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 I > Part 10
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After about fix weeks ftay, he went back to England and reported to the king, that " he had found the whole country complain- " ing of the ufurpation of the magiftrates of " Bofton ; carneftly hoping and expecting " that his majefty would not permit them " any longer to be oppreffed ; but would " give them relief according to the promifes " of the commiffioners in 1665." With the fame bitterness of temper, and in the fame ftrain of mifreprefentation, he inveighed a- gainft the government in a long report to the Lords of Trade ; which farther inflam- ed the prejudice that had long been conceiv- , ed againft the colony, and prepared the way for the feparation which was meditated.
After his departure, a fpecial council being fummoned, at which the elders of the church- es were prefent, the queftion was propofed to them, " whether the beft way of making anf- " wer to the complaints of Gorges and Mafon " about the extent of their patent, be by fend- " ing agents, or by writing only ?" To which " they anfwered, " That it was moft expedi- : " to fend agents, to anfwer by way of infor- " mation, provided they were inftructed with " much care and caution to negociate the af- " fair with fafety to the country, and lovalty . *
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" to his majefty, in the prefervation of their 1676. * patent liberties." Accordingly William Stoughton, afterward lieutenant-governor, Hist. vol. Hutchin. and Peter Bulkley then fpeaker of the houfe 1. p. 311. of deputies, were appointed agents and fail- ed for England.
At their arrival an hearing was ordered 1677. before the lords chief juftices of the King's bench and common pleas ; when the agents in the name of the colony difclaimed all title of Allen's Narrative to the lands claimed by the petitioner, and Title, p. 5. to the jurifdiction beyond three miles north- ward of the river Merrimack, to follow the courfe of the river, fo far as it extended. The judges reported to the king ' that they ' could give no opinion as to the right of ' foil, in the privinces of New-Hampfhire ' and Maine, not having the proper parties ' before them ; it appearing that not the ' Maffachufetts colony, but the ter-tenants ' had the right of foil, and whole benefit ' thereof, and yet were not fummoned to de- ' fend their titles. As to Mafon's right of ' government within the foil he claimed, their ' lordfhips, and indeed his own counfel, a- ' greed he had none ; the great council of ' Plymouth, under whom he claimed, having ( no power to transfer government to any. It ' was determined that the four towns of Portf- Hutchin. vol. 1. p. 'mouth, Dover, Exeter and Hampton were 815. ' out of the bounds of Maffachufetts.' This report was accepted and confirmed by the king in council.
After this, at the requeft of the agents, Sir William Jones the attorney general drew up a complete ftate of the cafe to be tranfmitted Sept. 18. to the colony ; by which it feems that he
1679.
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HISTORY OF
1679. Hutch. vol.
. 1. p. 317.
had altered his opinion fince the report which he gave to the king in 1675, concern- ing the validity of Mafon's title. It was alfo admitted that the title could be tried only on the place, there being no court in England that had cognizance of it.
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July 24. Hutchin. col. php. 529.
It became neceffary then to the eftablifh- ment of Mafon's title, that a new jurifdiction fhould be erected, in which the king might direct the mode of trial and appeal at his pleafure : This being refolved upon, the colony of Maffachufetts was informed, by a letter from the fecretary of ftate, of the king's intention to feparate New-Hampfhire from their government, and required to revoke all commiffions which they had granted there, and which were hereby declared to be null and void. To prevent any extravagant de- mand, the king obliged the claimant to de- clare, under his hand and feal, that he would require no rents of the inhabitants for the time paffed, before the twenty-fourth of June 1679, nor moleft any in their poffeffions for the time to come ; but would make out titles to them and their heirs forever, provided they would pay him fixpence in the pound, according to the yearly value of all houfes which they had built and lands which they had improved.
Commissi- on.
