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 18
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On Waldron's part was produced the deed from four Indian fachems to Whelewright and others in 1629; and depofitions taken from feveral ancient perfons who teftified that they had lived with Major Waldron, when he began his plantation at .Cochecho, about the year 1640, and affifted him in building his houfes and mills, and that no perfon had difturbed him in the poffeffion thereof for above forty years. To invalidate the evidence of the title produced on the op- pofite fide, it was pleaded, That the alledg- ed grant from the council of Plymouth to . Mafon in 1629, was not figned ; that livery
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and feizin were not endorfed on it as on oth- er of their grants, and as was then the legal form ; nor was it ever enrolled according to ftatute : That the fale of part of the fame lands in 1628 to the Maffachufetts company, by an inftrument figned and executed ac- cording to law, renders this fubfequent grant fufpicious ; and that his pretending to pro- cure another grant of part of the fame lands in 1635, was an argument that he himfelf could not rely on the preceding one, nor was it credible that the fame council fhould grant the fame lands twice, and to the fame perfon : That the alledged grant in 1635 was equally defective ; and that he muft relinquifh one or the other, it being contrary to the reafon and ufage of law to rely on two feveral titles at once. It was urged, That Waldron's pof- feffion was grounded on a deed from the na- tive lords of the foil, with whom his father had endeavoured to cultivate a friendly con- nexion ; that he had taken up his land with their confent, when the country was a wil- dernefs ; had cultivated it, had defended it in war at a great expence, and at the hazard of his life, which he finally loft in the attempt ; that the Indian deed was legally executed in the prefence of the factors and agents of the company of Laconia, of which Mafon was one ; that this was done with the toleration of the council of Plymouth, and in purfuance of the great ends of their incorporation, which were to cultivate the lands, to people the coun- try and chriftianize the natives, for the honour and intereft of thecrownand the trade of Eng- land, all which ends had been purfued and at- tained by the appellee and hisanceftor. It was
1707.
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17.07. alfo alledged, that the writ againft Major Waldron in 1683 was for "lands and tene- ments," of which the quantity, fituation and bounds were not defcribed, for want of which no legal judgment could be given ; that no execution had ever been levied, nor was the poffeffor ever difturbed or amoved by reafon thereof ; and that the copies produced were not attefted, no. book of records being to be found. To invalidate the evidence of Ma- fon's poffeffion, it was obferved, that he him- felf was never here in perfon ; that all the fet- tlement made by his agents or fucceffors was only a factory for trade with the Indians, and principally for the difcovery of a country called Laconia ; and that this was done in company with feveral other merchant-adven- turers in London, who, for the fecurity of their goods erected a fort ; but that this could not amount to a legal poffeffion, nor prove a title to the country, efpecially as upon the failure of trade, the object of their enterprize, they quitted their factory, after a few years ftay in thefe parts.
As to the motion for a fpecial verdict, it was faid that a jury could not find one, if they had no doubt of the law or fact, for the reafon of a fpecial verdict is a doubt either in point of law or evidence ; nor was it confiftent with the privileges of Englifhmen that a jury fhould be compelled to find fpecially. In ad- dition to thefe pleas it was further alledged, that by the ftatute law no action of ejectment can be maintained except the plaintiff, or thofe under whom he claims, have been in poffeffion within twenty years ; and if they bave been out of poffeffion fixty years, thea
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not only an ejectment, but a writ of right, and all other real actions are barred in refpect of a fubject, and that in fuch cafes the right of the crown is alfo barred : and that by the ftatute of 32 Hen. 8. ch. 9. It is enacted, that no perfon fhall purchafe any lands or tene- ments, unlefs the feller, or they by whom he claims, have been in poffeffion of the fame or the reverfion or'the remainder thereof, or have taken the rents or profits thereof by the fpace of one whole year next before fuch bar- gain is made ; and that the appellee and his anceftor, and no other perfon whatever had been in poffeffion of the premifes, nor was it ever pretended by the appellant that the Ma- fons, of whom the purchafe was made, were in poffeffion within one year, or at any time before the alledged purchafe ; that all the mifchiefs provided againft by the above ftat- ute have been experienced by the people of New-Hampfhire from the purchafe made by the appellant's father, of the bare title of the propriety of the province. The council on this fide were John Pickering and Charles Story.
