USA > New Hampshire > History of New Hampshire, Volume I > Part 10
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One of the first acts of the council was to address a letter to the General Court at Boston, in which they make it plain that it was not by their own act or choice that they were separated from the government of Massachusetts. All of them had held high offices under that government, and had been thus far enabled to hold on to their lands. Some aid also had been given them in the war with the Indians. Massachusetts allowed them to do about as they pleased so long as they upheld Puritan doctrines and customs and acknowledged the jurisdiction of the Bay Colony. In this letter they expressed their personal feelings, rather than those of the hundreds of planters whom they practically disfranchised :
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Portsmouth, in ye province of New-Hampshire, May 25, 1680.
Much Honoured-The late turn of Providence made amongst us, by the all ordering Being, hath given occasion for this present application, wherein we crave leave, as we are in duty bound-Ist, Thankfully to acknowledge your care for us and kindness while we dwelt under your shadow, owning ourselves deeply obliged that you were pleased upon our earnest request and supplication to take us under your government, and ruled us well whilst we so remained, so that we cannot give the least countenance to those reflections that have been cast upon you, as if you had dealt injuriously with us.
2dly. That no dissatisfaction with your government, but merely our .submission to Divine Providence, to his Majesty's commands, to whom we owe allegiance, without any seeking of our own, or desire of change was the only cause of our complying with that present separation from you that we are now under; but should have heartily rejoiced if it had seemed good to the Lord and his Majesty, to have settled us in the same capacity as formerly. And withal we hold ourselves bound to signify, that it is our most unfeigned desire that such a mutual correspondence betwixt us may be settled as may tend to the glory of God, the honour of his Majesty, whose subjects we all are, and the promoting of the common interest and defence against the common enemy; that thereby our hands be strengthened, being of ourselves weak and few in number, and that if there be opportunity to be any wise serviceable to you, we may show how ready we are thankfully to embrace the same. Thus wishing the presence of God to be with you in all your administrations, and craving the benefit of your prayers and endeavours for a blessing upon the heads and hearts of us who are separated from our brethren, We subscribe
JOHN CUTT, President.
With consent of the Council & general Assembly.
On the 29th of March the president and council had ad- dressed a letter to King Charles II, obsequiously submitting to be separated from "that shadow of your Majesty's authority and government under which we had long found protection, especially in the late war with the barbarous natives." They express themselves as "deeply sensible of the disadvantages likely to accrue to your Majesty's provinces and ourselves, more especially by the multiplying of small and weak govern- ments, unfit either for offense or defense." They express the hope of royal protection against any pretended claimers to
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their soil and mildly caution him against malevolent spirits, disposed to misrepresent them.
In a second letter to the king, dated June 11, 1680, they again allude to "pretended claimers to our soil" and reiterate their own claims, based upon purchase from the Indians, the natural proprietors thereof, long and quiet possession, and defense of it against a barbarous enemy "with our lives and estates." They humbly suggest that the allowance of appeals, mentioned in the king's commission, may obstruct justice. If once they could do away with this safeguard to personal rights, they could do what they pleased with the claims of Mason. It would be like trying a case of larceny with the thieves themselves as judge, jury and witnesses, and no appeal allowed from their decision in their own favor. As for purchase of their lands from the Indians, repeatedly stated in various letters and papers, there is no record of such purchases, except in the sale of Exeter by Wheelwright and company from four Indian chiefs, and some sworn testimony that Dover men bought land of the Indians down as far as Lamprey river. We find no evidence whatever that Portsmouth and Hampton were so purchased. The claim may rest upon tradition then well known. One might as justly buy a township or a county of an Apache chieftain in Arizona for a blanket and then claim that it all belonged to such a purchaser, in opposition to the claim of the government of the United States.
A fast had been ordered for the seventeenth day of March because of sundry tokens of divine displeasure, such as the sickness of President Cutt and the appearance of "that awful portentous blazing star, usually foreboding sore calamity to the beholders thereof," thus showing the superstitious feeling that the wisest and best men of the time had. They disclose also an inward trembling because of the "great thoughts of heart in our brethren and neighbors as they are circumstanced," for they did not dare to put the case more strongly against the decision of the king, for whose health and prosperity they urge the people to pray. All servile labor was inhibited, and the people were exhorted to "fervently wrestle with the Lord."
