USA > New Hampshire > Merrimack County > Concord > History of Concord, New Hampshire, from the original grant in seventeen hundred and twenty-five to the opening of the twentieth century, Volume I > Part 21
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It is probable that the grant of Suncook, made by Massachusetts in 1728, and partially covering the territory of Bow, stimulated the proprietors of the latter to mark their boundary line in 1729. The next year a part of Suncook was divided by its proprietors into lots, which were assigned to grantees, and upon which actual settlement was soon commenced. Without regard to this the Bow proprietors laid out the same and some adjoining territory in an allotment reck- lessly intersecting and overlapping the other;2 and while effecting no settlement under the grant of New Hampshire, they would not allow the peaceable effecting of any under that of Massachusetts. Their policy was that of the dog in the manger. About this time, and probably as a part of the same transaction, " a parcel " of the Bow grant, "on the east side of the Merrimack river, by conjecture about three miles square,"3 was enclosed; but what allotment of Penacook lands, if any, was made at this period by the proprietors of Bow is not known. But at some time lands " were laid out and divided " 4 by them within the limits of Penacook or Rumford; for account was taken of them in the charter of the parish of Concord
! Bouton's Concord, 206 (note).
2 History of Pembroke, 39, 40.
Judge Pickering's Statement.
4 Charter of Parish of Concord.
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THE BOW CONTROVERSY.
in 1765; and in the settlement of the Bow controversy in 1771, " the proprietors of Rumford were to pay ten pounds to the proprie- tors of Bow, for each hundred acre lot which was laid out by said Bow in said Rumford." 1
Thus, while Bow-as Lord Chief Justice Mansfield of England remarked in substance years afterwards 2-claimed the desirable valley of the upper Merrimack, the Massachusetts people went on and settled it. The plantation of Penacook became the town of Rumford with its charter confirmed by the king. Bow was nomi- nally a town, holding meetings of non-resident grantees, and choos- ing selectmen at Stratham, forty miles away, and with not an in- habitant settled by itself upon the soil which it claimed. Though the settlement of the boundary line in 1740 threw Rumford under the jurisdiction of New Hampshire, yet as this act had been accom- panied by the express declaration of the king that a change of juris- diction should not affect the rights of private property, the proprie- tors and settlers of Rumford had reason to hope that they should not be molested in their dearly earned possessions. As early, how- ever, as 1742, apprehension was felt by them as to the mischievous designs of the Bow proprietors, and the thought was entertained among them that it would be desirable to choose one or more per- sons fully authorized to act in their behalf, in using "ways and means to quiet and secure the proprietors in their possessions, and to secure their just right to the premises, either in the Province of New-Hampshire, or in the Court of Great Britain." $ Though this thought did not ripen into immediate action, yet the same year Capt. Ebenezer Eastman was "appointed . . . to meet the delegates of . . . proprietors of grants made by the General Court of the Province of Massachusetts Bay . at a meet- ing held in Boston, in November, to join with them in
consulting . . [as to] what" might "be necessary for the general good of the said Proprietors."4 Mischief was threatened; but the outright war of dispossession upon the Rumford settlers was temporarily averted, especially by the French and Indian War, which was scarcely more harassing than the civil contest which was to supervene.
In the course of years those of the grantees specially named in the Bow charter as proprietors had forfeited their rights by non-fulfil- ment of conditions, and the proprietorship-as it is likely enough was originally intended-had fallen mainly into the hands of the
1 Petition of Thomas Stickney to New Hampshire Legislature, 1789; Bouton's Concord, 304.
2 The Rev. Timothy Walker's Letter, 1762.
3 Proprietors' Records (manuscript), Vol. III, 170.
Proprietors' Records (manuscript), Vol. III.
I4
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HISTORY OF CONCORD.
associates who were the members of the executive and legislative branches of the provincial government, including some who held place in the judicial department. By 1749 the " Proprietors of the common and undivided lands lying and being in the town of Bow " -as they styled themselves-were ready to attempt the actual en- forcement of their claim upon the soil of Rumford. To smooth the way for their attempt, the district act had not been renewed; and now through the remonstrance of their so-called " selectmen," the incorporation of Rumford, as a New Hampshire town, was pre- vented, lest such official recognition of its distinct corporate exist- ence might hinder the purpose. Without any actual seizin-and with only the most illusory constructive one-of the lands claimed, they had the effrontery to assert that they had been disseized for twenty-three years by bona fide settlers, who, all that time and more, had occupied and improved the premises. Hence the claim- ants in or about the sea-board capital, alias, " the proprietors of the common and undivided lands lying and being in the town of Bow," under the fallacious pretext of only seeking "to recover" that of which they had been "disseized," instituted a course of oppressive litigation.
