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 5
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"the Court doth find that through unexpected occations and feares of troubles this hath been neglected, there-
¡ In this grant to the Council for New England James I con- veyed not only the soil described, but also all havens, ports, rivers, waters, fishings, mines and minerals, as well royal as other mines, and all and singular other commodities jurisdictions, royalties, privileges, franchises and preeminencies. This language was broad enough to justify the Partners in their claim, even had it extended to something far beyond the mere owning and disposing of their land. See Barker vs. Bates 13 Pickering pages 258-260.
Plymouth Colony Records, Vol. III, Page 18.
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THE CONIHASSET PARTNERS
fore the Court doth hereby order and require them that were first appointed to record these several allotments, or soe many of them as will bring in theire bounds of said allotments unto them, that they forthwith record them, and returne the said records into the Court att the next Court of Assistants, that soe the Court may judge equality of it, and soe confirm the same; and in case any persons doe refuse to bring in their bounds to bee recorded and presented, to the Court, that you return theire names unto the Court of next Assistants, that so theire may bee an end of these controversies."
Notwithstanding this order the Partners, as independent as before, refused compliance with it. They neither brought in "their bounds to be recorded" nor permitted the court to judge of the equality or equity of their own divisions. Their names may have been returned into the next or a subsequent sitting of the Assistants, but if so, no mention was made of it and records of allotments and division of land continued to be entered in the book which they had provided for the purpose.
John Williams was another partner who sought to compel, what he alleged was his fair division, to be set off to him. When he exhibited his petition to the Court of his Majesties government at Plymouth in March 1680, that body well knew the attitude of the Conihasset Partners towards inter- ference by it, in their internecine affairs. It had its own dignity to maintain, yet, it clearly was not positive of its right to adjudicate in the premises. The language of its order shows how diplomatically it sought to propitiate the proprietors and at the same time save its own face. Here it is +
"Whereas Captain Williams and some other exhib- ited a petition to the Court, requesting that they would grant them a division of the undivided lands of Cona- hassett, this Court doth order, that it may be signifyed
Plymouth Colony Records Vol VI page 55.
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to the purchasers of Conahassett, that they judge it to be rationall that they come to an equall division, and doe advise them speedily soe to doe; and in the meantime judge it meet, that they the petitioners and purchasers, sell noe timber for barke in anywise nor upon any other accoumpt but what shalbe or may be for present necessitie, in order to building or fencing for his or theire own use in Scittuate, and noe otherwise, and the said purchasers sett upon the worke of division before the leaves come forth."
In other words, the order being entered in March the work was to be "sett upon" at once. The leaves came forth; they turned into the sere and yellow but the division was not made. At the sitting of the court in October fol- lowing, it entered this memorandum. 1
This Court have considered the petition of (cer- tain) propriators of Conahassett land, which made theire addresse to the Court for releiffe last March, in reference to the equall devideing of the said Conahasset land, the Court then advised them to come to an equall division of the undivided land of Conahassett before the leaves come forth; but understanding that the ad- vice is not attended unto as to the accomplishment of the said division, doe require the propriators to meet together as speedily as may be, and make an equall devision of all undivided lands of Conahasset according to each persons purchase.
It will be noted that this time the court did not undertake to enter an order; it satisfied itself with the giving of ad- vice. But advice or order it was not heeded. The partners were obdurate. Even Williams himself, a most stubborn litigant, apparently saw the hopelessness of obtaining real relief from the court. Otherwise he would not have made this offer of compromise which he submitted five years later :-
+ Plymouth Colony Records Vol VI page 79.
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THE CONIHASSET PARTNERS
"1. To divide the cost (of division).
2. Lands theretofore laid out to be measured and every man to have his just measure and no more.
3. Convenient ways to be laid out on undivided lands.
4. If any of the Proprietors looke at any of said lands more doubtful than the rest, I am willing there should be two divisions, one of that which is thought doubt- ful and another on that on which is undoubtful; that each proprietor may have his part of both."
It was not accepted. He tried it again in 1683. This time believing that there might be greater strength in num- bers he induced Rodolphus Ellms, Israel Cudworth and others to join him, and they sued Israel Chittenden, Stephen Vinal, Jonathan Cudworth and fourteen others of the part- ners who had voted against Williams' proposed division and blocked it. The suit was for £300. The record i says :-
"all of the aforesaid defendants have been severall times, att severall meetings, desired and pressed soe to doe, not only by the plaintiffes, but alsoe by the honor- ed Court; yet all proveth fruitless and in vaine to the obtaining of soe reasonable and just desire."