A certificate from the lieutenant-governor refpecting the queen's directions was deliver- ed to the jury who returned the following Aug. 12. verdict : "In the caufe depending between " Thomas Allen, Efq. appellant and Richard " Waldron, Efq. defendant, the jury findes " for the defendant a confirmation of the for- " mer judgment and cofts of courts. Mark " Hunking, foreman."
The court then fent out the jury again, with this charge, "Gentlemen, you are further to " confider this cafe and obferve her majefty's
1707.
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1707. "directions to find fpecially and your oaths." They returned the fecond time with the famc verdict ; upon which the court ordered judg- ment to be entered, and that the defendant recover cofts of the appellant. The council for the appellant then moved for an appeal to her majefty in council ; which was allow- ed on their giving bond in two hundred pounds to profecute it.
Assembly's Records.
Printed state of Al- len's title, p. 10.
But the loyalty of the people, and the dif- Counciland treffes under which they laboured by reafon of the war, prevailed on the queen's miniftry to fufpend a final decifion ; and before the appeal could be heard, Allen's death, which happened in 1715, put an end to the fuit, which his heirs, being minors, did not re- new.
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CHAP. XII.
The war with the French and Indians, called Queen Anne's war .- Conclusion of Dudley's and Usher's administration.
THE peace which followed the trea- ty of Ryfwick was but of fhort duration, for the feeds of war were ready fown both in Europe and America. Louis had proclaim- ed the pretender king of England, and his Governor Villebon had orders to extend his province of Acadia to the river Kennebeck, though the Englifh court underftood St. Croix to be the boundary between their ter- ritories and thofe of the French. The fifhery was interrupted by French men of war, and by the orders of Villebon, who fuffered no Englifh veffels to fifhon the banks of Nova- Scotia. A French miffion was eftablifhed, and a chapel erected at Norridgewog, on the upper part of Kennebeck, which ferved to extend the influence of the French among the Indians. The governor of Canada, af- fuming, the character of their father and pro- tector, inftigated them to prevent the fettle- ment of the Englifh to the eaft of Kennebeck, and found fome among them ready to liften to his advice. The people in thofe parts were apprehenfive of danger and meditating a removal, and thofe who had entertained thoughts of fettling there were reftrained.
Things were in this pofture when Dudley entered on his government. He had particu- lar orders from England to rebuild the fort at Pemaquid ; but could not prevail on the Maffachufetts affembly to bear the expence
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1703. June 20.
of it. However he determined on a vifit to the eaftern country, and having notified his intention to the Indians, took with him a number of gentlemen of both provinces*, and held a conference at Cafco with delegates from the tribes of Norridgewog, Penobfcot, Pigwacket, Penacook and Amarifcoggin ; who affured him that "as high as the fun was " above the earth, fo far diftant was their de- "fign of making the leaft breach of the " peace." They prefented him a belt of wam -. pum in token of their fincerity, and both par- ties went to two heaps of ftones which had formerly been pitched and called the Two Brothers, where the friendfhip was further ratified by the addition of other ftones. They. alfo declared, that although the French emif- faries among them had been endeavouring to. break the union, yet it was " firm as a moun- "tain, and fhould continue as long as the " fun and moon." Notwithftanding thefe fair appearances, it was obferved that when the Indians fired a falute their guns were charg- ed with fhot ; and it was fufpected that they had then formed a defign to feize the gover- nor and his attendants, if a party which they expected from Canada, and which arrived two' or three days after, had come in proper feafon to their affiftance. However this might be, it is certain that in the fpace of fix weeks, a August 10. body of French and Indians, five hundred in number, having divided themfelves into fev- eral parties, attacked all the fettlements from Cafco to Wells, and killed and took one hun -.
" Mr. Hutchinson has misplaced this transaction by a year.
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1703.
dred and thirty people, burning and deftroy- ing all before them *.
The next week (Auguft 17) a party of thirty Indians under Captain Tom killed five people at Hampton village ; among whom was a widow Muffy, a noted fpeaker among the friends, and much lamented by them ; they alfo plundered two houfes ; but the people being alarmed, and purfuing them, they fled.
The country was now in terror and confu- fion. The women and children retired to the garrifons. The men went armed totheir work and pofted centinels in the fields. Troops of horfe were quartered at Portfmouth and in' the province of Maine. A fcout of three hun- dred and fixty men marched toward Pig- wacket, and another to the Offapy Pond, but made no difcoveries. Alarms were frequent, and the whole frontier country from Decir- field on the weft. to Cafco on the caft was kept in continual terror by fmall parties of the enemy.
