USA > Massachusetts > Norfolk County > Dedham > The early records of the town of Dedham, Massachusetts. 1659-1673, Volume 4 > Part 28
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APPENDIX.
Course of Law, as seeing no other way which when I heard of I desired liberty first to try if Mr Eliot would accept of a reference to some Judicious freinds to Judge of the Title to these Lands in question as a Case of Con- cience; whereupon the towne did forbeare a tryall at Law, hopeing I should prevaile in my motion-But Mr Eliots Answere was That ye Indian Title was Fitter to be judged of by the Commissioners of the Colonyes then by such a Councell by which I perceived he still stuck to the Indian Title.
When this other meanes used Could not prvaile neither to stopp ye Indians proceeding upon the Lands in question nor to obtaine a cleare acknowledgemt: of the just Title of the Towne, to these Lands, the Towne being about to make a Generall Dividend of their improveable Lands Resolved to taken these Lands into ye said Dividend whereby it became the right of perticuler psons whose lotts are fallen there,
Taken upon Oath before mee Eleazer Lusher Commissior
28: 8 mo: 1661
That the other page & this Containe a true Copie of Mr John Allens Deposition: being Compared therewith Attests Edw: Rawson Recorder
This is A true Copie Comprd wthi ye originall Copie left on file as Attests Edw Rawson Record"
[Mass. Arch., XXX, 92, 93.]
The deposition of Eleazer Lusher Aged about 58 yeares, and of Richard Ellice aged about 40 yeares.
When the Towne of Dedham passed a vote in order to the tendring 2000 Acres of the Land to ye Indians inhabitants at Natick it was Expressed in reference to the place that it should bee layd out at the westerly end of their bounds Adjoyneing to their Lyne there, this was besides the other Conditions which are knowne, & acknowledged vizt that it should beon the North side of Charles River & that ye Indians aforesd should lay down all Claimes of Land within Dedham Bounds &c.
Taken upon Oath this 28th January 1661 before mee: John Endicott Governor
This is A true Copie Compra wth ye originall left on file as Attests
Edw: Rawson Record™ [Mass. Arch. XXX, 98.]
The testimony of Richerd Ellice aged about 40 yeares
I liveing in Dedham from the begining of the Plantation to this time, tooke notice of a motion made by ME Allen & some others of the commenda- tion of the Indians of Natick with some Land out in Dedham bounds, vpon the agitation of the case, the Towne yeilded to part with two thousand Acres of Land on the North side of Charles River, At the west end of the bounds of Dedham, and alsoe expressed y"selves willing to accomodate the Indians with more Land upon the North side of the River if it were needfull, & de- sired upon due sattisfaction for the same, But when there was motion made
266
APPENDIX.
for to part with Land on the south side of the River to the Indeans, The Towne have from time to time Expressed themselves vnsattisfied wth the Indians Improveing ye Townes Land wthout their Consent, and the Towne alwayes exprest themselves that the Two thousand Acres was tendred upon condition that they should lay downe all other Claimes wthin our Towne bounds Further I have heard M' Eliot owne that the Title of the Land was Dedhams and that hee Did not Desire any of Dedhams Lands without due sattisfaction, and sometimes upon discourse with some of the Cheife Indians Att Natick about their illegall improveing of or Land, their Answere were that Mr Eliot did incourage ym soe to doe, or elsse they would not have done it, Further that the Land now sued for, & possessed by the Indians is noe part of the 2000 Acres tendred to ye Indians of Natick by Dedham
Richard Ellis Deposed that wt is above written is ye truth this 28: th: January: 1661: before mee
John Endecott Governor
This is A true Copie Comp'd wth the origin1 left on file as Attests
Edw. Rawson Recordr [Mass. Arch. XXX, 101.]
