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 22
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In reply, the defendant insisted that when the lands at Penacook were granted, "the government of Massachusetts had the jurisdiction in fact," and " exercised all powers and authorities, both legislative and executive, over all places to the line three miles northward of the Merrimack," and had done so, "till the last settlement "; and that these acts " were never annulled or declared to be void," by the king : "as must have been the case, had the plaintiffs' notion been entertained, that the settlement of the line was only a declaration of what was always the true boundary of the provinces-or that all which Massachusetts had done in this regard was a mere nullity." "And if the King," it was asked, " has not seen it proper to nullify all those acts of government what have the plaintiffs to do in the case ?" It seemed "necessary that all should be deemed valid, or all void ; for by what rule " could " a distinction be fixed ?" Indeed, so
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HISTORY OF CONCORD.
far had the king been from imputing usurpation to Massachusetts in this respect, or annulling its acts, that he had approved and confirmed the important one of chartering the township of Rumford. " Besides, the settlement of the line was," as the king himself had declared, " to settle the jurisdiction, not to affect private property." The acts done by either government within its limits, " before the settlement," were to " be held valid to all intents, to avoid that confusion which the contrary notion would necessarily introduce," by " connecting ideas which have no necessary connection "; namely, " that the rights of government and the rights of property are always united, or that the latter have a necessary dependence on the former " ;- a notion, " which, with respect to this very line," had, " in fact, stirred a multi- tude of suits. If this opinion was true, the jurisdiction of a govern- ment ought never to be altered, without first hearing all parties hav- ing any real estate between the old and the new line. In what case of this nature was this ever done?" And yet, according to this notion, the alteration of a line, "without hearing such parties, and determining their respective rights, would be productive of the great- est mischief to private persons " holding real estate under " the gov- ernment whose jurisdiction should be contracted, by exposing them " to ruinous litigation, if not to ruin itself. From such considerations, the futility of the plaintiffs' objection to the defendant's title in this respect became apparent, as well as the soundness of the position "that the grants made by Massachusetts before settlement of the " boundary " line, within the jurisdiction " which that province "then had in fact, as well as other acts of government," could not but " be held good-the grant under which the defendant " held "among the rest."
Nor did the defense fail cogently to enforce the fact that the gran- tees of Penacook had made the most of their title and possession. It was earnestly set forth that, "notwithstanding their distance from other settlements within, and with none without them "; notwith- standing " the hardships and difficulties necessarily " attending " those who first sit down upon land in a perfect wilderness ; and especially," notwithstanding " the danger, expense, and fatigue of an Indian war, and other discouragements,-these settlers " had " stood their ground ever since their first entry "; had " persevered in their resolution "; had " planted a fine town, supplied themselves and many others with provisions, afforded other places both defence and sustenance, and " were " likely to be a great advantage to the prov- ince of New-Hampshire in general." "Yet these," it was indignantly declared, "are the people whom the proprietors of Bow would eject ; would oust, not only of their all, but of that all they have thus dearly
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THE BOW CONTROVERSY.
purchased." These proprietors would now " cruelly ravish " from such a people " all of their improvements, after they themselves, with folded arms and indolence, have stood by a long time, and seen the others, with the greatest toil and expense, make these improvements. For to this day, these proprietors of Bow have not settled five fami- lies within their whole township. They have not in the run of twenty years done so much toward settling a plantation as they might have done, and as the others did in two years; yet they are so partial to themselves, so blinded by interest, as to think, that, because they once run a line round this land, above twenty years ago, they have an indefeasible right to it, which yet they are unwilling to have brought to the test, and decided fairly in the cheapest way, but en- deavor, by piecemeal, to destroy the possessors." For they prosecute " a great number of actions, each for a small parcel of land, that may prevent an appeal home, and that they may have the advantage of the ignorance and prejudice of common juries." Besides, they have " in view to weary out and dishearten the defendants, who live at a great distance from Portsmouth, where all the courts are held, with the expense of charges occasioned them by such a number of suits; whereas they might as well have taken an action for all that lies in common, in the name of the proprietors of Bow, against the proprie- tors of Rumford, as well as the action against the present defendant, and others of the like kind. In fine, it seems they have set their eyes and hearts upon this vineyard, and perfas aut nefas, they must have it."