The Court was however still timid of taking jurisdiction in the landowning affairs of the partners. The suit was withdrawn.
Far from appealing to or permitting the colony court au- thority in the settlement of their difficulties, they adjusted them themselves. A committee consisting of Stephen Otis, Benjamin Peirce, Thomas Jenkins, John Barker and John Booth appointed as late as 1714, ordered David Little to remove his stonewall from the highway and gave Benjamin Studley permission (?) to
"change the course of the highway through his land provided said land that said Studley removes said highway to, be not worse in its own nature for a high- way than the land was in its own nature, where the
+ Plymouth Colony Records Vol III page 259.
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highway was first laid out; and if it be worse land as aforesaid then said Studley to make it so good at his own proper charge. And all to be done between this day and the last day of October next."
The order provided that Studley should pay the commit- tee seven shillings and sixpence for "their time." Like authority was also given to Nicholas Litchfield.
There was one exception to this refusal of the Conihasset Partners to recognize the jurisdiction of the court of Assistants over their land titles. This was a suit brought by Samuel Clapp and John Cushing, Jr., as agents, on behalf of the town against them. The reason for the submission by the partners to the authority of the court in this case, is probably to be found in the fact that it related to the orig- inal title of Hatherly to the whole tract of Conihasset land. It will be remembered that the question of the Hatherly title had been settled upon an award made by Gov. Prence and William Collier in favor of Hatherly's grantees, the Coni- hasset Partners. This suit, although it related to but five acres of upland near Merritt's Swamp, was an attempt to revive the old controversy and put the title of the entire acreage again in issue. After setting forth the claim of the town, in the quaint pleading of the time, the record goes on to say :
"Both parties by their Agents appeared in Court. The Defendants deny ye things charged in ye writ, claim- ing the sd land to be their own; and say they will defend their title to ye same. And further say, ye line formerly ran by Mr. Prence and Mr. Collyer is their bounds &c. And disown ye line made by Mr. Paybody in March 1682-
Which case after pleas made and evidences on both sides given in was committed to ye jury who brought in their verdict as followeth, vizt: We find ye line ran by Mr. Prence and Mr. Collyer to be the bounds between Conahasset and Scituate and therefore find for ye Defendants & ye costs of ye suit."
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THE CONIHASSET PARTNERS
As has been said above, because of the fact that the grant to which they succeeded had originally come directly from the Crown, it is probable that the partners believed that they were invested with something like sovereign power within their prescribed territory. They laid out church' lands which were never used for that purpose. This was due perhaps to their fealty to Rev. Mr. Chauncey, one of their number who held the first church together despite the aggressions of Vassall. It also may have been due to a desire to establish a parish of their own. In 1702 and again in 1709 and 1710, the Chauncey-Vassall controversy having long since been forgotten, they appropriated lands for parish pur- poses, but nothing further than the "lay out" eventuated and the land so appropriated was finally divided among the partners.
Next in importance to the division of the land itself was the laying out of highways over it. The first action is re- corded in the following vote:
"Whereas it is supposed that it may be much more beneficial than it can be prejudicial to hang gates thwart the highwayes which passeth through or between men's lands, where the proprietors have not taken up for such highways passing over or between their sd lands, do grante the same. This was voted."
When Hatherly had built his house on the north shore of Musquashcut Pond there was a path or way that lead there- from in a southerly direction, by little Musquashcut, or Little Pond as it was called, to the Harbor. Another way or path went from Mann Hill westerly over Hooppole neck dividing the marshes and connecting with the Country Road as Main Street was then called and also with the "stepping stones" to "Farm Necke." In 1661 the partners voted that there should be a highway left both for cart and cattle from the Little Pond unto the way that goes to Hooppole Necke upon the undivided land and from the Little pond to the seaside "where the way did formerly lie between 2 slows."
A more or less comprehensive plan for the creation of
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THE EARLY PLANTERS OF SCITUATE
highways within and over the tract to connect with those of the town was adopted in 1695. There was one :-
"From Mr. Cushing's Bridge down to the Gulfe, or some other convenient place about the westerly end of the farme neck or great neck.
And from the aforesaid way There be a way laid unto Hooppole neck;
And that the road from Lieut. Buck's unto Bound brook to be continued.
