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 23
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JOHN NICHOLAS.
N. B. The above paper of which the copy is attested by Edward Run : son secretary of Massachusetts, and John Penhallow ciak of the superior court of New Hampshire, is in the files of the said superior court, and in the Masonian proprietary office.
No. XVI.
Copy of that part of President Cutts's commission in which the chain of Robert Mason is recited.
6 ND whereas the inhabitants of said province of New-Hampshire have many of them been long in possession of several quanti- ties of lands, and are said to have made considerable improvements there. upon, having no other title for the same than what has been derived from the government of the Massachusetts Bay, in virtue of their imaginary . fine ; which title; as it hath by the opinion of our judges in England been altogether set aside, so the agents from the said colony have conquently disowned any right either in the soil or government thereof, from the three mile line aforesaid ; and it appearing to us that the ancestors of Robert Mason Esq. obtained grants from our great council of Plymouth for the tract of land aforesaid, and were at very great expence upon the same until molested and finally driven out, which hath occasioned a last- ing complaint for justice by the said Robert Mason ever since our resto- ration. However to prevent in this case any unreasonable demands which might be made by the said Robert Mason for the right he claimeth in the said soil, we have obliged the said Robert Mason under his hand and seal that he will demand nothing for the time past until the 24th of June last past, nor molest any in their possessions for the time to conie. but will make out titles to them and their heirs forever, provided they will pay to him upon a fair agreement in lieu of all other rents sixpence in the pound according to the just and true yearly value of all houses built by them and of all lands, whether gardens, orchards, arable, or pasture, which have been improved by them, which he will agree shall be bounded cut unto every of the parties concerned, and that the residue may remain unto hin .- self to be disposed of for his best advantage.
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" But if notwithstanding this overture from the said Robert Mason which seemeth to be fair unto us, any of the inhabitants of the said pro- vince of New-Hampshire shall refuse to agree with the agents of said Robert Mason upon the terms aforesaid, our will and pleasure is, that the president and council of New-Hampshire aforesaid for the time being shall have power and are hereby impowered to interpose and reconcile all differences if they can that shall or may arise between the said Robert Mason and the said inhabitants, but if they cannot then we do hereby com- mand and require the said president and council to send into England such cases fairely and impartially stated, together with their own opinions upon such cases, that we, our heirs and successors, by and with the ad- vice of our and their privy council may determine therein according to equity."
N. B, The came mutatis mutandis is inserted in Cranfield's commission.
No. XVII.
To his most excellent majesty Charles the 2d, by the grace of God of England, Scotland, France and Ireland, king, defender of the faith, &c. The humble address and petition of the president and councill of his ma- jesty's province of New-Hampshire, in New-England,
Humbly sheweth,
TH HAT it having pleased your most excellent majesty to separate us the inhabitants of this province from that shadow of your majesty's authority and government under which wee had long found protection, especially in the late war with the barbarous natives, who (thro' divine protection) proved a heavy scourge to us, and had certainly been the ruin of these poor weake plantacons, (being few in number and otherwaies be- ing under great disadvantages) if our, brethren and neighbours had not out of pity and compassion stretched forth their helping hand, and with their blood and treasure defended us, our lives, and estates ; nevertheless upoh the receipt of your majesty's pleasure delivered by Edward Ran- dolph, esq. upon the first of January last, directing unto and commanding the erecting of a new government in and over these four townes the gov- ernment of the Massatusetts yielding readie obedience to your majesty's commands with reference to our relation formerly to them although deep- ly sensible of the disadvantages likely to accrew to your majesty's pro- vinces and ourselves more especially, by the multiplying of small and weake governments unfit either for offence or defence, (the union of these neighbour collonnyes, having been more than a little instrumental in our preservation.) Wee have taken the oathes prescribed us by your majesty, and administered to your subjects of these four townes the oath of allegiance, and convened a general assembly for regulating the com- mon affaires of the people and making of such laws as may be of more peculiar use to ourselves, having speciall regard to the acts for trade and navigation set forth in the booke of rates commonly printed and sold, and if some obstruction accationed by such as make greate pretences of your majesty's favour and authority had not hindered wee might have brought matters to a greater maturity, yet hope to perfect something by the first opportunity of shipping from hence, but feared it might be too long to de- fer our humble ackcowledgment of your majesty's grace and favour in committing the power into such hands as it pleased your majesty to nom. #03) :; not imposing strangers upon us, and it much comforts us against
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any pretended claimers to our soil or any malevolent spirits which may misrepresent us (as they have done others) unto your majesty or honor- able councill, while beside the knowne laws of the realm, and the undoubt- . ed right of English men, wee have the favour of a gracious prince to fly to. We do therefore most humbly begg the continuance of your majes- ty's royall favour and protection, without which wee are dayly liable to disturbance if not ruine .