Things being thus prepared, a commiffion paffed the great feal on the eighteenth of September for the government of New- Hampfhire ; which 'inhibits and reftrains ' the jurifdiction exercifed by the colony of ' Maffachufetts over the towns of Portfmouth, " Dover, Exeter and Hampton, and all other 'lands extending from three miles to the
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northward of the river Merrimack and of 1678. ' any and every part thereof, to the province "of Maine ; conftitutes a prefident and coun- "cil to govern the province ; appoints John ' Cutts, efq. prefident, to continue one year ' and till another be appointed by the fame "authority ; Richard Martyn, William ' Vaughan, and Thomas Daniel of Portfmouth, ' John Gilman of Exeter, Chriftopher Huf- ' fey of Hampton and Richard Waldron of ' Dover, efquires, to be of the council, who ' were authorifed to choofe three other quali- ' fied perfons out of the feveral parts of the' ' province to be added to them. The faid pre- ' fident and every fucceeding one to appoint ' a deputy to prefide in his abfence ; the pre- ' fident or his deputy with any five to be a ' quorum. They were to meet at Portfmouth ' in twenty days after the arrival of the com- ' miffion and publifh it. They were confti- ' tuted a court of record for the adminiftra- 'tion of juftice, according to the laws of ' England, fo far as circumftances would per- ' mit ; referving a right of appeal to the ' king in council for actions of fifty pounds ' value. They were empowered to appoint ' military officers, and take all needful meaf- * ures for defence againft enemies. Liberty ‘of confcience was allowed to all proteftants, ' thofe of the church of England to be par- "ticularly encouraged. For the fupport of ' government they were to continue the pre- $ fent taxes, till an affembly could be called ; 'to which end they were within three ' months to iffue writs under the province ' feal, for calling an affembly, to whom the- ' prefident fhould recommend the paffing
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HISTORY OF
1679, ' fuch laws as fhould eftablifh their allegi- ' ance, good order and defence, and the raif- ' ing taxes in fuch manner and proportion as, ' they fhould fee fit. All laws to be approv- 'ed by the prefident and council, and then ' to remain in force till the king's pleaf- " ure fhould be known, for which purpofe ' they fhould be fent to England by the firft ' fhips. In cafe of the prefident's death, his ' deputy to fucceed, and on the death of a ' counfellor, the remainder to elect another, ' and fend over his name, with the names of " two other meet perfons, that the king might ' appoint one of the three. The king engag- 'ed for himfelf and fucceffors to continue ' the privilege of an affembly, in the fame ' manner and form, unlefs by inconvenience arifing therefrom he or his heirs fhould fee ' caufe to alter the fame. If any of the in- ‘ habitants fhould refufe to agree with Mafon ' or his agents, on the terms before mention- 'ed, the prefident and council were directed ' to reconcile the difference, or fend the cafe ' ftated in writing with their own opinions, ' to the king, that he with his privy council ' might determine it according to equity.'
. The form of government defcribed in this commiffion confidered abftractedly from the immediate intentions, characters, and con- nexions of the perfons concerned, appears to be of as fimple a kind as the nature of a fub. ordinate government and the liberty of the fubject can admit. The people, who are the natural and original fource of power, had a reprefentation in a body chofen by them-' felves ; and the king was reprefented by a prefident and council of his own appoint-
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1679.
ment ; each had the right of inftructing their reprefentative, and the king had the fuperior prerogative of difannulling the acts of the whole at his pleafure. The principal blem- ifh in the commiffion was the right claimed by the king of difcontinuing the reprefen- tation of the people, whenever he fhould find ít inconvenient, after he had folemnly en- gaged to continue this privilege. The claufe, indeed, is artfully worded, and might be conftrued to imply more or lefs at pleafure. Herein Charles was confiftent with himfelf, parliaments being his averfion. However, there was in this plan as much of the fpirit of the Britifh conftitution as there could be any foundation for in fuch a colony ; for here was no third branch to form a balance between the king or his reprefentative, and the people. The inftitution of an houfe of peers in Britain was the refult of the feudal fyftem : the barons being lords of the foil and enjoying a fovereignty within their own territories and over their own vaffals ; the conftitution was formed by the union of thefe diftinct eftates under one common fov- ereign. But there was nothing fimilar to this in New-England. The fettlements be- gan here by an equal divifion of property among independent freemen. Lordfhip and vaffalage were held in abhorrence. The yeomanry were the proprietors of the foil and the natural defenders of their own rights and property ; and they knew no fuperior but the king. A council, whether appoint- ed by him or chofen by the people could not form a diftinct body, becaufe they could not bę independent. Had fuch a fimple form
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HISTORY OF
1679. of colony government been more generally adopted, and perfeveringly adhered to, and adminiftered only by the moft delicate hands, it might have ferved better than any other, to perpetuate the dependence of the colonies on the British crown.
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CHAP. VII.
The administration of the first council .- Opposition to the acts of trade .- Mason's arrival .- Oftfrosition to him .- His de- harture .- State of trade and navigation.
