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 22
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N the yeare of our Lord 1628, in the third yeare of his late majesty Charles the first, of happy memory, several loyal and piously disposed gentlemen obtained of the great council of New-England, a grant of a cer- tain tract of land lying in New-England, described and bounded as therein expressed ; which was in all respects fairly and openly procured and with so good an intent of propagating the gospel among the natives, and to ad- vance the honour and dignity of his late majesty, of happy memory, that they were bold to supplicate his said majesty to superadd his royal confir- mation thereto, which accordingly in an ample royal charter was passed and remains under the broad seal of England, March the 4th 1629, in the fourth year of his majesties reign, with further additions and enlarge- ments well becoming so royal a majesty, and suitable for the encourage- ment of so hazardous and chargeable an adventure. In pursuance whereof many of the said patentees and other adventurers transported themselves and estates and settled in the most known and accommodable parts of those lands contained in the said charter, neither time, estate, nor power suffering them speedily to survey the just extent of their limits. Not many years different in time several others also of his majesty's subjects obtained other grants, and made several settlements in the more northern and easterne parts of the country, with whom for several years we had neighbourly correspondence, being as they supposed without the limits of our patent, amongst whom the present claimers and petitioners were. These grants partly by reason of the smallness of some of them, and partly by reason of darke involv'd and dubious expression of their limits, brought the inhabitants under many intanglements and dissatisfactions among themselves, which there being no settled authority to be applied to, being deserted and forsaken of all such as by virtue of said grants did claim jurisdiction over them and had made a successless essay for the set- tlement of government among them proved of some continuance, unto the great disquiet and disturbance of those his majesty's subjects that were pcaceable and well disposed amongst them ; to remedy which in- convenience they betook themselves to the way of combinations for gov -- einment, but by experience found it ineffectual. In this time ignorance of the net berly running of Merrimack river hindred our actual claim and
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extention of government, yet at length being more fully settled, and hat- ing obtained further acquaintance and correspondency with the Indians possessing the uppermost parts of that rivre encouraging an adventure, as also frequent sollicitations from the most considerable inhabitants of those castern parts earnestly desiring us to make proofe of and ascertain our in- terest, we imployed the most approved artists that could be obtained, who upon their solemn oaths made returns, That upon their certain observa- tion our northern patent line did extend so far north as to take in all those towns and places which we now possess ; which when the inhabitants as well as our selves were satisfied in (urged also with the necessity ot gov- ørnment amongst them) they peaceably and voluntarily submitted to the government of the Massachusetts, (viz.) Dover, Squamscot and Ports- mouth anno 1641, Kittery, York and Wells anno 1652 and 1653, from which times until the year 1662, when there was a small interruption by a letter of Mr. Gorge, and afterwards in the year 1665, (when his majes- tyes commissioners, Colonel Nichols and others came over) the inhati- tants of those parts lived weil satisfied and uninterrupted under the bus- sachusetts government. . But when the said commissioners neithe: re- garding the Massachusetts just right nor the claims of Mr Gorge and Mr. Mason, settled a new forme of government there, but this hardly cut- lived their departure, the people impatient of innovations, and well espc- rienced and satisfied in their former settlement, quickly and quietly te- turned to order again and so continue unto this time. This is in a few words the true state of the matter ; for the further illustration when I and justification of our proceedings therein and vindication of our sche; - from the reproachful imputation of usurping authority over his majesins subjects in the easterne parts pretended to, with other scandals cast upon us by the petitioners, we humbly present the following pleas by way of de- monstration, and argue that our extension of government to those costern parts claimed is agreeable to our indubitable patent right ; our patent &c. cording to the express terme therein contained without any ambiguity er colour of other interpretation, lyes between two east and west paralel fines drawn from the most southerly fart of Charles river and the most north: rly part of Merrimack, with three miles advantage upon cach, which upon the observation of men of approved and undoubted truth upon oath, are found distant one degree and forty nine minutes north latitude being to ex. tend in full latitude and breadth from sea to sea (ut in terminis) and there- fore cannot be bounded by many hundreds or infinite numbers of lines, as the river of Merrimack maketh bends or angles in two hundred miles passage from Winipesioke lake to the mouth thereof, which to imagine, as it is irrational so would it involve us and any borderer into so many inextri- cable disputes as are by no wayes to be admitted by a prince seeking his subjects peace. Besides were such a construction allowable (which with uttermost streining is) yet all favourable interpretation is to be offered the patentees by the gracious expression of the charter. Now according to the afore mentioned observation (so confirmed) all those castein planta- tions challenged by our opponents (ut supra) are comprehended within our northerly line. We deny not but the artists of their selves, and i! . any question thence arise we feare not to submit to tryal to the most exact and rigorous test that may be. The invincible strength of this our frs; plea may further appear by the consideration of the frivolous and insigni- . Ricant allegations of the petitioner's in opposition thereunto, viz. Ist. The