The case was summed up in the following 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 asserting their claim nor attempting to settle any other part of their lands. 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. The government of New Hampshire did not extend to the place where these lands lay on the westerly side of Merrimack river, and therefore no right could be derived from " that government ; " and if the government had reached so far, the Crown had long before divested itself of all right to the soil, which was afterwards in Sir Henry Roswell " and others, or in those holding by grant from them. If that was not the case, it was Mr. Mason's right, or those who have his right, from whom the plain- tiffs have derived no title, because the defendant was in possession at the time of making the deed and release aforesaid. If the relcase operates as to these lands, it is in favor of the defendant. The de-
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fendant has a good right under the government of the Massachusetts Bay, as" that province "had the jurisdiction in fact, and moreover had the right of the soil by the deed and other matters aforesaid. Add to all this, that whoever settles land in the wilderness, 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 it 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 defend- ant in this case may, with the same propriety, 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 who have actions in the courts under continuance."
Such being the state of the case in the action against John Mer- rill, and in others like it, one finds the results in the New Hamp- shire courts fitly characterized by Judge Pickering as having " been against common right, the common known principles of law, and plain common sense," and obtained by the plaintiffs, on verdicts of juries in their interest, and " entire strangers to these things, or under the influence of a principle worse than ignorance." There was no hope of honest treatment for the harassed settlers of Rum- ford, in the courts of New Hampshire; only in England, if any- where, could they hope for a fair hearing of their cause. Accord- ingly, on the 12th of February, 1753, the inhabitants appointed Reverend Timothy Walker and Benjamin Rolfe, Esq., as their agents, to represent to the king their unhappy condition, oppressed as they were by unfair litigation, and deprived of all corporate privileges. It was determined that Mr. Walker should go to Eng- land, and there in person urge their appeal for justice. To forward this purpose, the general court of Massachusetts, upon petition, granted one hundred pounds sterling, and also instructed Mr. Bollan, the Massachusetts agent in England, " to use his endeavors to obtain such determination of His Majesty in Council as should quiet the grantees of lands from that province, in their possessions."1 To this movement not only the proprietors and inhabitants of Rumford contributed, but also the troubled settlers of Suncook. Though the case of the latter differed from that of the former, inasmuch as Sun- cook's grant was subsequent to that of Bow; yet in the actual pre- occupancy of the soil by enterprising settlers, and the harassment of these by the non-resident proprietors of Bow, the two settlements were equally worthy of the royal interposition.
1 Annals of Concord, 33.
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THE BOW CONTROVERSY.
Mr. Walker went to England in the fall of 1753, and, without delay, presented " to the King's Most Excellent Majesty in Council " a petition 1 in behalf of himself and his co-agent Rolfe, and "the other inhabitants of Rumford." The petition, drawn up in effective terms, by the minister himself, described the granting of "the lands contained in Rumford," and "the bringing forward of the settle- ment " under many difficulties, including " war with the French and Indians," until "a considerable town " had been made, " consisting of more than eighty houses, and as many good farms;" and having, since 1730, the petitioner, as the " regularly ordained minister of the church and parish." It was further represented that the peti- tioners, though unexpectedly thrown, "by the late determination of the boundary line, within the province of New-Hampshire" and though denied their request to " be restored to the province of the Massachusetts Bay," had yet "dutifully submitted to" the new jurisdiction, " and with so much the greater cheerfulness, because they were well informed that " the king had "been graciously pleased to declare that however the jurisdiction of the two gov- ernments might be altered, private property should not be affected thereby. But notwithstanding this most gracious declaration " the "poor petitioners " had "for several years past been grievously harassed by divers persons, under color of a grant made by the governor and council of New-Hampshire, in the year 1727, to sundry persons and their successors, now called the Proprietors of Bow. The said grant of Bow was," however, "not only posterior to that of Rumford, but " was "extremely vague and uncertain as to its bounds." Moreover, " notwithstanding the grant was made so many years ago, there " were "but three or four families settled upon it, and those since the end of the late French war; the proprietors choosing rather to distress " the "petitioners by forcing them out of the valuable improvements they and their predecessors " had " made at the expense of their blood and treasure, than to be at the charge of making any themselves." "But," as was urged, "the petitioners' greatest misfortune " was " that they " could "not have a fair impartial trial," since the province authorities, civil and judi- cial, were all in the interest of their adversaries. Besides, "all the actions that " had "hitherto been brought " were each designedly "of so small value that no appeals could be taken from the judg- ments therein, to the King in Council ; and if it were otherwise, the charges that would attend such appeals would be greater than the value of the land, or than " what " the party defending his title would be able to pay"; so that " without " the king's " gracious
