USA > Massachusetts > Plymouth County > Scituate > The early planters of Scituate; a history of the town of Scituate, Massachusetts, from its establishment to the end of the revolutionary war > Part 4
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+ + The Plymouth Colony patent.
i. e. Massachusetts.
Plymouth.
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THE EARLY PLANTERS OF SCITUATE
but as ye people of this place, which came first, imposed such a name upon yt river, upon which, since Charles- town is builte (supposing yt it was it, which Captaine Smith in his mapp so named).
Now they yt first named it have best reason to know it, and to explaine which is it. But they only tooke it to be Charles river, as fare as it was by them navi- gated, and yt was as farr as a boate could goe. But yt every runlett, or small brooke, yt should, farr within land, come into it, or mixe their stremes with it, and were by the natives called by other and differ- ente names from it, should now by them be made Charles-river, or parts of it, they saw no reason for it. And gave instance in Humber, in Old England, which had ye Trente, Ouse, and many other of lesser note fell into it, and yet were not counted to parts of it; and many smaler rivers and broks fell into ye Trente, & Ouse, and no parts of them, but had names aparte, and divisions and nominations of themselves. Againe, it was pleaded that they had no east line in their patente, but were to begin at ye sea, and go west by a line, &c. At this meeting no conclution was made, but things discussed & well prepared for an issue. The next year, ye same commissioners had their power continued or renewed, and meet at Sityate, and concluded ye mater as followeth :----
"Whereas ther were tow commissiones granted by ye 2 jurisdictions, ye one of Massachusetts Govern- mente, granted unto John Endicote, gent: and Israell Stoughton, gent: the other of New Plimoth Govern- mente, to William Bradford, Govr. and Edward Winslow, gent: and both these for ye setting out, setting, & determining of ye bounds & limetts of ye lands betweene yr said jurisdictions, whereby not only this presente age, but ye posterities to come may live peaceably & quietly in yt behalfe. And for as much as ye said comissioners on both side have full power
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CONTROVERSY OVER TOWN LINES
so to doe, as appeareth by ye records of both jurisdic- tions; we therefore, ye said comissioners above named, doe hereby with one consente & agreemente conclude, determine and by these presente declare, that all yt marshes at Conahasett yt ly of ye one side of ye river next to Hingam, shall belong to ye jurisdiction of Mas- sachusetts Plantation; and all ye marshes yt lye on ye other side of ye river next to Sityate, shall belong to ye jurisdiction of New Plimoth; excepting 60 acres of marsh at ye mouth of ye river, on Sityate side next to the sea, which we do hereby agree, conclude, & deter- mine shall belong to ye jurisdiction of Massachusetts. And further, we doe hearby agree, determine, and con- clude, yt the bounds of ye limites betweene both ye said jurisdictions are as followeth, viz. from ye mouth of ye brook yt runneth into Chonahasett Marches (which we call by ye name of Bound Brooke) with a straight and directe line to ye midle of a great ponde, yt lyeth on ye right hand of ye uiper path, or commone way, yt leadeth between Waimoth and Plimoth, close to ye path as we goe along, which was formerly named (and still we desire may be caled) Acord Pond, lying aboute five or 6 miles from Weimoth southerly. and from thence with a straight line to ye souther- most part of Charles-river, and 3 miles southerly inward into ye countrie, according as is expressed in ye patente granted by his Matie to ye Company of ye Massachu- setts Plantation. Provided allways, and never ye less concluded and determined by mutuall agreemente betweene ye said comissioners, yt if it fall out yt the said line from Accord pond to ye sothermost parte of Charles-river, & 3 miles southerly as is before express- ed, straiten or hinder any parte of any plantation begune by ye Governt of New Plimoth, or hereafter to be beggune within 10 years after ye date of these psnts, that then, notwithstanding ye said line, it shall be law- full for ye said Govnt of New Plimoth, to assume on
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THE EARLY PLANTERS OF SCITUATE
ye northerly side of ye said line, wher it shall so intrench as afforesaid, so much land as will make up yt quantity of eight miles square, to belong to every shuch planta- tion begune, or to (be) begune as aforesaid; which we agree, determine, & conclude to appertaine & belong to ye Govnt of New Plimoth. And whereas ye said line, from ye said brooke which runeth into Choahas- sett saltmarshes, called by us Bound-brooke, and ye pond called Accord pond, lyeth nere ye lands belong- ing to ye townships of Sityate & Hingam, we doe therefore hereby determine & conclude, that if any devissions allready made and recorded, by either ye said townships, doe crose the said line, that then it shall stand, & be of force according to ye former in- tents and purposes of ye said townes granting them (the marshes formerly agreed upon excepted). And yt no towne in either jurisdiction shall hereafter exceede, but containe themselves within ye said lines expressed. In witness whereof we, the commissioners of both jurisdictions doe by these presents indented set our hands & seales yr ninth day of yr 4 month in 16 year of our soveraine Lord, King Charles; and in "yr year of our Lord, 1640.
