USA > Massachusetts > Norfolk County > Dedham > The early records of the town of Dedham, Massachusetts. 1659-1673, Volume 4 > Part 27
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By a warrant I called m" Allin to testify this in Court. viz. this consent
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of Dedham. his testimony is in the Court, wherin he is pleased to call it, an inclination in Dedham that it should be so.
To wch I answer, there be several degrees of inclinations, & a strong inclination or bent of heart, is equivalent to a consent. and such was the inclination of Dedham towards this work, wch I doe thus make to appeare
1 some of the cheif of Dedham went wth us to veiw the place, & did appve of it, fit for the purpose, viz. for the Indians to erect a Towne.
2 mª Allin chose the place of our meeting house, where now it standeth.
3 so many of Dedham as I spake wth (& that was many, I oft passing through the Towne to Natik) they blessed the work, & rejoyced wth thank- fullnesse to God that they should have an hand in so good a work, by part- ing wth some remote lands to further it
4 after a years consideration, they did freely give 2000 acres to the in- couragment of the work, & if more were needfull. they would part wth more, on condition of the concurrenc of other Townes. &c. as appears in the Court record.
such, & no lesse was Dedhams inclination in those times.
ppos. 2. In this first yeare we layed out lots, planted orchards, & that first winter fenced the two great feilds, wch are now sued for. for pf of wch, my oath is in Court for evidence, & if it be needfull you may have many evidences more, it being so publik & knowen an act.
ppos. 3 The yeare after our begining, Dedham gave 2000 acres towards the work. And theire title wch they had by the donation of the Gen: Court, they did alienate from themselves. & give it to the Towne of Natik, through the hands of the Gen: Court. who did expressely accept of it, & ratifyed it by a publik Record, so yt these lands belong to Natik, not to Dedham. all this is evident in the pub: record. & this was done in the yeare. 51.
ppos. 4 These lands now sued for, are part of these 2000 acrs, thus given & ratifyed to the Towne of Natik. wch I thus pve
1 because we had began the Towne upon them, & had fenced, planted orchards, & cornefeilds, & that with Dedhams knowledg & appbation, as abovesaide, before they gave us 2000 acrs towards the work. we began in. 50. they gave these lands to the Towne in 51.
2 if theire gift had not included our present beginings & possessions, they ought then to have excepted them, theire silenc then, is a consent for ever after
3 a great comittee chosen by Dedham, of many of the cheif of Dedham, came up to Natik to veiw & order our bounds. my selfe & others of Roxbury were wth them, we road over those lands now sued for, we passed by our fenced feilds. & this company did to our understanding, confirme our posses- sion of these lands (among other acts) by this, yt they sent two of theire. company to the head of the myry brook (wch was to part the townes, wth a line from thence west, to the great River) that they might see what they part
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wth. they brought back word, that they should still have a good spong of land up to the River, betwixt the lines of Natik & Meadfeild. wch answer seemed to us contentfull to the rest of the company. Ensigne Fisher, who was one of the two above named, acknowledged the substanc of this in last Court. if that sufficeth not for evidenc I desire he may have his oath. this was as I re- member, in the yeare. 52.
4 they did not assigne us any other place where to have the 2000 untill the yeare 59 or 60. after we had possessed these lands the space of 9 or 10 years in manner abovesaid.
5 the Court record of the gift of 2000 to the Indians, doth include our prsent possessions. wch I prove
1 because the Record saith. they tendered the furtherance of the work in hand & these possessions were a cheife pt of the prsent work, to fenc & plant, &c.
2 because in the Record there be other conditions, about land wch the Indians were to leave to Dedham. but not a word of this land, where the towne was allready begun.
3 because they suppose theire 2000 acrs may be sufficient, if not they offer more, upon condition, therefore they expressely include these lands upon wch the Towne was allready begun.
ppos. 5 wheras here be sundry oaths in Court, that at that meeting when Dedham gave the 2000 acrs, they had speech of confining them unto the west corner, and others say it was theire meaning so to doe. I answer
1 it may be so, but when Dedham transacted wth the Gen: Court, there was no such matter spoken, agreed on, or recorded. private discourses or in- tensions, are not the guide of Justice in this Case, but publik transactions & records.
2 what was spoken at Dedham that way, was not wth a purpse in the heart of Dedham, to remove the Indians fro any part of what they possed at Natick but as a motive to the people to presse for the concurrence of other Townes that yy migt obteine for y"selves some lands in Roxbury & Dorches- ter wch ly neere their skirts.
