Hollinger 
 
 pH S3 
 
 MOl Run F03.2193 
 
F 89 
 
 
 .P9 H94 
 
 Copy 
 
 1 
 
 THKJ 
 
 ifc3a®A2L ®i^iwi®ir 
 
 HON. WILLIAM HUNTER, 
 
 ON THE 
 
 QUESTION 
 
 OP THE 
 
 TOWN'S INTEREST 
 
 ANCIENT GRIST MILL. 
 
 I'BINTED AT THE PATRIOT OFFICE. 
 
 192^. 
 

 aii «-'»■, C*' 
 
 
 AT a Town- Meeting of the freemen of the town of Providence, Ie;?ally 
 
 warned and assembled at the Town-House, on the 8th day of October, 
 
 A. D. 1828. 
 
 Voted and Resolved, That Stephen Tillin?!iast, Robert Angell and Jo- 
 seph Sweet be and they hereby are appointed a Committee to investi- 
 gate and enquire into'the Town's right and claim to the ancient Grist- 
 Mill and its privileges on Moshassuck river, at the nortii end of tiie town, 
 and to devise the most effectual measures for causing the same to be re- 
 established for the purposes for which tliey were originally intended. — 
 Primided, That, in the opinion of said Committee, such claim and in 
 terost in said mill and privileges have not been vacated or extinguished. 
 
 Jind it is further voted, That said Committee be authorized and em- 
 powered to consult and employ Counsel, if neer! be, to aid them in said 
 investigation, and to take the advice of .said Counsel in writmg ; and that 
 said Committee report to the Town-Meeting on the third Wednesday in 
 November next. 
 
 A true copy : Witness, 
 
 NATHAN W. JACKSON, Town-Clerk. 
 
 [The above named Committee appointed William Hunter and Richard 
 W. Greene, Esquires.] 
 
 .iN'OTTJ.— If sufficient encouragement should be given, wo shall publigh 
 the opinion of Richard W. Greene, Esq. on the questions proposed by the 
 Committee ; and also the opinion which he gave at request of a number 
 of citizens, before ho was employed by the town — and also the opinion of 
 Mr. Searle. at the same request — if the two latter can be procured. 
 
QUESTIONS TO BE PROPOSED TO COU\SFL. 
 
 1st. Had tije town of Providrnoe, in its corporale capacity, 
 any right, title or interest in the land f,franted tu Jolui Smith ; 
 and if so, tiow did said town in its corporate capacity obtain it?" 
 
 2d. Were (he vote or agroi^nient made on the first day oftiie 
 first month, 1646, and from that time to 1667, made by the town 
 of Provi(?once in its corporate capacity, or by the proprietors of 
 tlie grand pnrchase of Providence? If tliose voters and agree- 
 ments were made by the proprietors, and not by the town in its 
 corporate capacity, will they enure to the use and benefit of the 
 town as a corporation ? There being no signatures to the copy 
 of the agreement of 1640, and no original thereof found, and it 
 purporting to be made between the inhabitants on one part, and 
 the widow and administrator of John Smith on the other part. 
 
 3d. Is said agreement bindinfr on the inhabitants, or on the 
 widow and administrator of John Smitii ; and if so, is the con- 
 tract of the widow and administrator binding on his heirs at 
 law, or on John Smith, Jr. if be w^is heir at law? 
 
 4th. From the whole tenor of the above agreement, is it to be 
 considered as one with the Iowa in its corporate capacity, or 
 with the proprietors of tlie grand purchase of Providence ? 
 
 oth. If any obstructions of t!ie river have been made by the 
 town, or by the proprietors, or any persons holding under them, 
 by erecting mill-dams or otherwise, to the molestation of the 
 mill in its constant course, will that obstruction vacate any in- 
 terest which the town or j*roprietors had before? 
 
 6th. If any remedy is to be had under said agreement, is it 
 against the heirs of John Smith the elder, or against the heirs 
 of Alice Smith and John Smith the younger, who are the sup- 
 posed parties to the agreement ? 
 
 7th. Is or is not the order passed on the 10th of 3d month, 
 1649, to be considered as evidence that the foregoing agree- 
 ment was never executed ? 
 