WILLIAM BRADFORD, Govr. Jo: ENDICOTE
ED. WINSLOW ISRAELL STOUGHTON"
The agreement by the Plymouth Colony Commissioners to except sixty acres of marsh at the mouth of the river on the Scituate side "next to the sea" was a complete surrend- er. Indeed, this was practically the only territory in dispute. Although the Massachusetts Bay Colony laid claim through its survey, to much more, it is apparent that this contention was not a serious one. It served as something to trade on; and it is not at all surprising to find that Scitu- ate refused thus to be hoodwinked. The owners of the meadows and the freemen of the town itself, declined to be bound by the determination and conclusion of the com- missioners. An abortive attempt was made by the Colony
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CONTROVERSY OVER TOWN LINES
Court in 1654 to compel recognition of the line thus adjudi- cated and the reservation thus excepted when Mr. Anthony Eames of Marshfield and Cornet Robert Stetson were appointed, authorized and required "to see that the three score acres of meddow at Conahassett belonging to the town of Hingham bee layed out according to the acte of the comissioners concerning the same." No return was ever made by these gentlemen of the performance of this duty and it is probable that it was never executed for on June 3, 1662 another reference was orderedt. To this commission Josiah Winslow, Capt. Thomas Southworth and Cornet Robert Studson were appointed on behalf of Plymouth and joined the next year by Maj. Ebenezer Lusher, Capt. Roger Clap and Lieut. Joseph Fisher on the part of Massachusetts Bay. They agreed "that the Gulph shall stand as the boundary." And so, it stood to the time of the amalgama- tion of the two colonies, thirty years later, although con- tentions and law suits between individuals and the two towns most directly interested were many and violent dur- ing that time.
+ "Whereas notwithstanding all former provision made for the perfecting of the line betwixt the Massachustts and this collonie, from Accord Pond westward, hath bine obstructed, the neglect whereof being soe greivious to them and us, and soe hurtful in sundry respects,-
This Court doth therefore order, that Major Josias Winslow, Capt. Thomas Southworth and Cornett Robert Studson be a com- ittee fully impowered to acte in the perfecting of he said line, and to conclude the right thereof, according to the graunt of the chart- er of our collonie: who are to give meeting unto a comittee being in like manner impowered by the honored Court of the Massachu- setts to acte therin in their behalfe, that so there may be a finall issue put to that controversy, and what shalbee by the said comittees acted, our said comittee are to returne to out next Gen- erall Court."
Plymouth Colony Records Vol. IV page 24.
CHAPTER V
"CONIHASSET" In the Indian language-a fishing promontory. Flint's Century Sermon "Quonahassit"-"A Long rocky place" E. Victor Bigelow, Historian of Cohasset
B ETWEEN the years 1633, when the Colony Court, de- ferring to the wishes of Hatherly, Beauchamp, Shirley and Andrews, had reserved the land lying between Satuit Brook and Cohasset Harbor until it should be appraised the "resolucon" of those gentlemen, and 1642 when Hatherly purchased the holdings of Beauchamp i the last of the Ad- venturers to sell to him, a number of persons had settled and built upon this tract without color of title, ownership or authority. In 1646 there were living upon it Thomas Tarte, Rodolphus Ellmes, John Hoar, and Richard Mann
+ Before Bradford Governor, 1642. The xth of March 1642. Memor. and That Mr. Edmond ffreeman doth acknowledg that for and on behalf of Mr. John Beauchampe of London Merchant by virtue of a warrant of Attorney under the hand of the said John Beauchampe of London Merchant bearing date the tenth day of July Anno Dni 1639 and by other letters also to him directed for the sale of certaine lands of his lying at Scituate, Hath for & in consideration of the sume of fourty pounds absolutely bargained and sold unto Mr. Tymothy Hatherley of Scituate gent All those lands upland and meadow belonging or appertaining unto the said Beauchamp with all and singular thappurtenances unto them be- longing and all his Right, Title and interrest of and into the said premises with their appurtenances unto the said Tymothy Hatherly his heirs and Assigns for ever to the onely proper use and behoofe of him the said Tymothy Hatherley his heires and Assignes for ever.
