USA > New Hampshire > History of New Hampshire, from its first discovery to the year 1830; with dissertations upon the rise of opinions and institutions, the growth of agriculture and manufactures, and the influence of leading families and distinguished men, to the year 1874; > Part 8
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In the spring of 1678 commissioners were appointed to make a formal treaty of peace with Squando and other eastern chiefs. They met at Casco, now Portland. It was stipulated in the treaty that the inhabitants should return to their native homes on condition of paying one peck of corn, for each family, annu- ally, to the Indians, and one bushel to Major Pendleton who was a great proprietor. The Indian title to the lands of Maine was thus recognized, and the settlers were humiliated by the pay- ment of tribute to their savage foes. It was the best treaty that could then be made. The war had lasted three years ; and while Philip had been slain and his allies dispersed, the eastern Ind- ians had become formidable. Famine was staring the colonists in the face ; their foes were too remote and too much scattered to allow of systematic warfare; therefore, they cheerfully sub- mitted to these degrading conditions. In Maine they virtually
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acknowledged the supremacy of the aborigines. New Hamp- shire retained its independence, though greatly crippled in wealth and men.
The whole burden of the war fell upon the colonists. They were too proud or too wary to ask aid of England, lest by so doing they should encourage royal encroachments. Massachu- setts had long been accused of aiming at independence of the crown, and New Hampshire was in full sympathy with her sister republic.
During all this period of sorrow and distress the air and the earth were full of signs, omens, portents and wonders. Modern science had not yet banished superstition. People were too much occupied to study nature's laws. They had not leisure to become wise and they were too much distracted to be rational. A majority of the men at that age believed the atmosphere to be peopled with spirits who brought with them
"Airs from heaven or blasts from hell."
Our fathers could, conscientiously, say with Alonzo, in the play :
"Methought the billows spoke, and told me of it : The winds did sing it to me, and the thunder, That deep and dreadful organ-pipe, pronounced"
the coming woe.
" Philip's war commenced in June, 1675, and lasted three years. Six hundred of the inhabitants of New England were cut off, twelve or thirteen towns utterly destroyed, and six hundred build- ings consumed by fire. It is computed that about one man in eleven, out of all capable of bearing arms, was killed, and every eleventh family burnt out ; that one eleventh of the whole militia and of all the buildings of the United Colony were swept off by this war. "
An extract from a letter of Major Waldron, dated April 18, 1677, reveals the distress occasioned by Indian depredations in New Hampshire and Maine :
"IIth instant, 2 men more kill'd at Wells. 12th, 2 men, one woman and 4 children killed at York & 2 houses burnt. 13th, a house burnt at Kit- tery and 2 old people taken captive by Simon and 3 more, but they gave ym their liberty again without any damage to their psons. 14th, a house sur- prised on south side Piscatay and 2 young women carried away thence. 16th, a man killed at Greenland and his house burnt, another sett on fire, but ye Enemy was beaten off & ye fire put out by some of our men who then recov- ed, also, one of the young women taken 2 days before who sts there was but 4 Indians ; they run skulking about in small p'ties like wolves. We have had p't's of men after them in all quarters w'ch have sometimes recovered something they have stolen, but can't certainly say they have killed any of ym; Capt ffrost is after them in Yorkshire."
It would require the most exalted christian excellence to love such enemies, or spare them when once captured.
NOTE .- Major Waldron was one of the great men in the early history of New Hampshire. He held, at different times, every important office in the Province. He acted in every public
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station with great fidelity, sometimes with unpardonable severity. He was at first commander of the militia, then speaker of the assembly, councilor, acting governor, and the only chief justice of New Hampshire who ever sentenced a citizen for high treason. Edward Gove, of Hampton, was tried by him for rebellion. His sentence was drawn up in the barbarous lan- guage of the old English law. He was ordered "to be carried back to the place from whence he came, and from thence to be drawn to the place of execution and there hanged by the neck, and cut down alive;" and it was further ordered "that his entrails be taken out and burnt before his face, and his head cut off, and his body divided into four quarters, and his head and quarters disposed of at the King's pleasure." This horrible decree was commuted to imprisonment, and the zealous opponent of a tyrannical governor was finally pardoned and his property restored.