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nonextention of our line or assertion of our right to those eastern parts for some years, ignorance as our case was circumstanced debarring no man of his just right, neither can it reasonably be supposed that the exact survey of so large a grant in so hedious a wilderness possessed by an enc- my would be the worke of a few yeares, our own poverty not affording means, and our weakness (allowing no deep adventure into the country) permitting us not to view the favourable running of the river, which none can i.nagine altered its course by our delay ; we may as well be deprived of far more than we possess or ever saw on our western parts to the south sea (which none wili deny) because we have not surveyed it or are soon like to be able, as be taken from our northern right so obvious to the meanest artist.
2diy. The Possession-house in Hampton of so little signification and so ung since disused, that Mr. Mason hath forgot the name thereof and cal eth it Bound-house, erected to give the world to know that we claimed considerably to the northward of our then habitations upon the bay, though we did not know the uttermost extent of our right, our fathers not being so ignorant of the law of the realme to which they did aprertain as to suppose the taking possession of part did debar them of the remainder but the contrary ; and we challenge Mr. Mason or any on his behalfe, promising our records shall be open to the most scrutinous search to prove it, either cilied or intended according to his abuse thereof.
3dly, That notorious falshood of stretching our right to near four hun- dred miles north and south more then formerly we were satisfied with, our whole breadth being but one hundred and nine mile, which is not much more then a quarter part of what he would have the world believe our new claime and (as he would insinuate) usurped territory doth con- tuin, arising (we would charitably believe) partly from ignorance of the coasting of the country, Mr. Mason accounting by the sea-side, and we suppose coasting in the measure of every harbour and cove to make up that calculation, which lies much of it due east and not to the north, but we fear malevolently suggested (as many other things as of little credit) to introduce into his majestie his royal breast a beliefe that we are un- reasonable in our pretentions, und so unworthy of his majesties favour, which we hope such unlawful endeavours will never be so prosperous as to obtain. What may be further added to this our first plea, may be sup- plied from the reasons formerly presented. We urge secondly, The in- validity of those grants pretended to by the petitioners, which are of two sorts ; Ist. Such as beare date after ours, which we see no reason to feare any interruption from. Secondly, Such as are pretended to beare date before ours, against which we object that they are not authentick, wanting a sufficient number of grantors to make them so, none of them as we presume will appeare upon tryal having above six hands and scals annexed to them, the said council of New-England consisting of forty, and his majesty's grant to them expressly requiring (as we are informed) seven at the least to signe to make any valid act ; and indeed Mr. Ma- son's own often unwearied renewal of his grants in 1621, sixteen hundred twenty two, sixteen hundred twenty nine and 1635, (as he saith) tacitly confesseth the same invalidity, in the former putting him to charge for the latter, till at last he fell into such a trade of obtaining grants that his last and most considerable wis six years after the grant of our charter from his majesty, aad but three dayes bofore the said council's declara-
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tion of their absolute resolution to resign, and but a few days before their actual surrender, as he asserts ; which of what value and consideration i: as from the said council's circumstanced under a necessity of resignation of their great charter, procured rather by the clamour of such ill affected persons as the present complaint than by any true accompt of dissettle- ment or ill management here, is not difficult to judge. Hence it ap- pears, first, how little reason Mr. Mason hath to brand us with fraud or surreptitiousness in obtaining our charter ; which hath most shew of fraud and surreptitious procuration, a sufficient number of those honb'e persons subscribing ours and fewer his pretended antidated grants, is cusie to determine. In which assertion is to be observed the high reflection cast upon the members of his late majesty and ministers of state, ground- lessly rendering the counsel's seal, yea the great seal of Eng lund, exposed to fraud and deceitful clandestine practices ; yca upon his present majes- ty, insinuating himselfe better acquainted with matters of state then he who allows and confirmes our grant as authentick by his gracious letter of sixteen hundred sixty two, which intolerable boldness how unbecoming (not to,say more) in a subject, it is not easie for us to say. To all which we may add Sr Ferdinando Gorges application to the authority here to in- terpose in his affair, which he, being one of the great council, would have been far from acknowledging, had Mr. Mason's allegations been founded upon truth.