The laws framed by the General Assembly and approved by the president and council bear date of March 16, 1680, but
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in the letter to the king, dated June II of the same year, they say,
According to your Majesty's command, we have, with our general assembly, been considering of such laws and orders as do, by divine favor, preserve the peace, and are to the satisfaction of your majesty's good subjects here, in all which we have had a special regard to the statute book your majesty was pleased to honor us with, for which, together with the seal of your province, we return most humble and hearty thanks; but such has been the hurry of our necessary occasions, and such is the shortness of the summer (the only season to prepare for a long winter) that we have not been capable of sitting so long as to frame and finish aught that we judge worthy to be presented to your royal view; but shall, as in duty bound, give as speedy a dispatch to the affair as possible.
It seems that the laws as first framed lacked mature con- sideration and the framers thereof were in doubt concerning the substance and form of some of them. For this reason, perhaps, they were ready to listen to objections raised against some of them after the arrival of Governor Cranfield and Secretary Chamberlain. A comparison of the first code of laws, made in 1680, with those made in 1682 reveals some interesting modifications, softening the severity of some pen- alties. It has been often said that the laws were modeled after the laws of England, but it would be more exact to say that they were modeled after those of the Plymouth and Massa- chusetts Bay Colonies, which, in criminal matters at least, were almost a transcript of the Mosaic code.3
The preamble, after an allusion to the Liberties, Immuni- ties and Properties such as belong to free borne Englishmen, makes a broad statement, equivalent to a Bill of Rights or compact Constitution, claimed by themselves rather than granted by the king. "It is ordered and enacted by this Generall Assembly and the authority thereof, that no Act, Imposition, Law or Ordinance be made or imposed upon us but such as shall be made by the said Assembly and approved by the President and Council from time to time. That Justice and Right
3 For an able paper on the history of colonial laws of N. H. see address of John M. Shirley, Esq., in proceedings of N. H. Hist. Society, Vol. I, pp. 232-333.
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be equally and impartially administered unto all; not sold, denied or causelessly deferred unto any." Thus they assumed to be a law unto themselves. They wanted to make all their laws and suffer no appeal to the king. This could hardly be called a royal government. Two years later this was changed to the following, "Be it enacted by the Governor, and with the advice and consent of the Council and Assembly, and it is hereby enacted by the authority aforesaid, that justice and right be equally and impartially administered unto all men, not sold, denied, or causelessly deferred unto any."
Sixteen crimes were punishable with death, namely, idolatry, blasphemy, treason, public rebellion, wilful murder, man- slaughter, murder occasioned by passionate anger, witchcraft, beastiality, sodomy, false witness for the purpose of taking away a man's life, man-stealing, cursing or smiting of parents, extreme cases of rebellion against parental authority as testified by the parents themselves, rape, and arson. The low moral tone of the age is shown in fixing "the age of consent" at ten years. If a maid above that age consented, the crime could not be called rape. Of course some of these offenses never could be ferreted out and proved, and the laws were dead letters upon the statute books. What parents would bring a rebellious son of sixteen years of age before the magistrates and ask that the son be put to death on their testimony? If all blasphemers were punished as the letter of the law required, the population of New Hampshire would have grown sparser with great rapidity.
The law against adultery was specially severe. Both parties were to be publicly whipped twice, once when the court was sitting, and once at such time and place as the court should order, "not exceeding 40 lashes," and also both parties were to wear the capital letters A D cut out in cloth and sewed on the arms or back of their uppermost garments; in case they neglected to do so, they were to be whipped as often as they were found without such letters. In the year 1682 a fine of ten pounds was substituted for the whipping. Fornication was made punishable "either by injoining marriage, or fine or corporal punishment, or all or any of these," as the judges might determine. This gave
4 N. H. Prov. Papers, Vol. I, pp. 382, 444.
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dangerous power to the judges, and in 1682 the penalty was fixed at a fine of five pounds. If children were born too soon after marriage, the parents were fined fifty shillings apiece or publicly whipped. The severity of such laws did not prevent nor conceal the evil practices. Like fines for drunkenness, they only gave fees to the courts.
