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 17
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In the fpring the earl of Bellomont fet out for his eaftern governments, The council voted an addrefs, and fent a committee, of which Ufher was one, to prefent it to him at Bofton ; and preparations were made for his reception in New-Hampfhire ; where he at length came and publifhed his commiffion July 31. to the great joy of the people, who now faw at the head of the government a nobleman of diftinguifhed figure and polite manners, a firm friend to the revolution, a favourite of King William, and one who had no intereft in oppreffing them.
During the controverfy with Allen, Par- wridge had withdrawn ; but upon this change
MS in files.
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244'
HISTORY OF
1699. : he took his feat as lieutenant-governor, and the difplaced counfellors were again called to the board. A petition was prefented a- gainft the judges of the fuperior court, and a proclamation was iffued for juftices of the peace and conftables only to continue in of- fice, whereby the judges commiffions deter- mined. Richard Jofe was made fheriff in the room of Ardell, and Charles Story fecre- tary in the room of Sheaffe.
The government was now modelled in favour of the people, and they rejoiced in the change, as they apprehended the way was opened for an effectual fettlement of their long continued difficulties and difputes. Both parties laid their complaints before the governor, who wifely avoided cenfuring either, and advifed to a revival of the courts of juftice, in which the main controverfy might be legally decided. This was agreed to, and the neceffary acts being paffed by an affembly, (who alfo prefented the earl with five hundred pounds which he obtained the king's leave to accept) after about eighteen. days ftay he quitted the province, leaving Partridge, now quietly feated in the chair, to appoint the judges of the refpective courts. Hinckes was made chief juftice of the fuperior court, with Peter Coffin, John Gerrifh and John Plaifted for affiftants ; Waldron chief Juftice of the inferior court, with Henry Dow, Theodore Atkinfon and John Woodman for affiftants.
Council Records. -
One principal object of the earl's attention was to fortify the harbour, and provide for the defence of the country in cafe of anoth- er war. He had recommended to the affem-
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NEW-HAMPSHIRE.
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bly in his fpeech the building a ftrong fort 1699.
1700. June 6:
on Great Ifland, and afterward, in his letters, affured them that if they would provide ma- terials, he would endeavour to prevail on the king to be at the expence of erecting it. . Col. Romer, a Dutch Engineer, having view- ed the fpot, produced to the affembly an efti- mate of the coft and tranfportation of ma- terials, amounting to above fix thoufand pounds. They were amazed at the propo- fal ; and returned for anfwer to the governor, that in their greateft difficulties, when their lives and eftates were in the moft imminent hazard, they were never able to raife one thoufand pounds in a year* ; that they had been exceedingly impoverifhed by a long war, and were now ftruggling under an heavy debt, befides being engaged in a con- troverfy with " a pretended proprietor ;" that they had expended more "blood and " money" to fecure his majefty's intereft and dominion in New-England than the intrinfic value of their eftates, and that the fortifying the harbour did as much concern the Maf- fachufetts as themfelves ; but they conclud- ed with affuring his lordfhip, that if he were " thoroughly acquainted with their mifera-
* I have here placed in one view such assessments as I have been able to find during the preceding war, with the proportion of each town, which va- ried according to their respective circumstances at different times.
(MS Laws.)
1692.
1693.
1694.
1695.| Uncert.
1697.
Portsmouth,
70
210
167
129
6
140
1 6
Hampton,
66 13 4
200
230
172 14 6
187 241-2
Dover,
30
110
90
117 16 6
127 971-2
Exetur.
6 8
80
127
106 16
115 14
New Castle. 33
86
73
7
79 126
L.
200
600
700
400
600
650
حر الـ
246
HISTORY OF
MS in files.
1700. " ble, poor and mean circumftancos, they "would readily fubmit to whatever he " fhould think them capable of doing." They were alfo required to furnifh their quota of men to join with the other colonies in defending the frontiers of New-York in cafe of an attack *. This they thought ex- tremely hard, not only becaufe they had never received the leaft affiftance from New- York in the late wars, but becaufe an opin- ion prevailed among them that their ene- mies had received fupplies from the Dutch at Albany, and that the plunder taken from their defolated towns had been fold in that place. There was however no opportunity for affording this affiftance, as the New- Yorkers took care to maintain a good un- derftanding with the French and Indians for the benefit of trade.
Smith's Hist. New- York, page 108, 175, 214.
