USA > New Hampshire > Merrimack County > Concord > The history of Concord : from its first grant in 1725, to the organization of the city government in 1853, with a history of the ancient Penacooks ; the whole interspersed with numerous interesting incidents and anecdotes, down to the present period, 1885 > Part 22
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In the spring of 1755 Jona. Lovewell was appointed by the General Court of New-Hampshire to warn a town meeting in Bow, 22d of April, for the choice of officers, &c., which he accordingly did, and subsequently made return that he warned the meeting and attended as moderator, at the place and time
* Doc. No. 5.
217
CONTROVERSY WITH BOW.
appointed ; " but that there was but one inhabitant of said Bow that attended." This apparent disregard of their authority seems to have been resented by the government ; for, at the very next session they passed what was called the " Bow Act," for assess- ing and collecting taxes in the refractory town; in which they set forth " that in contempt of the law, and in defiance of the gov- ernment, the said town of Bow refused to meet at the time and place appointed," &c. As a remedy for this it was enacted, " That Ezra Carter and Moses Foster, Esqs., and John Chandler, gentleman - all of said Bow -be assessors 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. They were required to give ten days' notice before making the assessment, that all persons may have oppor- tunity to give in a true list of their polls and ratable estates. Those who refused so to do were to be " doomed" to pay an additional sum to meet costs. Timothy Walker* and John Noyes were appointed collectors, to collect and pay in the sums on their respective lists, " on penalty of forfeiting and paying " the said sums themselves ; and if the ASSESSORS should fail or refuse to do their duty, the Province treasurer was authorized and required " to issue his warrant of distress, directed to the sheriff," to levy the said sum of £580 16s. on their goods and chattels and lands ;" and "in want thereof, on their body !" As an encour- agement and stimulant to assessors and collectors to do their duty, the former were " entitled to receive, each, £7 10s. new tenor, and the latter &£15 new tenor, each." }
In February, 1756, the inhabitants of Rumford, feeling them- selves oppressed by this act, and " doomed" beyond just measure, petitioned for forbearance and redress of grievances. The peti- tion, drawn up by Ezra Carter and John Chandler, set forth :
"That one half of the time was elapsed before we had sight of the act, and it was then the most busie season in the whole year, and the cattle on which part of the taxes was to be laid, were out in the woods, and not known whether living or killed by the enemy, which rendered it almost impracticable for us to comply with the letter of the act. For the remedying of these inconveniences, and also in hopes of obtaining some alterations beneficial to us and the people
* I suppose, brother of Isaac - not son of the minister. ¡ See Act in Secretary's office.
218
HISTORY OF RUMFORD.
we were to tax, we should have addressed the General Assembly long before now, but our distance is such that we seldom hear of the adjournment and prorogations thereof before it is too late ; several times were pitched upon for said purpose, but before they arrived the Assembly was adjourned. And now, having an opportunity to lay the affair before your Excellency and Honours, we humbly hope that you will take our case into your consideration, and in your wisdom and goodness compassionate our circumstances. As to our paying our part of publick charges of the government, we can uprightly answer for ourselves, and have reason to believe that we speak the united sense of the people of Rumford, that we ought to do it, but humbly pray we may have the priviledges of a town or district, viz., to raise money for the maintenance of our minister, school and poor ; the repair of highways, &c., for the want of which for several years past the inhabitants there have been great sufferers.
That we apprehend we are doomed much beyond our just propor- tion of the public charge, which has happened as we conceive for want of a true list of our poles and estates, which we believe was never laid before the Assembly.
That we have been unavoidably subjected to great loss of time almost every year for several years past by disturbances from the Indians, and particularly for the two last years past. About a quarter of our inhabitants have been drove from their settlements during the busie season of the year, and the whole of them obliged to desist from their husbandry, in order to repair their garrisons and provide for the safety of their families.
Wherefore your petitioners most humbly pray that their circum- stances may be considered, that they and the inhabitants aforesaid may be relieved against the penalties and rigour of said act; that a proper method may be prescribed to have a true list of the poles and estates aforesaid laid before the General Assembly, so that they may pay no more than their proportion, considering their situation ; that they may, be incorporated to all the purposes of a town, and that the assessors aforesaid may have a further time allowed to perform the business assigned in assessing and the collectors in levying the sum that shall be finally determined must be paid by said inhabitants.
