town and accepted. I offer it as the fenfe of the town on this Tubject." to the foil. The parties agreed to build a houfe for their mutual accommodation. This must be confidered either as chicanery and cunning on the part of the town, or elfe a grant, or the conceffion of a grant, that the province was entitled to a certain proportion of the foil. It cannot be denied, that a tenancy in common may be acquired by prefcription. Ninety years ago thefe parties came together, and conftructed this building. No one at that time, nor till this controversy arose, doubted the title of the commonwealth to a certain proportion of this building. Quiet poffeffion of land for fixty years will veft a title in a corporation or a state, as well as in an individual: and the commonwealth has been poffeffed in common of this building from the year 1711 to the prefent time. This fact alone proves beyond controverfy, that the claim of the commonwealth, which is fet forth in the petition for partition, is well founded, and will ferve to guide the referees to an award, which will be founded in equity and which will be conformable to the law of the land. REPORT OF THE REFEREES. The Commonwealth of Massachusetts by James Sullivan, Efq. Attorney General, VS. The Selemen of the town of Boston. The referees having fully heard the parties, their evidence, and the pleas and arguments of their learned counfel, report, That the faid commonwealth is not feized of any undivided part of the land, whereof partition is prayed for. The referees do further report and award, that the faid commonwealth hath a right to use and occupy the building in the faid petition mentioned and defcribed, for the purpose of holding the feffions of the Governour and Council, and the General Court of the faid commonwealth: and that certain bodies corporate have other rights and ufes in the fame building in fuch form and manner to be enjoyed, that the faid building is not partible in the common and ordinary mode. At the request of the faid parties, and adopting their conftruction of the powers of the referees, under this rule, the referees do further award, that the commonwealth contributing to the ne ceffary repairs of the faid buildding is entitled to receive one half of the rents or income of the fame. And whenever all the parties interefted in the faid building fhall agree to difpofe of the fame, that the faid commonwealth is entitled to one half the proceeds of fale. The referees further award, that the cofts be borne equally by the parties to this rule. OLIVER WOLCOTT, Boston, July 28, 1802. Supreme Judicial Court, Auguft term at Bofton, A.D. 1802. Report read and accepted, and judgment accordingly. AGRICULTURE. JNO. TUCKER, Clerk. trees, during the winter feafon. It has been a general eftablifhed opinion, fupported by experiments, that the northern part of these New England ftates is fo cold during the winter months as to kill peach-trees without admitting even an exception. Though this opinion, like the great laws of nature, had received fuch a fanction in the publick mind, that to call it in queftion would only demonftrate our ignorance, I nevertheless attempted filently to try fome experiments, knowing that perfonal experience would afford a ftronger conviction on the mind, than the greatest received maxims. In the courfe of my experiments I planted fome peachftones in various parts of the garden, which produced promiting fhoots. As foon as the fnow fell, I was careful to remove it from many of the young trees, fo as to conftantly keep the ground naked round them the diftance of 4 feet. The next fpring I found, that thofe trees which I thus treated were all alive and promifing, but thofe I neglected were entirely dead. In this way I treated my peach-trees, and the last feafon they afforded me confiderable fruit as a reward for my labour, which I fuppofe is the firft fruit of the kind railed in this northern climate. This led me to meditate on the fubject, and make fome philofophical inquiries into the nature of fuch different effects. In thefe inquiries, the most reafonable theory which prefented itself to my mind was this. The fnow generally falls before the furface of the earth is frozen, and confequently keeps the earth and roots of the tree in a comparative ftate of warmth. When the feafon begins to open, the roots of the tree, kept under a cover of fnow, feel the vegetative powers of nature fooner, than if they were inclofed with a body of frozen earth. When the roots are thus covered with fnow, the fap or juices of the roots are in a state ready to afcend, as foon as the fun by its warmth opens the pores of the tree. The pores of the trunk and branches are frequently opened, in a very early part of the feafon, at mid-day, when they receive the full rays of the fm. The roots of the tree thus kept from the froft have nothing to check the fap from afcending, and, when the froft of the night returns, it chills and freezes this fap in the trunk and branches, and at once deftroys the power of the pores and the life of the tree. This is principally owing to two confiderations. The first fap which arifes is very weak, and afcendingfo early, there is but a fmall quantity of it. Like weak adulterated fpirits, it does not contain fufficient ftrength to withstand the froft in the furrounding atmofphere, and being in that part of the tree which nature never defigned for a congealed ftate, it deranges the order of nature and renders her powers abortive. But when the ground is frozen, though the pores of the branches are open to receive the fap at too early a pcriod for the clirnate,the roots being furrounded by froft keeps the fap from afcending till the earth and' atmosphere have received fufficient warmth to raise a large quantity of it in a day, and not defroy its life by froft in the night. On these principles it would be worthy the attention of every gentleman in thefe eaftern States to keep the fnow from his peachtrees through the winter. It may prevent the tender buds from dying, which is frequently experi enced in thefe States. NEWSPAPERIALS. Count Rumford has prefented to the Royal Society, (England,) an account of a curious phenomenon, which he, in company with Profeffor Picter, of Geneva, obferved on the Glaciers of ChaMouny. This phenomenon, which is faid to be very common in thofe high cold regions is thus defcribed: "At the furface of a folid mafs of ice, of vaft thickness and extent, we difcovered at pit, perfectly cylindrical, about feven inches in diameter, and more than four |