USA > New Hampshire > The history of New-Hampshire. Comprehending the events of one complete century and seventy-five years from the discovery of the River Pascataqua to the year one thousand seven hundred and ninety, Vol 3 > Part 18
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she minifter of faid parifh or town at leaft fixty years, and for evidence thereof, that Capt. Francis Math- ews and his next neighbour Jonathan Willey the eldeft, and Jofeph Stephens, his fon, and William Willey, may cach of them be fummoned. More- over the faid robbed and defrauded minifter prays that it may likewife be ordered, that the feleet men of faid each year may refcue faid parfonage land from him the faid Daniel Davis and every other un- juft incroacher thereon, and on each other parcel of glebe land or parfonage (as viz.) the long marth and that parcel of minifterial land lying on the high- way leading S. and W. toward Lampereel river, and bounded E. and S. on Potter Mafon's land, and S. and W. on Richard Denbow's land, cach of which is incroached upon by one or other of the ad- jacent neighbours, and although their minifter, as their fpiritual father, fo long feeking their welfare in gathering of a church firft amongft them, on March 26, 1718, his prevailing as the dreffer of their church vineyard, with Immanual Chrift Jefus the Lord thereof, for his grant of four years proba- tion, whether the barren fig trees might, by a minif- terial hufbandry expended on them, be prevailed with to bear fruit proportionably that it might be well with them as in the gofpel parable thereof, Luke xiii. 7, 8, 9, and when the Indian war began, anno 1722, and that five perfons were cut down thereby, in our parifh ; who hath likewife prevail -- ed with the heavenly Prince of Peace to make and keep his covenant of peace with and for us as writ- ten in Ezekiel xxxiv, 25, yearly pleaded and grant- ed thefe thirteen years hitherto, notwithflanding the fo repeatedly many rumours of wars free from the reality thereof. Likewife in the year 1729, when Captain Samuel Emerfon and Lieut. Jonathan Thompfon and Hubbard Stevens had harraffed their minifter with an antichriftian council ecclefi-
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aftical countenanced by the then Commander in chief, after which the faid Emerfon and Korito company, by their negative clandeftine votes robbed him of the £50 addition to his falary, they granted him the preceding year 1728. In his fo provoked fubjection to paffion, as Elias in James v. 17, 18, he the faid minifter, while it was yet more than three months to the harveft, prayed it might not rain, and it rained not until three months after ; when in re- gard to the opportunity of fome friendly brethren, he appointed and confcientioufly fanctified a church faft, from evening to evening, abftained three meals from eating, drinking and finoaking any thing ; in be- ginning of September that year 1729; and the Lord Chrift was pleafed to hear in heaven and grant fuch repeated plentiful and warm rains, as recover- ed the languithing corn, grafs and fruits of the trees, unto a confiderable harveft thereof ; fo as was then remarkable. And in that year 1733, when the faid parifh, by the General Court, was chartered into the townfhip of Durham in anfwer unto their faid minifter's petition, for its privileges and faid name as therein pleaded for, and the inhabitants of faid town proceeded by their chofen committee, at their inoft general meeting, to divide their commons, vot- ing their minifter aforefaid, fhould, as he did draw lots for them all, yet he cannot prevail with the lot layers to furvey his lot of twenty-five acres, nor in- form him where he may have it laid out for him, neither have faid inhabitants fulfilled their condi- tion of honourably fupporting their minifter. And fince no inferior Court in this faid province hither- to could do juftice to your petitioner, he is there- fore now neceffitated to flee for refuge to this Su- preme Legiflative Court of nurfing fathers ; in each of which requefts, your fo long oppreffed petition- er importunately afketh for juftice, firmly believ-
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ing, after that, God will be intreated for the land in New-Hampfhire.
.So complaineth and prayeth the above named pe- titioner,
HUGH ADAMS.
No. VII.
The opinions of JOHN READ and ROBERT AUCHMUTY, on the case of JOHN TUFTON MASON, 1738.