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But to return to Allen : He had as little profpect of fuccefs in the newly eftablifhed courts, as the people had when Mafon's fuits Printed state of Allen's ti- were carried on under Cranfield's govern- ment. On examining the records of the fu- tle, page 0. perior court it was found that twenty-four leaves were miffing, in which it was fuppofed the judgments recovered by Mafon were re- corded. No evidence appeared of his having obtained poffeffion. The work was to be- gin anew ; and Waldron, being one of the principal landholders and moft ftrennous op- pofers of the claim, was fingled out to ftand foremoft in the controverfy with Allen, as
* The quotas of men to be furnished by each government for the defence. of New-York, if attacked, were as follows, viz.
Massachusetts 350 | New-York, 200 | Pennsylvania 80
New-Hampshire 40 East New-Jersey 60 |
Maryland 160 Rhode-Island 48
West New-Jersey 60 Virginia 240
Connecticut 120
247.
NEW-HAMPSHIRE.
his father had with Mafon. The caufe went 1700. through the courts, and was invariably giv- en. in favour of the defendant with cofts. Allen's only refuge was in an appeal to the Aug. 18. king, which the court, following the exam- ple of their brethren in the Maffachufetts, refufed to admit. He then petitioned the king ; who by an order in council granted him an appeal, allowing him eight months to prepare for its profecution. 1701.
The refufal of an appeal could not fail of April 24. being highly refented in England. It was feverely animadverted on by the lords of trade, who in a letter to the Earl of Bello- April 29. mont upon this occafion, fay : "This declin- " ing to admit appeals to his Majefty in " council, is a matter that you ought very " carefully to watch againft in all your gov- " ernments. It is an humour that prevails " fo much in proprieties and charter colonies '" and the Independency they thirft after is " now fo notorious, that it has been thought " fit thofe confiderations, together with other " objections againft thofe colonies, fhould be " laid before the parliament ; and a bill has " thereupon been brought into the houfe of " lords for re-uniting the right of govern- " ment in their colonies to the crown."
Before this letter was wrote the earl died at New-York, to the' great regret of the peo- ple in his feveral governments, among whom he had made himfelf very popular. A copy of the letter was fent to New-York ; but the bill mentioned in it was not paffed into an act of parliament. For fome reafons of ftate it was rejected by the houfe of lords.
The affembly of New-Hampfhire, having
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MS in files- March 5.
الصرع
ПЯТЬ
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HISTORY Of
1701. now a fair opportunity, endeavoured as Hutch. vol. much as poffible to provide for their own 2. p. 181. fecurity ; and paffed two acts, the one for Sept. 18. confirming the grants of lands which had been made within their feveral townfhips ; the ; other, for afcertaining the bounds of them. Partridge gave his confent to thefe acts ; but Allen had the addrefs to get them difallowed and repealed becaufe there was MS Laws. no referve made in them of the proprietor's 'right.
Oct. 14.
The controverfy being brought before the king, both fides prepared to attend the fuit. Allen's age, and probably want of cafh, pre- vented his going in perfon ; he therefore ap- pointed Ufher to act for him, having previ- oufly mortgaged one half of the province to him, for fifteen hundred pounds ; Vaughan was appointed agent for the province, and attorney to Waldron. It being a general in- tereft, the affembly bore the expence, and notwithftanding their pleas of poverty on other occafions provided a fund, on which the agent might draw in cafe of the emer- gency.
1702. May 29.
In the mean time King William died and Queen Anne appointed Jofeph Dudley Efq. formerly prefident of New-England, to be governor of Maffachufetts and New-Hamp- fhire ; whofe commiffion being publithed at Portfmouth, the affembly by a well timed
Council & Assembly Records.
July 13. . 18. prefent interefted him in their favour, and afterward fettled a falary on him during his administration, agreeably to the queen's inftructions, who about this time forbad her governors to receive any but fettled falaries.
When Allen's appeal came before the
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queen in council, it was found that his at- 1702. torney had not brought proof that Mafon Printed state of Al-
. had ever been legally in poffeffion ; for len's title, want of this, the judgment recovered by p. 9. Waldron was affirmed ; but the order of council directed that the appellant ' fhould MS Copy
' be at liberty to begin de novo by a writ of of Lords Trade Re- ort in 1753.
' ejectment in the courts of New-Hampfhire, ' to try his title to the lands, or to quit-rents 'payable for the fame ; and that if any doubt ' in law fhould arife, the jury fhould declare ' what titles each party did feverally make 'out to the lands in queftion, and that the ' points in law fhould be referred to the court ; 'or if any doubt fhould arife concerning ' the evidence, it fhould be fpecially ftated in ' writing, that if either party fhould appeal ' to her majefty fhe might be more fully in- ' formed, in order to a final determination.'
