USA > Massachusetts > Essex County > The Indian land titles of Essex County, Massachusetts > Part 2
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The courts held that these natives had only a right of occupancy and enjoyment. Just how they inter- preted this right is uncertain.
Roger Williams claimed that the land was the pro- perty of the Indians, and that title thereto could be acquired only from them, and not by virtue of the
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King's grant. This was one of his ideas which made him unpopular at Salem and led to his banishment.
Winthrop had written before he left England even that "That whch lies comon & hath never beene replenished or subdued, is free to any that possesse & improve it. . . As for the Natives in New Eng- land, they inclose noe Land, neither have any setled habytation, nor any tame Cattle to improve the Land by, & soe have noe other but a Naturall Right to those Countries. Soe as if we leave them sufficient for their use, wee may lawfully take the rest, there being more than enough for them & us." 1
I Life and Letters of John Winthrop, Boston, 1869, volume I, pages 311 and 312.
FORCE AND EFFECT OF INDIAN DEEDS
THE subject of ostensible transfer of title to the land here by the Indians has caused considerable thought and discussion. The greatest force given by the courts to Indian deeds was in treating them as releases or estoppels, - as relinquishing and not conveying an interest in the soil. This conclusion of the courts was affected by the statute of 1701,' which made all such deeds have the force of estoppel only, unless with the leave of the general court. Without the passage of this statute, it is problematical what the position of the court would have been.
In justice to both Indians and English it should be stated that, on the part of the public here, probably no attempt was ever made to purchase the lands of the Indians. At the very first the authorities discouraged such a movement, saying, in the first general letter of the governor and deputy of the New England Company to the governor and council for London's plantation in the Massachusetts Bay in New England, dated at Gravesend, April 17, 1629, that if any of the savages pretend right of inheritance to the lands the represent- atives of the company should endeavor to purchase their titles "that wee may avoyde the least scruple of intrusion "; 2 and this was repeated in the second
I Acts of 13 William III, chapter 11 ; Province Laws (Massachu- setts ), volume 1, page 471 ; Noah Clark versus William Williams et al., 19 Pickering, 499 (1837) ; Amos Brown et ali. versus Inhabitants of Wenham, 10 Metcalf, 495 (1845).
2 Records of the Massachusetts Bay Colony, Boston, 1853, volume 1, page 394.
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general letter of the company, dated at London, May 28, 1629.
March 4, 1633-34, at a court held at Boston, it was "ordered, that noe pson whatsoeuer shall buy any land of any Indian without leave from Court." 2
These laws were passed for the protection of the Indians, by securing them from deceit and imposition, and to enable the government to avail itself of the full benefit of the grant from the crown to themselves and their grantees, by giving them the exclusive priv- ilege of extinguishing or acquiring the Indians' right of occupancy.
It was not a title to be acquired by grant in lands in which the Indians' right had once been extinguished that the English were prohibited from purchasing. If a township had been granted and settled, and the aboriginal right extinguished, it was not the intent of the general court to prevent an Indian acquiring and transmitting title like any settler.3
The policy of the colonial government always was to treat the Indians fairly. It was discussed by the general court, and, finally, October 19, 1652, it was ordered, that, being " willing that there may be a free passage of justice for their right amongst us," as well as for the English, and affirmed that what lands the natives have by possession or improvement, by sub- duing the same, they have just right unto ; that if they
' Records of the Massachusetts Bay Colony, Boston, 1853, volume 1, page 400.
2 Records of the Massachusetts Bay Colony, Boston, 1853, volume 1, page 112.
3 Noah Clark versus William Williams et al., 19 Pickering, 499 (1837).
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come and dwell with the English and live civilly and orderly, they shall have allotment amongst the English, according to the custom of the English ; and if there be enough for a township of themselves, upon their re- quest to the general court, they shall have grants of land undisposed of for a plantation as the English have.'
June 26, 1701, an act was passed by the Province of Massachusetts Bay, expressly making all deeds given by Indians, without leave of the general court, after the passage of the order of 1633-34, inoperative, except as estoppels against the releasors.2 This act is as follows : -
Whereas the government of the late colonys of the Mas- sachusetts Bay and New Plymouth, to the intent the native Indians might not be injured or defeated of their just rights and possessions, or be imposed on and abused in selling and disposing of their lands, and thereby deprive themselves of such places as were suitable for their settlement and improve- ment, did, by an act and law passed in the said colonys respectively many years since, inhibit and forbid all persons purchasing any lands of the Indians without the licence and approbation of the general court, notwithstanding which, sundry persons for private lucre have presumed to make pur- chases of lands from the Indians, not having any licence or approbation as aforesaid for the same, to the injury of the natives, and great disquiet and disturbance of many of the inhabitants of this province in the peaceable possession of their lands and inheritances lawfully acquired ; therefore, for the vacating of such illegal purchases, and preventing of the like for the future, -
I Records of the Massachusetts Bay Colony, Boston, 1853, volume IV, part 1, page 102.