 8th. Are or are not the proceedings of 27th May, 1667, surh 
 as to vest the unconditional fee simple ot the lands in John 
 Smith ; and, if affirmatively, would an action of damages lay at 
 any time after those proceedings, and before tlie canal proceed- 
 ings, against John Smith or his heirs for a neglect in keeping 
 
up the mill, and'in'whose favor — whether of the"towB in its cor- 
 porate capacity, the proprietors of the grand purchase, or in fa- 
 vor of the individual who has^sustained damages by not having 
 his corn ground ? 
 
 9th. If the town had a right of action before the making of 
 the Canal, has it been lost by establishing said Canal ? 
 
 10th. If the town in its corporate capacity, or the proprietors 
 of the grand purchase, have a right of action against the heirs 
 of John Smith, is it an action of trespass and ejectment for the 
 lands granted, or an action for damages? 
 
 11th. Was there any specific location of the mill ? 
 For the Committee, 
 
 STEPHEN TILLINGHAST, Chairman. 
 
 Frovidence, July Qth, 1839. 
 
The following is the Opinion of Mr. Hunter, upon the ques- 
 tions proposed to him by the Committee. 
 
 OPINION, &c. 
 
 The questions in the annexed paper have been presented to 
 me for my opinion, by the Committee of the town of Providence, 
 on the subject of the Grist-Mill, and the following are my con- 
 clusions in regard to the Town's interest and concerns in that 
 matter, viz. : 
 
 1. The present town of Providence, in its corporate capacity, 
 has no entire or exclusive right or title in the land granted to 
 John Smith. It was owned and granted by the great body of 
 the land proprietors of Providence Plantations. The law of the 
 State passed in 1682, recognises and confirms the distinction 
 between this body and a town. 'V\\e first retained their powers 
 as to ungranted lands, or as to interests issuing out of those 
 that were granted. The last acquired the powers of a legal 
 corporation, in relation to municipal or police concerns — that 
 is, the right of managing its own prudential affairs. Undoubt- 
 edly a town can acquire a title from the body of proprietors by 
 express grant, or gain one against it by prescription or limita- 
 tion. In the case submitted, there is no grant from the propri- 
 etors to the town, nor does the doctrine of limitation or pre- 
 scription apply, because there has been no possession by the 
 town, as such, of the land referred to, much less an entire, ex- 
 clusive and adverse possession. 
 
 2. The vote or grant of the first month, 1646, was a vote of 
 the proprietors at their monthly meeting, warned according to 
 order. There is no vote in 1667 which the question seems to 
 suppose, but merely a memorandum that the aforesaid vote of 
 1646, was, on the 4th of January, 1667, copied by Shadrach 
 Manton, Town-Clerk. The inference from iliis paper is, mere- 
 ly, that the town, twenty-one years after the vote and grant by 
 the proprietors to John Smith, thought proper to have in its own 
 Ibooks convenient reference to a paper, in which the town had 
 «n interest, so far forth as most of its corporators were also pro- 
 prietors. 4s the grant was made by the proprietors, the benefit 
 
a 
 
 of its conditions and provisions enured to them ; nor can the 
 present tcuvn of Providence, in its corporate capacity, sustain 
 any action with a prospect of success in regard to this Grist 
 Mill interest. 
 