3 I never heard a word (to my knowledg) that way, to deny the Indians these lands, till divers years after, & I have reason to think, that they had no thought or purpose of dispossessing the Indians, until a temptation did arise, weh did not arise till divers years after. & w" it did arise, it did not arise fro the Indians, I know not that they gave Dedha many cause to deale so hardly wth them. nor did the temptation arise from me.
ppos. 6 Those men who sue the poore Indians for these lands, have no just title to them. wch I thus pve.
1 theire title is by a gift of the Towne of Dedham in or abont the yeare. 60. but we have title to them from Dedhams gift in the yeare 51 about 9 or
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10 years afore. Dedham cannot give them a title, having given it to Natik before.
2 theire title is only by an act of the Towne of Dedham among them- selves. our title is by an act of Dedham in the Gen: Court, & there Recorded.
3 theire title is by an act of Dedham, when matters were blowen up to a temptation. but our title is by an act of Dedham, before matters were in such a temptation.
ppos. 7 being necessitated thereunto, I shall make use of a plea, wch I would willingly have concealed, and it is this. That these lands whether Dedham indeavour to thrust the Indians, & weh, in the yeare 59 or 60 were by Dedham men laid out for the Indians, I say, these lands, or a great pt of them, Dedham have no just or lawfull title unto, before God or man. wch I thus pve.
1 It is proved in Court, & publikly knowen, & confessed by Dedham, that Natik Towne began in the yeare. 50.
2 Dedham doe give into Court, the evidenc of theire title to these lands, to be a gift of the Gen: Court in the yeare. 51. at wch time they petitioned the Court for them, as seemeth by the recital theroff in the record. & henc it is evident)
1 that they beged these lands on the North & west side of the river the yeare after Natik was begun, & sat upon part of them. and the Court granted them, as appeareth in the Record. but unknowingly.
2 because all Court grants of lands have this condition either exp'ssed, or, if not, yet by the law of the Country, it is implyed, that the grant is on condition, that they prjudice no other towne.
Now these lands granted in the yeare 51. being so evidently prjuditial to the Towne of Natik wch was begun in the yeare 50. henc I plead that this grant is voyde, both by the law of God, of the country, & of a good conscience.
3 Dedham never pcured to themselves the Indians right, who have lived at Natik longer then the oldest man alive can remember, & being (through grace) now praying Indians. they have, in a sollemne fast, given up theire right in these lands unto God, here to begin a Towne, & gather a church. & this was done in the yeare 50. the yeare before they were granted to Dedham, & this act of the Indians was not unknowen to some of Ded- ham. henc also I plead that theire title is null.
pp: 8. It pleasd the w'Pfull Court, wa they comitted this case to the Jury, to give theire sence of the Case, & comended unto the Jury two con- siderations more, weh I am bold now to plead.
1 Touching the Indians right. our right we hold (said the Court) by or lers Patent frö the Kings Maty. & by our coming into vacuum domiciliumn where we so find it, but where the Indians have a rigt, we doe religiously
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take care, that it be lawfully alienated, wch we doe not see evident touching these lands in question.
To weh plea, I ad my answer to Dedhams plea, that they hold them from the gift of Chikkatabuk, in that agreement in Dorchester meeting house, wth of honord Govno" Mr Winthrop, & other Magistrats. I answer
1 1 these lands in question (viz on the south side of the river) were not under Chikkatabuks Jurisdiction. but were a peculiar hunting place, belong- ing to another great Sachem named wompituk, whose daugter Chikkatabuk maried, & by her had this sonne, now called wompituk alias Josias, & this right or previlidg is descended to him, by his mothers side, & was not any part of his fathers right. Now Josias, alias Wompituk, did in the yeare 50, when we had nothing but love & incouragment from Dedham, I say, he did solemnly in Gods prsenc, give up his right in these lands, unto God, to make a towne, gather a church, & live in civile order in this place.
2 and furthermore I answer, I was prsent at the abve named meeting in Dorchester meetinghouse, & I doe remember both the ocasion of the meet- ing, & the substanc of the agreement. The Indians wonder to see the actings of the English herein. & they see themselves to be greatly overreached, if that agreement be extended, to take away theire lands at such a distanc: concerning wch, there was not (to theire knowledg) one word exp'ssed, nor a thought on theire parts of any such meaning. yea it is contrary to the expresse words of the agreement, as I can prove, if need were.
And this I make bold to exp'sse in it. Such as have peace in making this agreement a ground of a title by v'tue wheroff, to thrust the poore Indians out of theire possessions & labors at Natik, I desire not to share wth them in such a peace. & I am pswaded, if worthy m' winthrop, who made that agreement, were now alive, he would resist such actings wth indignation, as, blessed be God, or present Rulers doe.