2 Acts of 13 William III, chapter 11 ; Province Laws ( Massachu- setts ), volume 1, page 471.
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Be it enacted and declared by the Lieutenant-Governour, Council and Representatives in General Court assembled, and by the authority of the same, that all deeds of bargain, sale, lease, release or quit-claim, titles and conveyances what- soever, of any lands, tenements or hereditaments within this province, as well for term of years as forever, had, made, gotten, procured or obtained from any Indian or Indians by any person or persons whatsoever, at any time or times since the year of our Lord one thousand six hundred thirty-three, without the licence or approbation of the respective general courts of the said late colonys in which such lands, tenements or hereditaments lay, and all deeds of bargain and sale, titles and conveyances whatsoever, of any lands, tenements or hereditaments within this province, that since the establish- ment of the present government have been or shall hereafter be had, made, gotten, obtained or procured from any Indian or Indians, by any person or persons whomsoever, without the licence, approbation and allowance of the great and gen- eral court or assembly of this province for the same, shall be deemed and adjudged in the law to be null, void and of none effect ; provided, nevertheless, that all such purchases, re- leases and titles heretofore had or obtained from any Indian or Indians by any town or person whatsoever of any lands or hereditaments which such town or person also hold and enjoy, by virtue of any grant or title made or derived by or from the general court of either of the colonies aforesaid, and all releases, purchases, conveyances and titles which any town or person shall hereafter make, procure or obtain of any Indian or Indians for any lands, tenements or hereditaments granted, or that shall be granted by the general court to such town or person, before such purchase or title made or ob- tained from any Indian or Indians, shall be, and hereby are excepted out of this act, and be held for good and valid in the law, anything herein contained notwithstanding; and that if any person or persons, or town in this province to the eastward of Piscataqua River, have heretofore purchased or
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obtained any Indian deed or title for any lands, tenements or hereditaments in those parts, or if any person or persons have heretofore purchased or obtained any Indian deed or title for any lands, tenements or hereditaments in the Island of Cap- awock, alias Martha's Vineyard, or the dependencies thereof, now known by the name of Dukes County, or in the Island of Nantucket, for further confirmation of their other lawful titles and possessions, this act or any thing therein contained shall not extend or be construed to extend in any wise to va- cate or make void such Indian deed or title, any thing herein contained to the contrary notwithstanding.
If any person or persons whatsoever shall, after the publi- cation of this act, presume to make any purchase or obtain any title from any Indian or Indians for any lands, tenements or hereditaments within this province, contrary to the true intent and meaning of this act, such person or persons so offending, and being thereof duly convicted in any of his majestie's courts of record within this province, shall be pun- ished by fine and imprisonment, at the discretion of the court where the conviction shall be, not exceeding double the value of the land so purchased, nor exceeding six months' imprisonment.
All leases of land that shall at any time hereafter be made by any Indian or Indians for any term or terms of years, shall be utterly void and of none effect, unless the same be made by and with licence first had and obtained from the court of general sessions of the peace in the county where such lands lye ; provided, nevertheless, that nothing in this act shall be taken, held or deemed in any wise to hinder, defeat or make void any bargain, sale or lease of land made by one Indian to another Indian or Indians.
DEEDS
-
This doth fistify that I HaffonomEtt did give to me tom winthrop all that ground that is Setvers the CHIEFE comoly called Labour in vainE CreERE, & the CREERE callEd chyba to Create for mity THE actuantsJE to have RECEIVED full Satisfaction
in Ham pour pragE & other things al I DoE LE Eroy affo for the forms of the inty pound to or fail into my by the guide to hu zurethrop, I toE fully DEligne up all mignight of the whole forme. of Ilysuch as falta op they come through shall. & all the Hooff MEDdortEs partirEs & Grofin Ep ground ontothe faid foto written author in the name of the restof the English there plantEd and If You Find my fille to make it Rain from this Claimer of any offers fish Indians whatsorber.
withijers. fothis
MappanomEt fris marks
Jules ffyemin
Hugh. Hilthird Fris === === 2 (Diani
Deed from Masconomet to John Winthrop, Jr., of the territory constituting Mr. Winthrop's farm, in Ipswich. Reproduced same size as the original, which is in the pos- session of the Essex Institute, at Salem.