 The agreement, so called, of J6--19, was evidently never exe- 
 cuted. It is the mere copy ofan invalid, utiauthenticated paper. 
 ]t is the evidence of a judicious but unsuccessful attempt, for ad- 
 justing, or rather preventing, difficulties, it aimed, perhaps, 
 at too much, and, therefore, upon an examination of it by the 
 pnrty to whom it was proposed, it was rejected. The rea.?on3 
 which appear to be cogent, if not concU3^ive, to show that tliis 
 paper was never executed, are — Isi, that lite date is left hlarik 
 in the beginnin^'^ of the paper, and no where else in any way 
 supplied. The paper is drawn up for that time with uncommoii 
 care and precision, and it is altogether improbable that a coni- 
 mittfee, able to indite such a paper, should have omitted to fill 
 its date on the day of its execution. 2. The paoer has no signa- 
 tures, and, of course, no attestations. To presume it was exe- 
 cjited, .seems to be violating all principle, contradicting all 
 precedents, aiid conflicting with probability and common sense. 
 3. It is diffic'jU to account for the /y5.< of the originals, if they 
 ever existed. Tlie town had an interest in preserving its coun- 
 terpart, and had the regular means of doing so. The Smith 
 family had an interest in preserving, theirs. 4. Old papers of 
 this date are still extant, and though there is a faint tradition 
 that some papers were destroyed at Providence, when the houses 
 were burnt in King P.Vdip's war, yet that war was lu 1G70. — - 
 Tiiis paper, .so far as regards the year, is dated in 1649, and 
 was copied in 10U7. J.f the town's original was destroyed at 
 that ti.'Tie, the copy would probably jikewise have btjen. They 
 ir.ust have been deposited in the same place, and met the same 
 fate. But recording was not necessary for the town if it pos- 
 sessed the real exncuted original. The solution i.s, that the 
 paper was presented by the town's committee as the evidence 
 of what ihry intcnrlcd lo do, not what they did, and that the 
 co(\vin!3 wr.s m<^r<dy an act preservative of remeinbraiice of the 
 faithf'.i doings of the town's agents, but not intended as a 
 record making evidence of title to land, or to any interests js-^ 
 suing out or relnting to land. It could have been copied for no 
 other purpose, because the paper, if executed, purported not to' 
 bR a deed under seal, but only an agreement, to wJiich tire par- 
 ties nut their hands. It was merely a personal contract; an 
 action of assumpsit could oiilv be brought upon it. There was 
 no hiw then, lo4i) or !6{)7, ri-quiring the recording of a deed to 
 give It validiiy, nor M'as there a law of the colony then or ever,. 
 
or of the State now or ever, roquirinjT the registering of agree- 
 ments for tlie purpose of giving tnem validity, or of imp-irting 
 to thetu any other authenticity or facility of proof, in case of 
 the loss of originals by time and accident, than what the com- 
 mon law reasonably but perhaps rigidly exacts. 
 
 A Town, judicially speaking, is but a mere party, plaintiflTor 
 defnudant. It has the privilege of suing ; it is subject to the li- 
 ability of being sued. It cannot, more than any other party, 
 make evidence tor itself. How, then, could this paper be ad- 
 mitted ill evidence 1 Those nlio claim for the town a right to 
 a grist-miil forever, refer to this right as emanating from a grant 
 coupled with a condition charging the laud — but this paper, 
 thougli not pretend'^'d to be under seal, is the only one th'it can 
 be iilhided to for this purpose. If this be inadmissible, the town, 
 as to this view of the case, would have no proof. If the paper 
 is referred to, it must be produced. In general, in cases relat- 
 ing to land, the written instrument is the permanent and exclu- 
 sive repository of truth ; no inferior evidence can be substituted 
 for such an instrument, or be admitted to contradict, alter, or, 
 in general, to explain it. 
 
 The collateral aid that the Committee of 1821 administer to 
 this paper, by the assertion that other papers relative to other 
 concerns, though informal, have been considered valid, would 
 be unavailing, because the asscrtinn itself could not be listened 
 to in a court ol law. If true, it would not be relevant to the 
 point in issue, and, therefore, for this and many other obvious 
 reasons, the proof of such an assertion would he inadmissible. — '■ 
 But in the present case the paper is not informal, but null. — 
 There is no error in its execution — it was never executed at all. 
 In further illustration of this, reference ought to be had to the 
 record of the lOth of the 3d month, 1649. The fair presump- 
 tion is, that this record, instead of being previous, was subse- 
 quent to the show of an agreement, and instead of being the or- 
 igin of that supposed agreement, is evidence of its unpropitious 
 failure. This last paper is dated, vvz. on the 10th of 3d month, 
 J()49; the other is in 1649, but no other date, not the month 
 nor day of the month. The assertion of the Committee of 1821, 
 that this paper was previous to the attempted agreement, if not 
 a gratuitous supposition, is one entirely incapable of proof It 
 now stands as an affirmative proposition set up by the town, 
 and as the proof of it cannot even by possibility be lUade out, it 
 must be determined against that party who sets it up, and who 
 thus subjects himself to the burden of proof. But there is a fair 
 presumption derivable from the face of this j)aper itself, that 
 this record was subsequent to the pretended agreement ; that 
 