To the honnored Court Assembled at Boston
I am Credibly informed yt my testimony upon oath given in to the last Court by mr Eliott was impached whoe Affirmed that I was not pleased to speake fully to ye thing hee desired, and yt I had sayd before all the Elders in the little Chamber of that house, yt ye Towne of Dedham did Consent, yt ye Indians should sitt downe at Natick, unto ye brook there, as is also affirmed in his paper given in to the Court these things are directly Contra- dictory to my sayd oath, I haveing sworne to speak the whole truth, and affirmed yt there was all I Could, or had sayd, this Also tending to hinder the Course of justice In the Case depending. I finde my selfe deeply in- gaged to Cleare up what is the truth in this matter, to which end at a late generall meeting of ye Eldrs at Boston I earnestly desired, and urged mr Eliot to pduce any of the Elders to prove what hee had sayd; But hee wholly refused soe to doe whereupon I Indeavored at a time of Leysure to put my selfe upon the triall before ymn all, but I was interrupted by one that recalled us to ye Publique occasions: After this I propounded the Case to ye neigh- bour Elders mett at Boston, and haveing read a true Copie of my sayd oath I desired them, one by one, to testify whether I had sayd in that little chamber yt the Towne of Dedham Consented to the sitting downe of the Indians at Natick unto the brooke there, as m' Eliot affirmed, to wch Divers Answered yt they remembred nothing of it, one of ym remembred ye place & time of or discourse, but objected nothing against my testimoney. Mr Mayo: sayd hee remembred the place & time of yt discourse, & that my speech was to this effect: That ye Towne of Dedham refused to grant any Lands on ye south side of Charles River: But might have bin perswaded to yeild to Mr Eliots desire on the other side, had not M' Eliot interrupted that motion by
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APPENDIX.
setting up an Indian Title: To the same effect also Mr Danforth of Rocks- bury declared himselfe, both which (I doubt not) will Attest ye same if called thereunto: To wt is sayd of Mr Eliotts fayleings in his pfe & ye positive testimony of: 2: Elders agreeing well wth the Tenor of my oath I shall Add further that ye Consideration of Mr Eliots Practise whoe about a yeare after the Indians came to Natick gave over his motion for any grant from Ded- ham, And in a very sollemne manner sett up a pretended Indian title to the Lands at Dedham on both sides of the River & neglecting any title from ye Consent of Dedham, he layd out severall lotts on both sides upon the Indian Title as himselfe declared unto mee which Course, had bene vaine, & needles, on the north side if hee had from mee such a declaration of the townes Consent as he now Alleageth what wise man would runne the hassard of soe great a offence to ye Towne of Dedham, & the English in Generall haveing such a consent of Dedham as hee prtends, these things being so: (wch: upon the oath I have formerly taken, I doe sollemnely affirme to bee the truth My humble & just request is that those things suggested by M' Eliot without any proofe may not bee received, to the prjudice of the Credit of my sayd testimony & oath nor to the obscureing of the just Title of ye neighbours of Dedham to the Lands in question so far as my testimony give evidence thereunto.
Thus beseeching ye God of truth & righteousnes who stands & judgeth in ye Congregation of the Gods so to direct this honourd Court that justice & truth may have a free passage in all yor Administrations: I subscribe Yor WorshPs: in all humble & Due observance
Dedham 27: 11 º: 61
John Allen
This is A true Copie Comprd wth ye originall left on file as Attests
Edw: Rawson Record" [Mass. Arch., XXX, 96, 97.]
The testimony of Peter Woodward aged about 59 yeares
Being sent by the Towne of Dedham to the Generall Court to declare their dislike that Mr Eliots Grant from the Court should be bounded within, or Lyne: & MT Eliott being asked why hee soe desired, hee answered very seriously that it was not his desire to have a foote of that Land within the Lyne of Dedham for hee thought hee should sinne if he did, but it was to take in other Lands beyound ors, of the Country Land towards Sudbury which otherwise he might loose, & at another time I heard him owne as much that the Land was ours, In desireing that Dedham would give it to the Indians as a fruite of their Love, this was in or meeteing house on a lecture day
Peeter Woodward deposed to the truth of wt is above written 28th Jan- uary 1661 before me.
John: Endecott Gov™
Daniell Fisher being aged about 43 yeares, being prsent at both these
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APPENDIX.
meetings testify the same wth Divers other words to the same purpose: Sworne by Daniell Fisher: 29thi: 11mo: 1661 Thomas Danforth
This is A true Copie Comprd wth the originall left on file as Attests Edw Rawson Recorder [Mass. Arch. XXX, 103.]