2 The 2ª consideration wch the Court were pleased to put unto the Jury, was this, that it being pved in Court, that the Indians were possessed of these lands in the yeare 50. & being so remote from English Towns, the law made in the yeare 54 to stablish the Indians in the possession of such lands as they had improved, doth give them an orderly & lawfull title to them, by the Gen: Court. they having fenced, planted orchards, & corne upon them.
ppos. 9 If these lands now sued for be taken from us Natik is over- throwen fro being a Towne, wch I doe thus demonstrat.
1 our meeting house & other publik buildings are lost & uselesse to us. for if we should remove 2 miles further as they would have us doe, can it be reasonable to goe 2 miles every Saboth & lecture, only for a meeting house ? will it not eat out religion ? is it not necessary that meeting houses, & school houses be in the midest of a Towne ?
1 The deeds from the Indians to the Town were given in 1680-1685. See Intro- duction.
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2 if we be put away from hence, we have no whether to goe for the be- ing of a Towne, for
1 up by the river we canot goe, for there m" Bradstreet hath taken away 800 of our next best land. if we loose this, as the Court knoweth.
2 verging more to the west, is a tract of barren land, fit for no such use.
3 if we goe westerly, where Dedham would have us goe; betwixt us & the ponds, wch are not 3 miles from us, there is an old grant of 1000 or 2000 acrs I know not wch, ancienter then Natik, weh Dedham are not ignorant of, but know. and so we shall be thrust into new troubls. weh we are weary off.
4 if we should goe over the Ponds to sudbury plaine's, the Indians say that since our line was run for Natik bounds, there is 800 acrs of the best of those lands laid out for M' Russel. So that if you put us fro Natik, we have no whither to goe, to make a Towne.
3 these actings of the English, doe make the prophane Indians laugh at the praying Indians, & at praying to God, as I heard wth my owne ears at Conecticot, wth respect unto Ogquonikongquamesit, weh is in effect over- throwen, some gone as I am informed to one place, some to another, some to the non praying Indians among theire kindred, others know not what to doe. to Natike they dare not come because of Dedhams actings. Now if Natik also be overthrowen, let wise men looke upon the consequences, in respect of God & man.
ppos. 10. Though we are loath to loose our orchards, who never had any before, & our other labours, yet we doe not of or owne heads stand out in these suits at law. but we act by good counsell & advice. for Major Ather- ton did thus advise us, that seing we were put into the possession of these lands by Order & Government, we ought to keepe our possession, untill Government doe otherwise order us. the same counsell did others give, in the case. twice a Conncil sat on this case, & did order us to injoy these lands, the first siting. & when it was delayed, they advised us. the 2ª siting, to hold them untill Government should determine the case. & if we would have removed we knew not whether, to be quiet. Dedham did not assigne us any other place untill the yeare 59 or 60. & we knowing the intanglements, & inconveniences of that place for a towne, we have no heart to it, & therfore we know not what to doe. but we beseech the honoured Court to doe us justice, & to deale kindly wth us for Christ Jesus sake.
pp: 11. lastly I desire to be satisfied better then yet I am, about the Jury of the last County Court, for sundry of theire actings.
1 because the poore Indians were sued in 3 actions of the case. & the Jury heard but one of them pleaded, yet I heare, for I was not prsent, they brought in 3 distinct verdicts, before they heard the defendant speake unto two of the cases.
2 if they say that m" Cooke, pleader for the plaintif, said in the Court, all the 3 actions are one case, I answer
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1 only the plaintiff said so. & if so, why did they make 3 actions, & 3 v'dicts of one case ?
2 & how could they bring one v'dict for the plaintiff an other for the [defendant], if it were but one case, & to be decided by evidenc, & not by arbitration;
3 if they say it was an action of reveiw, & therfore they had the defen- dants plea, wch was in the former Court. I answer, the first & 2ª actions were upon reveiw, & the former Court found both for the defendant. and this Jury hath found one of them for the plaintif. thoug both be one case as the pleader said.
but the 3d action was not upon reveiw, but a new action. & there passed not one word in publik about it, that I know off, neither by the plaintiff nor by the defendant. yet the Jury brought in a v'dict for the plaintif. but where they found it, I canot conceive, hearing no pleading of the cause in publik, unlesse it was by private dealing.
an epitomie of the case
1 we began the Towne in this place wth Dedhams knowledg & appba- tion, as abvesaid in the yeare. 50.