that paper Was never executed, and that all attempts at negotia- 
 tion and compromise, on the basis of that agreement, had prov- 
 ed abortive ; because, in the quaint idiom of that day, it recites, 
 that on tlie return of an answer from the Widow Smith, their 
 Committee [already appointed and existing, as appears from 
 this expression,] shall once more assay to make agreement with 
 the said Widow about former or latter motions or propositions 
 about the mill, and to prepare an answer by the next Court. — 
 No such answer appears. The Widow had been already as- 
 sayed with the prrpnrcd agreement reduced to writing, but she 
 remained resolutfl, and betrayed no inclination to former or lat- 
 ter motions: and V';ry properly did she remain resolute, for the 
 proposed agreemoai was one that she, as widow, and John 
 Smith, as administrator, had no legal or equitable power or au- 
 thority to enter into. The very terms, widow and dower, show 
 that, of the fee of her former husband's land, she had no con- 
 trol, nor could impose on it any charge. The undisputed seizen 
 of that fee by her husband, constituted her sole claim as tenant 
 in dower, and its unincumbered transmission to his heir at law 
 is what, by her act, she could not prevent. And in reference to 
 the administrator, what is he but the representative of personal 
 estate ? lie does not represent the heir ; he has no control over, 
 or concern with, the I'cal estate. Of the personal esta'te of the 
 deceased he is but the trustee and distributor. Of the real es- 
 tate the heir is absolute owner. 
 
 Tlie real point of controversy with the Smiths was the attempt 
 to enforce on them a duty and an obligation altogether differ- 
 ent from the primary grant or contract of 1G46. John Smith 
 was to have the valley wherein his house stands, in case he set 
 up a mill. He was not bound to keep it in repair, and this 
 short grant seems to have been worded with a view to take the 
 grantee out of the ancient common law writ, dc reparatione, 
 which was expressly mtended for mills. No covenants in convey- 
 ancing, though both frequently occur and are frequently con- 
 joined, are more distinct than a covenant to set up or to build 
 an edifice, and a covenant to maintain and uphold that edifice, 
 in permanent and perfect repair. The first certainly does not 
 include or imply the last. The proceedings of the parties do 
 not show such an uninterrupted usage of repairing and main- 
 taining as not only to vary the construction of the plain and un- 
 ambiguous words of the grant, but likewise to add a new, indc' 
 pendent and important clause to it. 
 
 It ougfit, perhaps, here incidentally to be mentioned, that the 
 modern clamor in regard to the smallness of the consideration 
 for the grant, vi?r. the mere erection of a water-mill, betrayeec 
 
9 
 
 inaltention to the state of society at the time. Land was plen- 
 ty and cheap, its average price a ie^' E.i:,Misli shilii.-igs ix-r .-icre. 
 Moiiied capital for o:ul;iys was scarce, and inteilcrtu-il. cdpiinl, 
 the meckaaicat in{.e\\\yiiaci^., that the urgent wants of the ti st 
 settlers conid invoke, hardly to be f>u.id. Several oi t' e 
 largest properties in the State are derived from siiudtr gr.ias 
 and contracts in relation to mills It is admitted that, in lite 
 absence of all votes, i^rants and written contracts, snhiequent to 
 the primwi/ vote .md grant, if tlie usage had been constant, as- 
 serted by one party and assented to by the oth^r, (with a 
 knowledge of hi? rights,) it would atfurd a presumotio'i thai the 
 claim of the town was legitimate and sustainable. It would, 
 perhaps, be protected by the bold but beneticenl fiction ot law, 
 which, in sncli a lease, presumes ^ grant from, and according 
 to, the accustomed enjoyment. But in this case (as it is pre- 
 sented to mej all the parties refer to actual, votes, grants and 
 records suhseqient to the prlmnry vote and grant, ami the ques- 
 tion must exclusively be, what is the true construction of all 
 these actual, existing and proiluced votes, grants and records 1 
 
 It may likewise be admitted that there are castas in whicii a 
 continued, undisputed usage lias influenced even ihe construc- 
 tion of a grant, but these cases are few and peculiar, of doubt- 
 ful and, as it seems, of overruled authority, and this both in 
 courts of law and eqiity. [See 8 Ves. 2iH ; 6 V<'s 2;^7 ; 2 N. 
 R. 449; 7 East. %M ; I Bligh, 'ZS:i; Starkie, I0:«, I70(».]_ 
 Sdch evidence can never be permitted but in the construction 
 of a doubtful grant or contract, and this permission is principal- 
 ly founded noon considerations oMeaal policy and convenience, 
 for the purpose of quieting litigations, and supporting long, con- 
 tinued and established usages. [See 3 J. K.. 2h3 ; 6 Terra 
 Rep. 26S; 4 J. R. 810; 2 Evans t'osth 219.] 
 