In the fall Col. March of Cafco made a vifit to Pigwacket, where he killed fix of the enemy and took fix more ; this encouraged the government to offer a bounty of forty pounds for fcalps.
As the winter came on, the frontier towns were ordered to provide a large number of fnow-fhoes ; and an expedition was planned in New-Hampfhire, againft the head-quar- ters of the Indians. Major Winthrop Hil-
* Mr. Hutchinson takes no notice of this remarkable devastation, which is particularly related by Mr. Penhallowy in his " wars of Now-Engy find." p. 55
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1703. ton, and Captain John Gilman of Exeter, Captain Chefley and Captain Davis of Oyfter river, marched with their companies on fnow fhoes into the woods ; but returned without fuccefs. This is called in the council books " an honourable fervice :" Hilton received a gratuity of twelve, and each of the captains five pounds.
1704.
April 25.
With the return of fpring there was a re- turn of hoftilities ; for notwithftanding the pofting a few fouthern Indians in the garri- fons at Berwick, the enemy appeared at Oyf- ter river, and fhot Nathaniel Medar near his own field, and the next day killed Edward Taylor near Lamprey river, and captivated his wife and fon. Thefe inftances of mif- chief gave colour to a falfe alarm at Coche- cho, where it was faid they lay in wait for Col. Waldron a whole day, but miffing him by reafon of his abfence from home, took his fervant maid as the went to a fpring for water ; and having examined her as to the ftate of the garrifon, ftunned her with an hatchet but did not fcalp her.
ul In May, Col. Church, by Governor Dud- ley's order, having planned an expedition to the eaftern fhore, failed from Bofton with a number of tranfports, furnifhed with whale- boats for going up rivers. In his way he ftopt at Pafcataqua, where he was joined by a body of men under Maj. Hilton, who was of eminent fervice to him in this expedition*, which laft- ed the whole fummer, and in which they deftroyed the towns of Minas and Chiegnecto,
* This is called in the council books "an expedition to Port-Royal," and this was the ostensible object. But Church in his memoirs says that Dud- ley would not permit him to go there.
Church, p. 104. Hutch. II. 146
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and did confiderable damage to the French 1704. and Indians at Penobfcot and Paffamaquod- dy, and even infulted Port Royal. While they were at Mount Defart, Church learned from nine of his prifoners that a body of * fix hundred Indians were preparing for an attack on Cafco, and the head of Pafcataqua river ; and fent an exprefs to Portfmouth which obliged the people to be vigilant. No
fuch great force as this appeared ; but fmall parties kept hovering on the outfkirts. At Oyfter river they wounded William Tafker ; and at Dover they laid in ambufh for the people on their return from public worfhip, but happily miffed their aim. They after- ward mortally wounded Mark Gyles at that place, and foon after killed feveral people in a field at Oyfter river, whofe names are not mentioned.
In the former wars New-Hampshire had received much affiftance from their brethren of Maffachufetts ; but thefe now remonftrat- ed to the governor that his other province did not bear their proportion of the charge for the common defence, The reprefenta- tives of New-Hampfhire urged, in reply, the different circumftances of the two provinces ; " moft of the towns in Maffachufetts being out of the reach of the enemy, and no oth- erwife affected by the war than in the pay- ment of their part of the expence, while this province was wholly a frontier by fea and land, and in equal danger with the county of York, in which four companies were fta-
" I suppose this is the party whom Penhallow mentions, p. 23, who quarrelled on their march about dividing the plunder which they might take, and of whom two hundred returned while the rest pursued their march, and did damage at Lancaster and Creton.
August 11.
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1704. tioned, and the inhabitants were abated their proportion of the public charges." They beg- ged that twenty of the friendly Indians might be fent to fcout on their borders, which re- queft the governor complied with.
· Council Rec.
1705.
In the winter, Col. Hilton with two hun- dred and feventy men, including the twen- ty Indians, were fent to Norridgwog on fnow fhoes. They had a favourable feafon for their march, the fnow being four feet deep, When they arrived there, finding no enemy to contend with, they burnt the deferted wigwams, and the chapel. The officers who went on this expedition complained that they had only the pay of private foldiers.