"THE commiffion was brought to 1680. Portfmouth on the firft of January by Ed- ward Randolph, than whom there could not Rec. Council be a more unwelcome meffenger. It was received with great reluctance by the gentle- men therein named ; who, though they were Fitch's MS: of the firft character, intereft and influence, and had fuftained the principal offices civil and military under the colony government *; yet eafily faw that their appointment was not from any refpect to them or favour to the . people ; but merely to obtain a more eafy introduction to a new form of government, for a particular purpofe, which they knew would be a fource of perplexity and diftrefs. They would gladly have declined acting in
" The president John Cutts was a principal merchant, of great probit! and esteem in Portsmouth ; but now aged and infirm.
Richard Martyn, was of good character, and great influence. He had been very active in procuring the settlement of a minister in the town of Portsmouth.
William Vaughan, was a wealthy merchant, generous and public spirited, and of undaunted resolution. He was of Welch extraction, but was bred in London under Sir Josiah Child, who had a great regard for him, and whose interest he ma le use of for the good of the province.
'Thomas Daniel, was a person of such note and importance, that when he. chied in a time of general sickness and mortality Mr. Moody preached his funeral sermon from 2 Sam. ii. 30. " There lacked of David's servants, nine- teen men and Asabel." (Fitch's MS.)
Jolin Gilman, was a principal man in Exeter, as was Christopher Hussey, in Hampton.
Richar.i Waldron, was a native of Somersetshire, and one of the first set- tlersin Dever. He was mach respected and eminently useful, having sus- tained divers important offices civil an I military, and approved his courage aft liv in the amet havardone enterprises.
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HISTORY OF
Council Records.
1680. their new capacity ; but confidering the tem- per of the government in England, the una- voidable neceffity of fubmitting to the change, and the danger (upon their refufal) of others being appointed who would be inimical to the country, they agreed to qual- ify themfelves, determining to do what good, and keep off what harm they were able. They therefore publifhed the commiffion, and took the oaths on the twenty fecond day of January, which was beyond the utmoft time limited in the commiffion. Agreeably to the royal direction they chofe three other gentlemen into the council ; Elias Stileman of Great Ifland, who had been a clerk in the county courts, whom they now appointed fe- cretary, Samuel Dalton of Hampton and Job Clements of Dover. The prefident nominat- ed Waldron to be his deputy or vice prefi- dent, Martyn was appointed treafurer, and John Roberts, miarfhal.
This change of government gratified the difcontended few, but was greatly difrelifh- ed by the people in general ; as they faw themfelves deprived of the privilege of choof- ing their own rulers, which was ftill enjoy- ed by the other colonies of New-England, and as they expected an invafion of their pro- perty foon to follow.
When writs were iffued for calling a gen- eral affembly the perfons in each town who were judged qualified to vote were named in the writs *; and the oath of allegiance was
* The number of qualified voters in cach town w?",
In Portsmouth 71
Dover 61
Hampton 57
Exeter 20
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adminiftered to each voter. A public faft 1680. was obferved, to afk the divine bleffing on Febru. 20 the approaching affembly and "the conti- " nuance of their precious and pleafant " things." The affembly* met at Portf- mouth on the fixteenth of March, and was opened with prayer and a fermon by Mr. Moody.
To exprefs their genuine fentiments of the prefent change, and invalidate the falfe reports which had been raifed againft them, as well as to fhew their gratitude and refpect to their former protectors, they wrote to the general court at Bofton, "acknowledging " the kindnefs of that colony in taking them " under their protection and ruling them " well ; affuring them, that it was not any " diffatisfaction with their government, but " merely their fubmiffion to divine provi- " dence and his majefty's commands, with- " out any feeking of their own, which in- " duced them to comply with the prefent " feparation, which they fhould have been " glad had never taken place ; fignifying their " defire that a mutual correfpondence might " be continued for defence againft the com- " mon enemy, and offering their fervice Council Records
" when it fhould be neceffaryt."
* The Deputies in this first Assembly were, For Portsmouth. Hampton.
Robert Eliot, Anthony Stanyon,
Philip Lewis, Thomas Marston,
John Pickering, Dover. Exeter.
Edward Gove. 1
Peter Coffin,
Bartholemew Tippen,
Anthony Nutter,
Ralph Hall.