Secondly, That articles of charge depending upon such illegal and post dated grants cannot take place against us were their disburse as great as it is affirmed, which by eye witnesses upon the place and still living are proved comparitively very inconsiderable
3dly. We affirme that the whole management of the affair respecting our government of those eastern parts was in an orderly and peaceabic way, and not without the reiterated and earnest sollicitation of most of the people there inhabiting, sufficiently appearing by their several petitions ; and we challenge Mr. Gorge and Mr. Mason by any living evidence or record to shew any signe of a forceable entrance : Some majistrates upon the clearing of our right to them and acceptance of the tender of theny selves to us, being sent thither without any other force than each of them a servant to attend them. . Indeed some years after Capt. Boniton for nit- tinous carriage was seized and brought to justice ; concerning which and many other cases many inhabitants yet living and eye witnesses can give the most impartial evidences.
4thly. We offer to consideration that the deserted and ongovern'd state of the people of these places had we not bad that patent right so clearly evinced, might warrant our actions ; especially con idering the obligauen upon us to secure his majesty's honour and maintein the publick peace, so hazarded by the total want of government amongst them. Our Sist ex. ercise of jurisdiction being in the year 164!, eight year after Capt. Scale, agent for Mr. Mason, had wholy deserted the improvement of land and the government of the country, which indeed he never used but one year, for in the year 1630 he first came over, and in the year 1634 he quitted the place ; and in the interim neglected the same in making a voyage for England, the short time of his tarriance not admitting of settlement of government or improvement. We may bereto subjoin that Mr. Joseph Mason, agent for Mrs. Ann Mason, when here and all things were fresh to memory, made no demand contrary to what is wanted; tan gestioned
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our justice against his debtors there and elsewhere, and that Sr Ferdinan- do Gorges his grant being so mean and uncertainly bounded that he knew not well how to find much less to improve to considerable advantage, by' his letter bearing date- - ---- doth devolve the whole charge and care of his pretended province upon the authority here established. Lastly, That the exercise of jurisdiction in those eastern parts hath been and is his majesty's honour, the people's great benefit, and our charge without profit, which had it not been, the ruine of those parts would have unavoid- ably ensued in the want of all government, and their seizure by the French, who ever waited a fit opportunity for the same. They have part of them for thirty five years and others twenty yeares (some small interruption in- tervening producing ths stronger inclination and resolution in them to be constant to his majesties authority here) lived under the government of the Massachusetts a quiet, well ordered and thriving people. And as for any complaint from ill affected persons, it is well known that the best and wisest government is not without disquiet from some such ; and no won* der if silly people are soon affected with such fair glozing promises as Mr. Mason hath made and published, as it were determining the case be- fore tryal by his late letters to the inhabitants in those parts, and that our government in those places have been no gain is so unquestionable a truth that never was any levy laid upon them for the supply of the publick treas- ury, tho' much hath been and'is further like to be expended for their se- curity, who other wise will inevitably become an easic prey to the heathen 'now in hostility with us, and at this present time rageing in those parts.