1699, Nov. 7. "THE Prefident and Council eftab- lifhed at Plymouth for the planting and governing of New-England, granted to Capt. John Mafon, of London, Efq. all that part of the main land in New- England from the middle of Merrimack river, along the l'ea coaft to Pafcataqua River, up that river to the fartheft head thereof, and from thence north- weftward till three fcore miles be finifhed from the entrance of Pafcataqua river, and from Merrimack through that river to the fartheft head thereof, and fo forwards up into the land weftward, till three fcore miles be finifhed, and from thence to crofs over land to the three fcore miles end, accounted from Pafcataqua river, together with all the iflands within five miles of the premifes, with the appur- tenances which the faid John Mafon, with their confent, intended to name New-Hampfhire, to hold to the faid John Mafon and his heirs.
1635, April 22. The prefident and council afore- faid, grant to the faid John Mafon, all that part of New-England, from the middle of Naumkege river, along the fea coaft, round Cape-Ann to Pafcataqua harbour, and up the river Newichawannack, to the fartheft head thereof, and from thence northweft- ward till fixty miles be finifhed from the entrance of Pafcataqua harbour, and from Naumkege through
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the river into the land weft fixty miles, from which period, to crofs over land to the fixty miles end, ac- counted from Pafcataqua aforefaid, and the fouth half of the Ifle of Shoals and all other iflands with- in five leagues of the premifes, all to be called New- Hampfhire, alfo another parcel of land lying on the fouth eaft fide of Sagadahock, at the mouth of the river, containing near ten thoufand acres, to be cal- led by the name of Mafonia, to hold to him and his heirs.
N. B. Sir William Jones, and Sir F. Winning- ton, attorney and folicitor-general in their report in favour of Robert Mafon, grandfon of John Mafon, his title to New-Hampfhire, mention another grant from faid prefident and council, to Capt. John Mafon, dated 9th March, 1620, which I have not feen.
1635, Nov. 26. Capt. John Mafon, by kis laft will, devifed to the mayor and commonalty of King- flynn, two thoufand acres of land in his county of New-Hampfhire, or manor of Mafon hall in New- England, which his executrix and overfeer fhould think moft fit. Item to his brother-in-law John Wollafton, three thoufand acres of land in his coun- ty of New-Hampfhire or manor of Mafon hall, where his faid brother and executrix fhould think fit ; to hold to him and his heirs. Item to his grand- child Anne Tufton, Mafonia, to hold to her and her heirs. Item to his grandchild Robert Tufton, hiş manor of Mafon Hall, to hold to him and his heirs, provided he alter his firname, and name himfelf Mafon firft. Item to John Wollafton aforefaid two thoufand acres of land in this county of New- Hampfhire, in truft to convey one thoufand to fome feoffee in truft towards the maintenance of a godly minifter in New-Hampfhire, and the other thou- fand to fome feoffee towards the maintenance of a free grammar fchool in New-Hampfhirc. Item to
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his grandchild John Tufton, all the reft of his ma- nors, meffuages lands, tenements and hereditaments, in his county of New-Hampshire, or elfewhere in New-England, to hold to him and the heirs of his body. Remainder to his coufin Doctor Robert Ma- fon, and the heirs male of his body, and for want of fuch iffue to revert to the donor and his heirs, provided his grandchild John Tufton fhall alter his firname, and firname himfelf Mafon ; firft provid- ed alfo the faid John Tufton fhall pay his fifter Ma- ry Tufton out of the manors meffuages, lands and tenements aforefaid, £500 fterling for her prefer- ment in marriage, &c. and died, and on the fecond of December following, his will was proved in the prerogative court of Canterbury, and adminiftration granted to Anne, his widow executrix.
1677. John and Anne, grandchildren, died with- out iffue, and their eftates came to Robert Tufton Mafon, accordingly for whom King Charles II. fet- tled the bound line between New-Hampfhire and the Maffachufetts Bay, and he died leaving two fons, John and Robert.