And that there be a highway laid out of said country way somewhere near William Jameses unto the Cedar Swamp or to the town common.
To be built two rods in breadth."
A committee consisting of John Vinal, Sr., Benjamin 'Peirce, Thomas Jenkins, Stephen Otis, John Peirce and Israel Cousing, was chosen to build.
John Booth early persuaded his partners that a highway was needed over his hill to reach Accord pond. It was called "Booth Hill road," Gannet Street from the intersec- tion of Booth Hill road and the "country way," soon followed to the "stepping stones." On November eighth 1704 the partners confirmed "all other highways formerly reserved by Mr. Hatherly or the proprietors upon their own propriety. This act was voted by the company." At the same time "the land from John Tilden's, Thomas Jen- kins, the new minister's house f, Jonathan Jackson's and Capt. Otis' house lot as the cart path goeth to the landing was "laid out as a highway" and "from William Ticknor's to Stoney Brook, also a highway." These votes and ac- tions did not mean that thereupon roads "two rods in width" were immediately built, over the locations designated. They still remained cartpaths; but they had been lawfully established so far as the Conihasset Partners were concerned and this establishment was deemed necessary and effectual to prevent law suits and vexatious controversies. Indeed,
1 Rev. Nathaniel Eels, pastor of the Second Church.
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THE CONIHASSET PARTNERS
it is within the memory of persons now living that in going from the Glades to the stepping stones as late as 1840, it was necessary to 'take down' as many as five pairs of bars; and a daughter of Isaac Collier who lived in the old Collier house, still standing at 'Farm Neck' describes her journey to church in 1800 over the cart path 'between too slows,' at the foot of Mann Hill, and through the Egypt Road to the meeting house.
For twelve years after Hatherly had conveyed the Coni- hasset tract to the Partners, he kept up a sporadic controversy with the town over what he claimed was the insufficiency of the acreage awarded to him as the successor in title to the London Adventurers. In 1654 the Colony Court passed this order. f
"In regard to sundry contentions and intenglements betwixt Mr. Hatherley and some of the inhabitants of the towne of Scituate, the Court doth grant unto Mr. Hatherley for to satisfy the partners att Conahassett, a certain competencye of land out of the bounds of any particular township, on the westerly side of the town of Scituate aforesaid."
Two years later it described this tract as "beginning at Accord Pond # on the souther side of the line, § and to run three miles southerly towards the Indian Head Pond and to bee layed out three miles square."
It was not until three years thereafter that commissioners
+ Plymouth Colony Records Vol. III page 52.
There are two traditions as to how this sheet of water ob- tained its name-one to the effect that when the commissioners from the two colonies finally fixed the boundary line between the two patents, they were in accord as to the pond being a monument of that boundary. The other, that it served as a northeast corner boundary of the land that had been awarded Hatherly in "accord and satisfaction" of his demand for more land in Scituate. Either may be right. Both may be wrong. The curious reader is left to his election.
The boundary line between the colonies of Plymouth and Massachusetts Bay.
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were appointed to lay it out. John Alden and William Bradford were then appointed by the Court. to "join with such as Mr. Hatherley shall procure," but they did not act. In 1662 Lieutenant Torrey, Cornett Studson and .Mr Joseph Tilden were "appointed by the Court to lay out the tract of land granted to Mr. Hatherley above Scituate, ac- cording to the graunt, viz : to begine att the southermost end of Accord Pond and to goe noe further northerly least it entranch upon the Bay Line." For some unexplained rea- son these gentlemen likewise did not act. It could not have been that they were unacceptable to Hatherly for Torrey and Tilden were both Conihasset partners and the latter was his step-son and beneficiary. Whatever the cause of their inaction, it is the fact that the next year Torrey, John Bryant and William Barstow were appointed to perform the ser- vice. Their report follows :---
"Wee, James Torrey, and William Barstow, and John Bryant, being appoynted by the Court to lay out a tract of land granted to Mr. Hatherley by Accord Pond, which parcells of land was to bee layed out three mile square on the head line of the towne of Scituate, wee, James Torrey and William Barstow, attending to our order for the time and place appointed, have measured the aforesaid land, which begines att the ut- most southerly part of Accord Pond, and runs west on a third part of a point Southerly three miles, then turn- ing with a square line south and a third part of a point easterly to the end of three miles, then turning with another square line east and a third part of a point northerly three miles, then turning with another square line north and a third part of a point westerly in the headline of the township of Scituate three miles, which
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THE CONIHASSET PARTNERS
said line ends att Accord Pond, att the place where it began. *
per me, JAMES TORREY,
WILLIAM BARSTOW."
