USA > New Hampshire > Merrimack County > Concord > Annals of the town of Concord, in the county of Merrimack, and state of New-Hampshire, from its first settlement, in the year 1726, to the year 1823 > Part 9
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APPENDIX.
year after, King Charles confirmed this grant by a double recital, first by referring to the deed made by the council, and then by the particular bounds in that deed, and made the grantees and others their associates, a corporation on the place. That many years after this, in the latter part of the reign of King Charles II. this corporation was dissolved, by vacating the letters patent of King Charles I.
Now from these facts it may be observed, that the council of Plymouth, having the fee, conveyed the same, of all the land within the bounds of their deed of the 19th of March aforesaid, to Sir Henry Roswell, &c. as private persons, it being made a year before the corporation had existence, and had no relation to any corporate capacity. That the confirmation of the Crown aforesaid admits that the grantees of the council had the fee of the soil, which is the thing they designed to convey, and if it had not been done, there was nothing for the confirmation to work upon, for a confirmation of a void conveyance is also void. That the judgment, by which the corporation was dissolved, re- lates wholly to the King's letters patent, by which the corpora- tion was erected, and has no manner of reference to the deed made by the council of Plymouth. The quere here is then upon annulling the charter of incorporation, what became of the fee of the land purchased by some of the members of that corpora- tion as private persons, before the corporation was in esse ; or how could the vacating or destroying a particular political rela- tion, an ens rationis any ways affect the right of property ? If it is said, that the said judgment nullified those letters patent as a deed of confirmation : Suppose it-but what follows ? Nothing as to this point. For the rule is, a confirmation is to bind the right of him who makes it, but not to alter the nature of the estate of him to whom made. Now if the grantees in the first deed had the fee by that, the confirmation, when in force, did not alter the nature of their estate, nor when annihilated, (if it could be so in that respect) did that affect it. Upon the whole, as to this point, it is submitted whether the dissolution of the · corporation affected the right of property any more than it did the moral state of those who were the particular members. The consequence of all is, the right and property of all the lands within the bounds of that deed, was in those grantees, and still is in those who hold under them. How far those bounds extended, the judgment of the King in council, according to the opinion of the Lords Chief Justices upon the complaint of Mason and Gorges, in the year 1677, is an irrefragable determination. That as to that part of the bounds which relates to the lands of Rumford, it was to run parallel to the river at the distance of three miles northwardly of it to the head, or as it is in the report, to the ut- most extent of the river, &c. ; whereby it run a long ways beyond the said township of Rumford, so that there can be no doubt whether it took in those lands. Now, supposing this right to remain still in private hands, what have the government of New-
97
APPENDIX.
Hampshire, or Mason either, to do with it ? And here again the application of the rule above referred to offers itself. The land is neither the plaintiffs' nor defendant's. How then shall the plaintiffs recover ? Not by the known established rules of law, but by a new method ; the land the plaintiffs demand is not the defendant's, therefore they will have it. But here a question arises. Supposing all to be true with respect to this right that has been alleged, which way did it ever come to be the govern- ment's again ? And if the property still remains in private per- sons, what have the government to do to parcel it out, and put whom they please in possession ? There is no doubt but the re- incorporation restored the government to all they had before, not expressly excepted in the new charter ; and as they had the King's confirmation as a corporation, while that capacity con- tinued, they must be supposed to hold by that ; but when that was annulled, they were remitted to their ancient right, which they had before the corporation was created. And it is submit- ted, whether by necessary operation of law, a corporation dis- solved, and afterwards incorporated by a new charter, either by the same or a new name, is not of course restored to all its old rights and privileges, without express words in the new charter for that purpose ; and if it is, the question is answered. How- ever the government has been in possession of, and has exercis- ed the right of granting the lands to the inhabitants more than sixty years, and if any particular person or persons might once have claimed it, such right seems to be extinguished by non- claiming the possession or exercise aforesaid. The deed made by the council of Plymouth is not in the case, nor is it to be found, nor any record of it, only by way of recital, it being prob- ably consumed, and the record of it, with many other papers of a public nature, by the violence of a fire that destroyed the state-house, with a great part of the town of Boston, in the year 1711. But by the recital in the charter it may be depended upon as undoubted fact, that there was such a deed.