And as in duty bound wee shall humbly pray, &c. March 29, 1680.
No. XVIII. To the king's most excellent majestic.
W EE the president and councill of your province of New-Hamp- shire having (according to the royal pleasure) given an account of our alleigiance and observance of your commission by Mr. Jowles in March last, and therefore shall not give you the trouble of repetition. Ac- cording to your majesty's command, wee have with our general assembly been considering of such laws and orders, as doe by divine favor preserve the peace and are to the satisfaction of your majesty's good subjects here, in all which wee have had a speciall regard to the statute book your maj- esty was pleased to honor us with, for which together with the seale of your province, wee returne most humble and hearty thanks ; but such has been the hurry of our necessary occasions and such is the shortness of the somer, (the only season to prepare for a long winter,) that wee have not been capable of sitting so long as to frame and finish ought that we judge worthie to be presented to your royal view, but shall as in duty bound give as speedy a dispatch to the affare as wec may. In the mean time your subjects are at quiet under the shadow of your gracious pro- tection, fearing no disturbance unless by some pretended claimers to our soil, whom we trust your majesty's .clemencie and equity will guard us from injury by ; and considering the furchaiss of our lands from the heath- ens the natural proprietors thereof, and our long quiet possession not inter- rupted by any legall claime, our defence of it against the barbarous adversa. ry by our lives and estates, wee are encouraged that wec shall be maintain- ed in our free.enjoyment of the same, without being tenants to those who can show no such title thereunto. Further wee doe gratefully acknow- ledge the marke of your princely favor in sending us your royal effigies and imperiall armes, and lament when wee thinke that they are through the loss of the ship, miscarried by the way. And seeing your majesty is graciously pleased to licence us to crave what may conduce to the better promoting of our weal and your majesty's authority, wee would humbly suggest whether the allowance of appeales mentioned in the commission may not prove a great occasion by means of malignant spirits for the obstruc- ting of justice among us. There are also sundry other things that a little time and experience may more evidently discover a great convenience, in which upon the continenance of the same liberty from your majesty wee. shall with like humilitie present. Thus craving a favourable construc- tion of what is above suggested and praying for your majesty's long and prosperous reigne, begging also the contineuance of your majesty's favor, out of which, if any of our adversarys under a pretence of loyalty or zeale for your majesty's interist should endeavour to cjec: us, wee hope
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upon liberty granted us to speak for ourselves, wee shall aboundantly de -. monstrate that wee doe truly and sincerely subscribe,
Your majesty's most loyall and dutiful subjects, JOHN CUTT, President with the consent of the councill.
Portsmouth, in the Province of
New-Hampshire, June 11, 1680.
No. XIX.
Copy of the Mandamus by which Robert Mason, Esq. was admitted to @ seat in the council, Dec. 30, 1680.
Trusty and well beloved, We greet you wel.