Richard Waldron, jun.
t This letter fully shews the absurdity of the reason assigned by Douglas in his Summary, vol. II. page 28, for erecting this new government. " The " proprietors and inhabitants of New-Hampshire not capable of protecting " themselves against the Canada French and their Indiane, desired of the
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HISTORY OF
1680.
Their next care was to frame a code of laws, of which the firft, conceived in a ftyle becoming freemen, was " that no act, impo- " fition, law or ordinance fhould be made or " impofed upon them, but fuch as fhould be " made by the affembly and approved by the " prefident and council." Idolatry, blafphe- my, treafon, rebellion, wilful murder, man- flaughter, poifoning, withcraft, fodomy, bef- tiality, perjury, man-ftealing, curfing and re- belling againft parents, rape and arfon were made capital crimes. The other penal laws were in their main principles the fame that are now in force. To prevent contentions that might arife by reafon of the late change of government, all townfhips and grants of land were confirmed, and ordered to remain as before ; and controverfies about the titles of land were to be determined by juries chof- en by the feveral towns, according to former cuftom. The prefident and council with the affembly were a fupreme court of Judica- ture, with a jury when defired by the par- ties ; and three inferior courts were confti- tuted at Dover, Hampton and Portfmouth, The military arrangement was, one foot company in each town, one company of ar- tillery at the fort, and one troop of horfe, all under the command of Major Waldron.
- MS Laws.
During this administration, things went on as nearly as poffible in the old channel, and with the fame fpirit, as before the fepa- ration. A jealous watch was kept over their rights and privileges, and every encroach-
" crown to take them under its immediate protection." A random asser- tion, unsupported by any proof and contrary to plain fact ! The crown could afford them no protection against Indians. With the French the crown was in alliance, and the nation was at peace.
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ment, upon them was withftood to the ut- 1680. moft. The duties and reftrictions eftablifh- ed by the acts of trade and navigation were univerfally difguftful, and the more fo as Randolph was appointed collector, furveyor and fearcher of the cuftoms throughout New- England. In the execution of his commif- fion he feized a ketch belonging to Portf- mouth, but bound from Maryland to Ireland, which had put into this port for a few days. The mafter, Mark Hunking, brought an ac- tion againft him at a fpecial court before the prefident and council, and recovered damages and cofts to the amount of thirteen pounds. Randolph behaved. on this occafion with fuch infolence, that the council obliged him publickly to acknowledge his offence and afk their pardon. He appealed from their judg- ment to the king ; but what the iffue was Files. doth not appear. Having conftituted Cap- tain Walter Barefoote his deputy at this port, an advertifement was publifhed requiring that all veffels fhould be entered and cleared with him. Upon which Barefoot was brought to examination, and afterward in- dicted before the prefident and council, for ' having in an high and prefumptuous man- March 25, ' ner fet up his majefty's office of cuftoms ' without leave from the prefident and coun- ' cil ; in contempt of his majefty's authority ' in this place ; for difturbing and obftruct- ' ing his majefty's fubjects in paffing from ' harbour to harbour, and town to town ; ' and for his infolence in making no other ' anfwer to any queftion propounded to him ' but " my name is Walter." He was fen- tenced to pay a fine of ten pounds, and ftand
March 28.
Council Records and
1680.
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. HISTORY OF
1680.
committed till it was paid. But though Ran- - dolph's authority was denied, yet they made an order of their own for the obfervation of the acts of trade, and appointed officers of their own to fee them executed. They had been long under the Maffachufetts govern- ment, and learned their political principles from them ; and as they had been ufed to think that all royal authority flowed in the channel of the charter, fo they now thought that no authority derived from the crown could be regularly exercifed in the province but through their commiffion. In this they reafoned agreeably not only to their former principles, but to their fundamental law, to which they fteadily adhered, though they had no reafon to think it would be allowed by the crown ; and though they knew that a rigid adherence to rights, however clear and facred, was not the way to recommend themfelves to royal favour. But they were not fingular in thefe fentiments, nor in their oppofition to the laws of trade. Randolph was equally hated, and his commiflion ne: glected at Bofton ; where the notary refufed to enter his proteft againft the proceedings of the court ; and he was obliged to poft it on the exchange.
In the latter end of the year Mafon arriv- ed from England with a mandamus, requir- ing the council to admit him to a feat at the board, which was accordingly done. He foon entered on the bufinef's he came about ; endeavouring to perfuade fome of the people to take leafes of him, threatening others if they did not, forbidding them to cut fire- wood and timber, afferting his right to the
files.