In 1749 the proprietors of Bow entered at the December term of the court of common pleas, at Portsmouth, an action of ejectment against John Merrill, the early ferryman of Penacook, which was continued to the succeeding March term (1749-'50).1 Judgment was then rendered for the defendant, and the plaintiff took an appeal to the next superior court, when pleas of abatement were moved, and, by agreement of parties, the case was continued to the September term, 1750.2 But at this term neither party appeared, and the case was dismissed.
Why the plaintiffs abandoned this action does not appear ; but in December, 1750, another action was entered upon the docket of the court of common pleas by the Bow proprietors against the same John Merrill, to oust him from " about eight acres of land, situate in Bow . with the buildings and appurtenances thereof," 3 the whole being a portion of his homestead estate. These cases headed the long line of vexatious suits, all involving the same principle and substantially the same procedure and result in the province courts. But the pro- prietors of Rumford had been preparing for the tug of war. They had seen to it that the lines of the town should be perambulated and marked.4 They were united in their purpose to defend, at whatever cost, their rights, and those of their grantees, against intrusion. On
1 C. P. Records, 1745-1750, p. 436. 2 Sup. Ct. Records, B., p. 129.
3 Statement of Judge Pickering.
4 Annals of Concord, 29 (note).
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THE BOW CONTROVERSY.
the 23d of April, 1750, after the bringing of the Merrill action in 1749,-which as just seen was abandoned,-they voted to "be at the cost of defending John Merrill, in the action brought against " him, by the proprietors of Bow, " provided " he should " pursue and de- fend said action agreeably to the orders of " his fellow proprietors. It was also voted " That the proprietors will be at the cost and charge of supporting and defending the just right and claim of any of " the " proprietors or their grantees, to any and every part of " the town- ship of Rumford against any person or persons that shall bring a writ of trespass and ejectment for the recovery of any of said lands : provided, the said proprietors or grantees that shall be trespassed upon, or that shall be sued, shall pursue and defend their rights or claims agreeably to the orders of said proprietors of Rumford." 1 These votes were followed by another, appointing Captain John Chand- ler, Colonel Benjamin Rolfe, Lieutenant Jeremiah Stickney, Mr. Ebenezer Virgin, and Dr. Ezra Carter, a committee " to advise and order Deacon John Merrill how he " should " pursue and defend the action brought against " him " by the proprietors of Bow; also, to advise and order any other person or persons that " should "be sued or " should " sne in order to support and defend their rights or claims, what method they " should "pursue for the purposes afore- said." 1 Provision was also made for selling " pieces of the common and undivided land in the township," to raise " money to pay the proprietors' debts, and the charge that " had "arisen or" should " arise by defending the suit brought against Deacon John Merrill by the proprietors of Bow." With such a resolute and concordant spirit of preparation did the proprietors and settlers of Rumford meet the issue presented. They appreciated the perils of the contest. They knew, indeed, that their cause was just, but would it prevail ? With a fair, impartial trial it would. But such a trial was not to be expected in New Hampshire, since the governor and most of the council were " proprietors of Bow, and by them, not only the judges " were "appointed, but also the officers that " impaneled the jurors from "people generally disaffected to" the defendants, " on account of their deriving their titles from Massachusetts." 2 The defendants might, however, reasonably hope to obtain some justice in the end, could they but get a hearing before the king in council ; though this resort the plaintiffs might, as they did, try to prevent by bringing actions for so small values, that, under the laws of the province, there could be no appeal to England. But whatever the cost, it was felt by the defendants that it was better to ineur it than to submit to
1 Proprietors' Records (manuscript), Vol. III.
2 Petition of Rev. Timothy Walker and Benjamin Rolfe to the king in 1753.
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HISTORY OF CONCORD.
the process of the plaintiffs, instituted to compel, under menace of ouster, acknowledgment of a groundless claim to proprietorship.