The enforced wearing of capital letters upon the garments was meant to hold the criminal up to public scorn and derision and thus act as a preventive of crime. The burglar, for the first offence, was branded on the right hand or forehead with the letter B. For the third offence he might be put to death. It is not known whether any criminal ever actually wore such letters in New Hampshire and thus publicly advertised his disgrace, although some were so sentenced. It is difficult to believe that such methods of punishment ever reformed a criminal, but the reform of evildoers was never taken into consideration in the criminal courts of those times. To put a violator of law on pro- bation would have been considered extreme folly. The majesty of the law must be vindicated, if half the population had to be whipped or go to jail.
The President and Council with the General Assembly were a supreme court of judicature, and three inferior courts were held at Portsmouth, Dover and Hampton. All trials were by a jury of twelve men, according to English custom, with right of either party to challenge any juryman for just and reasonable cause, and in case of life and death the prisoner had liberty to except against six or eight of the jury without giving any reason for his exceptions.
Only freemen had the right to vote, and the conditions of becoming a freeman were, that one should be an Englishman and a protestant, a settled inhabitant and freeholder in some town in the province, of the age of twenty-four years, not vicious in life but of honest and good conversation, having twenty pounds of rateable estate and having taken the oath of allegiance to his Majesty and to no other. Such persons might vote for officers of the province and of their respective towns. It was in the power of the President and Council to determine who met all these conditions, a dangerous power, the abuse of which was complained of.
One of the general laws seems to have been enacted for the
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purpose of excluding the claims of Robert Mason. "To prevent contention that may arise amongst us by reason of the late change of government it is ordered by this Assembly and the authority thereof that all land, townships, town grants, with all other grants lying within the limits of this Province, and all other rights and properties shall stand good and are hereby con- firmed to ye towns and persons concerned, in the same state and condition as they did before this late alteration." Any differences or controversies about titles to land were to be finally determined by a jury of twelve men, chosen by the freeman of each town. The revision of the laws made in 1682 declared this method of choosing jurymen to be contrary to the known laws and customs of England, and ordered that jurymen should be empaneled by the sheriff or marshal of the Province, and who- ever was thus legally summoned and returned of the jury and failed to appear without satisfactory excuse should forfeit twenty shillings for his default. The right of determining titles to land, thus summarily assumed, was set aside under the administration of Governor Cranfield, and the government of New Hampshire was taught that it took more than one to make a bargain, and that a majority vote in a town meeting was not enough to quiet the claims of a proprietor to whom lands had been granted by the King of England.
It seems that the whole body of laws enacted during the first year of the royal province, when sent to England for appro- bation, was disallowed, and in 1682 other laws were enacted by "the Honorable, the Governor, with the advice and consent of the Council and General Assembly," in which latter code there were many modifications and omissions of statutes contained in the first. In the first code no authority was acknowledged but the General Assembly. The people of New Hampshire assumed too much, having been taught so to do by the government of Massachusetts. Both colonies had to learn that neither the charter of the latter nor the commission of the former was intended to grant independence of all authority in England, with only a nominal allegiance to the king.
Edward Randolph had been appointed collector, surveyor and searcher of the customs in New England, and he made a deputy of Walter Barefoot, who is called both doctor and captain. The authority of both was denied by the government at Ports-
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mouth, and Mark Hunking brought action against Randolph for seizing his ketch, bound from Maryland to Ireland, which had put in at Portsmouth. He was allowed damages and costs to the amount of thirteen pounds, and an appeal was made by Ran- dolph to the king. He advertised that all vessels should be entered and cleared with Captain Walter Barefoot, whereupon the latter was indicted before the president and council for "having in an high and presumptuous manner set up his majesty's office of customs without leave from the president and council; in contempt of his majesty's authority in this place; for dis- turbing and obstructing his majesty's subjects in passing from harbor to harbor and town to town; and for his insolence in making no other answer to any question propounded to him but "my name is Walter." He was sentenced to pay ten pounds, although both Randolph and Barefoot seem to have been within their rights. The president and council then appointed officers of their own to execute their own orders as to trade. They equally hated Randolph and any interference with what they assumed to be their rights and liberties.