The before writen is a true copy transcribed from the records of the general court of the late colony of the Massachusetts Bay, held by the governour and company of the said colony att Boston, the 6th of September, 1676.
Examd. per ISA. ADDINGTON, Secif.
No. XV.
At the Court at Whitehall, July 20, 1677.
(L. S.) Present the King's most excellent Majesty.
Lord Chancellor,
E. of Craven,
Ld Treasurer,
Ld Bp of London,
Ld Privy Seal,
Ld Maynard,
Duke of Ormond,
Ld Berkley,
Marquis of Worcester,
Mr. Vice Chamberlain,
L.d Chamberlain,
Mr. Sec.y Coventry,
Earl of Northampton,
Mr. Sec.y Williamson,
Earl of Peterborough,
Earl of Stratford,
E. of Sunderland,
Mr. Chancellor of the Excher quer, Master of the ordnance,
E. of Bath,
Mr. Speaker.
HEREAS the right honourable the lords of the committee for trade and plantations, did in pursuance of an order of the 7th of February last make report to the board, of the matters in controversy be- tween the corporation of the Massachusetts Bay in New-England, and Mr. Mason and Mr. Gorges touching the right of soil and government, claimed by the said parties in certain lands there, by virtue of several grants from his majesty's royal father and grandfather as followeth, in these words.
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May it please your majesty,
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Having received your majesty's order in council of the 7th of February last past, whereby we are directed to enter into the examination of the bounds and limits which the corporation of the Massachusetts Bay in N. E. on the one hand, and Mr. Mason and Mr. Gorges on the other, do pre- tend by their several grants and patents to have been assigned unto them, as also to examine the patents and charters which are insisted on by ei- ther side, in order to find out and settle how far the rights of soil and gov. ernment do belong unto any of them. In consideration whereof the lords chief justices of your majesty's courts of king's bench and common pleas were appointed to give us their assistance, we did on the 5th of April last together with the said lords chief justices meet in obedience to your maj- esty's commands, and having heard both parties by their council learned in the law, we did recommend unto their lordships to receive a state of the claims made by both parties, and to return their opinions upon the whole matter unto us, which their lordships have accordingly performed in the words following :
'In obedience to your lordships order we appointed a day for the hear- ing of all parties, and considering the matters referred, having received from them such papers of their cases as they were pleased to deliver ; at which time all parties appearing, the respondents did disclaim title to the lands claimed by the petitioners, and it appeared to us that the said lands are in the possession of several other persons not before us, whereupon we thought not fi to examine any claims to the said lands, it being (in our opinion) improper to judge of any title of land without hearing of the ter- tenants or some other persons on their behalf ; and if there be any course of justice upon the place having jurisdiction, we esteem it most proper to direct the parties to have recourse thither for the decision of any ques- tion of property until it shall appear that there is just cause of complaint against the courts of justice there for injustice or grievance.