The action against John Merrill, entered in the inferior court of conunon pleas, at the December term, 1750, was, at the request of his counsel, continued to the March term, 1751, that he might " vouch in his warrantor," of whom he had purchased part of the land in question. As the warrantor did not appear at that term, the defend- ant was obliged to defend himself, or give up the land demanded on which some of his buildings stood. "He, therefore," as his counsel, Judge Pickering, has recorded in his statement of the case, "gave an issuable plea, and thereupon obtained judgment, from which the plaintiffs appealed to the then next superior court, and entered their appeal ; and after several continuances, the parties had hearing, and judgment was rendered for the plaintiffs to recover the premises demanded. This judgment the defendant reviewed; but judgment was again rendered for the plaintiffs. From this judgment the de- fendant would have appealed to the king in council, or to the gover- nor and council here in a court of appeals ; but was not permitted to do so, as the premises demanded were not of sufficient value to allow either " recourse, according to the province law in such cases.
This case, with some others like it in principle and result, had, by 1753, passed through the New Hampshire courts. From an elaborate statement of the Merrill case, prepared by the acute and learned counselor in defense, and fortunately preserved, a view of the posi- tions taken by the two parties in the controversy may be gained. A glance at some of them has already been had; but it may be well here to present them briefly in connected form, and partly in Judge Pickering's own words.
The Bow proprietors urged that, inasmuch as " the right to all the lands in the province was originally in the Crown," the charter of Bow, issued under the governor's commission which conferred the power to grant those lands, gave the grantees immediate seizin " by operation of law "; and that marking the bounds, twenty months later, and enclosing, five years afterward, a parcel three miles square, " on the easterly side of Merrimack river," gave them "actual seizin and possession of the whole," with the consequent right to oust "any person who" had " entered and possessed any part within the bounds of their charter, in any other right or claim." They expressly set forth in their declaration that, in "June, 1727, they were seized of the premises in said town of Bow, in fee, taking the profits thereof , and continued to be so seized for one year then next ensuing, and ought now to have quiet and peaceable possession ; yet " the defendant, " within twenty-three years last past hath, with-
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THE BOW CONTROVERSY.
out judgment of law, entered into the premises demanded," and "dis- seized the plaintiffs thereof."
To the title thus set up by the plaintiffs the defendant objected, and denied that they had proved their case. "For," as he urged, "it is only by virtue of a seisin in fact that a person takes the profits -never by virtue of a seisin in law only. Now, they never set a foot on the lands contained within the bounds of their charter till twenty months after" the execution of that instrument in June, 1727, so that "it is difficult to conceive how their seisin " at the earlier date " is proved by entry " at the later. Nor could such evi- dence of entry and possession as was adduced by the plaintiffs prove the charge of disseizin against " the settlers of the plantation, called Penacook," who "had been in possession of it above a year before the date " of the Bow charter, and were vigorously pursuing meas- ures in order to settle a town there. The Penacook settlers " were clearing the land almost two years before any of the proprietors of Bow had seen their land ; and all that " the latter " did when they entered was to run a chain and mark some trees, at a great distance, round the laborers ; they never so much as saw the land now demanded, where the settlers of Penacook were at work. And, indeed, by the plaintiffs' rule of possessing land by walking round it," the continuous possession of the Penacook settlers might "well bc computed " from more than two years, instead of one, before the issuance of the Bow charter. " Upon these facts concerning the man- ner of entry and possession of these parties, with what propriety " could the Bow proprietors claim this land ?
Again, it was argued for the defendant: Supposing " the lands which the plaintiffs claim were the king's at the time their charter was made-which was not the case, in fact-yet the Bow proprietors have not derived that right to themselves; for the authority of the governor of New Hampshire " to grant the king's lands was confined to his jurisdiction, which, by the commission, " was limited to that part of New Hampshire extending from three miles northward of Merri- mack river, or any part thereof, to the province of Maine, which was the easterly boundary of the commission ; the westerly boundary of which was the line running three miles northward of the Merrimack. Now the land demanded by the plaintiffs in this suit lay on the west- erly side of Merrimack river, more than three miles without the gov- ernor's jurisdiction, and, consequently, he had no power to grant it ; for, if he might grant the king's lands out of his jurisdiction, where should he stop? By what limits could he be restrained? From the reason and necessity of the thing, therefore, it must be allowed that the right of government and of granting lands was limited to the
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HISTORY OF CONCORD.
same territory. And the words of the commission necessarily imply that it did not extend over all that was called New Hampshire." Hence, " if it were conceded that these lands were within the prov- ince of New-Hampshire at the date of the plaintiffs' charter, that con- cession would avail the plaintiffs nothing in this case."