2 Dedham gave to Natik Towne 2000 acrs, wth full title, in Gen: Court. there recorded, in the yeare. 51.
3 These lands on the south side the river, & all the rest sued for in the 2 first actions are part of the 2000 acrs, thus intitled to Natik.
5 they that sue us have no title, because Dedha could not give them a title 9 or 10 yeare after they had given it to Natik.
6 Dedham have no lawfull title to a great part of the west side, where they would now lay the 2000 acrs. because they beged it, & the Court granted it the yeare after Natik was set downe upon it.
7 Dedham never pcured to themselves the Indians right to any of these lands sued for. but the owners have sollemnely given theire right in them, to the Towne of Natik in the yeare 50. & that before Dedham moved about it.
8 Natik is undone, if these lands be taken away.
9 we have a title by the law. 54. to intitle Indians-theire then impved lands.
ad 3d pp 4 private discourse at Dedha, or intentions, make no altera- tions of publik transactions in the Gen Court, & the pub: records theroff.
(On the back-" M" Elliots draught of ye Case ")
(Dated in pencil on back, “Jany 28-61/2)
[Mass. Arch., XXX, 99, 100.]
The testimony of Joshua Fisher aged about 40 yeares.
1650. I being Desired by Mr Eliot to goe and shew him the out side of our bounds to see if there might not bee a place founde Convenient for a plantation for the Indian accordingly wee veiwed the Land and found not a suiteable place but as wee returned Mr Eliot desired Mr Allen and my
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selfe to move the towne that they might have some Land, about Natick which accordingly wee Did, And the Towne Did declare ymselves willing to further the work; by parting with 2000 Acres At the westerly end of our bounds upon the North side of the river And alsoe if the Towne might have Lands Neare Adjoyneing to the Towne out in Dorceister and Rocks- bury they were willing to have parted with more for the Indians Inlargemt, but the 2000 Acres were tendred upon Condition, that all other claimes wthin or Towne should bee layd Downe, but for the Land on ye south side the River the Towne refused to part with any to ye Indians, appThending they Could not spare it, & that the Indians had more then they Could im- prove well, in the 2000 Acres it being a Tracht of very good land for improvemt, but ye Towne from Time to time have sent to the Indians & m" Eliot to forbeare improvemt on the south side of the river, and for the North side the River beside the 2000 Acres above mentioned. the Towne from time to time, declared unwillingnes to part wth any wthout Due recompence, & Divers motions being made to Mr Eliott that the case might come to An Issue but could by no meanes attaine it whereupon when the Towne heard Mr Eliot was About to Erect a Mill, about a Mile this side Natick, the Towne sent to him to forbeare, till he might have the approbation of the Towne : but notwthstanding hee went on with the work, to the offence of Divers, afterward Mr Eliot met with mee and told mee hee had thought of a way which hee hoped would sattisfy the Towne which was to give the Towne forty pounds worth of board which he expected he should have Cutt at his mill, but that motion did not sattisfy the Towne, The Towne seeing all other meanes faile had thought to have a tryall in the law about it, But Mr Allen moved that wee should forbeare yet a while to see if he might issue it some other way, but it Could not be Attained, then afterward in a Generall meet- ing of the Towne they expressed themselves not sattisfyed, that ye Indians went on improveing their Lande contrary to their minde they Did then resolve to make improvemt of it themselves if the case depending betweene Mr Eliot the Indians & the Towne were not issued wthin three moneths whereupon I was appointed to give m' Eliot Notis of the vote of the Towne, weh accordingly forthwth I did and intreated him yt if hee did desire to have any of the land besides the 2000 Acres, that hee would use some meanes to the issue ye case before the time that the Towne had sett for the issue thereof were expired, but Mr Eliot Answered he should doe nothing in the case but pray, & if the Towne would make use of the land, the Indians should bee passive in ye Case & such like words, but the Towne Did still delay a considerable time, after the three moneths was expired waiteing what might bee presented in the Case, but nothing appeareing to sattis- faction, they went on with the Divident and layd out that Land wth Divers other parcells to the inhabitants for improvemt thereof: Divers complaineing that they suffered much for it not being done sooner In which tracht of
.
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Land the Lotts of the Plantiffs by Gods providence were Cast. Endorst to the testimony on the other side: Daniell Fisher testify the same for ye sub- stance of it : excepting the first discourse & Mr Eliotts tender of 40£ pounds in boards to bee Cutt at their saw mill.