CHAPTER XXI.
RENEWAL OF MASON'S CLAIM.
We, who live in "ceiled houses," with better furniture than kings could command three hundred years ago, can scarcely conceive of the hardships endured by our ancestors in New Hampshire during the first century after its settlement. From the day when Philip first lighted the torch of war, in 1675, there were continued hostilities, with brief intervals of peace, for fifty years ; and the citizen who had lived through that period had endured "hardness as a good soldier" longer than the Roman veteran when he was released from active service. But our fathers found no discharge in that war. They were compelled to fight on for their hearths and altars ; for their children and country. There fell upon them, at once, a storm of woes such as can scarcely be paralleled in history. Indians lay in wait for their blood ; proprietors sought to rob them of their property ; monarchs usurped their government; pestilence thinned their ranks ; famine wasted their strength, and Frenchmen sent sav- ages to murder their families. This combination of destructive agents might be very aptly symbolized by the flying and creep- ing things that devoured the land of ancient Israel, when the prophet exclaimed : "That which the palmer-worm hath left hath the locust eaten ; and that which the locust hath left hath the canker-worm eaten; and that which the canker-worm hath left hath the caterpillar eaten." Still, they gained skill, energy and courage from these very disasters. Like the oak upon Mount Algidus, to which the poet compares ancient Rome, they derived strength from the very axe that pruned their branches. While the Indian war was raging with its utmost fury, in 1675, Robert Mason again renewed his claim to New Hampshire and
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petitioned the king for redress. The question was submitted to the king's legal advisers, one of whom was the learned Sir William Jones ; and they reported "that John Mason, Esquire, grandfather to the petitioner, by virtue of several grants from the Council of New England, under their common seal, was in- stated in fee in sundry great tracts of land in New England, by the name of New Hampshire, and that the petitioner, being heir- at-law to the said John, had a good and legal title to said land." The colony of Massachusetts was immediately summoned to answer, before the king, to the charge of usurping jurisdiction over territory owned and claimed by the heirs of Mason and Gorges. Edward Randolph, the kinsman of Mason, a man of great energy and ability, was the bearer of the king's letter. On his arrival in Boston, he made known his mission to Governor Leverett, who read the king's letter to the Council, and they responded, in brief, that "they would consider it." Randolph then passed through New Hampshire, informing the people of his business. Occasionally a disaffected person was ready to complain of the government of Massachusetts, as in all well regulated communities and families there is usually some one who is ready to be the "accuser of his brethren." The great majority of the people, however, were highly incensed against the royal messenger. The inhabitants of Dover, in town-meet- ing, "protested against the claim of Mason, declaring that they had, bona fide, purchased their lands of the Indians, recognized their subjection to the government of Massachusetts under whom they had lived long and happily, and by whom they were now assisted in defending their estates and families against the savage enemy." How much is revealed by this pathetic protest ! Had Mason then been put in possession of the entire state of New Hampshire, it would not have sold at auction for a sum sufficient to defray the expenses of that single Indian war, then raging. Major Waldron was appointed to petition the king in their behalf. The people of Portsmouth, likewise, appointed four of their citizens to " draft " a similar petition for them.