I Doe testifie that the Indians did posses, and had fenced in feilds, and planted our Lands, in the yeare 1650, and in the winter 5g upon these Lands on the south side the River weh are now sued for by the Plaintifs of Dedham
John Eliot:
Sworne In Court the: 29th: 11mo: 1661 By Mr John Eliott
as Attests Thomas Danforth
This is A true Copie Comprd wth ye originall on file as Attests
Edw: Rawson Recorder. [Mass. Arch. XXX, 103.]
I Eleazer Lusher Doe (as an addition to the Evidence already by mee given in Court, and upon the oath I have therto taken) further Attest that shortly after the returne of the Committee, whose Deputation was the 21th of ye 7th mo: (1650) and as a consequent thereof, that Act passed by Vote in our Towne, which I mentioned in my oath. and I never knew, or heard of any other Act in that case past amongst us before, or since, and the Towne Books being in my keeping Many yeares togeather as about that time such a thing could not have bin, (I conceive) without my knowledge & further I doe know that ye aforesd Act did precead Mr Eliotts Petition
p me Eleazer Lusher
Boston 29: 11mo 61 Daniell Fisher testifies to that above written: Deposed in Court 30: 11mo: 1661 p Edw. Rawson Recorder
This is A true Copie Compard wth ye originall on file as Attests Edw: Rawson Record" [Mass. Arch. XXX, 104.]
The testimony of Joshua Fisher aged about 41 years
Testifyeth that in the year 1651 Ensigne Fisher & my selfe being de- puted by the Towne of Dedham as appeareth by the Town record now in court we both came forthwith downe it being then in Gen. courts time & mett with m" Eliot and acquainted m' Eliot with what the Town had acted & in the Towns name we tendered him 2000 acres of Land. at the westerly end of our bounce on the North sid of the riuer to further the Indian work but m' Eliot desiringe further accomadation on the Indians behalfe: we declared the towne would part with no more with out due recompence where vpon he aplyed himeselfe by petition to the generall Court: he hauinge then made improument of sume of the Land now in questan on the South sid of the river which we then did declare should be no part of the 2000 acres that we tendered but it was vpon condition that all clams out in that 2000 acres
269
APPENDIX.
should be layd downe & what is vpon Court record in refferance to M' Eliots petition was after this tender of ours
Daniell Fisher aged about 43 years testyfy to the truth of what is aboue written and further at that time Mr Elyot did discouer himself vnsatisfyed with vs vnderstanding we wer not willing to part [ ] with the lands now question
taken vpon oath in Court 5th march 1661
p Edw Rawson secret [Mass. Arch., XXX, 104.]
To the much Honrd the Gouern'. the Dept Gouern". and the Asistants and Deputies. assembled in Generall Courte at Boston. 7. of. 3. mo 1662: The petition of vs the Inhabitants of Dedham. whose names are heere vnto subscribed: Humbly sheweth:
That whereas there haue bene some controuersey depending betwixt our Towne. and seuerall Indians the Inhabitants of Naticke. who without our consent. and contrary to our declared intent. haue entered vpon. empued. and posessed. some pt of our Lande granted to vs by the Honord Generall Courte: in which case we moued the Generall Courte Anno 1655 for aduice. whose counsell (vpon debate of the Case) was that we should referre it for issue to a due course of Lawe. wherevnto. at length we haue attended. after the endeauours to settle the case in a more loueing. and peaceable waye pued ineffectuall. and whereas vpon the bringing it to Legall Tryall in the Countie Courte at Boston. the Jurie findeing for vs the plantifes the magis- trats. were pleased not to accept the verdict. wherevpon the Case came by course to the Court of Asistants. where the Jury againe findeing for vs. and the verdict being prsented to the Magistrates owned by all the Jury. reeorded. and declared. the magistrates were pleased afterwarde to send the Jurie out agayne. and then some of the Jurie dissented from that verdict formerly agreed vnto where vpon the Magistrats adjourned that Courte to the Twelfth of may instant. by reason of which adjournmt we are vncapeable of haueing the said case issued. this prsent Court. in case the bench. & Jurie should not concurre. the time of p'senting petitions. to this Court being before that time past. and we not haueing optunitie to take Coppies of the Records of Court. they being wth the Jurie vntill the Twelfth of this prsent moneth. with- out which Records we cannot pduce the Case. which Coppies. without order from this Court. we cannot attayne
The p"mises considered. we humbly praye this much Honord Court. that we maye yet peaceably posesse and enjoye our Lawefull Rights in the case pľmised. and that by the Fa[ ] and Justice thereof. this contro- uersie may be issued. in Case it be not settled to our Comfort by the Court and Jurie before mentioned not doubting but that we as subiects to this Gouernmt shall as freely enjoye the benefit of Lawe. as we haue beene. are. & we hope shall continue free and ready to beare our pportion in
270
APPENDIX.