And your petitioners, as in duty bound, shall ever pray.
EZRA CARTER, JOHN CHANDLER."*
While the inhabitants of Rumford were thus complaining of grievances and struggling with their difficulties, the proprietors of Bow proper became sensible that the controversy in which they were involved was detrimental to their interest, and, to " save the great expense which inevitably attends contention,"
* This petition was unsuccessful, and was followed by another from Dr. Ezra Carter, July 15, 175 , which may be seen in the Secretary's office.
219
CONTROVERSY WITH BOW.
they proposed terms of " accommodation and agreement," having respect, however, chiefly to settlers of Suncook .*
In 1761 an order was issued for taking "an inventory of the polls and ratable estates in the Province," which order, " for Bow," was delivered to Col. Jeremiah Stickney, of Rumford. On the 19th of March, 1761, Col. Stickney addressed a letter to Capt. Thomas Parker, of Litchfield, then a member of the General Court, excusing himself, and apologizing for not taking the inventory - saying, " We never understood we had power to act to ordinary purposes under the incorporation of Bow, in which, if we were mistaken, it was our unhappiness."}
In April, the same year, EZEKIEL MORRILL and THOMAS CLOUGHI, selectmen of Canterbury, were appointed to take an inventory of the " polls, stocks and improved lands in the town- ship of Bow," which they accordingly did, and made the fol- lowing return thereof to the General Court of New-Hampshire. It will be borne in mind that nearly the whole of their invoice related to the inhabitants of Rumford, who, at this time, were comprehended in Bow. The document is valuable as exhibiting the state of the settlement at that time, and the amount of the assessment.
An Invoice of the Polls, Stocks and Improved Lands in the Township of Bow -taken by us, the subscribers, according to the best of our knowledge :
Polls, 154
Houses, .
91
Planting ground, (acres,) 341
Mowing land, (acres,) 498
Orcharding, (acres,)
16
Oxen,
160
Cows,
222
Cattle, three years old,
85
Ditto, two years old, 90
Ditto, one year old, 103
Horses,
77
Ditto, three years old,
12
Ditto, two years old,
Ditto, one year old, 13
10
Pasture land, (acres,)
Negroes, 150
6
Six mills, yearly income,
£125
* Doc. No. 6. | Doc. No. 7.
220
HISTORY OF RUMFORD.
VALUATION.
Polls,
£2770
00
Land,
502
10
Horses,
231
00
Oxen,
480
00
Cows, .
444
00
Three years old,
145
10
Two years old,
103
00
One year old,
56
10
Slaves, .
96
00
4828
10
Doom,
1000
00
£5828
10
EZEKIEL MORRILL, THOMAS CLOUGH, Selectmen for Canterbury.
We suppose the above assessment was never collected. But happily, the controversy which had been so long waged was now drawing to a close. In the courts of New-Hampshire every case brought to trial, touching the title to their lands, had been decided against the proprietors of Rumford; but the Rev. Mr. Walker and Benjamin Rolfe, Esq. - the men to whom the pro- prietors had entrusted their cause - confident of its justice, were neither baffled nor discouraged. With a firmness of pur- pose worthy of all praise, and sustained by the unanimous will of the people, the Rev. Mr. Walker persevered in his agency. In the fall of 1762 he visited England for the third time, to attend the trial of the cause, which was still pending. He had formed valuable acquaintances among ministers of religion, mem- bers of Parliament, and members of His Majesty's Council. Sir William Murray, his learned counselor and advocate in the first trial, was now Lord Mansfield, chief justice of the King's Bench. After long and anxious suspense the trial came on, and Mr. Walker announced the result in the following letter, dated -
LONDON, Decembr 23, 1762.