The wordes of Mr. Beauchamp his letter, are these, viz:
"For my ground at Scituate sell it if you can (although it be never so little) which concerne this bargain & sale subscribed thus. Your loving brother,
JOHN BEAUCHAMP
I, Edmund ffreeman do acknowledge this Record abovesaid to Mr. Hatherley to be my Ackte & Deede.
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THE CONIHASSET PARTNERS
at or near Mann Hill, John Williams at Cedar Point, John Allen, John Hollet, John Stockbridge and John Woodfield at other locations. These men with Reverend Charles Chauncey, Thomas Chittenden, John Damon, Thomas Ensign, Thomas Hiland, James Cudworth, William Holmes, Edward Jenkins, Henry Merritt, Thomas Rawlins, Joseph Tilden, Richard Sealis, Ann Vinal, John Whiston, Gowan White and John Whitcomb, purchased twenty-seven thirti- eths of the land from Hatherly for one hundred and eight pounds. Hatherly retained one fourth of it for himself. Joseph Tilden owned two thirtieths, the others, one each. The land was conveyed on December 1, 1646 and described as' follows :
"Bounded with a brook of water lying southerlee of the harbor at Seteat and from hywater marke in yt brook to run three myles west into the woods and from the mouth of the sd brook to run east to the sea having Seteat land on the south border and the north border being att a little neck of land formerly called and knowne by the Indians or natives by the name of Cona- haset allies Cohaset and is neare a great fall of water and from hywater mark at the said neck to run three myles on a west lynne up into the woods and from the vtmost extent of sd threemyle west lynn in the woods to run a directe lynn for the west border vnto the vt- most extent of the threemyle west lynn yt Runes from the foresaid Seteat brook into the woods vntell it meets; hauing the common on the west border and the Sea on the east border of the sd land."
The purchasers immediately organized themselves into a voluntary association to which they gave the name of Conihasset Partners. Their first act was to provide for a permanent record of their proceedings. On March 1, 1649 it was "agreed on by the purchasers of Conihasset allies Cohaset, there shall be a book of Records kept for the re- cording of all such orders as are or shalbe made about the said land and for the inrowling of all such Lands as is or
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THE EARLY PLANTERS OF SCITUATE
shalbe laide out, and for the inrowling of the sale or Alien- ation of the said land this booke t is appoynted by the generall agreement of the said purchasers being mett together."
They chose a clerk, surveyors and committees. Richard Garrett, then also town clerk was the first "clarke" chosen by the Partners. This was in 1649. He served until 1656. James Torrey was his successor and held the position for nine years. He was followed by James Cudworth who was kept in office until 1681 when Stephen Vinal, Sr., was elected. He was succeeded by his son Stephen, Jr., on February fourteenth 1709 and for fifty-six years this correct and clerical individual who was a most excellent penman, kept the records. His successor, the last clerk of the Con- ihasset Partners, was Samuel Jenkins who was chosen clerk on May first 1767. Each clerk, upon being chosen sub- scribed to this oath :-
"You shall serve in the office of a clarke unto the company of the Purchasers of the shares of Conihas- sett Land; you shall faithfully keep this their book of records committed to your trust; you shall in it entrye make of such acts and orders and of all such divisions of land as you shall be ordered unto by the company or any whom they shall appoint thereunto; you shall enter all alienations of land that belongs unto Coni- hassett lands you being paid for your several entries by those whom it doth concern, and you shall return this their book afterwards unto the said company or whom they shall appoint when it shall be by them required. All of which you sweare truly and faith- fully to perform, as you look for help from God that is a God of truth and punisher of falsehood; ffurther you doe sweare that since said company chose you to be their clarke you have entered nothing in this book of records but that you weare appointed unto by the
The original-in the Registry of Deeds at Plymouth.
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THE CONIHASSET PARTNERS
company or such as they did appoint." The fee for making each entry was four pence-"but if he make any larger writing, if he and those by whom he is em- ployed cannot agree about the price, that then, James Cudworth, Joseph Tilden and John Hoare shall deter- mine of the difference and what (they) shall conclude it worth they shall rest satisfied."