1691, April 27. John and Robert Tufton Ma- fon bargained and fold to Samuel Allen of London, merchant, for a fum of money, all New-Hampfhire, as bounded in their great grandfather's grant of 1635, and Mafonia, alfo part of the province of Main, the country Mariana, province of Laconia, and feveral towns in New-Hampfhire, as heretofore defcribed with the appurtenances, deed and charters thereof, to hold to him and his heirs. Then John died without iffuc. That Robert Tufton Mafon, furviving great grandfon of Captain John Mafon, lived and died at Portfmouth, of Pafcataqua, about forty years ago, leaving his eldeft fon, John Tufton Mafon and feveral other children ; and this John Tufton Mafon about twenty years after, died, leav- ing one only child, John Tufton Mafon, of Bofton,
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mariner, who claims the province of New-Hamp- thire, and would compound with the province of the Maffachufetts Bay all differences between them.
Qu. Upon the whole, what intereft hath this. John Tufton Mafon in New-Hampfhire, and to what purpofe and effect can the province* agree with him, and in what manner execute it ?
Anfwo. So much as the Prefident and Council aforefaid conveyed to Captain John Mafon for New- Hampshire, except the lands fouthward of Merri- mack river, and within three miles of it on the northerly fide, which was before conveyed to the inhabitants of the colony of the Maffachufetts, and except feven thoufand acres particularly devifed, and the manor of Mafon Hall, the bounds and contents' whereof I know not. I fay all the reft of New. Hampshire, Captain John Mafon, by his will afore- faid, devifed to his grandfon, John Tufton Mafon, in tail, general. Remainder to his grandfon, Rob- ert Tufton Mafon, in tail general, with remainders over, and the right has properly remained defcend- ed, and come to this John Tufton Mafon, of Bofton, mariner, the alienation of his great uncle and grand- father aforefaid notwithftanding, which could be' of no avail after their death. But if at their death his father was of full age, it is fo many years ago; that his fuit is effectually barred by ftatute 21, James I. chap. xvi. which requires him or his heirs to bring it within twenty years after the title accru- ed at fartheft. And if he ever came of age, he or his heirs could have but ten years after he was of age, or after his death, to bring this fuit, which muft be elapfed in this time, and their fuit intirely bar- red, for which only reafon I am of opinion this Province can neithet get nor lofe by him and his ti- de aforcfaid. JOHN READ.
* Of Massachusetts,
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I conceive the right properly defcends to John. Tufton Mafon, of Bofton, mariner, the alienation aforefaid notwithftanding ; and am of opinion the ftatute of limitation aforefaid will not be held of it- felf to extend to New-England, being an act not affirmative of the common law in abridgment of the general right the party has of purfuing, and be- yond twenty years afferting his property, and from the exprefs words of the ftatute, the fame appears to be confined to the realm of England. John Tuf- ton Mafon cannot convey but for his life, and not that, being out of poffeflion, till he regains the fame. Whatever fruit the province may expect from his title muft be by proper powers.
ROBERT AUCHMUTY.
Bofton, June 16, 1738.
No. VIII.
Copy of Queries stated by JEREMY GRIDLEY, Esq. of Boston, and an- swered by N. FAZAKERLEY, Esq. of London.
Qu. WHETHER a fine fur cognizance, &c. levied at Weftminfter, of lands lying in New- England, by fiction, fuppofed to be in England, will bar the heir in tail by common or ftatute law ?
I am of opinion that the heir in tail will not be bar- red or affected thereby.
Qu. Whether a common recovery fuffered of fuch lands, will be a bar to the heir in tail ? N. B. There was a proper court in the plantation where a fine might have been levied, and a recovery fuffered, and the fervice of the writ in the common recovery was upon the heir in tail then in England.
I think the heir in tail will not be barred or af- fected thereby.