Dec. 30.
1681.
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province and affuming the title of lord-pro- 1681. prietor. His agents, or ftewards as they were called, had rendered themfelves obnoxious by demanding rents of feveral perfons and threatening to fell their houfes for payment. Thefe proceedings raifed a general uneafi- nefs ; and petitions were fent from each town, as well as from divers individuals, to the council for protection ; who taking up the matter judicially publifhed an order pro- hibiting Mafon or his agents at their peril to repeat fuch irregular proceedings, and de- claring their intention to tranfmit the griev- ances and complaints. of the people to the king. Upon this, Mafon would no longer fit in council, though defired, nor appear when fent for ; when they threatened to deal with him as an offender, he threatened to appeal to the king, and publifhed a fum- mons to the prefident and feveral members of the council, and others to appear before his majefty in three months. This was deemed " an ufurpation over his majefty's " authority here eftablifhed," and a warrant was iffued for apprehending him ; but he got out of their reach and went to England.
During thefe tranfactions prefident Cutts April died, and Major Waldron fucceeded him, ap- pointing Captain Stileman for his deputy, who had quitted his place of fecretary upon the appointment of Richard Chamberlayne to that office by royal commiffion. The va- 1680. cancy made in the council by the prefident's death was filled by Richard Waldron junior. On the death of Dalton, Anthony Nutter was chofen. Henry Dow was appointed marfhal in the room of Roberts who refigned.
March 28.
Dec. 80.
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HISTORY OF
1682.
March 10.
During the remainder of the council's ad- miniftration, the common bufinefs went on in the ufual manner, and nothing remarka- ble is mentioned, excepting another profecu- tion of Barefoote, with his affiftants, Wil- liam Hafkins and Thomas Thurton for feiz- ing. a veffel " under pretence of his majefty's " name, without the knowledge of the au- " thority of the province, and without thew- " ing any breach of itatute though demand- " ed." Barefoote pleaded his deputation from Randolph ; but he was amerced twen- ty pounds to be refpited during his good be- haviour, and his two affiftants five pounds each ; the complainant being left to the law for his damages. This affair was carried by appeal to the king ; but the iffue is not men- tioned.
It will be proper to clofe the account of this adminiftration with a view of the ftate of the province as to its trade, improve- ments and defence, from a reprefentation thereof made by the council to the lords of trade, purfuant to their order.
" The trade of the province, (fay they) is in mafts, planks, boards and ftaves and all other lumber, which at prefent is of little value in other plantations, to which they are tranfported ; fo that we fee no other way for the advantage of the trade, unlefs his majef- ty pleafe to make our river a free port.
" Importation by ftrangers is of little va- lue ; fhips commonly felling their cargoes in other governments, and if they come here, ufually come empty to fill with lumber : but if haply they are at any time loaded with fifh, it is brought from other ports, there be;
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ing none made in our province, nor likely to be, until his majefty pleafe to make the fouth part of the Ifles of Shoals part of this gov- ernment, they not being at prefent under any *.
" In reference to the improvement of lands by tillage, our foil is generally fo bar- ren, and the winters fo extreme cold and long that there is not provifion enough raif- ed to fupply the inhabitants, many of whom were in the late Indian war fo impoverifhed their houfes and eftates being deftroyed, and they and others remaining ftill fo incapacitat- ed for the improvement of the land, (feveral of the youth being killed alfo) that they even groan under the tax or rate, affeffed for that fervice, which is, great part of it, unpaid to this dayt.
" There is at the Great Ifland in Portf- mouth, at the harbour's mouth, a fort well enough fituated, but for the prefent two weak and infufficient for the defence of the place ; the guns being eleven in number are fmall, none exceeding a facre (fix pounder)
* When these islands were first settled is uncertain, but it must have been very early, as they are most commodiously situated for the fishery, which was a principal object with the first settlers. While New-Hampshire was united to Massachusetts, they were under the same jurisdiction, and the town there erected was called Appledore. (Mass. Rec.) They are not nam- ed in Cutt's nor Cranfield's commission : but under Dudley's presidency, causes were brought from thence to Portsmouth, which is said to be in the same county. In Allen's and all succeeding commissions, they are particu- larly mentioned ; the south half of them being in New-Hampshire.
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