1 Bouton's Concord, 214-15.
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interposition " the petitioners would be compelled to give up their estates. The further complaint was made that the petitioners, since the expiration of the district act near four years ago, had been with- out any town privileges, notwithstanding their repeated applications to the governor and council ; and they were not able to raise moneys for the support of their minister, and the necessary charges of their school and poor, and other purposes, nor had they had any town officers for upholding government and order. Under these their distresses the petitioners entreated the king's gracious interposition in their behalf, and that he would be pleased to appoint disinter- ested, judicious persons to hear and determine their cause, and that the expense necessarily attending the multiplied lawsuits as then managed, might be prevented; or, finally, to grant them such other relief as to his great wisdom and goodness should seem meet.
This petition, and Judge Pickering's lucid statement of the case- much of which has already been cited-so clearly setting forth the grievances of Rumford, were well adapted to gain a special hearing in a test case before the king in council, the regular appeal of which thither could not be obtained from the provincial courts. Sanction was given for such a hearing in the case of John Merrill, which was put into the hands of Sir William Murray-soon to become Lord Mansfield-whose services, as counsel, Mr. Walker was fortunate enough to secure. Sir William-at that time forty-eight years of age-stood, in his wide and thorough knowledge of the law, and in his powers of eloquent advocacy, at the head of the bar in England.1 He had been for eleven years solicitor-general, and as a member of the Pelham administration was one of the most conspicuous figures in the parliamentary history of the time. This accomplished lawyer and statesman took up with zeal the cause of the oppressed farmers of Rumford. In the autumn of 1753 an order for a hearing was procured. But the hearing did not come off immediately, and Mr. Walker returned home with encouragement for his people. The agents of the Bow proprietors made preparation by petitioning the general assembly, in July, 1754, to lend them the sum of one hundred pounds sterling money, to enable them to carry on a suit before His Majesty in Council now depending there between one Merrill and the said proprietors.2 The prayer was granted. In October, of that year, Mr. Walker was still at home from his first visit, though about to set out upon his second; while Rolfe, his efficient co-worker, was petitioning the general court of Massachu- setts for additional pecuniary assistance, which was promptly ren- dered.
1 Enc. Brit., Vol. XV, 498-9.
Prov. Papers, Vol. VI, 294; " Bow," in History of Belknap and Merrimack Counties, 269.
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THE BOW CONTROVERSY.
Mr. Walker returned to England, and was there in the winter of 1754-'55 ; and on the 24th of the succeeding June, the Merrill case was decided by the king in council. The decision was a reversal of the judgment that stood against 1 the defendant in New Hampshire, as recovered by the proprietors of Bow, on the first Tuesday of August, 1753. It is the testimony of Lord Mansfield himself, that " the false laying out of Bow " was, in truth, the only point consid- ered in determining the case. "The Lords not being clear as to the other point," namely, " the order of the King respecting private prop- erty, laid hold of " the former, "and, merely out of tenderness to possession and cultivation, which, they said, in America was almost everything,-determined as they did."1 A royal order confirmed the determination, and its reversal of the New Hampshire judgment, -as in the subsequent case of appeal in 1762; but as it did not, in express terms, extend beyond the premises sned for, the adversaries did not cease from troubling with further litigation. It may be per- mitted here to add the fact that the mission of Rumford's agent in this case, and the substantial sympathy manifested by Massachusetts, alarmed somewhat the New Hampshire government, so that in Feb- ruary, 1754, Mr. Thomlinson, the agent in London, was "put on the watch " of Mr. Walker, for fear that the latter might, under the instruction of the government of the Massachusetts Bay, " manage the affair " upon which he was sent, so as to "affect the province as such."2 The alarm thus vaguely expressed in the assembly's vote seems to have resembled not a little that of the persons in the proverb, who flee when no man pursueth.