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Qu. Whether fuch a fine and recovery will bar' the heir in tail in a plantation where fuch heir has a right to the jurifdiction and prerogatives ufed by the Bifhop of Durham in the county palatine of Durham, though he did not exercife his right at that time, and there were courts there under the appoint- ment of the crown ?
If the facts relating to this queftion had been ftated, I might have been able to have given a direct anfwer to this queftion. However this general an- fwer may probably anfwer the intent of the quef- tion, for I am of opinion that a fine, or recovery, can- not operate upon any real eftate or intereft lying out of the jurifdiction of the court of common pleas, and confequently cannot bar or affect any eftate tail in any foreign colony or plantation. And in my opin- ion fuch a law would be of moft dangerous confe- quence to eftates in thofe countries, and introduce great uncertainty and confufion if the eftates of the inhabitants were to be affected by records privately made up in this country, which may be laid in one country as well as another.
Qu. Whether any judgments have been given at Weftminfter, upon the validity and force of fuch fines and recoveries, and what are they ?
I know not that there has been any fuch judg- ment ; but a few years ago, when the prefent Lord Chancellor was Chief Juftice of the King's Bench, there was a writ of error brought to reverfe a fine levied in the common pleas, and the error affigned was that it appeared upon the face of the record, that the lands lay in partibus tranfmarinis, and the defendant in error was fo fenfible of the objection, that he moved the court of common pleas to amend by ftriking out the words in partibus tranfmarinis, which put an end to the caufe. And I do not know of any other judgment. But as to recoveries, how
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can a writ of feizin be awarded or returned ? for the fheriff cannot give feizin of lands out of his Bailiwick .*
N. FAZAKERLEY. May 21, 1754.
No. IX.
An original Letter from Gov. WENTWORTH to Gov. SHIRLEY.
Portsmouth 22d March, 1754. SIR,
IT gives me great concern to find by your Excellency's letter of the 18th current, that the intelligencies you have from the eaftward, con- firm the report of the Fort the French are building on or near Kennebeck river. This part of the French policy, it concerns all his Majefty's colonies to defeat, as the building forts within the undoubt- ed limits of his Majefty's dominions, is not only a violation of all treaties fubfifting between his Bri- tannick Majefty and the French King, but has a fa- tal tendency to difturb the peace and quiet of all his Majefty's colonies on the continent of America, and therefore I fhall think it my duty, if I can obtain affiftance from the affembly, to prevent not only the building this, but any other fort within the known limits of the King's dominions, after they have been defired and required to defift.
In a poftcript of my laft letter, I advifed your Ex- cellency that the two perfons indicted for the mur- der of two Indians, the grand Jurors had found a bill againft, and on Monday they were put in irons, and to remain fo until the day appointed for their trial,
* The seizin of the Lands of New-Hampshire, when sold to Samuel Allen, was given by the Sheriff of Kent, in England.
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but on Thurfday morning about two of the clock, a mob affembled, and with axes and crows broke open, and rent in pieces the outer and inner doors of the prifon, and refcued the prifoners, and in fo filent a manner, that the neighbouring houfes were not difturbed, until the main body had got poffef- fion of the prifoners, and then they marched out of town, firing guns, and in a moft infolent manner. As to the numbers it is varioufly reported, fome fay two hundred, and others three hundred, but it is my opinion, they thought themfelves ftrong enough to refift the town had they been difcovered ; and it is generally fuppofed the far greater part of this ri- otous gang came out of the country, and from the frontiers who will be moft expofed, if by their un- precedented conduct it fhould be the caufe of a war; but that a white man fhould not be hanged for kill- ing an Indian, has taken fuch deep root in the minds of the unthinking multitude, that it is impoffible to remove it.
I convened the council on this occafion, who ad- vifed me to iffue a proclamation, promifing a re- ward for apprehending the prifoners, but they de- fired to fufpend their advice on the rioters, until the next week, alledging that as there was fo great a number concerned, it muft be impoffible but fome difcovery muft be made in a more eafy way ; fo I have adjourned the confideration thereof until next week, hoping fome difcovery may be made in the mean time, of fome of the leaders.