Livet : Joshua Fisher deposed to the truth of what is above written : 28: January: 1661 before me:
John Endecott Governor
Further I testifie upon my former Oath yt ye Land now sued for is no part of the 2000 Acres that was tendred to ye furtherance of the Indian work. & that the place was limitted to the west end of or bounds on the north side of the river before Mr Eliots Petition beareing Date as is recorded, the 14th: 8 mº 1651:
Sworne by Joshua Fisher: 29: (11º: 1661 in Court
Thomas Danforth
This is A true Copie Comprd wth ye originall on file as Attests Edw Rawson Recorder [Mass. Arch., XXX, 90, 91.]
The testimony of Mr John Allen Pastor of the Church of Dedham aged about: 64 years
Being called by Authority of this honord Court in behalfe of the Reverend Mr Eliott to testify what I know concerning the Consent of the tone of Dedham unto the Indeans sitting downe at Natick: I doe affirme as followeth That at the sayd Eliotts request I for my owne part was very Free and forward to promote his motion in ye towne, and his request being to have a grant of Dedham Lands into a certaine brooke about a mile on this side Natick hill, towards our towne. This motion after veiw of some Neigh- bours was Considered of the Towne in a Towne meeteing, wherein though Divers objected, yett by the Expression of many I Conceived that the Towne was inclineably to yeild thereunto, but yett no act or Vote passed to give any Grant thereof, and thus much I certified m' Eliott, (viz) that ye gener- ality was Inclineable therto but no further Could, or did say
Taken upon oath before mee Eleazer Lusher: Commission".
28: 8th mon: 1661
This is a true Copie compared wth the Originall on file as Attest,
Edw Rawson Recorder [Mass. Arch. XXX, 88.]
The deposition of Mr John Allen Pastor of the Church of Dedham aged about: 64 yeares.
Being Called by Authority of this honno'd Court to give my testimoney, in a Case, or Cases depending, betweene Timothy Dwight Edmond Richards; & Thomas Fuller of Dedham: on the one party & the Indians of Natick of the other party, concerneing certain Lands possessed by the Indians there, & haveing had knowledge of ye transactions betweene the sayd Indians & Towne of Dedham, from the begining, I Doe affirme & testify as followeth-
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APPENDIX.
1: ly. In the spring 1650 at the request of the Reverend Mr Eliott Livet: Fisher, & I went wth him to seek for a place for the Indians to make a Towne beyond the bounds of Dedham: Leiut: Fisher shewed mee two marked trees of or head lyne, about two myles beyond Natick Hill as wee Judged, but noe place beyond that being found fitt for their purpose as wee returned homeward M' Eliott moved us to request, or Towne to grant them a place wthin or Towne
2 ly. Secondly in the same sumer M' Eliot desired Capt Lusher, and my selfe to goe with him to take a further view of that place and then De- sired us to mediat with our Towne to grant our Lands about Natick unto a brook about amyle on this side Natick Hill & alsoe to grant some of or Lands on the other side of Charles River: This request being propounded in a Towne meeteing the Towne appointed some men to veiw the place, and at another meeting Did Consider, & discourse of it, but made no vote or Act about it, yett by the expressions of many I Con- ceived that most were inclineable to the motion, on Natick side, on the North side of the River, but for his Demand on the south side it was alleaged that it was the fittest place to turne of horsses & loose Cattell that the Towne had & that the lands on ye other side were sufficient for the Indians, or if need were the Country might Adde more, & therefore the Towne refused to yeild any thing there, these things I informed M' Eliot of, besides this request, there was a further Motion made to the Towne by some other from M' Eliot; viz; that ye Towne would grant Lands alsoe to a place A mile nearer or Towne on this side the afore sayd Brooke which Also upon good Reasons was refused.
3ly. After the towne had refused to Grant any thing on ye south of the River, or to yeild to his last motion, I heard no more fro Mr Eliott by way of request to the Towne, but hee told mee yt Josias the saggamore, had sollemly Given up his right to the Lands on the south of the River & an old woman her rights of Natick to the Indians work & thereupon he had Divided out Lotts on both sides to severall Indians, being troubled at this I told him that Josias had no right there, for wee were certified from Mr Win- throp That (Chickatabut) his father had given all his right on the south of the River to the English, and Also that John Sagamore of Mistick, had given up his rights to the English on the North of the River. To the truth thereof the Reverend M' Wilson of Boston did Also give testimoney, as after I told him.
This Act alsoe much offended the Towne as tendeing to weaken there intrest in all the rest of the Lands, and therefore forced Divers times to forbid the Indians proceedings on the south side of the River -: Further I doe testify that the Towne hath bin very solicitous to end this Contro- versy in a peaceable, & Loveing way, & haveing tried Divers wayes in vaine after much patience five or 6 yeares agoe they intended to try the title by a
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