On the thirtieth day of December, 1680, Robert Mason was admitted to a seat in the Council, by virtue of a mandamus from the king, dated October 1, 1680. The royal purpose was thereby to give an opportunity to Mason to press his claim as proprietor of the soil of New Hampshire. The mandamus states that the quit rent to be exacted should not exceed six pence in the pound yearly of every tenant, and nothing previous to June 24, 1679. The president and council were exhorted to settle all claims with him discreetly and equitably. Mason, styling himself lord pro- prietor of the province of New Hampshire, appointed, March 22, 1681, Richard Otis of Cochecho steward of all his lands lying in the township of Dover, as well as Newichawannock. All persons were forbidden to cut and carry away any sort of timber from said lands without license first obtained, threatening a prosecu- tion in England before his majesty in council. Mason and his agents busied themselves in demanding rents, and some persons took from him leases of their lands, and some others were dis- suaded from so doing by members of the council. Mason posted up certain "Declarations," one of which was torn down at Dover by Major Richard Waldern, saying that no such papers should
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be set up to amuse the people. Much uneasiness was felt among the inhabitants. The council summoned Mason to meet with them, which he refused to do. When they threatened to deal with him as an offender, he published a summons to the presi- dent and council to appear before his majesty in three months. A warrant was issued for apprehending him, but he escaped them and returned to England.5
Meanwhile President Cutt had died, April 5, 1680, and Major Richard Waldern succeeded him in office, appointing Captain Elias Stilemen as his deputy, whose place as secretary had been filled by the royal appointment of Richard Chamberlain to that office. The vacancy in the council was filled by the appointment of Richard Waldern Jr. Anthony Nutter succeeded Samuel Dalton at his death. Henry Dow of Hampton was made mar- shal on the resignation of that office by John Roberts.
A vessel belonging to Robert Elliot was seized by Captain Walter Barefoot and his assistants, William Hoskins and Thomas Thurton, acting on the authority of Edward Randolph, collector of customs; yet Barefoot showed no such instructions nor any law or statute to justify his procedure. He was fined twenty pounds. Thomas Thurton, for abusive and contemptuous language, saying that the members of the council were rebels against the king and a parcel of rogues, was sentenced to im- prisonment for one month in Hampton jail and to pay a fine of twenty pounds or be sold by the treasurer for the payment of said fine. A humble petition of his, begging for mercy, is on record. "To pay the sum required he cannot. To be sold runs him upon extremities."6
Richard Chamberlain arrived at Portsmouth December 24, 1680, and was received at the house of President John Cutt, to whom he delivered his commission as secretary of the province and clerk of the council. Four days later the council met and refused to deliver to him the records which were in the hands of Capt. Elias Stileman, the previous secretary. Indeed the duties and fees properly belonging to Chamberlain were dis- tributed by the council among Stileman, who was named Re- corder, Clerk of the Writs and Captain of the fort at Portsmouth,