I am, with the greateft refpect, Sir, your Excellency's moft obedient, humble fervant, B. WENTWORTH.
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No. X.
A particular Account of the Captivity of Mrs. JEMIMA HOWE, by the Rev, BUNKER GAY, of Hinsdale, in a letter to the Author.
July 27, 1755. AS Meffrs. Caleb Howe, Hilkiah Grout, and Benjamin Gaffield, who had been hoe- ing corn in the meadow, weft of the river, were re- turning home, a little before funfet, to a place cal- led Bridgman's Fort, they were fired upon by twelve Indians, who had ambufhed their path. Howe was on horfeback, with two young lads, his children, behind him. A ball, which broke his thigh, brought him to the ground. His horfe ran a few rods and fell likewife, and both the lads were taken. The Indians in their favage manner, com- ing up to Howe, pierced his body with a fpear, tore off his fcalp, ftuck a hatchet in his head, and left him in this forlorn condition. He was found alive the morning after, by a party of men from Fort Hinfdale ; and being afked by one of the par- ty whether he knew him, he anfwered yes, I know you all. Thefe were his laft words, though he did not expire until after his friends had arrived with him at Fort Hinfdale. Grout was fo fortunate as to efcape unhurt. But Gaffield, in attempting to wade through the river, at a certain place which was indeed fordable at that time, was unfortunate- ly drowned. Flufhed with the fuccefs they had met with here, the favages went directly to Bridg- man's Fort. There was no man in it, and only three women and fome children, viz. Mrs. Jemima Howe, Mrs. Submit Grout, and Mrs. Unice Gaffield. There hufbands, I need not mention again, and their feelings at this juncture I will not attempt to
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defcribe. They had heard the enemies guns, but knew not what had happened to their friends, Extremely anxious for their fafety, they ftood long- ing to embrace them, until at length, concluding from the noife they heard without that fome of them were come, they unbarred the gate in a hur- ry to receive them ; when lo ! to their inexpreffi- ble difappointment and furprife, inftead of their hufbands, in rufhed a number of hedious Indians, to whom they and their tender offspring became an eafy prey ; and from whom they had nothing to expect, but either an immediate death, or a long and doleful captivity. The latter of thefe, by the favor of Providence, turned out to be the lot of thefe unhappy women and their ftill more unhap- by, becaufe more helplefs, children. Mrs. Gaffield had but one, Mrs. Grout had three, and Mrs. Howe feven. The eldeft of Mrs. Howe's was eleven years old, and, the youngeft but fix months. The two eldeft were daughters, which fhe had by her firft hufband, Mr. William Phipps, who was alfo flain by the Indians, of which, I doubt not but you have feen an account in Mr. Doolittle's hiftory. It was fromthe mouth of this woman that I lately receiv- ed the foregoing account. She alfo gave me, I doubt not, a true, though to be fure, a very brief and im- perfect hiftory of her captivity, which I here infert for your perufal. It may perhaps afford you fome amufement, and can do no harm ; if after it has undergone your critical infpection, you fhould not think it (or an abreviation of it) worthy to be pre- ferved among the records you are about to pub- lifh.
' The Indians (fhe fays) having plundered and put fire to the Fort, we marched as near as I could judge, a mile and a half into the woods, where we encamped that night. When the morning came,
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and we had advanced as much farther, fix Indians were fent back to the place of our late abode, who collected a little more plunder, and deftroyed fome other effects that had been left behind ; but they did not return until the day was fo far fpent, that it was judged beft to continue where we were, through the night. Early the next morning we fet off for Canada, and continued our march eight days fucceffively, until we had reached the place where the Indians had left their canoes, about fif- teen miles from Crown Point. This was a long and tedious march ; but the captives, by divine af- fiftance, were enabled to endure it with lefs trouble and difficulty, than they had reafon to expect. From fuch favage mafters, in fuch indigent circum- ftances, we could not rationally hope for kinder treatment than we received. Some of us, it is true, had a harder lot than others; and, among the children, I thought my fon Squire had the hard- eft of any. He was then only four years old, and when we ftopped to reft our weary limbs, and he fat down on his mafter's pack, the favage monfter would often knock him off; and fometimes too, with the handle of his hatchet. Several ugly marks, indented in his head by the cruel Indians, at that tender age, are ftill plainly to be feen.