W HEREAS we have thought it fit to take into our special care and protection our province of New-Hampshire and provide for its prosperity and good government and the settlement of the estates and possessions of our good subjects there. And that for the avoiding any suits or contentions in matters of title, and the determining any demands which might be made by our wel beloved subject Robert Mason, Esq. as proprietor under us of that province by vertu of a grant derived from our royal grandfather King James under the great seal of England* : Wee have so composed all matters with him that for the time past until the 21th day of June 1679, he shall not claim or demand any rent, dues, or arrears whatsoever : And for the future he, his heirs or assigns shall receive only six pence in the pound yearly of every tenant by way of qui rent, according to the true and just yearly valu of what is improved by any of the inhabitants ; as is more fully expressed in our commission un- der our great seal, bearing date the 18th day of September in the 31st year of our raign. And whereas the said Robert Mason hath humbly sig- nified to us that he is preparing to transport himself, for the taking care of his affairs and interest in the said province, and for the giving a secure and legal confirmation of the estates of such persons as are now in possession but without any right or legal title to the same. And he being a person whom wee have esteemed useful to our service, as he is chiefly concern- ed in the welfare of that our province ; wee have further thought fit to constitute and appoint him to be one of our council therein, and we do hereby order and require you our president and councill, that immediately after his arrival you do admit him one of our council of our province of New-Hampshire, he first taking the oaths mentioned in our said com- mission. And we do further require you and him, that you do betake yourselves to such discreet and equitable ways and methods in your pro- ceedings, agreements and settlements for the future, that there may be no occasion of complaint to our royal person and authority here. We being resolved to discountenance all such as shall wilfully or unnecessarily avoid or delay your submitting to those determinations which may be reasona- bly decreed according to justice and good conscience. Which you are to signify to all our good subjects within our said province that they may govern themselves accordingly. And so we bid you heartily farewell. Given at our court at New- Market the first day of October 1680, in the two and thirtieth year of our raign. By his majesty's command,
SUNDERLAND,
To our trusty and well beloved the president and council ? of our province of New-Hampshire in New-England.
"This must mean the charter to the council of Plymouth .
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No. XX.
Answer to the claim made by Mr. Mason to the houses and lands of New- Hampshire.
[ In Mr. Weare's hand writing, but without date or signature.]
"T' does not legally appear that Mr. Mason can lay any just claime to any of the lands in New-Hampshire, for what right he pretends is ci- ther derived from Capt. Jno. Mason, (whom he says was his grandfather) or from his majesty's commission : But presume from neither of these has he any right. Not from Capt. Jno. Mason ; for, (1) It does not legally appear that ever he had any right to the province of New-Hampshire. It is true there is a copy of a pattent or deed from the councell of Plymouth, which he brings over without attestation of publique notary or any other au- thority. `Besides in said coppy there is not the least intimation of any hand or seale to the originall, and there is two men that swears this is a true coppy of the originall, which plainly demonstrates that the originall is but a blanck ; the truth whereof we are the more confirmed in, because it is not rational to imagine that Mr. Mason would come from England to pros- ecute a right and not bring with him what he had to make good his claime ; but having nothing but blancke coppies, he could bring no better than he had, which cannot be looked upon as authentique in any court.
(2) If it should be supposed that ever Capt. Jno. Mason had a right by pattent, yet it does not appear how Robert Tufton Mason (as the plantiffe calis himself) derives a title from him either as his heir, executor or ad- ministrator, or by deed of gift ; all that we can hear in court is that the plantife calls himself Capt. Mason's heir.
(3) If the plantiffe or his ancestors ever had a title to the lands he claims by pattent from the councill of Plymouth, yet they have lost it by non use, for they never attended the ends of granting patents by king James, of bles- sed memory, in his hyness pattent to the great councell of Plymouth, which was the peopling of the land, inlargeing the king's dominions, propr agating the gospel, conversion of the heathen the native proprietors, &c. Now the plantife nor ancestors nevir planted this province nor expended any thing upon it to the upholding of it in peace nor war, but the present inhabitants did either 'by themselves or predecessors, purchase their possessions from the natives, and by their permission did sit down upon the land and manured, to the vast expence of above 50 years time in hard labor, and'expending upon it their whole estate. And in the late Indian war did defend it against the enimy to the loss of many of their lives and considerable part of their estates, without any assistance from Mr. Mason who now claimes not only what poor people have purchased and laboured hard upon, but also conquered or relived from cruell attenipts of the bar- barous heathen, and we conceave we were under no obligation to run such adventures to make ourselves slaves to Mr. Mason.