Nicholas Litchfield and Anthony Dodson were chosen surveyors. The meetings were originally "warned" by a committee of three persons, chosen from among the part- ners for the purpose, which issued its warrant eight days in advance of each meeting, in precisely the same manner as town meetings of the freemen were called. In the later years these warrants, were issued by one of the proprietors who was a justice of the peace, upon the petition of eight part- ners,-an analogy to the same method provided in certain cases, for calling town meetings; and likewise in imitation of the municipal gathering, they were presided over by a moderator. It was early provided that such a "lawful warning" should bind those not attending as well as those present, "except in fee simple of land," or in other words when divisions were made and real property granted. In the beginning it was :-
"Agreed by the Company being met together for the ordering of the said land for the more safe and peace- able enjoying of the said Conihasset land, do for the more speedy despatch of business, order that what shal- be voted by the company, the greater vote shall carry it (except only in the fee simple of lands ) and that every thirtyeth part or share shall have one voyce and that two half shares shall have but one voyce."
On the same day, March first 1640, Hatherly received £10:16s: being the balance due him in full-and reserved "for my quarter part of Conihassett lands, two hundred acres of upland at Musquashcut farm; four hundred acres of upland at my farm at Scituate and one hundred and thirty-six acres of salt marsh."
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THE EARLY PLANTERS OF SCITUATE
Choice of location among the other partners was made by lot, and four working days were given in which to make a selection. John Booth obtained the first choice and took a tract of land on the hill over which Blossom Street now extends from Gannett's Corner. For many years it was called "Booth's Hill." Major Cudworth was sixth. He made his selection on Mann Hill. Anne Vinal, Rev. Mr. Chauncey and Nathaniel Tilden all came well down in the list, but there being ample acres of both upland and meadow for all, the records do not disclose that there was dissatis- faction.
Having thus become invested with their individual legal titles, the partners proceeded to pass protective measures. It was :-
"Agreed on by the Company that no one or more purchasers shall sell or let any of the Conihassett lands unto any of another town so as to sell the Common, or to make use of the timber or wood as long as he to whome it is sold or let lives out of the town of Scituate" and later ---
"Whereas the Purchasers of Conihassett having divers allottments of land each man making choice of his land for his most convenience, both for land and timber, by reason of which it may so fall out that some man's land may be inclosed from all common, so that he cannot have way to his land unless he have passage over some part of his neighbors lot, it is agreed and voted by the Company if any man shall so stand in need of a way to his land so as that he must of necessity go over his neighbors land or else cannot come to his own land, that then, if the party wanting a way and the party whose land he desires to go over cannot agree where he shall goe; that three men of the company be appointed to determine where he shall go, they deter- mining of it where it may be least prejudicial to the party over whose land he is to go, & what damage shall be done by so doing; if the parties concerned in it can-
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THE CONIHASSET PARTNERS
not agree it themselves, the three men shall determine the damage betwixt them to prevent suits at law. f And for as much as three men may be some of them inter- ested persons in the difference, therefore the Company have agreed and chosen five men & so three of the five, those three that are not concerned in the difference are to determine it, and the men chosen are Joseph Tilden, John Hollett, Isacke Chittenden, John Merritt and James Cudworth."
The manner of thus owning and disposing of the Coni- hasset tract by these partners was unique, even in the Plymouth Colony itself. The grantees did not constitute a corporation, for there was no such land holding device known to the common law which the forefathers brought with them from the mother country. Neither was there any local law up to 1682, authorizing such a combination. They were tenants in common with Hatherly and each other.
This tenancy essentially differed from that of the "commoners," as the inhabitants of the several towns were called, in relation to that part of the municipal territory not individually owned. The Conihasset tract, while it lay within the town limits of Scituate, was absolutely owned by the Partners and although "common" land, the townsmen had no voice in its disposal. Hatherly, Chauncey, Cud- worth and the rest as inhabitants of the municipality of Scituate were commoners in the lands of the town not indi- vidually owned in fee, and had a voice and vote in town meeting with their neighbors in its disposition or sale; but in the acres between Satuit Brook and the "Gulph" the com- moners and freemen of the town, had no community of interest; it belonged to the "Partners" alone.
The courts of Massachusetts, have singularly failed, both to make or recognize the distinction existing between these kinds of ownerships, using the terms "commoners" and
+ It is interesting to read in this record that when this vote was propounded Walter Briggs and Ensign Williams, each in after years a persistent litigant, "refused to act."
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"proprietors" interchangeably and as having an equal status. The commoners came into being through municipal incorp- oration, by the colony court. They might number one hundred or one thousand and increase still further with the growth of the voting population. The proprietors, on the other hand, were tenants in common whose numbers could
only increase by their own acts of alienation.