There is another objection made by the plaintiffs to the de- fendant's title, which is, that the committee appointed by the General Court to have the care of settling these lands at Penni- coke, were to execute deeds to the settlers, which does not appear to have been done, therefore they have no title.
The answer to which is, there was no need of it, for the land was designed for those who would settle there ; the committee determined who they should be, took a list of their names, then the lots severed were drawn in their names, and set off to them ; and by the terms proposed, if they perfected the settlement, the land was to be theirs. And by the act or law of the province, by which they were incorporated, past the seventh of his Majesty's reign, it appears that they had fully complied with the terms the General Court had fixed. So that the executing such deeds, as it would have been a considerable trouble and charge, so it would have been ex abundanti, and was therefore omitted. The
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APPENDIX.
government conceded, the settlers had their right, and the com- mittee could have given no more ; and as to the method of con- veyance, it is immaterial. Nor was it ever customary to pass deeds in these cases ; and was mentioned rather to stimulate the settlers to comply with the terms, that they might be entitled to the land, than a thing necessary to be done .- And now to sum up all in a few words.
The defendant has entered, subdued, and cultivated the lands demanded ; reduced them from the rough condition in which nature left them, to the state of a garden, in which labor he has spent more than twenty years, while the plaintiffs have been looking on, neither asserted their claim, nor attempted to settle any other part of their lands. And whether the defendant has any title or not, the plaintiffs ought not to recover, if they do not make out the title they set up. For melior est conditio pos- sidentis, the government of New-Hampshire did not extend to the place where these lands lay on the westerly side of Mer- rimack river, and therefore no right could be derived from them ; and if the government had reached so far, the Crown had long before divested itself of all right to the soil, which was afterwards vested in Sir Henry Roswell, &c. That if that was not the case, it was Mr. Mason's, or those who have his right ; from whom the plaintiffs have derived no title, because the de- fendant was in possession at the time of making the deed and release aforesaid. That if the release operates as to these lands, it is in favor of the defendant. That the defendant has a good right under the government of the Massachusetts Bay, as they had the jurisdiction in fact, and moreover had the right of the soil by the deed and other matters aforesaid. Add to all that, whoever settles land in the wilderness, and of that which before served only as a shelter and nursery for wild beasts, and a lurking place for the more savage animals, the Indians, not only pur- chases it at a dear rate, and has a hard bargain, though the land is given to him, but does public service. In which regard the whole town of Rumford merits the thanks of the government, Instead of being turned out of doors. And what may be said in behalf of the defendant in this case, may, with the same proprie- ty, be urged in behalf of those other inhabitants of Rumford, with whom these proprietors, or those who derived their right from them, are now contending, and have actions in the courts under continuance.
-
[The foregoing document was draw up by the late Judge Pick- ering, and formed one of the papers upon which the controversy was decided in 1762. Though of considerable length, it will be interesting to the people of Concord, who will here see the en- tire ground occupied by the parties fully explored. The decision of the King in Council fellows, which, though referring to other
99
APPENDIX.
appeals, is applicable to the whole. The dispute, however, was not completely settled, until the proprietors of Bow had extorted large sums from the inhabitants of Rumford, by way of compro- mise.]
At the Court of St. James, the 29th day of December, 1762.
PRESENT,
The King's Most Excellent Majesty,
Earl of Huntington,
Viscount Falmouth,
Earl of Halifax,
Mr. Vice Chamberlain,
Earl of Northumberland,
George Grenville, Esq.
Earl of Egremont,
Henry Fox, Esq.