While this appeal was depending, a peti- tion was prefented to the queen, praying that Allen might be put in poffeffion of the wafte lands. This petition was referred to Sir Ed- ward Northey, attorney general, who was or- dered to report on three queftions, viz. 1. Whether Allen had a right to the waftes. 2. What lands ought to be accounted wafte. 3. By what method her majefty might put him into poffeffion. At the fame time Ufher was making intereft to be re-ap- pointed lieutenant-governor of the province. Upon this Vaughan entered a complaint to the queen, fetting forth 'that Allen claimed ' as wafte ground not only a large tract of " unoccupied land, but much of that which ' had been long enjoyed by the inhabitants, "as common pafture, within the bounds of H H
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Files of the Sup. Court.
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2,50
HISTORY OF
1702. 1. their feveral townfhips. That Ufher, by his « former managements and mifdemeanours ' when in office, had forced fome of the prin- ' cipal inhabitants to quit the province, and ' had greatly haraffed and difgufted all the 'refty rendering himfelf quite unacceptable " to them. That he was interefted in the ' fuits now depending, as on Allen's death he " would in right of his wife be entitled to. ' part of the eftate. Wherefore it was hum- ' bly fubmitted whether it would be proper to 'appoint, as lieutenant-governor, one whofe 'intereft and endeavour it would be to dif- ' feize the people of their ancient eftates, and 'render them uneafy ; and it was prayed that 'no letters might be wrote to put Allen in f poffeffion of the waftes till the petitioner ( fhould be heard by council.'
: Usher's papers. 1703.
January 28.
· Ufher's intereft however prevailed. The attorney-general reported, that ' Allen's claim ' to the waftes was valid; that all lands un- ' inclofed and unoccupied were to be reputed ' wafte ; that he might enter into and take : poffeffion of them, and if difturbed might 'affert his right and profecute trefpaffers in ' the courts there ; but that it would not be ' proper for her majefty to interpofe, unlefs ' the queftion came before her by appeal 'from thofe courts ; fave, that it might be 'reafonable to direct (if Allen fhould infift 'on it at the trials) that matters of fact be "found fpecially by the juries, and that thefe ' fpecial matters fhould be made to appear 'on an appeal.'
Sup. Court files.
July 26.
Soon after this Ufher obtained a fecond commiffion as lieutenant-governor ; but was cxprefsly reftricted from intermedling ' with .
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NEW-HAMPSHIRE.
' the appointment of judges or juries, or oth- 1703. 'erwife, in matters relating to the difputes ' between Allen and the inhabitants.' ; The people did not relifh this re-appointment, nor did his fubfequent conduct reconcile them to it. Upon his firft appearance in October2 council Partridge took his feat as counfellor ; but the next day defired a difmiffion on ac- count of a fhip in the river which demanded his conftant attention. This requeft was granted, and he foon after removed to New- bury, where he fpent the reft of his days in a mercantile department, and in the bufinefs of his profeffion .*
It had always been a favourite point with Ufher to get the books and files, which had been taken from Chamberlayne, lodged in the fecretary's office. Among thefe files were the original minutes of the fuits which Ma- fon had carried on, and the verdicts, judg- ments and bills of coft he had recovered. As they were committed to the care of the recorder who was appointed by the general court and removeable only by them, no ufe could be made of thefe papers but by confent
of the affembly. When Ufher produced to Nov. 4. the council an order from Whitehall that thefe records fhould be depofited with the fecretary, Penhallow, the recorder, who was 1704. a member of the council, refufed to deliver them without an act of the general affembly authorizing him to do fo.
Ufher fucceeded but little better in his ap- plications for money. He alledged that he
- " His son Richard Partridge was an agent for the province in England. One of his daughters was married to Governor Belcher, and was mother to the late lieutenant-governor of Nova Scotia.
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HISTORY OF
1704. : had received nothing for his former fervices, though they had given hundreds to Part- ridge ; and complained that no houfe was provided for him to refide in, which obliged him to fpend moft of his time at Bofton. The plea of poverty always at hand was not forgotten in anfwer to thefe demands. But at length, upon his repeated importunity and Dudley's earneft recommendation, after the affembly had refufed making any provifion for him, and the governor had exprefsly di- rected him to refide at New-Caftle, and ex- Lily 7. ercife a regular command, it being a time of war; the council were prevailed upon to al- low him two rooms in any houfe he could procure " till the next meeting of the affem- bly," and to order thirty-eight fillings to be given him for the expence of his "journey to and from Bofton."
Feb, 10.