"Another objection "-already mentioned-was made "to the plaintiffs' demand, from the manner of their running out the bounds of their township. By their charter, they were to begin on the southeast side of the township of Chichester. Instead of that they began on the southwest side. Now what could justify such a pro- ceeding? If the land where they were to begin was appropriated before, that could not authorize them to be their own carvers, to take what they were pleased to estimate as an equivalent, without a new grant-which they never had. Nor did they ever make a return to the authority whence they derived their title, for confirmation of what they had thus unwarrantably assumed ; for by their running they took in a considerable tract of land, really without their char- ter, and which belongs to others." They alleged, to be sure, "that they could not begin on the south-east side of Chichester, because it joined Nottingham on that side ; but if it was so, what necessity of going four miles on Chichester before they began their measure ? They should have taken their land according to their grant." But "it is probable " that " the true motive for making this leap-not in the dark-was to get better land." And " if they had run, as they ought, from the southerly corner of Chichester, they would not have reached the land demanded."
Looking closer to the title claimed by the plaintiffs, "as derived from the Crown," the defendant said that all the lands in question were " long before granted by the council of Plymouth,-in whom the right of the crown to them was vested,-to Captain John Mason," whose " right was always adjudged good. As the said lands were all waste or unimproved " except those occupied by the settlers of Pena- cook, "they, beyond all question, belonged-agreeably to Queen Anne's orders and the concession of the assembly here-to those who had Mason's right." This being the case, "the governor's grant could be of no effect as to these lands; for the power of the gov- ernor extended only to right of the crown, of which the crown was long before divested. Hence the plaintiffs' title under the govern- ment " could "not serve them," and of this fact, " the defendant " might " take advantage ; for it is a well known rule, that a defendant may plead any man's title against the plaintiff."
But the plaintiffs claimed to have Mason's right, inasmuch as " Mason's heir sold it to Theodore Atkinson and others, by deed
199
THE BOW CONTROVERSY.
dated the 30th of July, 1746, and that the purchasers, by their deed of release, dated the 31st of July aforesaid, conveyed their right to the plaintiffs, among others." To understand better this position of the plaintiffs, and that of the defendant in denial of it, a brief digres- sive retrospect is necessary.
In a preceding chapter it was related that Captain John Mason's grant of New Hampshire fell into the hands of his grandsons, John and Robert Tufton, who took the name of Mason. These made meffectual attempts to obtain recognition of proprietorship. Another pair of brothers, also named John and Robert-sons of Robert-sold their claim to Samuel Allen in 1691. There was a flaw, however, in the transfer. After some years, John, the son of Robert, " con- ceived hopes of invalidating Allen's purchase,"1 but died in 1718, without accomplishing his purpose. His eldest son, John Tufton, the fifth in descent from Captain Mason, and born about 1713, " was bred to a mechanical employment in Boston,"1 and is also sometimes spoken of as a "mariner." He inherited the enterprising spirit of his ancestors,1 and the controversy as to the lines called his attention to his interests.1 In 1738, the politicians of Massachusetts, hoping to derive some advantage in the controversy, encouraged him "to assert his pretensions,"1 and sent him to England to enforce his claim, but they had their expense for their pains. Thomlinson, the vigilant New Hampshire agent, finding Mason detached from the Massachusetts agents, entered into an agreement with him for the release of his whole interest to the assembly of New Hampshire, in consideration of the payment of one thousand pounds, currency of New England.2 Nothing more was heard of this till after the settle- ment of the boundary dispute, and the accession of Benning Went- worth to the governorship.