Earl Delaware,
Welbore Ellis, Esq.
Upon reading at the Board a Report from the Right Honorable the Lords of the Committee of Council, for hearing appeals from the plantations, dated the 17th of this instant, in the words following, viz. :-
Your Majesty having been pleased, by your order in council of the 15th of February, 17-, to refer unto this committee the humble petition and appeal of Benjamin Rolfe, Esq. Daniel Car- ter, Timothy Simonds, John Evans, John Chandler, Abraham Colby, and Abraham Kimball, setting forth, amongst other things, that in 1721, Benjamin Stevens and others petitioned the General Court or Assembly of the Massachusetts Bay, for a grant of land at Pennicook, upon the river Merrimack, which petition, having been referred to a committee of both Houses, and they reported in favor of the application, that it would be for the advantage of the province that part of the land petitioned for should be as- signed and set apart for a township, to contain seven miles square, and to begin where Contoocook river falls into Merrimack river. And they appointed a committee to bring forward the said set- tlement, and laid down several special directions with regard thereto. And amongst others, that the lands should be divided into one hundred and three lots or shares ; and that one hundred persons or families, able to make their settlement, should be admitted, and each settler to pay for his lot five pounds for the use of the province, and be obliged to build a good house for the family within three years, and break up and fence in a cer- tain quantity of land, and the houses and lots to be on each side the river ; and that a meeting-house should be erected and finish- ed, which was to be assigned for the use of the minister and for the school, and the charge of the committee was to be borne by the settlers ; which Report was agreed to by both Houses of the Council and Assembly of that province, and concurred in by the Governor. That in 1726, the town of Pennicook was laid out, and divided into lots amongst the proprietors, who began
1
100
APPENDIX.
and carried on a settlement there with great difficulty and cost, it being above twenty miles up into the Indian country, beyond any English settlement then made, and being a perfect wilder- ness, having not the least sign that human foot had ever trod the ground there, and notwithstanding the difficulties they were un- der in establishing a new town in so remote a desert, they pur- sued their undertaking with such industry and pains, clearing the land, building houses, sowing corn, &c. that within a few years a town was erected, and the place capable of receiving their families, who were then removed up there.
That on the 6th of August, 1728, in consideration that five hundred acres of land, which had prior to the aforesaid Pen- nicook grant, been granted to Governor Endicott, fell within the Pennicook boundaries, the Assembly of the Massachusetts Bay came to a resolution, which was concurred in by the Governor and Council, that the Pennicook settlers should be allowed and empowered, by a surveyor and chain-men upon oath, to extend the south bounds of their township one hundred and thirty rods the breadth of their town, and the same was accordingly granted and confirmed to them as an equivalent for the said five hundred acres of land. And in a few years they had so far erected and settled a town, that in 1733, the Governor, Council, and Assem- bly of the Massachusetts Bay passed an act for erecting the said plantation of Pennicook into a township, by the name of Rum- ford ; which act was confirmed by his late Majesty in council ; and the said settlers having ever since, at great costs and labor, gone on improving the lands within the said township of Rum- ford, by building, cultivation, and otherwise ; and having been in continual possession thereof for above thirty years past, and the same is now become a frontier town on that part of New-Hamp- shire.
That on the 6th of August, 1728, David Melvin and William Ayer petitioned the General Court or Assembly of the Massachu- setts Bay, for themselves and others, who had served as volun- teers under Capt. John Lovewell, praying a part of the province land might be granted to them for a township, in consideration of the service they had done, and the great difficulties they had andergone in the war ; which petition being read in the House of Representatives, it was resolved, that six miles square of land, lying on each side of Merrimack river, of the same breadth from Merrimack river as the township of Pennicook, and to begin where Pennicook new grant determines, and from thence to extend the lines of the east and the west bounds on right angles, until the six miles square should be completed, be, and it is there- by granted to the forty-seven soldiers, and the legal represent- atives of such of them as were deceased, who marched with Capt. Lovewell, (himself included) when he engaged the enemy at Pigwacket. That on the 9th of July, 1729, the said David Melvin and others, petitioned the Assembly of the Massachu-
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APPENDIX.