The late repairs of fort William and Mary at New-Caftle were always complained of as burdenfome to the people, and a reprefenta- tion thereof had been made to the queen, who inftructed Dudley to prefs the affembly of Maffachufetts to contribute to the ex- pence ; as the river belonged equally to both provinces. They urged in excufe that the fort was built at firft at the fole charge of New-Hampshire to whom it properly be- longed ; that the whole expence of the re- pairs did not amount to what feveral of their towns fingly paid toward the fupport of the war for one year ; that all the trade and nav- igation of the river, on both fides, paid a du- ty toward maintaining that fortrefs ; and that they had been at great expence in protecting the frontiers of New-Hampfhire, and the par- ties who were employed in getting timber and mafts for her majefty's forvice ; while New-Hampfhire had never contributed any thing to the fupport of the garrifons, forces
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and guards by fea, which were of equal ben- 1705. efit to them as to Maffachufetts. One thing which made New-Hampfhire more in favour with the queen was, that they had fettled a falary on her governor, which the others nev- er could be perfuaded to do. The repairs of the fort, however, went on without their af- fiftance, under the direction of Col. Romer ; and when they were completed, a petition was fent home for a fupply of cannon, am- munition and ftores.
The next fummer was chiefly fpent in ne- gotiating an exchange of prifoners ; and Dud- ley had the addrefs to protract the negotia- tion, under pretence of confulting with the other governments about a neutrality pro- pofed by the governor of Canada, by which means the frontiers in general were kept tol- erably quiet, although the enemy appeared once or twice in the town of Kittery. The line of pickets* which inclofed the town of Portfmouth was repaired, and a nightly pa- trole eftablifhed on the fea fhore from Ren- dezvous Point to the bounds of Hampton, to prevent any furprize by fea ; the coaft being at this time infefted by the enemy's privateers.
During this truce, the inhabitants of Kingf- ton who had left the place, were encouraged to petition for leave to return to their lands ; which the court granted on condition that they fhould build a fort in the center of the town, lay out a parfonage and fettle a minif- ter within three years. This laft condition was rendered impracticable by the renewal of hoftilities.
. * This line extend ai from the mill-pond on the south, to the creek on the north si le of the town. It crossed the main street a few rods westward of the spot where the State House now stands.
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In
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HISTORY OF
1705.
1706.
The governor of Canada had encouraged New-England to remove to Canada, where being incorporated with the tribe of St. Fran- cis, they have ever fince remained. . By this policy they became more firmly attached to the intereft of the French, and were more eafily difpatched on their bloody bufinefs to the frontiers of New-England, with which they were well acquainted. Dudley, who was generally apprized of their movements, and kept a vigilant eye upon them, appre- hended a rupture in the winter ; and gave or- ders for a circular fcouting march, once a month, round the head of the towns from Kingfton to Salmon falls ; but the enemy did not appear till April ; when a fmall party of them attacked the houfe of John Drew at Oy- fter river, where they killed eight and woun- ded two. The garrifon was near, but not a man in it: the women, however, feeing nothing but death before them, fired an alarm, and then putting on hats, and loofening their hair that they might appear like men, they fired fo brifkly that the enemy, apprehend- ing the people were alarmed, fled without burning or even plundering the houfe which they had attacked. John Wheeler, meeting this party and miftaking them for friendly Indians, unhappily fell into their hands and was killed with his wife and two children. Four of his fons took refuge in a cave by the bank of the Little Bay, and though purfued by the Indians efcaped unhurt.
In July, Colonel Schuyler from Albany gave notice to Dudley that two hundred and feventy of the enemy were on their march toward Pafcataqua, of which he immediately
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the Indians who inhabited the borders of 1706. informed the people, and ordered them to clofe garrifon, and one half of the militia to be ready at a minute's warning. The firft appearance of this body of the enemy was at Dunftable ; from whence they proceeded to Amefbury and Kingfton, where they killed fome cattle. Hilton with fixty four men marched from Exeter ; but was obliged to return without meeting the enemy. The rea- fon he gave to the council for returning fo foon was the want of provifion, there being none in readinefs at the garrifons, notwith- ftanding a law lately enacted, enjoining it on every town to have ftores ready and de- pofited in the hands of their captains. For the fame reafon he had been obliged to . dif- continue a fmall fcout which he had for fome time kept up. Hilton was fo brave and active an officer that the enemy had marked him for deftruction ; and for this purpofe a party of them kept lurking about his houfe, where they obferved ten men to go out one morning with their fcythes, and lay afide their arms to mow ; they then crept between the men and their guns, and fuddenly rufh- ing on them, killed four, wounded one, and took three ; two only of the whole number efcaped. They miffed the major for this time, and two of their prifoners efcaped ; but fuffered much in their return, having noth- ing to fubfift on for 'three weeks but lily roots and the rinds of trees. After this they August If killed William Pearl and took Nathaniel Tib- bets at Dover. It was obferved during this war that the enemy did more damage in fmall bodies than in larger, and by fcattering
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1706. along the frontiers kept the people in con- tinual apprehenfion and alarm ; and fo very few of them fell into our hands, that in com- puting the expence of the war it was judged that every Indian killed or taken coft the country a thoufand pounds.