When Dudley acquainted the affembly with the royal determination in Allen's fuits, they appeared tolerably fatisfied with theequi- table intention difcovered therein ; but beg- · ged him to reprefent to her majesty that " the province was at leaft fixty miles long 'and twenty wide, containing twelve hun- 'dred fquare miles, that the inhabitants ' claimed only the property of the lands con- 'tained within the bounds of their townfhips, ' which was lefs than one third of the prov- 'ince, and had been poffeffed by them and ' their anceftors more than fixty years ; that 'they had nothing to offer as a grievance if " the other two thirds were adjudged to Al- 'len ; but fhould be glad to fee the fame ' planted and fettled for the better fecurity 'and defence of the whole ; withal defiring
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"it might be confidered how much time; blood 1704. ' and treafure had been fpent in fettling and ' defending this part of her majefty's domin- "ion, and that the coft and labour beftowed ' thereon far exceeded the true value of the ' land fo that they hoped it was not her maj- 'efty's intention to deprive them of all the "herbage, timber and fuel, without which ' they could not fubfift, and that the. lands 'comprehended within the bounds of their 'townfhips was little enough to afford thefe Records of 'neceffary articles ; it not being ufual in thefe the council ' plantations to fence in more of their lands bly. ' than would ferve for tillage, leaving the reft 'unfenced for the feeding their cattle in ' common.'
and assem-
Notwithftanding this plea, which was often alledged, Allen, by virtue of the queen's per- miffion, had entered upon and taken poffeffion Dec. 22, by turf and twig of the common land in each 1708. townfhip, as well as of that which was with- out their bounds, and brought his writ of papers. Usher's ejectment de novo againft Waldron and when . the trial was coming on informed Governor Dudley thereof, that he might come into court and demand a fpecial verdict agreeably to the queen's inftructions. Dudley from Bofton informed the court of the day when he intended to be at Portfmouth and direct- ed the judges to adjourn the court to that day. Before it came he heard of a body of Indians 1704. above Lancafter, which had put the country Aug. 10. in alarm, and ordered the court to be again adjourned. At length he began his journey ; but was taken ill at Newbury, with a fea- fonable fit of the gravel, and proceeded no far- state of AL Printed ther. The jury in the mean time refufed to p. 9. len's title,
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HISTORY OF
1704. bring in a fpecial verdict ; but found for the defendant with cofts. Allen again appealed from the judgment.
Perplexed, however, with thefe repeated difappointments, and at the fame time being low in purfe, as well as weakened with age, he fought an accommodation with the peo- ple, with whom he was defirous to fpend the remainder of his days in peace. It has been faid that he made very advantageous offers to Vaughan and Waldron if they would pur- chafe his title ; but that they utterly refufed it. The people were fenfible that a door was ftill open for litigation ; and that after Al- len's death they might, perhaps, meet with as much or more difficulty from his heirs, among whom Ufher would probably have a great influence : They well knew his inde- fatigable induftry in the purfuit of gain, that he was able to harrafs them in law, and had great intereft in England: They therefore thought it beft to fall in with Allen's views, and enter into an accommodation with him. A general meeting of deputies being held at Portfmouth, the following refolutions and propofals were drawn up, viz. 'That they "had no claim or challenge to any part of the ‘province without the bounds of the four 'towns of Portfmouth, Dover, Hampton and ' Exeter, with the hamlets of New-Caftle and ' Kingfton, which were all comprehended 'within lines already known and laid out, 'and which fhould forthwith be revifed ; but " that Allen and his heirs might peaceably ' hold and enjoy the faid great wafte, contain- 'ing forty miles, in length and twenty in breadth,
1705. May 3.
$
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NEW-HAMPSHIRE.
'or thereabouts, at the heads of the four 1705. "towns aforefaid, if it fhould fo pleafe her 'majefty ; and that the inhabitants of the ' four towns would be fo far from interrupt- 'ing the fettlement thereof, that they defired ' the faid wafte to be planted and filled with 'inhabitants, to whom they would give all " the encouragement and affiftance in their
" power. That in cafe Allen would, for him- * felf and heirs, forever quit claim, to the ' prefent inhabitants and their heirs, all that *tract of land comprehended within the " bounds of the feveral towns, and warrant "and defend the fame againft all perfons, free ' of mortgage, entailment and every other in- 'cumbrance, and that this agreement fhould ' be accepted and confirmed by the queen ; ' then they would lot and lay out to him and * his heirs five hundred acres within the town "'of Portfinouth and New-Caftle, fifteen hun- ' dred in Dover, fifteen hundred in Hamp- `ton and Kingfton, and fifteen hundred in * Exeter, out of the commonages of the faid . 'towns, in fuch places, not exceeding three ' divifions in each town, as fhould beft ac- ' commodate him and be leaft detrimental to ' them ; and that they would pay him or his 'heirs two thoufand pounds current money 'of New-England at two payments, one with- * in a year after receiving the royal confirma- ' tion of this agreement, and the other within 'a year after the firft payment. That all con- 'tracts made either by Mafon or Allen with 'any of the inhabitants, or others, for lands 'or other privileges in the poffeffion of their *tenants in their own juft right, befide the * claim of Mafon and Allen, and no other,
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HISTORY OF
1705. ' fhould be accounted valid ; but that if any 'of the purchafers, leffees or tenants fhould ' refufe topay their juft part of thefums agreed 'on, according to the lands they held, their ' fhare fhould be abated by Allen out of the ' two thoufand pounds payable by this agree- 'ment. That upon Allen's acceptance, and funderwriting of thefe articles, they would " give perfonal fecurity for the aforefaid pay- ' ment ; and that all actions and fuits depend- 'ing in law concerning the premifes fhould 'ceafe till the queen's pleafure fhould be ' known.'