 But, as before stated, there is no doubt or amhiaruity in the 
 frimory grant; the words need not the aid of an usage for 
 their interpretation. 
 
 But the usage itself, by all the papers arid proceedings, is not 
 admitted by the Smiths It would be left to l)e ascertained as a 
 fact by a Jury. [See Starkie, 1080 ] Before the paper of the 
 10th of the .id month, 1 049, already referred to, it a[)pears that 
 on the 28th of August, 1650, a committee of two was appointed 
 to agree with two other men that the Widow and John Smith 
 might choose, touching the highway in the valley, and othtr ar- 
 ticles of as'reement about the land and will. 
 
 In November, 1651, John Smith, the miller, had granted to 
 him a six acre lot, "upon the mill's account." Probably he 
 had repaired or augmenUd the mill, and was thus paid. What 
 
10 
 
 other account could there be in regard to the mill 1 And if he 
 was thus paid by the town for repairing, augmenting or sustain- 
 ing the null, what question, at least up to this time, remains? — 
 Bui wi 1077, so far as depends on vole, grant and record, there 
 was a settlement of the who/e matter ; for then, in terms of un- 
 common precision for those tunes, and of most comprehensive 
 import, all the lands laid out to the Smith's, including specifical- 
 lif " the ten acres more or less at or about the place where the 
 mill stood." The six acre lot above referred to, and various 
 other lands, were '-declared, owned and acknowledged by the 
 men of Providence, and purchasers of the said town of Provi- 
 dence, to be the true and lawful right of John Smith and his 
 heirs forever, with all the appurtenances and commodities there- 
 to — to have and to hold without let, hindrance or molestation.'^ 
 This vote and grant vested an unconditional fee simple in John 
 Smith aiul his heirs, and being subsequent to the primary grants, 
 and evidently intended both as an enlargement and confirma- 
 tion of them, released and disburdened all the lands from any 
 charge or condition, if any ever had been previously thereto 
 imposed. 
 
 There is no paper or proceeding in regard to this matter of 
 the mill, from 27lh of May, 16G7, until the 20th September, 
 176-i, a silence of nearly one hundred years. During that pe- 
 riod no action for damages could lie against John Smith or his 
 heirs, in relation to the mill. He possessed his lands in ample 
 and absolute fee, no more burdened by the condition of main- 
 taining a mill than of maintaining a pack of hounds; a condi- 
 tion no more affecting his lands, than those of any other tenant 
 in fee simple in the county or colony. Did or could the pro- 
 ceeding of the 20th of September, 1764, alter this state of 
 things l In the course of that century the town of Providence, 
 which, at the time of the original grants, and at the time of the 
 enlargement and confirmation of them in 1667, consisted of the 
 men of Providence and purchasers of the town of Providence. 
 And the outlaying lands, that is, of what is now the whole 
 county of Providence, was reduced, by the incorporation of 
 other towns out of «7s territory, to its present limits and juris- 
 diction. 
 
 It might present a new and subtle question, how far the en- 
 gagement of Mr. Elislta Brown, in 1764, with a part of the 
 original grantors, and that l>ut a small part, operated by way 
 of admission of right to that small part, so as to enable the 
 whole to assert any new right, or support any action ; for clear- 
 ly, by the plainest princlules of the common law, ////interested 
 in an entire interest, and it was an entire interest, must be 
 
11 
 
 plaintiffs. To settle this point satisfactorily, if it could ever be 
 so settled, would require a nice disquisition, with very faint evi- 
 dence in regard to the rights of proprietors, as ?uch, and towns, 
 as legally and successively incorporated ; a question which is 
 obscured by. the lapse of time, and is embarrassed by the irreg- 
 ularity of proceedings of both bodies. 
 
 The elevation of towns, as such, into municipal and political 
 consequence, has led them imperceptibly, and rather for mutual 
 convenience than from any design of usurpation, to entrench 
 on the separate rights and interests of the proprietors. 
 