Penhallow, p. 40.
1707.
In the following winter Hilton made anoth er excurfion to the eaftward, and a fhallop was fent to Cafco with ftores and provifions for his party, confifting of two hundred and twenty men. The winter being mild, and the weather unfettled, prevented their march- ing fo far as they intended : cold dry weath- er and deep fnow being moft favourable to winter expeditions. However they came onan Indian tracknear Black Point, and purfuing it, killed four, and took a fquaw who conducted them to a party of eighteen, whom they fur- prized as they lay afleep on a neck of land at break of day, and of whom they kill- ed feventeen, and took the other. This -was matter of triumph confidering the diffi- culty of finding their haunts. It was re- marked that on the very morning that this affair happened, it was reported, with but little variation from the truth, at Portfmouth, though at the diftance of fixty miles.
Jan. 21.
When Church went to Nova-Scotia, he very earneftly folicited leave to make an at- tempt on Port Royal ; but Dudley would not confent, and the reafon he gave was, that he had written to the miniftry in England and expected orders and naval help to reduce the place. His enemies however affigned anoth- er reafon for his refufal ; which was that a clandeftine trade was carried on by his con- nivance, and to his emolument, with the
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French there. This report gained credit and 1707. occafioned a loud call for juftice. Thofe who were directly concerned in the illegal traffick, were profecuted and fined ; and the governor Hutch. fuffered much in his reputation. To wipe off Hist. Massa. Vol. 2. page 154. thefe afperfions he now determined to make an attack in earneft on Port Royal, even though no affiftance fhould come from Eng- land. It was intended that an armament fhould be fent to America, and the command- er was appointed ; but the ftate of affairs in Europe prevented their coming.
Early in the fpring the governor applied to the affemblies of both his provinces, and to the colonies of Rhode Ifland and Connec- ticut, requefting them to raife one thoufand men for the expedition. Connecticut de- clined ; but the other three raifed the whole number, who were difpofed into two regi- ments, of which Colonel Wainwright com -. manded the one, and Colonel Hilton the other. They embarked at Nantafket in
twenty three tranfports furnifhed with whaleboats, under convoy of the Deptford man of war, Capt. Stuckley, and the pro- vince galley, Captain Southack. The chief command was given to Colonel March, who had behaved well in feveral fcouts and ren- counters with the Indians, but had never been tried in fuch fervice as this. They ar- May 26. rived before Port Royal in a few days, and after burning fome houfes, killing fome cat- tle round the fort, and making fome ineffec- tual attempts to bombard it, a jealoufy and difagreement among the officers, and a mif- apprehenfion of the ftate of the fort and gar-
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May 15.
Penhallow, p. 42.
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274 1 1707. June 6 and 7.
HISTORY OF
June 18.
Council Records.
rifon, caufed the army to break up and reim- bark in a diforderly manner. Some of the officers went to Bofton for Orders, fome of the tranfports put in at Cafco ; a floop with Captain Chefley's company of fixty men ar- rived at Portfmouth : Chefley fuffered his men to difperfe, but ordered them to return at the beat of the drum : Being called to ac- count for this conduct he alledged that "gen- " eral orders were given at Port Royal for " every man to make the beft of his way " home." The governor, highly chagrined and very angry, fent orders from Bofton that if any more veffels arrived the men " fhould not be permitted to come on fhore " on pain of death." After a while he ord- ered Chefley's company to be collected and reimbarked, offering a pardon to thofe who voluntarily returned, the reft to be feverely punifhed. By the latter end of July they got on board, and with the reft of the army, returned to the place of action. At the land- ing, an ambufcade of Indians from among the fedge on the top of a fea-wall, greatly annoyed the troops. Major Walton and
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