DEAR S! :
Last Friday, ye 17th inst., we had our Tryal ; have obtained judg- ment in our favour, viz .: that the judgment against us shall be reversed ; and the particulars whereof I now send you, so far as my memory serves. Mr. DeGrey, my Council, had proceeded but little
221
CONTROVERSY WITH BOW.
way in opening the cause, when Ld Mansfield interrupted him by saying we had in our printed cases prepared a large field for argu- mentation ; that it would take two days to goe thro' ye whole - but he had a mind to narrow the case; that there were but two points worth insisting on, viz. : ye false laying out of Bow, which he called a nonsuit, and the order of the King respecting private property. He began with the former, on which he said our former case turned, when [by the way] he observed it was not as the Reppts had alledged in their printed case, that we were drove from every other point, &e., for, in truth, there was no other point considered; that the Lds, not being clear as to the other point urged - merely out of tenderness to possession and cultivation, which, they said, in America was almost every thing - they laid hold of that and determined as they did, but came to no determination upon the other, viz .: the order of the King in Council, &c., which he called the great point. The first he de- termined roundly against us. I suspected by the manner of his treating it that he determined it should have no weight in the present decision, and, therefore, would hardly allow it the force it deserved. I was, therefore, not much concerned at my Council's submitting the point. Ld Mansfield then said he was now come to the main point, viz .: the order respecting private property, which, he said, must mean, in cases like ours, where both sides claimed and made grants. Whoever settled under a grant from either side, if he happened to beon the wrong side of the line when it came to be settled - as he was precluded from defending himself by his grant - his possession should be his title ; and, in this case, he said that possession with a grant from the Masstts Bay was as good as possession with a grant from New-Hampshire. - Mr. Yorke, ye Reppts Council, allowed yt, but alledged ours was not a bona fide possession; that we had been warned, &c. Ld Mansfield said he had read those depositions as they were printed, where it appeared Bow had chose Committees to warn people from trespassing, &c., [which he seemed to speak with a sneer; ] but he said the sum was this : Masstts people were strong - went on and settled, and Bow claimed. As to what is possession, La Mansfield distinguished between possession and property. With respect to the Royal order, he said the words were not private pos- session, but private property. His design most certainly was to carry ye idea of property further than actual improvement. The sum of what he said was to this effect, viz. : What a man claimed under a certain title, part whereof he actualy improved, was his property. What is done, and what was said in the case, if truly represented by any body whom Bow will believe, will, I am persuaded, effect- ually discourage them from any further attempts, even against Suncook -much more against Rumford ; yet I suspect their lawyers will urge them on to further tryals - with what success time must discover.
Yours, &c., T. W.
The following is the decision of His Majesty in Council, upon
222
HISTORY OF RUMFORD.
the several cases which were then on trial - all involving the same principle.
At the Court of St. James, the 20th day of December, 1762.
PRESENT, The King's Most Excellent Majesty :
Earl of Huntington,
Viscount Falmouth,
Earl of Halifax,
Mr. Vice Chamberlain,
Earl of Northumberland,
George Grenville, Esq.,
Earl of Egremont,
Henry Fox, Esq.,
Earl of Delaware,
Welbore Ellis, Esq.
Upon reading at the Board a Report from the Right Honorable the Lords of the Committee of Council for hearing appeals from the Plantations, dated the 17th of this instant, in the words follow- ing, viz .:
Your Majesty, having been pleased by your order in Council of the 15th of February, 17-, to refer unto this Committee the humble petition and appeal of Benjamin Rolfe, Esq., Daniel Carter, Timothy Simonds, John Evans, John Chandler, Abraham Colby and Abraham Kimball, setting forth, amongst other things, that, in 1721, Benja- min Stevens and others petitioned the General Court or Assembly of the Massachusetts Bay for a grant of land at Pennicook, upon the river Merrimack, which petition, having been referred to a committee of both Houses, and they reported in favor of the application, that it would be for the advantage of the Province that part of the land pe- titioned for should be assigned and set apart for a township, to con- tain seven miles square, and to begin where Contoocook river falls into Merrimack river. And they appointed a committee to bring forward the said settlement, and laid down several special directions with regard thereto. And, amongst others, that the lands should be divided into one hundred and three lots or shares; and that one hun- dred persons or families, able to make their settlement, should be admitted, and each settler to pay for his lot five pounds for the use of the Province, and be obliged to build a good house for his family within three years, and break up and fence in a certain quantity of land, and the houses and lots to be on each side the river; and that a meeting-house should be erected and finished, which was to be as- signed for the use of the minister and for the school, and the charge of the committee was to be borne by the settlers; which Report was agreed to by both Houses of the Council and Assembly of that Province, and concurred in by the Governor. That, in 1726, the town of Pennicook was laid out and divided into lots amongst the proprietors, who began and carried on a settlement there with great difficulty and cost, it being above twenty miles up into the Indian country beyond any English settlement then made, and being a perfect wilderness, having not the least sign that human foot had ever trod the ground there, and notwithstanding the difficulties they
223
CONTROVERSY WITH BOW.
were under in establishing a new town in so remote a desert, they pursued their undertaking with such industry and pains, clearing the land, building houses, sowing corn, &c., that, within a few years, a town was erected, and the place capable of receiving their families, who were then removed up there.