In 1753 the New Hampshire government renewed the exaction of the province tax, and thus was opened another troublesome contro- versy for Rumford and Suncook. This act was one step more in a policy of compelling the settlements which Massachusetts had founded to become a part of Bow. On the 30th of May of that year a war- rant was issued for the assessment and collection of sixty pounds on all polls and estates ratable by law within the township of Bow. This warrant was followed by another, on the 26th of July, for raising a tax of thirty-one pounds four shillings. These taxes were to be col- lected and paid into the province treasury by the 25th of December ensuing ; and the persons on whom they were to be laid were, with three or four exceptions, inhabitants of Rumford and Suncook.3 On the 30th of June, between the dates of the warrants,-since hith- erto Bow had never had a regular town meeting,-a special act was
1 Petition of Timothy Walker, Jr., and others, June 26, 1774, to general court of Massachu- setts, for an equivalent to Penacook grant, N. H. State Papers, Vol. XXIV, 61-2.
2 Prov. Papers, Vol. VI, 253.
3 Bouton's Concord, 211.
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passed, appointing Daniel Pierce, the province recorder, and an agent of the Bow proprietors, to call such a meeting. Accordingly, one was held on the 25th of July, at which Moses Foster, John Coffin, Richard Eastman, David Abbot, and William Moor were chosen selectmen. They were all of Suncook, for it is safe to con- clude that nobody from Rumford took part in the mecting. To these selectmen fell the task of assessing the taxes ordered. But they found it too hard for them to do, for reasons assigned, on the 26th of October, in their petition to the province authorities, and in the following terms : ".We are at a loss as to the boundaries of said Bow, and, consequently, do not know who the inhabitants are that we are to assess said sums upon. The proprietors of Bow, in running out the bounds of said town have, as we conceive, altered their bounds several times ; and further, one of those gentlemen that purchased Captain Tufton Mason's right to the lands in said Province has given it as his opinion, that said proprietors have not as yet run out the lands of said town agreeable to their charter, but that their southeast side line should be carried up about three quarters of a mile further toward the northwest ; and there is lately-by his order-a fence erected along some miles, near about said place, designed-as we suppose-as a division fence between said Bow and land yet claimed by said purchasers. On the other hand, the inhabitants of Penny- cook, formerly erected into a district by a special act of the General Assembly of this Province,-though they object nothing against sub- mitting to order of government,-refuse to give us an invoice of their estates (that is, such of them as we have asked for the same), alleging that they do not lie in Bow, and the said Assembly did as good as declare this in their said district act. So that, upon the whole, we humbly conceive . that, should we proceed to assess the aforesaid sums on such as we may have conceived are the inhabitants of said Bow, many would refuse to pay the sums that should be so assessed on them; and, consequently, that we should be thrown into so many lawsuits as would, in all probability, ruin us as to our estates. Therefore, we humbly crave that Your Excellency and Honors would fix the boundaries of Bow, or otherwise give us such directions as, if followed by us, we may obey the commands laid on us without detriment to ourselves." 1
Nothing came of the petition, or of this attempt at imposing a tax. 'In 1755 another attempt was made to organize the town of Bow, by merging therein Rumford and Suncook, and taxing their inhabitants as belonging to Bow. On the 24th of January was passed an act enti-
1 Bouton's Concord, 212, 213.
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THE BOW CONTROVERSY.