supporting the same. that so notwithstanding such discouragemts as we haue borne in this case. yet we may be free & ready to serue our God in our gen- eration. and not be disabled to pforme what might otherwise be expected from vs to that end. So we your petitioners shall still praye that the ptection and good conduct of the Lord may euer remayne wth you in all your weightie Counsels. & conclusions
Subscribed by vs. your humble petitioners
John Allin, Elea: Lusher: John Hunttinge, Henery Chickring, Richard Euerit, Micha: Metcalfe, Jonathan Fearbanke: sen, John Haward, Anthony Fisher, John Gay, Nathanell Coalburn, Willi Avey, Timothy: Dwight, Rich- ard Ellice, Robert Mason, Peter Woodward, Isaac bullard, John Bacon, Edward Richards, Joshua: Fisher, Daniell Fisher, Tho Fuller, Thomas Battele, John Fayrbank, Jonathan Fayrbank Juner, Daniel Ponde, Henery Wight, Nathanell Fisher, Joshua Kentt, John Eaton, Robert Ware, John Furington, Cornelius Fisher, John Mason, Henery Wilson, Edward Hawes, James Thorpe, James Draper, James Vales, Ralph day, Robt Fuller, Thomas Payne, Robt Onion, Thomas Fisher, James Mackinab: Nathanell Bullard, Joseph Elice
The deputyes hauing read this pet. Judge meet it be heard by this Court if or honord magists consent hereto & they to appoynt the time
12 (3ª) 1662 William Torrey Cleric.
(On back "Inhabitants of Dedhams pet. entred & 109 secured 1662;" in pencil "7 May Dedham & Indians")
[Mass. Arch. XXX, 112.]
For a finall issue of the controversy betweene the toune of Dedhame & some particcular inhabitants of the sajd toune & the Indians at Naticke, the Court, having considered the pleas & evidences prsented by both partjes, and finding that although the legall right of Dedham thereto cannot in justice be denyed, yet such haue binn the incouragement of the Indians in their improvements thereof, the which, added to their native right, wch cannot, in strict justice, be vtterly extinct, doe therefore order, that the Indians be not dispossessed of such lands as they at present are possessed of there, but that the same, wth convenient accommodations for wood, & timber, & high- wayes thereto, be set out & bounded by Mr Thomas Danforth, Mr Wm Parkes, Mr Ephraim Child, & MT Edw Jackson, or any three of them, who are hereby appointed a comittee to execut this order, and that the damages thereby susteined by Dedham, together wth the charges expended in suite about the same, be also considered & determined by sajd comittee, & such allowance made them out of Naticke lands or others yet lying in comon as they shall judge æquall, & apoint, making report to this Court the matter of charge, that so the Court may determine where to lay the same or any part thereof. [May 7, 1662 : Mass. Col. Rec., IV, Part II, 49.]
Nathanal Colburn form film
Cornelius fig.