This being accomplished, the land was divided into ninety-two shares of which Hatherly retained twelve. He soon however acquired two shares from John Williams, Jr., one share each from Rev. Charles Chauncey, John Damon, Edward Jenkins, Rodolphus Ellms, Mr. Tarte and John Hoar; one and one-half shares each from Isaac Chittenden, Samuel House and Samuel Jackson.
At about this time "sundry of the towne of Hingham appiered" at Court, says the Colony Record, "and desired to buy a parcell or tract of land of the countrey lying betwixt the Bay Line and Accord Pond and the land granted to Mr. Hatherley; and the Court declared themselves willing to sell it, and pitched a prise and refered the agreement to the Treas- urer in the countreyes behalf." These 'sundry of the town of Hingham' were probably John Thaxter, John Jacob, Matthew Cushing and Edward Wilder for on December 1664 Hatherley sold the twenty-three shares which he had acquired as set forth above to these gentlemen and John Otis of Scituate.
In other pages of this chronicle it is stated that the Scituate forefathers were particular in extinguishing the Indian title to the lands upon which the township was found- ed. The Conihasset partners were not behind them in this particular. When the Court granted the "three miles square" to Hatherly, Josiah Wampatuck "came into the Court and owned that the three miles square of land by Accord Pond, which was graunted by the Court to Mr.
¡ This three square miles was a part of a locality called after- ward "Foardes Farms." On the incorporation of the town of Abington it was set off from Scituate and included in the limits of that town. It is now in Rockland and has a Post Office which perpetuates the Hatherly name.
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Hatherley, that hee hath sold it to Mr. Hatherley and is by him fully satisfyed for it" t. In1686, a suggestion having arisen that young Josiah son of the above claimed it, the partners paid him eighteen pounds and received this deed $.
To all Christian People to whom these presents shall come Josiah Wampatucke, son & heir of Josiah Wam- patucke Indian deceased Sachem in New England sendeith Greeting- Know ye that the foresd Josiah Wampatucke for and in consideration of eighteen pounds in current money of New England paid unto ye foresd Josiah Wampatucke & his father by yer form- er proprietors of Coney Hasset and now by Capt. Jno. Williams all of Scituate in ye Colony of New Plymouth in New England, the contents whereof being fully sat- isfied contented & paid the sd Josiah Wampatucke doth hereby acknowledge himself fully satisfied & paid and of all and every parcel thereof doth clearly acquit exon- erate and discharge the sd purchasers and Captain Williams and every of ye heirs forever by these pres- ents, doth clearly and fully and absolutely give grant bargain sell alien infeoffe & confirm unto ye sd Capt. Jno. Williams and his heirs for ye proper use and be- hoof and for the purchasers of ye sd Coney hasset and their heirs forever, all ye sd Coney hasset land accord- ing to ye Records of Plymouth concerning sd land and deed given by Mr. Timothy Hatherly to the Purchasers of the sd Coney hasset land as may appear by a deed under the sd Timothy Hatherley's hand & seal bearing date the first of December 1646; together with all woods, trees & rocks ponds rivers swamps meadows and all appurtenances and privileges thereunto belong- ing whatsoever and all profits thence to be had made or raised. And also all his right title interest possession claim propriety in or to the above sd bargained tract of land or any part of parcel thereof. To have & to hold and peaceably to enjoy all the said tract of land
¡ Plymouth Colony Records Vol IV page 185.
# Conihasset Records page 486.
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THE CONIHASSET PARTNERS
with all the appurtenances thereof bounded as afore- sd; and to the sale and proper use and behoof of ye sd Capt. John Williams and the purchasers of ye sd Coney hasset land as aforesaid & to every of ye heirs forever. And ye sd Josiah Wampatucke doth for himself his heirs exors admrs & assigns covenant promise and grant by these presents that the sd Capt. Jn. Williams and sd purchasers shall & may by virtue hereof from time to time and forever hereafter enjoy and possess all ye sd premises without any molestation or limita- tion whatsoever by any such person or persons. And doth hereby engage and promise to keep harmless and warrant and defend ye sd Capt. John Williams and purchasers from all former bargains sales titles & in- cumbrances, had made committed or done or suffered to be done whatsoever. And further doth hereby ac- knowledge that he hath given full possession of all ye above sd prems that are contained in this instrument and doth promise to do any further act or acts for ye perfecting of assurance unto ye sd Capt. Williams and sd Purchasers as the law do or may require In witness whereof ye sd Josiah Wampatucke hath hereunto set his hand and seal this twenty-third day of February Ano Dom one thousand six hundred eighty & 6-7 Anno qi Regui Regis Jacobi, Secundi Secundo.