(4) It does not appear that there was a quorum of the great councel! of Plymouth to the making of Capt. Mason's deed according to the pat- tent granted to the great councell of Plymouth, which renders his claime unvalide, if ever any thing in that kind was done, which we question.
From what is said we humbly conceave Mr. Mason has no right from Capt. Jno. Mason.
And' that his majestic's commission does neither give nor confirme any title to the lands claimed, we prove :
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APPENDIX.
(1) We humbly conceave that his royal majesty who is 60 prudent @ prince and so solicitus for the peace of his subjects, would not have left that matter doubtfull to his subjects of this province but rather have told us that he had given all the lands to Mr. Mason, but there is nothing of giff to him in the commission and if his majesty had (which we cannot be'- lieve he would) we should crave the benefit of the statute in the 17º of Charles the first, which says, No king and councell can alienate lands but by due course of law. But wee were never yet heard, and when it comes to legal tryal wee presume the law of possessions will confirm our lands to us, seeing we have had peaceable possession 50 yeares.
(2) If his majesty had given the lands in the province to Mr. Masch, what can be understood by that clause in the commission 'That in case the inhabitants shall refuse to agree with Mr. Mason, then the governor shall interpose and reconcile all differences if he can, but if he cannot then to send the case, fairely stated to England that his majesty and privy councell might determine according to right ;' which wee humbly con- ceave puts a barr to any legal proceedings until his majesty's mind be further known therein. The inhabitants have offered their reasons to the governor according to commission, which he will not admit of, only did take of one, viz. Capt. Stileman, and promised to send them to England, but we can hear of no answer and much fear his neglect.
(3) His majesty in his commission says, ' To prevent unreasonable de- mands that may be made by Mr. Mason for the night he claimes,' which claime may prove good or bad when it comes to tryall. We understand to claime and to have are different things.
(4) His majesty intimates in his royal commission by what title Mr. Mason does claime, viz. by a grant to his ancestors, ' who improved and possessed the province with great expence, until molested and finally driv- en out ;' but this province cannot be concluded to be the place he claimes until he make these circumstances appear, which 'we are sure he never can doe.
Now Mr. Mason not producing any original deed for any of the lands of this province, nor authentique copies, the inhabitants cannot make any compliance with him both because we see no right he ever had, or believ- ing if ever any was he hath mortgadged it already in England, and so alien- ated what right he had.
Although upon the former grounds we have good plea against Mr. Ma- son's claime, yet we did not see cause to join issue, not only because judg- es and jurors were not qualified according to law, all of them being pickt for espousing Mr. Mason's interest by the governor's order, who has a mortgadge for 21 yeares from Mr. Mason for all the lands in the province. But also because wee was willing to attend the methods prescribed by his majesty in his royal commission.
No. XXI.
The answer of Elias Stileman to the summons from the honble Edward Cranfield, esq. governor of his majesty's province of N. Hampshire in N. E. in pursuance of the method which his majesty hath been gra- tiously pleased to prescribe in his commission.
Portsmo. the 15th of November, 1682.
May it please your Honor,
"N obedience to your command that I should render a reason why I ret fnse to pay quit-rent unto Robert Mason, esq. (as he titles himself ) for
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my house ond lands, and take deeds from him for the confrming of the same, I answer as followeth :
Istly. Because my said land I bought and paid for. The title unto which is successively derived unto me from those that have possessed it, · without any claime for at least these 50 yeares, upon which I have built at my own charge without any interruption, and am in the possession theroof as my owne. As to what is said in the commission concerning Mr. Mason's proprieters, with all due submission to his majesty, I con- ceive it imploys rather his claime than a positive determination of his title.
2dly. I humbly conceive that being in possession of what I have bought and built upon, it rests upon the claimer to make out his title (if he have any by law), begging the favour of an English subject therein, that it may be first tryed upon the place, according to the statute law and the opinion of his majesty's judges in England, and this before I am liable to pay quit- rent and take deeds of confirmation from him.