setts Bay, setting forth, that they had caused the said tract of land to be surveyed and platted, and praying a confirmation thereof, and that the grantees might be empowered to assemble and choose a clerk, pass votes, and be empowered to admit the persons in Capt. Lovewell's first march, to be associated with him ; and the survey or plan of the said tract, which is annexed to the petition, and mentions it to begin at the south-east corner of the said other town of Pennicook, and from thence to run out according to the grant. It was ordered, that the land describ- ed in the plan should be confirmed to the petitioners and their associates, and their heirs and assigns forever, provided it ex- ceeded not six miles square, nor interfered with any former grant. And the Assembly, on the 23d of September following, ordered a preference to be given to those soldiers who were ac- tually with the Captain in the engagement when he killed sev- eral of the Indians, and the said resolutions of the Assembly were concurred in by the Governor and Council.
That the Suncook proprietors carried on their said settlement which adjoined to Pennicook, otherwise Rumford, in like man- ner as the Pennicook or Rumford settlers had done ; and in 1737, had a minister settled there, and by their industry, labor, and charges, it became a good parish, filled with inhabitants.
That some years since, upon a dispute about the boundary line between the provinces of the Massachusetts Bay and New- Hampshire, his Majesty was pleased to issue a commission lo mark out the dividing line between the said province of New- Hampshire and Massachusetts Bay, but with an express de- claration, that private property should not be affected thereby. And upon hearing the Report of the commissioners appointed to settle the said boundary, his Majesty was pleased, by his order in council, made in 1740, to adjudge and order that the northern boundary of the said province of the Massachusetts Bay are and be a similar curve line, pursuing the course of Merrimack river at three miles distance on the north side thereof, beginning at the Atlantic ocean, and ending at a point due north of a place called Pautucket falls, and a strait line drawn from thence due west cross the said river, till it meets with his Majesty's other governments ; by which determination two-third parts at least of the said river Merrimack, with the lands and settlements thereon, and among the rest, the said towns of Pennicook or Rumford, and Suncook, would lay upon the said river consider- ably above the said Pautucket falls, were excluded out of the said province of Massachusetts Bay, in which they had before been thought and reputed to be, and thrown into the said other province of New-Hampshire. That notwithstanding his Majesty had been pleased, at the time of issuing the said commission to fix the said boundary, to declare the same was not to affect private property. Yet, certain persons in New-Hampshire, desirous to make the labors of others an advantage to themselves,
14
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APPENDIX.
and to possess themselves of the towns of Pennicook, otherwise Rumford, and Suncook, as now improved by the industry of the appellants and the said first settlers thereof, whom they seek to despoil of the benefit of all their labors, did, on the first of Nov- ember, 1759, by the name of the proprietors of the common and undivided lands, lying and being within the township of Bow, brought an ejectment in the inferior court of common pleas, holden at Portsmouth, in New-Hampshire, against the appellants, by which ejectment the respondents, under the general denomi- nation aforesaid of the proprietors of Bow, demand against the appellants the possession of about one thousand acres of land, alleging the same to lie in Bow aforesaid, and to be described and bounded as therein mentioned and set forth in the eject- ment, their grant of the town of Bow, dated the 20th of May, 1727, from John Wentworth, Esq. lieutenant-governor of New- Hampshire ; and that by force thereof they were seized in fee of the lands thereby granted, to the extent of eighty-one square miles, and they had afterwards entered thercon, pursuant to their grant, and were seized thereof, and alleged they were entitled to the one thousand acres of land sued for, as part of the said eighty-one miles square of land, and that the same lay with- in the said town of Bow ; but that the appellants had entered therein and ejected the respondents, and withheld the same from them. To which action the appellants severally pleaded not guilty, as to so much of the lands sued for as were in their respective possessions.