MS Copy of Report
Thefc articles were ordered to be prefented of Lords of to Allen for his acceptance : But fo defirable Trade, 1758. an iffue of the controverfy was prevented by his fudden death, which happened on the next day. He left a fon and four daughters, and.died inteftate.
. . Colonel Allen is reprefented as a gentle- man of no remarkable abilities, and of a foli- Atkinson's Letter MS. tary rather than a focial difpofition ; but mild, obliging and charitable. His charac- Emerson's ter, while he was a merchant in London, was funeral ser- mon and letter to fair and upright, and his domeftic deport- Mr. Prince, ment amiable and exemplary. He was a' MS. member of the church of England by pro- feffion, but conftantly attended divine wor- fhip in the congregation at New-Caftle, and was a ftrict obferver of the chriftian fabbath. He died on the fifth of May 1705, in the feventieth year of his age, and was buried in the fort. ;
1706.
After his death his only fon, Thomas Al- len, Efq. of London, renewed the fuit, by pe- titioning the queen, who allowed him to bring a new writ of ejectment, and ordered
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NEW-HAMPSHIRE.
a revival of the directions given to the gov- 1706: ernor in 1703, with refpect to the jury's find_ May 16. ing a fpecial verdict. Accordingly Allen, having previoufly conveyed one half of the lands in New-Hampfhire by deed of fale to Sir Charles Hobby, and appointed his moth- August 20. er Elizabeth Allen his attorney, brought his writ of ejectment againft Waldron in the in- ferior court of common pleas where he was April 15. caft. He then removed it by appeal to the fuperior court, where it had been tried three years before. As this was the laft trial, and as all the ftrength of both parties was fully dif- played on the occafion, it will be proper to give as juft a view of the cafe as can now be collected from the papers on file in the office of the fuperior court.
On Allen's part were produced copies of the charter by which King James I. confti- tuted the council of Plymouth ; their grants to Mafon in 1629 and 1635 ; his laft will and teftament ; an inventory of artillery,. arms, ammunition, provifions, merchandize and cattle left in the care of his agents here at his death ; depofitions of feveral ancient perfons taken in 1685, who remembered the houfes, fields, forts, and other poffeffions of Capt. Mafon at Portfmouth and Newichwan- nock, and were acquainted with his agents, ftewards, factors and other fervants, who di- vided the cattle and merchandize among them after his death ; the opinions of Sir Geoffry Palmer, Sir Francis Winnington and Sir Wil- liam Jones in favour of the validity of Ma-' fon's title ; King Charles' letter to the prefi- dent and council of New-Hampfhire in 1680 ; the paragraph of Cranfield's commiffion
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HISTORY OF
1707. which refpects Mafon's claim in 1682 ; the writ, verdict, judgment and execution againft Major Waldron in 1683 ; the decifion of the king in council againft Vaughan in 1686 ; Dudley's writ pf certiorari in 1688 ; the fine and recovery in Weftminfter-hall whereby the entail was cut off, and the confequent deed of fale to Allen in 1691 ; Sir Edward Northey's report in 1703; and evidence of Allen's taking poffeffion of the waftes, and of his inclofing and occupying fome land at Great Ifland. On this evidence, it was plead- ed that the title derived from Mafon, and his poffeffion of the province, of which the lands in queftion were part, was legal ; that the appellee's poffeffion had been interrupted by the appellant and thofe from whom he de- rived his title, more efpecially by the judg- ment recovered by Robert Mafon againft Major Waldron ; and a fpecial verdict was moved for, agreeably to the royal directions. The council on this fide were James Mein- zies and John Valentine.
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