IPSWICH DEEDS
JOHN WINTHROP, son of Governor John Winthrop, was born at Groton, county of Suffolk, England, February 12, 1605-06. He was educated at Trinity College, in Dublin, and studied law at the Inner Temple, in London. He soon abandoned the law, and, entering the naval service, served under the Duke of Buckingham in his unsuccessful expedition for the relief of the French Protestants at Rochelle. After a tour of the Continent he returned to London, in August, 1629, and found his father actively en- gaged in the interests of the Massachusetts Bay Com- pany. He emigrated to New England two years later, and, with twelve other men, by permission of the general court, in March, 1632-33, began a plantation at what is now Ipswich. The death of his wife and daughter, in' the autumn of 1634, caused him to change his plans, and he soon afterward returned to England. He subsequently became the head of a colony which settled in Connecticut, but spent much of his time in Boston, and was living at Ipswich again in February, 1637, when he was chosen one of the prudential men in that plantation.
A few months later, Mr. Winthrop secured from Masconomet, the sagamore of Agawam, a release of the land lying between Labor-in-vain and Chebacco creeks, which constituted Mr. Winthrop's farm. This release is unrecorded, and was in the possession of the Winthrop family until 1890, when Robert C. Winthrop, Jr., of Boston, deposited it with the Essex
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Institute at Salem. This ancient deed is herewith reproduced from the original document, which reads as follows : -
This doth testify that I Mafkonomett did give to m' John Winthrop all that ground that is betweene the creeke com- öly called Labour in vaine creeke, & the creeke called chy- backo Creeke, for wch I doe acknowledge to have received full Satiffaction in wampampeage, & other things : and I doe heerby alfo for the fume of twenty pounds to be paid vnto me by the Said John winthrop, I doe fully refigne vp all my right of the whole towne of Ipfwch as farre as the bounds thereof shall goe all the woods meadowes, paftures & broken vp grounds vnto the faid John Winthrop in the name of the rest of the English there planted, and I doe bind my felfe to make it cleere from the claime of any other Indians whatsoever.
witnefses. to this
GYLES FFYRMIN
MASKANOMET his mark ADAM WINTHROP
HUGH H HILLIARD
his marke
DEANE WINTHROP
Gyles Firman was a physician, and lived in Ipswich at that time, a young man of twenty-three. He re- turned to his native England about 1654, and became eminent as a clergyman as well as physician. Adam Winthrop and Dean Winthrop were half-brothers of Mr. Winthrop, the grantee in this deed. Adam was then eighteen years of age, and Dean but fifteen. Hugh Hilliard was living in Salem as early as 1634, and probably removed to Ipswich before 1638.
June 28, 1638, Mr. Winthrop secured from the chieftain Masconomet a further release of the territory
Deed from Masconomet to John Winthrop, Jr., of the ter- ritory of the original town of Ipswich, dated June 28, 1638. Reproduced nine-tenths of the size of the original, which is in the possession of the Essex Institute, at Salem.
Muftonominor Sagamore of Agawam , You by Hijo
La Some of Cwonly youmuitos, atillation,
all the Right property and Oceans, have our
ought to Krus, but all the Lums lying and bring .- The army of Olgawam, ally. Ix living boring for Quillos now by his yugioh, as well aljuset, hans was formerly toformog vato my own of at horn as alface Call other land belonging but we mithafo 8
houby rokuquish we the Right aux Intoroft I have valo are the Jimand Rivers huntings and fishing withall the 100ovos Swung of India-
on thefairs and what former ally, is it may be 1
144
Montroy for all fourmore ressing, or any part of tom, I is As we Knowby. 3
Afines my Pocho, to make good the for aus Burgune ws Suile - vuto the . wir Auchun Mountwoy him hours and afsignos for - Quir, mais ! Sotare Dr. against the tytte was Alone my hans that 2s. Anna b zes
Spistuffis
L
7
2
James: Downmyr 7 marke.
-
--
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of Agawam. This deed included all the land along the coast from Merrimack to Chebacco rivers, and the land at Chebacco ' which the releasor had reserved for his own use, but excepted Mr. Dummer's farm in what is now the parish of Byfield. The consider- ation paid by Mr. Winthrop was twenty pounds.
Captain Wait Winthrop, son of the grantee of this deed, produced it at the general court, in Boston, February 15, 1682, and requested that it be recorded. This request was granted, and the deed was recorded in the Ipswich Registry of Deeds 2 on the same day. It was also recorded in the Town Records of Ipswich, and in the Records of the town of Topsfield for 1701.