 The towns have gradually drawn the management of the pro- 
 prietors' affairs to themselves. Their rights, interests and func- 
 tions are actually, though not correctly, conjoiued and consoli- 
 dated. That body of proprietors, once consisting of the men 
 of the ancient, entire town of Providence, have sunk into inev- 
 itable depression, and are almost unknown but to the lawyer 
 and antiquarian ; but they are a legally existing body, recog- 
 nized by the laws of the land, as to their name, rights, inter- 
 ests and functions. If, in any suit instituted by a town, it 
 should, by proper pleading and proof, be made evident thai the 
 rights and interests claimed by the town were in truth outstand- 
 ing in the body of proprietors, such suit must fail. Ihere 
 would not be proper parlies, plaintiffs. The rightful claim 
 would exist in another body. The nominal plaintiff will iiave 
 no title. Important cases have, within the last forty years, 
 turned on this single point. 
 
 But waiving this matter, what did Mr. Elishn Brown, in )6C4, 
 engage to dol It was to put the mill in good repair, and to do 
 his eadeavors to save water for its use, and to repair it as soon 
 as conveniently might be. Why did he so engage? He might 
 have been induced so to do if an heir, or legal attorney of an 
 heir, by a direct money consideration, or by a special consider- 
 ation settling or releasing rights; or he nugiii have done it 
 without any consideration, in plain misconception of his own 
 rights as heir, or of his constituents, or the legal attorney of 
 heirs. He was not an heir himsel'f, and it is unimportant what 
 were his conceptions as to the interests of the rightful heirs, for 
 it does not appear that he was their lawful attorney, or tliat he 
 could bind them. The assertion in the subsequent part of the 
 vote of 1764, that it was his Grist-Mill, did not make it so. It 
 is aduiitted that he had but a temporary possession and interest. 
 If as mere tenant, he could not bind his landlord. It was against 
 his duty if he had a life interest or a less interest ; he could not 
 bind the heirs of the reversion. This was equally against his 
 duty, and might, in the severity ol the common law, have m- 
 
13 
 
 duced an immpdiatc forfeiture of hig own present interest, 
 whatrver it njijlii have been. Though it may be doubted, un- 
 der tiie circuiiistiDces of the case, whether he bound himself, 
 it IS clear he couJd bind nobody else, for he represented nobody 
 else. 
 
 'VUe paper, then, of 17t>4, will be totally unavailing to the 
 ti,'\vii of Providence against the heirs of John Smith; would be 
 defamed irreh^vant to any' imaginable issue that could be tried, 
 and, therefore, i;iadmissibl>^. But after all, it does not appear 
 tiiai iny,lhinj[ was eff.-cted by this town-nieeting triumph over 
 Mr. Elishti Brown, for tite n^xt proceeding in regard to the mill 
 is on (he 20lh of Ai)ril, 17.S5. Twenty-one years had passed 
 by. It then a ;>p('ars l!ie mill vvas worn out of repair, and that 
 a <^'Ommiitee was appointed to enquire on what terms the origi- 
 nnl irrant was m.ide, and kow the present possessors hold the 
 h.'iid where the said mill is erected, and to report the same, to» 
 gf'thpr with their opinion what is proper to be done by the town 
 respr^cting the same ; and that in case they should find it in- 
 cumbent on the fjrcstnt owners of said mill to repair the same, 
 that the < ommittee request them to do it without delay. This 
 OS a mr.dcrn pa()er in ihe cas^», is an important one. The en- 
 quiry turned upon what was incumbent on the owners in 1785. 
 The Committee were to report without delay : i\\ey never re- 
 pnrtfd at all. The inference is clear, that they did not find it 
 incn iibf-nt on i.'ie then owners to repair the mill. The town 
 acquiesced in thinurs asthr-y were, ancl remained contented for 
 sixl^en years more, viz. until August, 1801. 
 