That on the 2d of September, 1760, the cause was brought on to trial in the said inferior court, when the jury gave a verdict for the respondents, and judgment was entered up accordingly with costs, from which the appellants prayed, and were allowed an appeal to the next superior court. And on the 2d Tuesday in November, 1760, the cause was brought on again to trial in the superior court, when the jury gave their verdict for the respond- ents, and the judgment was thereupon entered up, affirming the said judgment of the inferior court with costs. That the appel- lants conceiving themselves to be thereby greatly aggrieved, prayed, and were allowed an appeal therefrom to your Majesty in council, and humbly pray, that both the said verdicts and judg- ments may be reversed, and that they may be otherwise reliev- -ed in the premises.
The Lords of the committee, in obedience to your Majesty's said order of reference, this day took the said petition and ap- peal into their consideration, and heard all parties therein con- cerned, by their council, learned in the law, and do agree hum- bly to report as their opinion to your Majesty, that the said judgment of the inferior court of common pleas of the province of New-Hampshire, of the 2d of September, 1760, and also the judgment of the superior court of judicature of the 2d Tuesday in November, 1760, affirming the same, should be both of them reversed, and that the appellants should be restored to what they have lost by means of said judgments.
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APPENDIX.
His Majesty this day took the said Report into consideration, and was pleased, with the advice of his privy council, to approve thereof, and to order, as it is hereby ordered, that the said judgment of the inferior court of common pleas of the province of New-Hampshire, of the 2d of September, 1760, and also the judgment of the superior court of judicature, of the 2d Tuesday in November, affirming the same, to be both of them re- versed, and that the appellants be restored to what they may have lost by means of the said judgments, whereof the Governor ' or commander in chief of his Majesty's province of New-Hamp- shire, for the time being, and all others whom it may concern, are to take notice and govern themselves accordingly.
[No. VI.] HEALTH, LONGEVITY, &C.
Synopsis of the Bills of Mortality for the town of Concord, from the year 1798 to 1822 .- By THOMAS CHADBOURNE, M. D.
1798| 25, 2w. 17 70, 4m, 4. 2. 1. 40, 53' 38, 7' 67' 7. 4m. 49, 2. 0. 8. 2. 66' 0. 43,
1799 1800
3. 5. 57 81' 51' 1. 80' 8m. 8. 60€ 30, 32, 10d. 21' 60, 10w. 20€ 50€ 83' 78' 88' 13. 18m. 46, 8m. 18m. 2. 2. 4. 60€ 0. 91 7. 9. 4. 1. 0. 0.
ĮTot. 26 15 25 24
1801 1802
4d. 1d. 31, 0. 82, 21' 18m. 18m. 80' 21' 4d. 20d. 49, 22, 6m. 70' 45, 20' 49, 97, 2. 37, 28,
1803
86, 80€ 63, 60, 85' 2. 6. 0. 55, 65, 3. 23, 28, 4. 6. 0. 67' 43' 65' 0. 18m. 30 3. 33, 80' 0. 18m. 69' 196 2. 29' 0. 0. 0. 0. 53'
1804 1805
70€ 40€ 3. 19' 0. 0. 72' 1. 0. 65€ 53, 68' 2. 65' 25, 1. 1. 89' 2. 1. 456 88, 0. 0. - -
71, 50, 36' 684 0. 0. 22, 0. 90, 64' 0. 20, 1. 8. 45, 225 22' 1. 45€ 10. 64' 0. 67, 57, 10. 0. 92,
27
79' 2. 66€ 0. 0. 0. 59' 22, 32' 24, 57, 92, 63,
1806 1807 1808
18, 764 0. 18, 60' 20, 0. 66, 84' 70' 0. 35' 0. 10. 86' 0. 0. 83, 5. 14, 28, 3.