That, on the 6th of August, 1728, in consideration that five hun- dred acres of land, which had, prior to the aforesaid Pennicook grant, been granted to Gov. Endicott, fell within the Pennicook boundaries, the Assembly of the Massachusetts Bay came to a resolution, which was coneurred in by the Governor and Council, that the Pennicook settlers should be allowed and empowered, by a surveyor and chain- men upon oath, to extend the south bounds of their township one hundred and thirty rods the breadth of their town, and the same was accordingly granted and confirmed to them as an equivalent for the said five hundred acres of land ; and in a few years they had so far erected and settled a town that, in 1733, the Governor, Council and Assembly of the Massachusetts Bay passed an act for erecting the said plantation of Pennicook into a township by the name of Rumford ; which act was confirmed by his late Majesty in council ; and the settlers having ever since, at great costs and labor, gone on improving the lands within the said township of Rumford, by build- ing, cultivation, and otherwise, and having been in continual posses- sion thereof for above thirty years past, and the same is now become a frontier town on that part of New-Hampshire.
That, on the 6th of August, 1728, David Melvin and William Ayer petitioned the General Court or Assembly of the Massa- chusetts Bay, for themselves and others, who had served as volun- teers under Capt. John Lovewell, praying a part of the Province land might be granted to them for a township, in consideration of the service they had done, and the great difficulties they had under- gone in the war; which petition being read in the House of Repre- sentatives, it was resolved that six miles square of land, lying on each side of Merrimack river, of the same breadth from Merrimack river as the township of Pennicook, and to begin where Pennicook new grant determines, and from thence to extend the lines of the east and the west bounds on right angles, until the six miles square should be completed, be, and it is thereby granted to the forty-seven soldiers, and the legal representatives of such of them as were de- ceased, who marehed with Capt. Lovewell, (himself included,) when he engaged the enemy at Pigwacket. That on the 9th of July, 1729, the said David Melvin and others petitioned the Assembly of the Massachusetts Bay, setting forth that they had caused the said traet of land to be surveyed and platted, and praying a confirmation thereof, and that the grantees might be empowered to assemble and choose a clerk, pass votes, and be empowered to admit the persons in Capt. Lovewell's first march, to be associated with him; and the survey or plan of the said tract, which is annexed to the petition, and mentions it to begin at the south-east corner of the said other town of Pennicook, and from thenee to run out according to the
224
HISTORY OF RUMFORD.
grant. It was ordered that the land described in the plan should be confirmed to the petitioners and their associates, and their heirs and assigns forever, provided it exceeded not six miles square, nor inter- ferred with any former grant. And the Assembly, on the 23d of September following, ordered a preference to be given to those sol- diers who were actually with the captain in the engagement when he killed several of the Indians, and the said resolutions of the As- sembly were concurred in by the Governor and Council.
That the Suncook proprietors carried on their said settlement which adjoined to Pennicook, otherwise Rumford, in like manner as the Pennicook or Rumford settlers had done; and, in 1737, had a minister settled there, and by their industry, labor and charges, it became a good parish, filled with inhabitants.