The original deed was in the possession of the Winthrop family until 1890, when Robert C. Win- throp, Jr., of Boston, deposited it in the Essex Insti- tute at Salem, where it remains. The original docu- ment is reproduced herewith.
The following is a copy of this deed : -
I Mufcononimet Sagamore of Agawam, doe by theife p'fents acknoledge to have Received of mr John Wintrop the Some of Twenty poundes, in full fatiffacon, of all the Right, property and Cleame, I haue or ought to haue, vnto all the land lying and being in the Bay of Agawam, alls Ipfwich being foe Called now by the English, as well alfuch land as I formerly referued vnto my owne vfe at Chibocco as alfoe all other land belonging vnto me in those parts mr Dum- mers farme excepted only, And I herby relinquish all the Rhight and Intereft I haue vnto all the Hauens Rivers Creekes Ilands, huntings and fishings with all the woodes Swampes
I Chebacco was the Indian name of that part of Agawam which is now the town of Essex.
2 Ipswich Registry of Deeds, book 4, page 383.
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Timber and whatfoeever ells, is or may be in or vpon the faid ground to me Belonging, and I doe hereby acknoledge to have received full Satiffacon, from the faid Jnº Wintropp for all former agreements touching the prmifes or any part of them. And I doe hereby bind my Selfe, to make good the forefaid bargaine and Saile vnto the Said John Wintrop his heires and affignes for euer, and to Secure him againft the tytle and Claime of all other Indians and natiues what foeuer. Wittneffe my hand this 28. of June 1638.
Wittneffes herevnto
JNº JOYLIFE THOMAS COYTIMORE MUSCONONIMET JAMES DOWNINGE ROBART HARDINGE
his marke
The persons whose names appear as witnesses to this deed were connected with Boston, and apparently the deed was executed there. Thomas Coytimore was a resident of Charlestown, and after his death his widow married Governor Winthrop, father of the grantee, in December, 1647. Mr. Coytimore was probably about twenty-one or twenty-two years of age at the time of signing the deed. James Downing was son of Emanuel Downing, and nephew of Gov- ernor Winthrop. He was at this time about fifteen years old, and may have lived in Ipswich. Captain Robert Harding was of Boston, being a prominent man, a supporter of the Hutchinsons' faith, and was disarmed therefor in 1637. Immediately after signing this deed as a witness he removed to Rhode Island. John Joyliffe was of Boston, and later one of the patriots who put Governor Andros in prison.
Masconomet appeared before the general court, in Boston, March 13, 1638-39, and acknowledged
Portrait of John Winthrop, Jr., from the painting now in the possession of Robert Dudley Winthrop of New York.
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that Mr. Winthrop had paid him twenty pounds as the consideration for this deed, and also that he was fully satisfied."
Subsequently, the matter of the payment by the town of Ipswich to Mr. Winthrop of the twenty pounds he had paid for this release was brought before the general court; and, November 5, 1639, it was " ordered, that Ipswich should satisfy M' Win- thrope for the 201 paid the Indian for his right."2 Apparently the money was not paid to Mr. Win- throp, as, February 22, 1705, the town of Ipswich " voted, that Samuel Appleton, Esq., and our two Representatives treat with the Hon. Wait Winthrop, about Masconnomo's deed of Agawam, made to his father deceased, Governor of Connecticut." 3
John Winthrop established salt-works at Salem, in June, 1638, and spent much of his time there during the next two years. Later, he was active in building iron-works at Braintree. In January, 1645, he sold his farm at Ipswich, and soon afterward removed to what is now New London, Connecticut. He had been an assistant in the government of the Massachusetts Bay Colony for eighteen years, but declined further service, and thereafter devoted him- self to the Connecticut colony, of which he was elected
I The record of this acknowledgement is as follows : -
" Maschonomet, the sagamore of Agawam, acknowledged that hee had received 201 of Mr John Winthrope, Junior, for all his land in Ipswich, for wch hee acknowledged himselfe fully satisfied." -- Records of the Massachusetts Bay Colony, Boston, 1853, volume 1, page 252.
2 Records of the Massachusetts Bay Colony, Boston, 1853, volume I, page 279.
3 Ipswich Town Records.
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governor May 21, 1651. He continued to hold that office for seventeen years. He was in England some years later and was elected a member of the Royal Society, which was a tribute to his scientific accom- plishments. He obtained from King Charles II a charter uniting the colonies of New Haven and Con- necticut, being himself named in the charter as the first governor of the united colonies. He died April 5, 1676, while at Boston, attending a meeting of the commissioners of the united colonies, and was buried by the side of his father in what is now King's Chapel Churchyard.