 This acquiescence, for this protiacted period, certainly ob- 
 scured and rendered doubtful their claim. It showed a shy- 
 ness of conduct and timidity of assertion incompatible with the 
 cloarness and siurdiness of right and claim. The year 1801 is 
 referred to, beranse, in that year, James Burrill, Jr. Samuel W. 
 Biidcrham and Enhraim Boweii, were appointed a Committee 
 for the 'xirpose oUn^nin inspecting into tiie state of the mill, and 
 of invesligaiiiiL' the tenure by which it was held by the proprie- 
 tors, which Committee were ordered to report at the next town- 
 meeting. Tliev never reported, nor was any other movement 
 had in this affair, until October, 1821, wlien a C<»minittee was 
 auain appointed, in consequence of a memorial of the heirs of 
 the Smiths. 
 
 Thf^re was, then, a neglect of the legal assertion of claim 
 from 178,5 10 1821, a lerni of thirty-six years. Surely upon 
 all thf principles and analogies derived from, and applicable to 
 the statute of liinit;ifions, the claim, if it ever existed, must npw 
 be barred. The maxim that time does not run against tht 
 
13 
 
 kin^, does not apply ; for, as before suggested, a town, in a 
 court of jaw, is bui an ordinary pany, plaunift or defendant. It 
 is not the state, it lias no S(.verri;ii[nty. It is not the public. 
 
 The memorial oJ J. Howell and others the heirs and de- 
 scendants of J. Smith, tlii>ugli it sought a compromise with the 
 town, and expresses an anxicus dtsire to buy their peace and 
 settle the pretf nsions of tl;e town as to the Gnst-Miil, does not 
 atimit but denies the t> wn's riglit, interest or control. 
 
 The preceding remarks are founded on the supposition that 
 the alleged aL^reemenl of 1649, on whith the town affects to 
 claim, is WW agreement, because it was never in lact executed. 
 But how stands the case if it were executed ? It would be of 
 no force nor effect, because, 1st, as before shown, it did not 
 bind the heirs* But '^d, if it were executed, and by proper 
 parlies, viz l)y the heirs themselves, or those capable of bind- 
 ing tlum, the town have since forfeited all right, interest and 
 benefit that migiit have accrued Irom that agreement ; for, by 
 the 4lli clause of that agreement, it is stipulated, on the part of 
 the town, that no corn mill within the limits of said Plantation,! 
 that IS, the whole county ot Providence, shaJI be built, &,c. &c. 
 A monopoly of the grinding of grain was hereby at the time in- 
 tended to be conferred on the Smiths. The grantors may have 
 bad the power of covenanting this at the time, but they have 
 long since lost their power of performing their covenant. It is 
 notorious, that in numerous instances this covenant has been vi- 
 olated. The alleged agreement wants the essence of a contract, 
 reciprociti/ ; a capability of mutual performance, an obligation 
 equally binding on both parties, and which could, by either par- 
 ty, be enforced against the other. The charter of I(i68 ; the 
 division of the ancient town of Providence into various other 
 towns, with all the powers of separate and entire jurisdiction ; 
 the superintending and uncontrollable power of the Legislature; 
 \he dtclarntinn of rights ; in truth, the course of events; the 
 opeiations of time and nature, have rendered the performance 
 of this covenant, on the part of the town of Providence, as im- 
 practicable as It is inexpedient. But if it has not performed 
 and cannot periorm its pait of the contract beneficial to the 
 party with whom it contracted, it is clear it cannot enforce 
 
 * John Sii ith was heir at law. 
 
 This note was made by order of the Committee, by Stephen Tilling 
 hast, Chairman. 
 
 tThe limits of the then Plantation extended only to Afnsstuifog and 
 Pawtuchipit, comprising- a tery small portion of llin actual county. [Sec 
 Hoger Williams" letter to Jno." Whipple, July 8, 1()T>9.] 
 
 Note mads by ordtr of Committee. Stephen 2'illivghast, Chairman. 
 
14 
 
 against that party the performance of that part of the contract 
 which is peculiarly beneficial to it, the town. 'J hat considera- 
 tion fails. There is, therefore, on this ground, by operation of 
 law, a virtual release of the stipulations of this agreement ; and 
 I am humbly of opinion, that this doctrine would be sustained 
 both by courts of law and equity. 
 