Signed sealed and delivered in presnece of us Testes this the marke of X frances Garnet John F. Thrasher Nathainel N. Johnson Nathanaill Johnson
this is the marke of x
Josiah Wampatucke
Josiah Wampatucke whose name is above mentioned coming before me the 15 June 1687 did freely own the above written instrument to be
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THE EARLY PLANTERS OF SCITUATE
his act and deed. William Bradford one of his Majesties Counsel for this territory of New England.
Roxbury March 6, 1686. Francis Garnert & Nathan- aell Johnson made oath that they were present upon ye day of ye date of these presents & saw Josiah Wampa- tuck sign, seal & deliver this instrit as his act & deed & gave possession accordingly.
Before J. Dudley
By the year 1719 most of the lands had been divided. On March fifteenth at a meeting over which John Barker presided as moderator, he, with Capt. Benjamin Peirce and Captain Stephen Otis were chosen to "Lay out what is omitted." Before long this was accomplished but the meetings and records of the partners did not thereupon cease. Both were kept up until 1767 when the last meeting was held, the records closed and the partnership that was not a corporation "made to die," became defunct.
CHAPTER VI
DIVISION OF STATE AND CHURCH
"I tell you, sir, there are two kings and two kingdoms in Scotland. There is Christ Jesus the King and his kingdom the Kirk, whose subject James VI is, and of whose kingdom. not a king, nor a lord nor a head; but a member. And that whom Christ hath called to watch over his Kirk and govern his spiritual kingdom have sufficient power and authority so to do both together and severally."
Andrew Melville to King James the Sixth t
T' "HE words of the Puritan preacher above quoted exem- plify the theory of the forefathers concerning the attitude of church and state toward each other. They go further; they state the exact belief of the Puritan as to his own standing, as one "whom Christ hath called to watch over his Kirk and govern his spiritual Kingdom." He was one of "the Lord's people;" a people dedicated to Him by solemn covenant, and whose end as a nation was to carry out His will. For such an end it was needful that rulers, as well as people should be 'godly men.' # That this belief was para- mount when the new home on these shores was reached is proven by the qualifications which were prescribed for being a "freeman." He must be "a church member, orthodox in his religion and not vicious in his life," and only those who were "orthodox in their judgment concerning the main points of Christian religion as they have been held forth and acknowledged by the generality of the Protestant or- thodox writers," had full liberty to gather themselves into a
¡ Green-History of the English people (1890) page 523.
# Ibidem, page 606.
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church estate. It may be readily assumed therefore that Cobb, Annable and Kendrick who were permitted to with- draw from the church at Plymouth "in case they join in a body at Scituate," were men possessing all of these qualifica- tions. On November 23, 1634 when this "leave" was granted all of the men named had been admitted freemen, George Lewis the other person was "made free and sworne" a little more than a year later. They first met at the house of James Cudworth, it being the largest, but they soon erect- ed a meeting-house on the top of the hill back of Kent Street and named the approach to it Meeting House Lane.
The building itself was probably not unlike that at Ply- mouth-built of logs, the interstices filled with clay, the light admitted through windows glazed with oiled paper f the thatched roof of flags taken from the marshes and the whole without chimney or other means for heat. Thus it stood for forty-four years. In it, prior to the coming of Rev. John Lothrop, it is said that Giles Sexton or Saxton who had come to Boston from Yorkshire, been admitted a freeman in Massachusetts Bay in 1631 and thence taken up a residence in Scituate, preached for three years. This is purely tradition, however. An exhaustive examination of church, colony and town records does not disclose him as living here at all. Mather # speaks of his removal "from Scituate, first to Boston and so unto England, in his reduced age, because of "the unsettled condition of the Colony, and some unhappy contention in the plantation where he lived." Whether this "unhappy contention" was the discussion go- ing on between Rev. Charles Chauncey and Mr. Vassall, § or the controversy over land titles between the freemen of
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