Thomas Ballo John Mayerbank
stati Avey
Elsa: Sipher:
30 Bp maton
Jonathan fazerbank Cmothy Dwight
synony Milyon
Honory wight Porost majon Dolathampl EnhopoEter woodwal
HENERY Chirping Richard Euseit
lamot Though Games James Rxapex
famob valeb
Joshua Kinth Haac Bullard
Joen fator John Bacon
Mirger: Motralfo Jonathan Pense MENTE Son
Ralph day
Edward DRIEBarros
ware
Roft fuller
WarJoshua: fisher John Howard ?
John furington
Jancol
Thomas Payne James Machmal:
Foot Onion: Katharill Bullard CRU
C'
Komas Filher Goßerph Elice
Higher Anfang Fish Gulloy
John Gay
Fac-simile of the signatures to the petition printed on pages 269, 270, from Mass. Arch., XXX, 112.
[The two names given above at the foot of the left hand column and the three names at the foot of the next column form in the original a separate column at the left. The order was changed to avoid unnecessary reduction in cut .- ED.]
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APPENDIX.
.
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APPENDIX.
Whereas there was an order past the last session of this Court empowre- ing certayne. Gent. to put Issue to the case betweene Dedham & the Indians, & yt. by reason of the sicknes of one & the Indisposition of others the worke is not yet finished this Court doth therefore thinke meete in the Rome of the former Comittee to appoynt & empowre Major Willia Hathorne Capt. Edw. Johnson Capt. Hugh Mason Mr Edw: Tyng & Leud. Rich: Sprague. or any three of them to act in the busines according to the sd order sometime wthin six weekes after the breaking vp of this Court, Major Hathorne to appoynt the time & place of meetinge & to make returne thereof to the next Court of Election, the deputyes haue past this desireing the Consent of or Honord magists hereto William Torrey Cleric.
1 (8) 1662
The magists Consent not but Judge meete yt dedham deputy make choice of another meete person. in steed of. Ephraim Child who are to pros- ecute the former order & in case the Indians may be perswaded to Remoove of the South side of the Riuer the sd Comittee is to Allow them full sattis- faction for what they haue donne out of the Country8 lands in Comon; if their brethren the deputs Consenting heereto
22: 8: mo 1662. Edw: Rawson secrety
The deputyes consent not hereto but Judge meete that the case be ppounded to m' Eliott to choose two psons in behalfe of the Indians & the deputs of Dedham to make Choyce of other two to whom the Court to ad a fifth, & any three of this Comittee to act as is provided, in the order made refferring to this Case & all wth refference to the Consent of or Honord magists hereto William Torrey Cleric.
23ª (8) 1662
The Dep18 being sencible of ye great inconveniency accruing to both Englesh & Indians by ye neglect of an issue to this controversie. & under standing that Deacon Child is disabled by ye pvidence of God. & m" Dan- forth. vtterly declines the worke. do ppound that mr Edw. Ting & Leift Cooke be added in their stead to psecute ye order of this court in may last & that the worke be issued within six weeks at furthest. mr Ting appoynting time and place of meeting the deputs haue past this & do desire the Hond Mag's to consent hereto.
Consented to by ye magists.
William Torrey Cleric. Edw Rawson Secret [Mass. Arch. XXX, 115.]
The Court, being sencible of the great inconveniency that acreues to both English & Indians in & by ye neglect of an issue to the controuersy be- tween ye toune of Dedham & the Indians at Naticke, vnderstanding that Deacon Child is disabled by the providence of God, & MT Danforth vtterly declinig the worke, doe order, that Mr Edward Tyng & Left Cooke be added in their steede, to prosecute the order of this Court in May last, & that the
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APPENDIX.
worke be issued wthin sixe weekes at farthest, Mr Ting appointing time & place of meeting. [Oct. 8, 1662 : Mass. Col. Rec. IV, Part II, 69.]