 But waiving the further consideration of all these remote 
 questions, not one of which should I have deemed it necessary 
 to have investigated, if the instructions ot my clients had not 
 expressly enjoined it as a duty, I proceed now to state, lasily, a 
 bar to the claim of the Town by their own recent act, which ap- 
 pears to me be peremptory and conclusive. I refer, in the first 
 place, to the proceedings of the town had on the 2d of Februa- 
 ry, 18-2G, in relation to tlie Biackstone Canal. The pioprietors 
 of that Canal had then surveyed its proposed route, so far as 
 to cross the site of the Grist-Mill, in which it is asserted the town 
 had an interest, and also to extend that route through other lands 
 claimed by the Town. A committee, consisting of Philip /\ lien, 
 John Carlile and Benjamin Clifford, were appointed to represent 
 the town before the Commissioners, or before any persons ap- 
 pointed to appraise the damage, — or before a Jury, in case such 
 committee should claim an appeal, with authority to contract, 
 in behalf of the town, for such renumeration for injuries or dam- 
 age which the town may sustain, or in their discretion tu release 
 the same, and what was done by said Committee was to be con- 
 clusive and valid. 
 
 Under this authority, legal, ample and precise, the committee 
 attended to the duty of their appointment, and on the T9th of 
 April, 18'2C, reported verbally, that they had done so, but were 
 not then ready to make further report. — On the 10th of June, 
 1826, the Committee reported, that they had further attended 
 to their duty ; that they had claimed damages for the injury the 
 town may receive by the removal or destruction of the Corn Mill, 
 but that it appeared by the record of the Court of Common 
 Pleas, that the Committee appointed by the said Court, do not 
 consider the Town of Providence will sustain any damage by 
 llie removal or destruction of the Corn-Mill, and award no dam- 
 age to the town, which report was read, leceived and recorded. 
 
 Now here is a decree of a competent Court, had upon the 
 hearing of the parties; the losing party had a right to an appeal, 
 and to a trial by Jury, it dissatisfied. The appeal was not 
 claimed ; the right to a trial by Jury was waived. There is no 
 pretence of surprise, mistake, inadvertence or ignorance of the 
 town's rights. Not to appeal, not to claim atrial by Jury, was 
 the deliberate decisiun of the town's Committee, invested with 
 
15 
 
 ample powers, and conscious of their responsibility as agents and 
 trustees in a delicale concern. They exercised what they deem- 
 ed a sound discretion on this siihject, and the town has solemnly 
 accepted, raiificd and recorded their doings. The subject be- 
 fore the Court of Uommissioners was the town's interest in the 
 Mill, and the damages that ouorht to be awarded for its destruc- 
 tion. The property was taken or an interest destroyed ; yet if, 
 in tne opinion of the Commissioners sworn to the impartial dis- 
 charge of their duties, nodamages were sustained over and above 
 the benefit and advantages accruing from the opening, building 
 and completing the Canal, nodamages could legally, according 
 to the act of incorporation, be awarded. The Court of Com- 
 missioners acted with unimpeached good faith. It appears, too, 
 that they decided wisely and equitably, for the party interested, 
 with a right ot appeal and resistance, acquiesces in their decis- 
 ion and leaves it undisturbed. 
 
 iSnrely this decision of the Court of Commissioners, and this 
 acquiesonce, must be held to be clearly conclusive of this sub- 
 ject. It is, by operation of law, a release and extinguishment 
 of the town's interest in the Mill — the town have obtained for 
 that, the law for public purposes took from it, an adequate com- 
 pensation in the success of a noble and beneficial enterprize, 
 which facilitates and extends its commercial intercourse, and 
 which must, if all former experience is not fallacious, enhance 
 and confirm its prosperity. I am, therefore, decidedly of the 
 opinion, that the town of Providence is not bound, by its duty to 
 any portion of its inhabitants, to enter into what must be a pro- 
 tracted and expensive, at any rate a precarious, and, as I am 
 bound sincerely to say, an unsuccessful litigation. 
 
 WILLIAM HUNTER. 
 
 Providence, July 20th, 1829. 
 
 Providence, August 31, 1829. 
 I certify, that the above and aforegoing 13 pages are a true 
 copy of a paper, now on file in the Town-Clerk's Office, pur- 
 porting to be an opinion of William Hunter, Esq. as to the 
 Town's right to the ancient Grist-Miil; and also the Questions 
 •of the Town's Committee, proposed to suid William Hunter, Esq. 
 NATHAN W. JACKSON, Town-ClerL 
 
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