tled "An act for raising and collecting sundry sums in bills of credit on this Province due from sundry places unto the government, which can- not be raised and collected for want of a law to enable some person or persons to collect the same." 1 To make application of this act to Bow, Jonathan Lovewell was appointed to warn a town-meeting to be held there, on the 22d of April.2 On the 21st of May he reported to the authorities that he had notified the inhabitants of the town of Bow of the time and place for holding a town-meeting, and that he did attend the same at the time and place appointed, but the inhabitants neglected to attend, except one man.3 In resentment for this refusal of the men of Rumford and Suncook to appropriate the name, "The inhabitants of Bow," at the expense of former identity, and to the peril of former rights and advantages, an act was passed by the pro- vincial legislature, on the 5th of July, entitled " An act for taxing Bow." This " Bow act," as it was called, after declaring "that in contempt of the law, and in defiance of the government, the said town of Bow refused to meet at the time and place appointed," etc., designated three men-two of Rumford and one of Suncook- as assessors ; namely, " Ezra Carter and Moses Foster, Esqs., and John Chandler, Gentleman, all of said Bow." These were to "assess
the polls and estates within the said town of Bow,
.
the sum
of five hundred and eighty pounds and sixteen shillings, new tenor bills of public credit "; all " to be completed, and returned to the treas- urer of the province, within two months after date of the act." They were to require, upon ten days' notice, true lists of polls and ratable estates, and to "doom " all persons refusing to give in such lists. If the assessors should fail or refuse to do their duty, the province treas- urer was required " to issue his warrant of distress, directed to the sheriff," to levy the said sum of five hundred and eighty pounds and sixteen shillings "on their goods and chattels and lands "; and, "in want thereof, on their body." Timothy Walker,4 of Rumford, and John Noyes, of Suncook, were appointed collectors to collect and pay in the sums on their respective lists, "on penalty of forfciting and paying " the same themselves. The compensation offered for this disagreeable service was as ridiculously inadequate as some of the other provisions of the act were needlessly harsh ; the assessors being " entitled to receive each, seven pounds and ten shillings, new tenor," and the collectors, " fifteen pounds, new tenor, cach." 5
It was impracticable for the assessors to meet the requisitions imposed upon them by the act, and hence they became liable to its
1 Prov. Papers, Vol. VI, 347-8.
2 Bouton's Concord, 216.
3 Coun. Jour., Prov. Papers, Vol. VI, 378,
‘ Not the minister or his son.
" See act in office of secretary of state; also, Bouton's Concord, 217.
15
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HISTORY OF CONCORD.
penalties. On the 19th of February, 1756, the house, alleging that they had refused and neglected to make the assessment, ordered " that the treasurer immediately issue out his extent " against them ; and " a copy of the order was sent to the treasurer by Clement March, Esq.," 1 who was doubtless a willing messenger, for he had been prominent in the Bow litigation, and, among other doings, had brought an action against Ebenezer Virgin, which was entered at the same term of court, as that against John Merrill.2 On the 18th of February, the day before this action was taken by the house against the assessors, a petition from two of them, Ezra Carter and John Chandler, in behalf of themselves and the inhabitants of Rumford, had been presented ; 3 but, for some reason, not till the 19th, and after their condemnation, was it read, and laid over for further con- sideration.3 The petition showed 3 that one half the time prescribed for completing and returning the assessment was lapsed before the assessors had sight of the act ; and it was then the most busy season in the whole year, and the cattle on which part of the tax was to be laid were out in the woods, and it was not known whether they were living, or killed by the enemy, which rendered it almost impracticable to comply with the letter of the act. The assessors, for the remedying of these inconveniences, and also in hopes of obtaining some altera- tions beneficial to themselves and the people they were to tax, would have addressed the general assembly long before, but their distance was such that they seldom heard of the adjournments and proroga- tions thereof before it was too late. Several times had been pitclied upon for said purpose, but before they arrived the assembly was adjourned. But, at last, having an opportunity to lay the affair be- fore the authorities, they humbly hoped for consideration of their case and compassion for their circumstances. They could uprightly answer for themselves, and had reason to believe that they spoke the united sense of the people of Rumford that they ought to pay their part of the public charges of the government; but they humbly prayed that they might have the privileges of a town or district, in order to raise money for the maintenance of their minister, school, and poor, and the repair of highways, for the want of which, for sev- eral years, the inhabitants had been great sufferers. The petitioners continued : " We apprehend we are doomed much beyond our just proportion of the charge, . . . for want of a true list of our polls and estates, which, we believe, was never laid before the Assembly. We have been unavoidably subjected to great loss of time, almost
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