We did in the presence of said parties examine their several claims to the government, and the petitioners having waved the pretence of a grant of government from the council of Plymouth, wherein they were convinc- ed by their own council that no such power or jurisdiction could be trans- ferred or assigned by any colour of law ; the question was reduced to the province of Maine, whereto the petitioner Gorges made his title by a grant from king Charles the first, in the 15th year of his reign, made to Sir Ferd. Gorges and his heirs of the province of Maine and the goverminen- thereof. In answer to this the respondents alledged that long before, viz. in quarto Caroli primi, the government was granted to them, and pro, duced copies of letters patents wherein it is recited that the council of Plymouth having granted to certain persons a territory thus described, viz. " all that part of New England in America which lies and extend: be- " tween a great river that is commonly called Monomack alias Merrimack. " and a certain other river there called Charles river, being in the bottom " of a certain bay there called the Massachusetts Bay, and also all and sin- " gular the lands and hereditaments whatsover lying and being within the " space of three English miles on the south part of the said Charles river, " or any or every part thereof ; and also all and singular the lands and he- " reditaments whatsoever lying and being within the space of three Eng- " lish miles to the southermost part of the said bay called Massachusetts " Bay ; and all those lands and bereditaments whatsoever which [licj vishi "in the space of three English miles to the northward of the said rives
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" river called Monomack alias Merrimack, or the northward of any and "every part thereof ; and all lands and hereditaments whatsover lying " within the limits aforesaid, north and south in latitude and breadth, and " in length and longitude of and within all the breadth aforesaid through- " out the main lands there, from the Atlantic and Western sea and ocean " on the east part to the South sea on the west." By the said letters pa- tents the king confirmed that grant, made them a corporation, and gave them power to make laws for the governing of the lands and the people therein. To which it was replied that the patent of 4º Caroli primi is in- valid, (1) Because there was a precedent grant, 18° Jacobi, of the same thing then in being, which patent was surrendered afterwards and before the date of the other, 15º Car. primi. (2) The grant of the government can extend no farther than the ownership of the soil, the boundaries of which as recited in that patent wholly excludes the province of Maine, which lies northward more than three miles beyond the river Merrimack,
We having considered these matters do humbly conceive as to the first matter, that the patent of 4º Caroli Imi is good notwithstanding the grant made in the 18° Jac : for it appeared to us by the recital in the patent 4º Caroli Imi that the council of Plymouth had granted away their all interest in the lands the year before, and it must be presumed they then deserted the government ; whereupon it was lawful and necessary for the king to estab- lish a suitable frame of government, according to his royal wisdom, which was done by that patent, 4º Caroli Imi making the adventurers a corporation upon the place. As to the second matter it seems to us to be very clear that the grant of the government 4º Caroli imi extends no farther than the boundaries expressed in the patent, and those boundaries cannot be con- strued to extend further northwards along the river Merrimack than three English miles, for the north and south bounds of the lands granted so far as the river extends are to follow the course of the rivers which make the breadth of the grant, the words describing the length to com- prehend ali the lands from the Atlantic ocean to the South sea of and in all the breadth aforesaid, do not warrant the over reaching those bounds Ly imaginary lines or bounds, other exposition would (in our humble opin- ion) be unreasonable and against the interest of the grant. The words " of and in all the breadth aforesaid" shew that the breadth was not intend- ed an imaginary line of breadth, laid upon the broadest part but the breadth respecting the continuance of the boundaries by the river as far as the rivers go, but when the known boundary of breadth determines it must be carried on by imaginary lines to the South sea. And if the province of Maine lies more northerly than three English miles from the river Mer- rimack, the patent of 4º Caroli Imi gives no right to govern there, and thereupon the patent of the same 15º Car. Imi to the petitioner Gorges will be valid. So that upon the whole matter we are humbly of opinion as to the power of government, that the respondents, the Massachusetts and their successors, by their patent of 4º martis 4ºCaroli Imi have such right of government as is granted them by the same patent within the boundaries of their lands expressed therein, according to such description and exposition as we have thereof made as aforesaid, and the petitioner Sir Ferdinando Gorges his heirs and assigns by the patent 3d April, have such right of government as is granted them by the same patent within [the territory ] called the province of Maine according to the boundaries of the same expressed in the same patent,
Ri. Rainsford, Fra. North.»
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All which being the opinion of the lords chief justices, and fully agrees . îng with what we have to report unto your majesty upon the whole mat- ter referred unto us by the said order, we humbly submit the determina- tion thereof unto your majesty.
Anglesey, Craven,
J. Williamson,
Ormond, 11. London, 'l ho. Chickley,
Bath, G. Carteret, i'dw. Seymour,
Which having been read at the board the 18th instant, it was then of- dered that the said Mr. Mason and Mr. Gorges. as also that the agents of the corporation of the Massachusetts Bay should be this day heard upor the said report, if they had any objections to make thereunto. In pursuance. whereof all parties attending with their council, who not alledging any thing so material as to prevail with his majesty and the board to differ in judgment from the said report ; his majesty was thereupon pleased to approve of and confirm the same, and did order that all parties do ac- quiesce therein, and contribute what lies in them to the punctual and due performance of the said report, as there shall be occasion,
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