That some years since, upon a dispute about the boundary line be- tween the provinces of the Massachusetts Bay and New-Hampshire, his Majesty was pleased to issue a commission to mark out the divid- ing line between the said Province of New-Hampshire and Massa- chusetts Bay, but with an express declaration that private property should not be affected thereby. And upon hearing the report of the commissioners appointed to settle the said boundary, His Majesty was pleased, by his order in Council, made in 1740, to adjudge and order that the northern boundary of the said Province of the Massa- chusetts Bay are and be a similar curve line, pursuing the course of Merrimack river at three miles distance on the north side thereof, beginning at the Atlantic ocean, and ending at a point due north of a place called Pautucket Falls, and a straight line drawn from thence due west, cross the said river, till it meets with His Majesty's other governments ; by which determination two third parts at least of the said river Merrimack, with the lands and settlements thereon, and among the rest the said towns of Pennicook, or Rumford, and Suncook, would lay upon the said river considerably above the said Pautucket falls, were excluded out of the said Province of Massachusetts Bay, in which they had before been thought and reputed to be, and thrown into the said other Province of New-Hampshire. That notwithstand- ing His Majesty had been pleased, at the time of issuing the said commission, to fix the said boundary, to declare the same was not to affect private property : yet, certain persons in New-Hampshire, desirous to make the labors of others an advantage to themselves, and to possess themselves of the towns of Pennicook, otherwise Rumford, and Suncook, as now improved by the industry of the appellants and the said first settlers thereof, whom they seek to despoil of the ben- efit of all their labors, did, on the 1st of November, 1759, by the name of the proprietors of the common and undivided lands, lying and being within the township of Bow, bring an ejectment in the inferior court of common pleas, holden at Portsmouth, in New- Hampshire, against the appellants, by which ejectment the re- spondents, under the general denomination aforesaid of the pro- prietors of Bow, demand against the appellants the possession of about one thousand acres of land, alleging the same to lie in Bow
225
CONTROVERSY WITH BOW.
aforesaid, and to be described and bounded as therein mentioned and set forth in the ejectment, their grant of the town of Bow, dated the 20th of May, 1727, from John Wentworth, Esq., Lieutenant Gov- ernor of New-Hampshire ; and that by force thereof they were seized in fee of the lands thereby granted, to the extent of eighty-one square miles, and they had afterwards entered thereon, pursuant to their grant, and were seized thereof, and alleged they were en- titled to the one thousand acres of land sued for, as part of the said eighty-one miles square of land, and that the same lay within the said town of Bow; but that the appellants had entered therein and ejected the respondents, and withheld the same from them. To which action the appellants severally pleaded not guilty, as to so much of the lands sued for as were in their respective pos- sessions.
That, on the 2d of September, 1760, the cause was brought on to trial in the said inferior court, when the jury gave a verdict for the respondents, and judgment was entered up accordingly, with costs, from which the appellants prayed, and were allowed an appeal to the next superior court. And on the second Tuesday in November, 1760, the cause was brought on again to trial in the superior court, when the jury gave their verdict for the respondents, and the judg- ment was thereupon entered up, affirming the said judgment of the inferior court, with costs. That the appellants, conceiving themselves to be thereby greatly aggrieved, prayed, and were allowed an appeal therefrom to your Majesty in council, and humbly pray that both the said verdicts and judgments may be reversed, and that they may be otherwise relieved in the premises.
The Lords of the committee, in obedience to your Majesty's said order of reference, this day took the said petition and appeal into their consideration, and heard all parties therein concerned, by their council, learned in the law, and do agree humbly to report as their opinion to your Majesty, that the said judgment of the in- ferior court of common pleas of the Province of New-Hampshire, of the 2d of September, 1760, and also the judgment of the supe- riour court of judicature of the 2d Tuesday in November, 1760, affirming the same, should be both of them reversed, and that the appellants should be restored to what they have lost by means of said judgments.
His Majesty this day took the said report into consideration, and was pleased, with the advice of his privy council, to approve thereof, and to order, as it is hereby ordered, that the said judgment of the inferior court of common pleas of the province of New-Hampshire, of the 2d of September, 1760, and also the judgment of the superior court of judicature, of the 2d Tuesday in November, affirming the same, be both of them reversed, and that the appellants be restored to what they may have lost by means of the said judgments, whereof the Governor or Commander-in-chief of His Majesty's Province of New-Hampshire, for the time being, and all others whom it may con- cern, are to take notice and govern themselves accordingly.
15
226
HISTORY OF RUMFORD.
But notwithstanding His Majesty's decision, the controversy had become so complicated, and involved so much personal inte- rest and feeling, that many years elapsed before its final settle- ment. The difficulty with the government of the Province in respect of taxes, was terminated by a charter of incorporation - as the next chapter will show - but conflicting personal interests had to be compromised. The prudence, decision, and readiness for reconciliation on just principles, which distinguished the pro- prietors in all their subsequent proceedings, appear from their records. The controversy was finally terminated in 1772. The common lands which had been reserved were divided and laid off to the respective proprietors and grantees .*
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