Deed from Passaquo and Saggahew to the inhabitants of Pentucket (Haverhill), of the territory of the original town of Haverhill, dated Nov. 15, 1642. Reproduced two-thirds of the size of the original, which is in the possession of the Haverhill Historical Society.
w/ aux A?
3-La faint in as far
mionly
prounalay Salio, dovuto "
Enfants at
it all or any other of
Her on Ganer & Salad for Das Garganta
Ć
Mauguio
sagga Bien
The Accord, of dais, for Effexint Pahar
condid the fish of Aprille Gol and
for
71
Kom Ward
to, og-mine by
Califtran Goffin
William rofile
the gay. of Engel & Docordel . County Pocos do jeft ps cof
THE DEED OF HAVERHILL
Two years after the English settlement was made at what is now Haverhill, came the news of an im- pending massacre by the Indians to exterminate the English in all the region. This was in September, 1642, and the time appointed for the accomplishment of this design was fixed at a time soon after harvest. An order was issued by the governor and council to disarm Passaconaway, the Sagamore of the Pentuck- ets. In consequence of this proceeding, the inhabit- ants of Haverhill, or Pentucket, as the settlement was then called, secured from Passaquo and Saggahew, with the consent of Passaconaway, a deed of release of the territory of Haverhill, which was executed No- vember 15th following. This ancient document was recorded in the old Norfolk Registry of Deeds' April 29, 1671, in the Town Records of Haverhill in 1680, and in the Ipswich Registry of Deeds2 April 1, 1681. The following is a copy of this instrument transcribed from the original : -
Knowe all men by thefe prfents that wee : Paffaquo : and Sagga Hew, wth the confent of Paffaconnaway : haue fold vnto the the Inhabitants of Pentuckett all the lands we haue in Pentucket; that is Eyght myles in lenght from the little Riuer in Pentuckett weftward: Six miles in lenght fro the aforefaid Riuer northward : And Six miles in lenght fro the forefaid Riuer Eftward wth the Ileland and the Riuer that
I Old Norfolk Registry of Deeds, book 2, page 209.
2 Ipswich Registry of Deeds, book 4, page 383.
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the Ileland ftand in as far in lenght as the land lyes by in formerly expreffed, that is, fourteene myles in lenght : And wee the faid Paffaquo & Saggahew wth the confent of Paffa- connaway haue fold vnto the faid Inhabitants all the Right that wee or any of vs haue in the faid ground Ileland & Riuer : And Doe warrant it againft all or any other Indeans what- foeu vnto the faid Inhabitants of Pentuckett & to there heyres and affignes for euer Dated the fifteenth Day of nouember Ann Dom 1642.
witnes our hands & feales to this bargayne of fale the Day & yere aboue written in the prfents of vs : wee the faid Paffaquo & Saggahew haue Received in hand for & in confideracon of the fame three pounds & ten shillings
JOHN WARD
the marke of
ROBERT CLEMENTS
TRISTRAM COFFYN
PASSAQUO
[SEAL]
HEUGH SHERRATT
WILLIAM WHITE
The marke of
The figne of
THOMAS 8 DAUICE SAGGAHEW :
[SEAL ]
Of these Indians, nothing more is known. The first witness to this deed was Rev. John Ward, the first pastor of the church in Haverhill. He was at this time thirty-six years old ; and was so prominent in the town that it was called " Mr. Ward's plantation " in official records. He was son of Rev. Nathaniel Ward, a lawyer as well as divine, and compiler of the "Body of Liberties," the first code of laws established in New England, being adopted in 1641. Nathaniel Ward was also the author of the "Simple Cobler of Aggawam." This colony received its name of Haverhill from Mr. Ward's birthplace in England. Robert Clements, the second witness, was one of the earliest settlers. He
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came from England, lived in Salisbury awhile, and then moved up the river and became one of this colony. He was about fifty-two years old when he witnessed this deed. He was a man of ability and in- tegrity, and held numerous public positions. Tristram Coffin, the next witness, came from the parish of Brix- ham, in Plymouth, England, and was, at this time, about thirty-three years of age. He came from Salisbury with Robert Clements. Hugh Sherratt came to this planta- tion with Mr. Ward, and was about fifty-three years old at the time of signing the deed. William White was one of the pioneers of the settlement, having gone across the river from Newbury, and at the time of signing the deed was thirty-two years old. He was one of the staunch citizens of the plantation. Thomas Davis, the last witness, was a sawyer by occupation, and came from Marlborough, in England. He was probably the youngest of the witnesses, being about thirty years old.
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