The governor of Massachusetts reproved Randolph for en- deavoring to excite discontent among the people. He replied, " if he had done amiss, they might complain to the king." After a brief stay of six weeks he returned to England, charg- ing the magistrates of Boston with oppression, and calling on the king to free the people of New Hampshire from their gal- ling yoke. After his departure the Council of Massachusetts, with the advice of the elders of the church, sent agents to Eng- land to answer, in person, to such allegations as might be made against them. On their arrival a hearing was ordered before the chief justices of the king's bench and common pleas. The
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agents disclaimed all title to the land claimed by Mason, and asserted the right of jurisdiction only over that portion of the territory within the limits of the charter of Massachusetts. The judges declined to determine the ownership of the soil ; but decided that neither the proprietor nor Massachusetts had the right of jurisdiction over New Hampshire. It was accordingly decreed that the four towns of Portsmouth, Dover, Exeter and Hampton were beyond the bounds of Massachusetts. This opened the way for the establishment of a separate government for New Hampshire. The secretary of state therefore informed the colony of Massachusetts that it was the king's pleasure that the two colonies should be separated ; and that all commissions issued by Massachusetts within the limits of New Hampshire should be null and void. The claimant, however, was obliged to declare, under his hand and seal, that he would demand no back rents due prior to the separation ; and that he would con- firm to all settlers their title to their lands and houses on con- dition of their payment to him of sixpence in the pound of the entire value of their property. On these terms a commission was issued on the eighteenth of September, 1679, under the royal seal, for the government of New Hampshire as a royal province. The union with Massachusetts, which had existed for thirty-eight years, was arbitrarily dissolved, contrary to the expressed wishes of all the parties interested. This union had been pleasant and profitable to both colonies, and was sundered with the special regret of the citizens of New Hampshire. It was the more un- welcome to them because it was planned to favor the claim of Mason, and thus deprive them of their property and their gov- ernment.
CHAPTER XXII.
ORGANIZATION OF THE NEW GOVERNMENT.
The stormiest period of our colonial history was during the reign of the Stuarts, the most impracticable and unfortunate of royal families. Every one of them was innocent of any design to promote the independence of the colonies; their blunders helped them ; their ruin saved them. Charles the First attempt- ed to patch up for himself "a madman's robe" of power, but utterly failed ; so that it was truthfully said of him, "nothing so be-
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came him in his life as the leaving of it." Charles the Second, the meanest and most profligate of all the English monarchs, val- ued power and wealth only as they contributed to his pleasures. He lived "in wantonness," a pensioner of the hereditary foe of the English church and English liberty, and died in the Catholic communion, showing that his whole life was a "practical lie." This man,
" Whose promise none relied on, "
instituted for New Hampshire a new form of government. The royal commission was brought to Portsmouth on the first day of January, 1680. It ordained a president and council, with very liberal powers, to represent the king and constitute the executive branch of the government. John Cutts (often written Cutt) was appointed president, and Richard Martyn, William Vaughan and Thomas Daniel of Portsmouth, John Gilman of Exeter, Chris- topher Hussey of Hampton and Richard Waldron of Dover councilors, with permission to choose three other qualified per- sons out of the several parts of the province, to be added to them. The president was to nominate a deputy who was to preside in his absence. The council was authorized to admin- ister justice, with the right of appeal to the king when the sum in dispute exceeded fifty pounds. They also regulated the militia and appointed officers. They were required to issue writs for the calling of a popular assembly to establish their allegiance, assess taxes and provide for the public defence. The king, how- ever, retained the right to annul all laws that he did not ap- prove. He could also discontinue the representation of the peo- ple at his pleasure. The whole constitution was artfully con- trived to give a show of great popular liberty and at the same time leave the king the supreme ruler of the land. Charles hated parliaments as did his "martyred " father ; he therefore provided for the suspension of the representative branch of the provincial government, in case they should become insubordinate. Liberty of conscience was allowed to all Protestants ; but special favor was shown to the church of England.
This commission was brought to Portsmouth by the same Edward Randolph who had made himself so offensive to the people on a former mission in behalf of the heirs of Mason. A more unwelcome messenger could not have been found. The people were dissatisfied with the change ; and the officers named in the commission received with manifest reluctance the honors conferred upon them. These men were all artfully selected to make the government acceptable to the people. They were the most trusted and honored men of the province. They had serv- ed the people faithfully, in war and peace, during their connec- tion with Massachusetts, and enjoyed the confidence and respect
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of all the freemen. The number of voters in Portsmouth was seventy-one ; in Dover sixty-one, in Hampton fifty-seven ; and in Exeter only twenty. On the twenty-second day of January, the councilors took the oaths of office. They chose three other per- sons to fill the places designated in the commission. The coun- cil was organized by appointing Martyn treasurer and Roberts marshal. The president nominated Waldron as his deputy.