Neither
proprietor or commoner, as the terms were used in Plymouth Colony in 1650 had any standing known to the common law. Each sprang from the same source-the necessities of the situation. It will be remembered that the Pilgrims settling Plymouth without royal charter, erected a govern- ment of their own and assumed the most supreme rights and prerogatives of sovereignty. They negotiated treaties with the aborigines, declared and prosecuted wars, levied rates and taxes, made and executed laws and erected townships. In the exercise of the last function their General Court vest- ed absolute and indefeasible title in the municipalities thus created to the lands lying within the limits of the grant, not otherwise held in fee by individual owners. The inhabi- tants of the town, freemen and townsmen (those who had taken only the oath of fidelity) thus became commoners, and in ordering the affairs of the town, disposed of the common lands.
Proprietors were recognized even before the union of the two colonies in 1692, when the acts of authority of the General Court were directed along the lines permitted by a written charter. Thus in Plymouth Colony in the "Lawes and Orders" made by the Generall Court holden at Plymouth July the 7, 1682, it was enacted "Whereas in divers Townes and Places of this Collonie there are Severall Tracts of land which belong to and are held by divers persons in comon as the proprieator thereof and noe order hath bine yett made for their early meeting together to divide the said land or to make orders for the settlement of the same; it is therefore enacted that when the need doth require in any such place or township if the matter did not concerne the
LITCHFIELD STONES IN THE OLD CEMETERY, Meetinghouse Lane, Kent street, Scituate.
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THE CONIHASSET PARTNERS
Towne as a Towne in Generall upon the request made by the said proprietors or some of them to any majestrate of this Collonie an order shalbe graunted them to warne all the proprietors belonging to such Townes to come together att some certaine time and place to transact such matters as may concerne them and what shalbe lawfully enacted at such meeting by the propiators or the major, parte of them shalbe vallid and binding." Thus Ann and Stephen Vinall had common lands alloted to them. + William Parker and Joseph Coleman were likewise recipients of Colonial lands "according to their antiquity and desirt" #.
After the annexation, under the Provincial Charter the General Court of Massachusetts Bay did the same thing although not always as Chief Justice Parsons said "on con- ditions of settlement and for the purpose of forming towns to share the public burden" §, but because the grantees either had "lived and made improvements thereon" or "had fought in his majesty's service" or were "ancient freemen" or for money expended in educating Indians. IT
These proprietaries were spoken of and deemed to be a species of corporation or quasi-corporation. As was said by Justice Strong * "This is a species of corporation dif- ferent from corporations in general-this is intended to die, those to live forever." In other words, the purpose of the real estate owning proprietaries of colonial times was to hold the land until it had been entirely divided or alienated --- then to die. Following a long established policy the General Court of to-day refuses to incorporate a strictly
Town Records Vol V page 6.
Į Plymouth Colony Vol V page 154.
§ Higby et al vs Rice 5 Mass. at page 349.
T Ibidem page 351.
* proprietor of Monumoi Great Beach vs Rogers 1 Mass at page 163. See also note by Justice Gray (then Reporter of Decisions) to Comm v Roxbury Gray page 512 and Ipswich vs Proprietor of Jeffries Neck Pasture 218 Mass. 487.
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real estate owning body which never dies and in which the title to land may be tied up indefinitely. .
But the Conihasset Proprietors were like neither of these. Their muniment of title was only thrice removed in a direct line, through the Council for New England, the London Adventurers and Hatherly, from the royal patent of King James himself, and they recognized no fealty to the colony court so far as this land tenure was concerned. + Indeed, this view of their status seems to have been mutually entertained in the earlier days. For instance, on October fifth 1652 "a petition was preferred to the Court by John Hoare concerning the lands att Conahassett sold by Mr. Hatherley to sundry persons of Scituate, which the Court having heard and considered of, have ordered and doe re- quest Mr. Hatherley to signify unto those whom it consernes that the Court doth hereby require them either to come to an equall devision of the said lands according to the deed or to returne a reason unto the Court wherefore they do not, at the next Generall Court : unless the parties shall see reason and shalbee willing to issue it by refering it unto som endifferent men, that they together with John Hoare, shall think meete by joynt consent to refer it unto; the which latter wee desire may bee, as thinking it may be the best way to end the difference about it"#. No attention what- ever was paid to this by the Partners. The next year this neglect was called to the attention of the Court and it solemnly caused this decree to be spread upon its records :
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