At length we arrived at Crown Point, and took -up our quarters there, for the fpace of near a week. In the mean time fome of the Indians went to Montreal, and took feveral of the weary captives along with them, with a view of felling them to the French. They did not fucceed, however, in finding a market for any of them. They gave my young- eft daughter, Submit Phipps, to the Governor, de Vaudreuil, had a drunken frolick, and returned a- gain to Crown Point, with the reft of their prifon- ers. From hence we fet off for St. John's, in four
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or five canoes, juft as night was coming on, and were foon furrounded with darknefs. A heavy ftorm hung over us. The found of the rolling thunder was very terrible upon the waters, which at every flafh of expanfive lightning, feemed to be all in a blaze. Yet to this we were indebted for all the light we enjoyed. No object could we difcern any longer than the flafhes lafted. In this pofture we failed in our open tottering canoes, almoft the whole of that dreary night. The morning indeed had not yet begun to dawn, when we all went afhore ; and having collected a heap of fand and gravel for a pillow, I laid myfelf down, with my tender infant by my fide, not knowing where any of my other children were, or what a miferable condition they might be in. The next day, how- ever, under the wing of that ever prefent and all- powerful Providence, which had preferved us thro' the darknefs, and imminent dangers of the preced- ing night, we all arrived in fafety at St. Johns.
Our next movement was to St. Francois, the me- tropolis, if I may fo call it, to which the Indians, who led us captive, belonged. Soon after our arriv- al at their wretched capital, a council, confifting of the chief Sachem, and fome principal warriors of the St. Francois tribe, was convened ; and after the cer- emonies ufual on fuch occafions, were over, I was conducted and delivered to an old fquaw, whom the Indians told me, I muft call my mother. My infant ftill continuing to be the property of its orig- inal Indian owners. I was neverthelefs permitted to keep it with me a while longer, for the fake of fav- ing them the trouble of looking after it, and of maintaining it with my milk. When the weather began to grow cold, fhuddering at the profpect of approaching winter, I acquainted my new mother that I did not think it would be poffible for me to
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endure it, if I muft fpend it with her, and fare as the Indians did. Liftening to my repeated and earneft folicitations, that I might be difpofed of among fome of the French inhabitants of Canada, The, at length, fet off with me and my infant, at~ tended by fome male Indians, upon a journey to Montreal, in hopes of finding a market for me there.
But the attempt proved unfuccefsful, and the journey tedious indeed. Our provifions were fo fcanty as well as infipid and unfavory, the weather was fo cold, and the travelling fo very bad, that it often feemed as if I muft have perifhed on the way. The lips of my poor child were fometimes fo be- numbed that when I put it to my breaft, it could not, till it grew warm, imbibe the nourifhment requifite for its fupport. While we were at Mon- treal, we went into the houfe of a certain French gentleman, whofe lady, being fent for, and coming into the room where I was, to examine me, feeing I had an infant, exclaimed fuddenly in this man- ner, ' Damn it, I will not buy a woman that has a ' child to look after.' 'There was a fwill-pail ftand- ing near me, in which I obferved fome crufts and crumbs of bread fwiming on the furface of the greafy liquor it contained : Sorely pinched with hunger, I fkimmed them off with my hands and eat them ; and this was all the refrefhment which the houfe afforded me. Some where in the courfe of this vifit to Montreal, my Indian mother was fo unfortunate as to catch the fmall pox, of which diftemper fhe died, foon after our return, which was by water, to St. Francois.
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