A few disaffected persons only approved of the new order of things ; the mass of the people looked upon themselves as en- snared by the royal charter. They were deprived of the priv- ilege of electing their rulers, which the other colonies of New England still enjoyed, and they expected their titles to their prop- erty soon to be called in question. A general assembly was sum- moned. The persons who were judged qualified to vote were named in the writs; and the oath of allegiance was adminis- tered to every voter. A fast was proclaimed to ask the divine blessing on the approaching assembly and "the continuance of their precious and pleasant things." The first meeting of the assembly was held at Portsmouth on the sixteenth of March. Prayer was offered and a sermon preached by Rev. Joshua Moody. This custom of listening to an election sermon became an established custom in New Hampshire in the next century. Among the first acts of this new legislature was the preparation of a letter to the general court at Boston, expressing in the most ample terms their gratitude for their kind protection and ex- cellent government. This was accompanied with the assurance that the separation was compulsory and was by them submitted to with reluctance. The hope was expressed that they might still be united for the common defence against a common enemy. The world's history furnishes few examples of a union so har- monious and mutually acceptable to both parties as that between these infant states. The assembly then proceeded to frame a code of laws. The following preamble, full of the spirit of in- dependence, was first enacted : "That no act, imposition, law or ordinance should be made or imposed upon them, but such as should be made by the assembly and approved by the assembly and council." They then proceeded to enumerate fifteen crimes punishable with death. Idolatry and witchcraft were among them., They in fact merely re-enacted the laws of Massachusetts, under which they had been living for so many years. The spirit of these was derived from the Mosaic code. The other penal laws were such as have, in the main, been continued to this day. To prevent future controversies, the boundaries of towns and grants of land were to remain unaltered. Juries were to decide disputed claims. The president and council constituted the su- preme court, with a jury when the parties so elected ; and three
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inferior courts were constituted at Portsmouth, Dover and Hamp- ton. One company of infantry was enrolled in each town, one company of artillery at the fort, and one company of cavalry, all under the command of the veteran Major Waldron. So the new administration was opened under the same laws which pre- vailed during the recent union with Massachusetts. There were but slight changes in any of the departments of the government.
Soon, however, the royal arm was stretched out, not for pro- tection but for robbery. The people were very jealous of the least infringement of their rights. The king's first aggressive act was in the imposition and collection of duties on trade. Ed- ward Randolph had been appointed the royal surveyor of ports and collector of revenue throughout New England. He made proclamation that all vessels should be entered and cleared by him. In the execution of his commisssion he seized a vessel belonging to Portsmouth. The master complained of this act to the council. Randolph was summoned to answer to the com- plaint, but assumed an air of insolence toward the court. He was, however, fined and compelled to ask pardon, publicly, for the insult offered to the council. He appealed to the king. His deputy Walter Barefoot, having published a decree that all vessels should be entered and cleared by him, was also indicted and fined. The king's officers were decidedly unpopular ; and the king's income from the commerce of the colony was a minus quantity. Randolph met with no better success in Boston. His name and office were everywhere odious. In December, 1681, Mason arrived from England, with a mandamus from the king to admit him to a seat in the council. He was accordingly allowed to sit. He soon revealed the object of his mission. He wished to constrain the people to take leases of him. He assumed all the powers of a proprietor, forbidding the cutting of wood and timber and threatening to sell their houses for rents due. The citizens petitioned for protection and the council forbade Mason and his agents to act independently of the laws. Mason re- fused to sit longer in the council ; and when they threatened to deal with him as an offender, he published a summons to the president and several members of the council to appear before his majesty in three months. This was deemed a "usurpation ", and he escaped arrest by fleeing to England.
While these events were in progress the President Cutts died, and Major Waldron, his deputy, succeeded him. The first presi- dent was universally beloved by the people. He was a man of integrity and patriotism, and his memory is still cherished in the towns where he lived. The place where his ashes repose is still pointed out in the populous part of the city, where was once the orchard of the opulent merchant. The death of the
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president produced some changes in the council : Richard Wald- ron, jr., was elected to fill his father's place; Anthony Nutter was chosen in the place of Mr. Dalton deceased. Henry Dow was made marshal instead of Roberts who resigned. During the brief period remaining of this administration nothing worthy of special notice occurred, except a second seizure of a vessel by deputy-surveyor Barefoot and a second fine of twenty pounds imposed upon him by the council.