5 Belknap's Hist. of N. H. Farmer's edition, p. 94.
6 Coll. of N. H. Hist. Society, Vol. VIII, p. 77.
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Samuel Dalton, who performed similar duties at Hampton and Exeter, and Richard Martyn, who took account of all ships and other vessels coming in and going out. These Chamberlain, in his report to the Lords of Trade and Plantations, calls "parcel- Secretaries or Registrars of the Province," who shared the fees and profits that rightly pertained to the office of secretary. Chamberlain complained that the fees he received were so in- considerable that they were not worth naming, and that no salary was allowed him. It seems thus to have been the policy of the Council to starve the young secretary out, he having, as he says, but the bare name of an office. The council also sought to impose upon him an oath of secrecy, so that nothing of their deliberations should be recorded or reported to the king except what they agreed upon. This he would not consent to, and then they asked him to withdraw, whenever they had any private business, saying that "they knew what they had to do." He also reports that the council proposed to Robert Mason at his first coming that each town of the province should raise a yearly rent payable to him under their management, but that he insisted upon dealing with each tenant separately and directly. In this proposal they appear to have acknowledged that he had a legal claim to annual rents, though in all their representations to the king and his council they denied the justice of such claim with many arguments. Chamberlain says that "it is nothing but interest that makes them stand out, and because they have given to one another great tracts of land of Mr. Mason's and have sold land to many persons without legal title and do apprehend ye purchasers, upon eviction or new agreement, will come upon them for ye purchase money." Here the whole truth seems to be stated in a nutshell. Very many of the planters were ready to make terms with Mr. Mason, had it not been for the dissuasion of the leading men, especially Richard Waldern and Richard Martyn. Reports were circulated that Mason designed to en- slave the people, to make them pay two shillings for every chimney and ten shillings a year for every room they kept fire in, that they should neither fish nor fowl, and many such state- ments calculated to arouse the opposition of the small land- owners. Mr. Mason reported to the Privy Council that half the inhabitants of the province, and those of the better sort, came to him to have their lands confirmed, while the council of New
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Hampshire reported at the same time to the king that the people are unwilling to live under the impositions which are in- evitable under such a proprietor as Mason, and that these are "the generality of the whole province that are householders and men of any principles, port, or estate." Thus the witnesses con- tradict one another repeatedly, and the historian must act as judge in determining whose testimony should be received. Pri- vate prejudices warped judgments and twisted statements, but it seems clear that a small coterie of wealthy men at Portsmouth, greatly aided by Major Richard Waldern, sought by sophistical arguments and misrepresentations to hold on to property illegally gained. The justice of the law is not here considered, but, ad- mitting that the king of England had right to grant land in New England to whomsoever he would at the beginning, as was generally admitted at that time, then Robert Mason's claim was valid and confirmed again and again by the highest legal authority in England.
It may be well to note the condition of the province at this time. In 1671 Robert Mason wrote that "New Hampshire is a place the best improved for land and most populated of any in those parts; abounding plentifully with corn, cattle, timber and fish ; and the people live generally very comfortably and happy ; having a great trade to all parts, and store of shipping at their town, Portsmouth, which exports and imports yearly some thousands of tons of goods, of their own growth and foreign. Goods exported yearly are 20,000 tons of deals and pipestaves, 10,000 quintals of fish, ten shiploads of masts, and several thou- sands of beaver and other skins. The imports are 300 tons of wine and brandy, 200 tons of goods from the Leeward Islands, and 20,000 tons of salts." In 1684, after the first Indian war, Simon Bradstreet wrote to Edward Randolph thus,-"It is no small grief to us in Massachusetts to hear and see the miserable condition of our neighbors in New Hampshire; once a hopeful and flourishing plantation, but now in a manner undone,-no face of trade, nor care for anything else, their own vessels being afraid to come into their own ports, as some of them have de- clared unto myself." These are partisan statements, and the middle ground of truth may possibly be found in a report of the council to the Lords of Trade and Plantations in 1681, as fol- lows,-
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There is at ye Great Island in Portsmouth at ye Little harbour mouth a ffort well enough situated, but for ye present too weak & Insufficient for the Defence of ye place, The Guns (being eleven in number) are small, none exceeding a Sacre, nor above 2100 waight; and ye people too poor to make defence suitable to ye occasion that may happen for ye ffort. These Guns were brought & the ffortification erected at the proper charges of the Towns of Dover & Portsmouth, at the beginning of ye first Dutch war, about the Year 1665, in obedience to His Majesty's Commands, in His Letter to ye Government, under which this Province then was. There are five Guns more lying at the upper part of Portsmouth purchased by private persons for their security and defence against the Indians in the late war with them; and wherof the owners may dispose at their pleasure. To supply ye aforesaid defect & weakness of the Guns & ffort We humbly supplicate His Majesty to send us such Guns as shall be more serviceable, with powder and shot agreeable. . The trade of this Province exported by ye inhabitants of its own produce is in masts, planks & boards, staves & all other lumber. Which at present is of little value in other plantacons, to which they are transported; So that we see no other way for the advantage of the Trade, unless His Majesty please to make our River of Pascataqua a free Port. Importacon by strangers, of little value; ships commonly selling ye cargoes in other Governments. And if they come here usually come empty, to fill with lumber: but if hapily they are at any time loaden with any fish, it is brought from other parts, there being none made in our Province.
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