Boston: the: 25th: of nouember: 1662:
Wee whose names are vnderwritten, being Appointed by the Honnored Generall Court, in may and october last to Consider of the difference be- tweene the Towne of Dedham & the Indians of Natick vpon our view of the Land doe find that the sajd Indians, being about sixty Families are setled, & haue planted vpon both sides of Charles Riuer & haue fenced & broaken vp two great Feilds, & seuerall lesser Feilds, which wee Conceiue may Con- taine Fowre Thousand Acres, or thereabout with what lyeth vnbroaken vp within the Limmitts of the Cercumference of their planting, they being scat- tered & planted in seuerall Tracts of the sajd Land, now the Order of Court being doubtfull vnto vs, about the word possession, wee therefore know not how to determine, But wee Conceiue that if it bee intruded that the Indians, shall bee Continued a plantation they Cannot haue less then the sume of Fowre Thousand Acres of Dedhams Land, for the Common Land that is giuen to them by the Country is soe remote from them that they Cannot im- proue it, & soe meane & bad withall as wee are informed, that it will not bee for their vse, And the Quantity of the aforesajd Land of Dedham is as little as may bee for soe many Families for any Considerable time, And wee Con- ceiue that the sajd Land should bee thus bounded, vizt: vpon the south side of the Riuer for the East line, to begin at a bent of the Riuer, that may bee about 70: or 80 Rodds from the Corner of the feild, & to come within tenn Rodds of the fence, as it now standeth vpon the East side of the feild, vnto the vpper End of the feild, & at that Angle to goe Tenn Rodds to the south from the fence and there to turne to the west vpon a straight line to the Riuer, & vpon the north side of the Riuer, to begin where the line is, at the West side of natick for the 2000 Acres layd out by Dedham, & to runn to the Pond vpon the north East from natick, & from the brooke Running out of the Pond, East & by South to the Riuer & the Riuer to bound vnto the bent aforementioned, For the which tract of Land Containing about: 4000: Acres wee Conceiue that the Towne of Deadham should haue satisfaction out of the Common Lands of the Countrey, if they cann find that which is to their Content, otherwise that they bee allowed the sum of 500£ starling, to bee pajd by the Country by 100£: p Ann:
Edward Tyng. Edward Jackson. Richard Cooke Wm Parks.
Att a Generall Court of Election held at Boston: 27: may: 1663
For a finall issue of the Case betweene Dedham & natick the Court judgeth it meet to grant Dedham Eight Thousand Acres of Land in any Con- uenient place, or places not Exceeding two, where it Cann bee fouud free from former Grants Prouided Dedham accept of this offer:
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APPENDIX.
This is a true Copie Taken out of the Generall Courts Reccords. As Attests: Edw Rawson secret
[Mass. Arch. XXX, 117, 118.]
[The foregoing order is recorded in Mass. Col. Rec. IV, Part II, 84, with the following words added "ye returne of ye Comittee remajne on file May 1663."-Ed.]
an answer to Mr Jackson his testimony
1 Mª Jackson saith. (we have seene the differenc & stated the bounds of the easterly line, to be as formerly laid out, returned, & recorded)
A this is well, I desire no other determination. the same he reporteth in the conclusion-wch I also accept off.
2 againe M' Jackson saith (to come fro the river, & to run Sotherly, upon the east side of the Indians feild. about 10 rods wthout the fenc.
A. this also is right & true. & I accept it. it confirmeth the truth. some other things weh m' Jackson saith, are dark, I understand y™ not.
3 all he saith of the bent of the river, where the record begineth the line in question, wch place of begining is the only thing in question he saith they remember not yt they ever were at yt place.
A. memory may easyly faile in 7 or 8 yeare about a place yel never saw before, nor sinc, till now. but let the record, & sight of the ey judg. for the record sayth (to begin at a bent of the river) 1 the river is not at the place weh Dedham would begin at. it is almost 20 rod fro it. 2 the river is not to be seene at that place. & 31y there is not a bent of the riuer at that place, & therfore yt cañot be the place of begining. But all these things are evident at the place wch the Indians stand for.
2 m" Jackson doth rightly (according to the record) make but one right line fro the bent of the river to the south angle.
I doe freely submit to this demonstrative determination, upon ocular view. if or bent of the river stand not, in a right line. (halfe wch line is agreed on by marked trees) we will cease our claime. if the place Dedham challeng stand not in a right line (considering a great pt of the line is all- ready agreed on) y" let ym cease theire claime, & the controversy is ended.
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