Sdly. Should Mr. Mason obtaine his demands, myself and the rest of the inhabitants would be undone forever, for then all his granted to him which hec calls commons being out of fence, which yet hath been bound- ed out by the several towns and possessed by them for the'se 50 yeares, and improved for the maintainance of their cattle both winter and summer, and for timber and fire wood, without which there is no liveing for us, it being impossible for us to subsist upon that which in the commission is. called gardens, orchards, if he may have the disposal of the rest.
4thly. The said Mason speaks of many thousands of pounds expended upon the place, which with submission cannot be made out, and if it could, what then have the poor planters expended in so many ycares labour since their first sitting downe upon it, when they found it an howling wilder- ness and vecuum domicilium, besides a great expence of blood and estate to defend it in the late Indian warr, nor can they to this day make both ends meet by all their labour and frugality, and therefore must needs sink under the exaction of such a propriator.
5thly. The land which Mr. Mason claims as propriator is the land on which such vast expence hath been laid out by his grandfather Capt. John Mason, for the peopling of it and the land from whence his said grandfath- ers servants were violently driven out, or expeled by the inhabitants of the Massathusets, but upon this land there was no such expence laid out by his grandfather Captain John Mason for the end aforesaid, nor is this the land from whence any servants of his said grandfather were so expelled, and therefore we that are possessed of this land are not concerned in his claimc, hee hath mistaken his province and may endeavour to find it some other where, for here is no such place.
6thly. If Mr. Mason had a patent here, why did he not take possession in the day thereof. If hee were in possession why did he not keep it still : None cver drove him out as he informs, had hee been once settled he might to this day have kept it as the rest of the inhabitants have done with- out the least mollistation, but I am humbly of opinion that if he the said Mason or any of his ayres came hither, they only came as many ships did to Newfoundland and to this country to make a fishing voyadge or beaver trade, and that being at an end departed and left their room to the next taker.
This is the summe of what I have at present to answer, humbly re- questing of your honour the stating of the case, with your opinion thercup
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on to fris majesty as the commission directs, and when his majesty shall in his wisdom and justice see meet to order an hearing of the matter in his courts of judicature upon the place before a jury of uninterested and indifferent persons which may be had out of the neighbouring province, (and possibly Mr. Mason may think not attainable in this province where- in all persons are concerned,) as he hath been pleased to doe by that part of Mr. Mason's claime, which lyes under his majesty's government of Massathusets, I hope to be able upon these and other grounds so far to make out my title as to be held unblameable before God and man, for not complying with his demands. Or if I should see cause to appeal to his majesty and honorable councell that I shall be put beyond all need of pay- ing quit rent to the pretended propriator.
Thus begginge your honor's favour, I subscribe, Sir, your humble servant, E. S.
[ The two preceding papers are in the hand of the hon- President Weare.]
No. XXII.
Copy of an order for the administration of the sacraments according to the mode of the church of England.
At a councel held at Great Island, December 10, 1683. By the governor and councel.
New-Hampsh.
T is hereby required and commanded, that all and singular the respec, tive ministers within this province for the time being, do from and af- ter the first day of January next ensuing, admit all persons that are of suit- able years and not vitious and scandalous in their lives, unto the blessed sacrament of the Lord's supper and their children unto baptism. And if any persons shall desire to receive the sacrament of the Lord's supper, or their children to he baptized according to the liturgy of the church of England, that it be donc accordingly in pursuance of the laws of the realm of England, and his majesty's command to the Massachusetts government. And if any minister shall refuse so to do being thereto duly required he -shall incurr the penalty of the statutes in that case made and provided, and the inhabitants are freed from paying any duties to the said minister.
The aforesaid order was published, , R. CHAMBERLAIN, clerk concili [ This paper is in the council minutes, second book.]
No. XXIII. .Copy of the information against Mr. Moody, 1683.
New-Hampshire in New-England.
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