At this date there was little to encourage immigration ; and, if possible, less to cheer the hearts of the permanent residents. The exports of the province, consisting chiefly of lumber, were in little demand in the other plantations. Importations were small, as the ships that entered the harbor at Portsmouth usually sold their cargoes elsewhere and came there empty to be filled with lumber. The fisheries had declined ; and none were then cured in New Hampshire. One passage from a communi- cation made to "the Lords of Trade" in England, by the coun- cil, deserves especial notice. It is to us truly touching in its tone :
"In reference to the improvement of land by tillage, our soil is generally so barren and the winters so extreme cold and long, that there is not pro- vision enough raised to supply the inhabitants, many of whom were in the late Indian war so impoverished, their houses and estates being destroyed and they and others remaining still so incapacitated for the improvement of the land (several of the youth being killed also), that they even groan under the tax or rate assessed for that service, which is, a great part of it, unpaid to this day."
They speak in this letter of the insufficiency of the armament of the fort on Great Island. It consisted of eleven small guns. "These were bought and the fort erected at the proper charge of the towns of Dover and Portsmouth at the beginning of the first Dutch war, about the year 1665, in obedience to his maj- esty's command, in his letter to the government under which the province then was." His majesty's foreign wars taxed heavily these poor colonists ; but his majesty's exchequer paid none of their bills. It was a glorious privilege to live under a king.
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CHAPTER XXIII.
ADMINISTRATION OF JUSTICE IN THE EARLY HISTORY OF NEW HAMPSHIRE.
In the infancy of a state the laws are few, the processes of justice simple ; and the bench is guided in its decisions by equity and common sense, rather than by precedents. Until 1641 the several plantations of New Hampshire, being voluntary associa- tions and with but small populations, secured substantial justice by agents and officers appointed by the several companies. After the union with Massachusetts in 1641, regular courts were organ- ized which continued till 1680, when the colony was made a sep- arate government and a new code of laws and new courts were ordained by an assembly chosen by the people. A superior court was established and three inferior courts to be holden at Dover, Hampton and Portsmouth. The president of the prov- ince, the council, consisting of ten members, and the assem- bly constituted the supreme court. This was evidently mod- eled after the English parliamentary court organized for the trial of offences against "the peace and dignity of the state." A jury was allowed, if the parties desired it. Either party, if dissatisfied, could appeal to the king in council, if the amount in dispute exceeded fifty pounds. During the administrations of the royal governors, the courts were often modified by such ar- bitrary rulers as Cranfield, Barefoot and Andros. In some instances, law and justice were synonymous with a dictator's de- crees. Councilors and judges were removed, with cause or without, as the governor's prejudices determined." A new organi- zation of the courts was made by the legislative assembly in 1699, which continued in vogue without material change till . 1771. Justices of the peace in their respective towns were au- thorized by this enactment to hear and try all actions of debt and trespass, where title to real estate was not involved, if the matter in issue did not exceed forty shillings. Either party was allowed to appeal to a higher court when dissatisfied. "After the temporary constitution was formed, in January, 1776, judges were appointed on the 27th day of the same month by the leg- islature for the courts of the several counties, and of the supe- rior court of judicature. It would appear that the jurisdiction of the courts was not changed beyond a few technicalities, so as to conform more correctly to the new formed and independent government ; and so remained during the war with England."
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An act was passed January 5, 1776, in reference to the several courts, which reads thus : "All which courts shall respectively hold and exercise like jurisdiction and authority within their respective counties, in all matters and causes arising within such counties as the Superior Court of Judicature, Inferior Court of Common Pleas, and Court of General Sessions of the Peace, heretofore respectively held and exercised within this colony, or by law ought to hold and exercise." In March, 1791, the state was divided into five counties, and the courts were modified to suit this new division.
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