0. 0. 80€ 2. 16, 58, 53, 35, 20, 17, 0. 18m. 27' 5. 40, 0. 50€ 45 95'
13 22 19
80' 2. 8. 0. 0. 0. 82, 29' 4. 70' 71, 22, 2. 27, 2. 1. 0. 0. 41, 30, 65,
21
1809 1810 1811
9' 65, 33, 45' 2. 14, 31, 92' 32' 0. 22, 17, 65, 63 41' 82, 1. 11. 4. 744 86, 19, 0. 32' 74' 31' 27' 64' 74' 5. 0. 37' 70€ 3. 31, 25, 0. 46' 0. 3. 0. 0. 32' 0. 70, 3. 25' 59, 50€ 0. 47, 73, 82' 11, 33, - 41 From December 1811, to January 1819, inclusive, there were 250 deaths-there is no record of the ages to be found. 250
14
Total, 578
70, 37, 56' 48, 24, 0. 73, 83, 1.5. 2. 3. 53, 3. 3. 18m. 4. 2. 5. 9. 19 82, - 22 - 36 23
104
APPENDIX.
Diseases and Casualties during the years 1819, 1820, 1821 and 1822.
Angina Maligna Consumption
Cancer Apoplexy Infantile Fever Fits
Inflammation of
19, 276
6wk
16' 51,
52' 74' 1' 46, 30 71, 3º 10€
68, 78, 80' 91, 86' 69, 78' 81 85, 96, 78, 88' 70, 81' 85, 80 77, 75' 96' 826 78' 85' 72, 85 99 76 70 86 77, 736 76' 80, 70,
33
Petechia sine Febri
30€
1
Drowned
20€ 35€
Fever Pulmonia
20, 30€ 69€
66 Typhus
26€ 18' 18 35 66' 30' 47 25, 68' 40' 32'
2 3 11 3
66 Puerperal Infantile disea- ses
1' 3w' 2d' 6w' 3d' 6w' 2d' 1y' 4m' 1m' 2n' 2' 3.
13 5 2
Delirium tremens
49' 27'
Intemperance
40€ 60€ 51'
3
Scalded
36
1
Abdominal In- flammation
55' 50, 19, 17'
4
20m‘ -
-
1
Dysenteria Sudden
73' 436 -
2
Unknown
7'
1
40, 27, 22' 37, 28, 51' 40' 32, 29' 51, 16, 34, 25, 28' 15' months, 30, 28, 46' 30. 19 30, 28, 30, 23, - 84' 65, -
24 2
54€ -
1
18m' 6w' 6m' 12w' 8w' 3y. 18m,
59' 2' 6dc
7 3 2
the Brain Spina Bifida Scrophula Dropsy
1 2 8
It is ascertained that from Jan. 1792, to Dec. 1797, there were 117 deaths, which makes the whole number of deaths during the last thirty years, 803.
The above table is correct as to the number of deaths, but is very imperfect in other respects. In many instances in the re- cord of infants, there is no distinction of the sex, and in some cases, the age of infants is not inserted. Such are distinguished by a cypher thus, O. A comma after the age denotes the females, and the inverted comma the male sex. Those cases where no record of sex was made are distinguished by a point.
51' 24 32 0, 0, 24 17' 8' 0, 04 28,
11
Total 150
Quinsey
1' 8' 7' 2' 6d'
40, 30, 27'
Old Age
105
APPENDIX.
From the above abstract of the diseases and deaths, for the last thirty years, it is reasonable to infer that the inhabitants en- joy an unusual exemption from disease. Scarcely any infectious disease has ever been known in this town ; and very few cases of consumption, in comparison with other low situated places, occur here. Each morning in the summer season the land contiguous to the river is covered with a thick fog : this fog in frosty sea- sons prevents the destruction of vegetables ; and is supposed to cleanse the air of impurities, which are swept to the ocean by the current of the Merrimack.
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