In 1744, "the agreement with Thomlinson was lodged in the hands of the governor, who sent it to the house, for perusal and con- sideration ; " but "the affairs of the war" and other causes pre- vented anything from being done. It was not until 1746 that " the house came to a resolution 'that they would comply with the agreement, and pay the price ; and that the waste lands should be granted by the general assembly, as they should think proper.'" The council demurred at the clause as to the sale of the waste lands; while a greater disappointment befell the tardy assembly, when a committee sent on the 30th of July, "to treat with Mason, about fulfilling his agreement, and to draw the proper instruments of conveyance,"I found that he, tired of waiting, "had, on the same day, by deed of sale, for the sum of fifteen hundred pounds currency, con-
1 Belknap, 252.
2 lbid, 204.
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HISTORY OF CONCORD.
veyed his whole interest to twelve persons, in fifteen shares." One of the twelve was Theodore Atkinson, previously mentioned. These gentlemen, who, with their successors, were ever afterwards styled The Masonian Proprietors, aware that the transaction would raise, as it did, "a great ferment among the people,"1 prudently took care, the very next day, "to file in the recorder's office a deed of quit- claim," 1 or release, "to all the towns which had been settled and granted within the limits of their purchase ; "1 thus somewhat allay- ing popular apprehension, and parrying the first fierce attacks made upon them.
Bow was one of the towns quitclaimed ; and so it was that the plaintiff proprietors claimed that by virtue of the Masonian Proprie- tors' release they had Mason's title in the Rumford lands lying within Bow. This claim involved the acknowledgment that Mason's title was in force and effect in 1727, and that they got no title until 1746-a position wholly inconsistent with their claim of seizin from the former date, and effectually disposed of by the defendant's query : " How a right acquired in 1746 could give an actual seisin of the lands, the right to which was then purchased, so long before the purchase as 1727 ; that is whether a man by virtue of a deed made to-day, could be in actual possession of the land conveyed by it nine- teen years ago." But the defendant denied that "a right was con- veyed by this release to the lands demanded "; it being " common learning on this subject that a release operates only to those in pos- session," while " the plaintiffs' own declaration " showed "that they had been out of possession about twenty years." Moreover, " the release " was " made as much to the defendant as any person whom- soever. For he is an inhabitant of Bow, as the plaintiffs them- selves " have styled "him; and since the release " was " made to the inhabitants, as well as to the proprietors, of what they " pos- sessed, he, having been " possessed so long in his own right, must of necessity be quicted by this release, if it has any effect at all." But what was further "objected to the plaintiffs on this head was the well known point of law," that "a chose in action, or a mere right, cannot be transferred, and Mason's title was no more as to all the lands in the possession of those who were not parties at the time of making the said deed to Atkinson and others. The lands demanded, as well as all the plantation of Penacook, had been nearly twenty years in the possession of entire strangers to that transaction. What title, then, could the Bow Proprietors derive to themselves, under this conveyance, to the lands in question ?"
Having controverted the plaintiffs' title, the defendant vindicated
1 Belknap, 296-7.
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THE BOW CONTROVERSY.
his own, as derived from Massachusetts, while that province was exercising jurisdiction in fact over the premises, and was holding " the property of the soil " under a deed in fee given, in 1628, by the council of Plymouth-which held the divested right of the crown-to Sir Henry Roswell and others as private persons. The grant was confirmed, in 1629, to the same persons and their asso- ciates, by the royal corporate charter of the Massachusetts Bay colony, within the bounds then specified, and afterwards recognized by the king in council in 1677. Those bounds included Rumford, with the consequence, that, in its grantees as private persons, was the right of property in its lands which was in the original grantees under the Roswell deed.
The Bow proprietors, on the contrary, asserted that Massachusetts had never had authority to grant the lands demanded, because " the settlement of the line " did not define "a new boundary," but was " a declaration by his Majesty of what was always the true boundary of" the two provinces ; hence, the lands in dispute had always lain in New Hampshire, and, consequently, out of the jurisdiction of Massachusetts. And as "the right of granting lands is limited to the right of jurisdiction," the grant made by the government of that province " was void ab initio, and the settlers under " it "could derive no title to themselves, but " were to " be looked upon as disseizors." And "as their entry was recent when Bow was granted, the proprietors might lawfully enter upon " the lands ; " especially considering that the government of New Hampshire had ' forewarned' the committee who were on the business of beginning the settlement of Penacook," and forbidden them to proceed. In fine, " there was really nothing in the way of the proprietors of Bow, any more than if there had been nobody there."
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