USA > New Hampshire > The history of New Hampshire, Volume I > Part 10
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When Randolph returned to Bofton, he had a fevere reproof from the governor, for publifhing his errand, and endeavour- ing to raife difcontent among the people. To which he made no other anfwer than that 'if he had done amifs, they might complain to the king.'
Afterabout fix weeks ftay, he went back to England and reported to the king, that
167
NEWHAMPSHIRE.
" he had found the whole country com- " plaining of the ufurpation of the magif- " trates of Bofton ; earneftly hoping and " expecting that his majefty would not " permit them any longer to be oppreffed ; " but would give them relief according " to the promifes of the commiffioners in " 1665." With the fame bitternefs of temper, and in the fame ftrain of mifre- prefentation, he inveighed againftthe gov- ernment in a long report to the Lords of Trade ; which farther inflamed the pre- judice that had long been conceived againft the colony, and prepared the way for the feparation which was meditated.
After his departure, a ipecial council being fummoned, at which the elders of the churches were prefent, the queftion was propofed to them " whether the beft " way of making anfwer to the complaints " of Gorges and Mafon about the extent " of their patent, be by fending agents, " or by writing only ?" To which they anfwered, " That it was moft expedient " to fend agents, to anfwer by way of in- " formation, provided they were inftruct- " ed with much care and caution to nego- "' ciate the affair with fafety to the coun- 6' try, and loyalty to his majefty, in the " prefervation of their patent liberties."
Accordingly
1676.
:68 1676.
Hutchin. Hift. vol. I. P. 311.
1677.
Narrative of Allen's Title, p. S.
Hutch. vol I. P $57,
HISTORY OF
Accordingly William Stoughton, after- ward lieutenant- governor, and Peter Bulk- ley then fpeaker of the houfe of deputies, were appointed agents and failed for Eng- land.
At their arrival an hearing was ordered before the lords chief juftices of the king's benchand common pleas ; when the agents in the name of the colony difclaimed all title to the lands cla imed by the petitioner, and to the jurifdiction beyond three miles northward of the river, Merrimack, to fol- low the courfe of the river, as far as it ex- tended. The judges reported to the king " that they could give no opinion as to the " right of foil, in the provinces of New- ' Hampfhire and Maine, not having the 4 proper parties before them ; it appearing ' that not the Maffachufetts colony, but " the ter-tenants had the right of foil, and ' whole benefit thereof, and yet were not " fummoned to defend their titles. As to ' Mafon's right of government within the ' foil he claimed, their lordfhips, and in- ' deed his own counfel, agreed he had " none ; the great council of Plymouth, ' under whom he claimed, having no pow- 'er to transfer government to any. It ' was determined that the four towns of ' Portfmouth, Dover, Exeter and Hamp-
'ton
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NEW HAMPSHIRE.
' ton were out of the bounds of Maffachu- 1677. " fetts.' This report was accepted and 4 confirmed by the king in council.
After this, at the requeft of the agents, Sir William Jones the attorney general drew up a complete ftate of the cafe to be tranfmitted to the colony ; by which it feems that he had altered his opinion fince the report which he gave to the king in 1675, concerning the validity of Mafon's title. It was alfs admitted that the title could be tried only on the place, there be- ing no court in England that had cogni- zance of it.
It became neceffary then to the eftablith- ment of Mafon's title, that a new jurif- diction fhould be erected, in which the king might direct the mode of trial and appeal at his pleafure : This being refolved upon, the colony of Maffachufetts was in- formed, by a letter from the fecretary of ftate, of the king's intention to feparate New-Hampfhire from their government, and required to revoke all commiffions which they had granted there, and which were hereby declared to be null and void. To prevent any extravagant demand, the king obliged the claimant to declare, un- der his hand and feal, that he would re- quire no rents of the inhabitants for the time
1679. L Sept. 18.
Hutch. vol. I. P. 317.
July 24.
Hutchin. col. pap. 522.
170 1679.
HISTORY OF
time paffed, before the twenty fourth of June 1679, nor moleft any in their pof- jeffions for the time to come ; but would make out titles to them and their heirs for- ever, provided they would pay him fix- pence in the pound, according to the year- Jy value of all houfes which they had built and lands which they had improved.
Commiffi. pa.
Things being thus prepared, a commif- fion paffed the great feal on the eighteenth of September for the government of New- Hampfhire ; which 'inhibits and reftrains " the jurifdiction exercifed by the colony * of Maffachufetts overthetowns of Portf- ' mouth, Dover, Exeter and Hampton, " and all other lands extending from three ' miles to the northward of the river Mer- ' rimack and of any and every part there- ' of, to the province of Maine; conftitutes ' a prefident and council to govern the pro- ' vince; appoints JohnCutts, efq. prefident, ' to continue one year and till another be ' appointed by the fame authority ; Rich- 'ard Martyn, William Vaughan, and ' Thomas Daniel of Portfmouth, John ' Gilman of Exeter, Chriftopher Huffey of ' Hampton and Richard Waldron of Dov- ' er, efquires, to beofthe council, who were ' authorifed to choofe three other qualified " perfons out of the feveral parts of the ' province
175
1679+ L
NEW-HAMPSHIRE.
' province to be added to them. The faid ' prefident and every fucceeding one to ap- ' point a deputy to prefide in his abfence ; ' the prefident or his deputy with any five
' to be a quorum. They were to meet at ' Portfmouth in twenty days after the ar-
" rival of the commiffion and publifh it. ' They were conftituted a court of record ' for the adminiftration of juftice, accord- · ing to the laws of England, fo far as cir- ' cumftances would permit ; referving a ' right of appeal to the king in council for " actions of fifty pounds value. They ' were impowered to appoint military offi- ' cers, and take all needful meafures for ' defence againft enemies. Liberty of ' confcience was allowed to all proteftants, ' thofe of the church of England to be 4 particularly encouraged. For the fupport ' of government they were to continue ' the prefent taxes, till an affembly could ' be called; to which end they were with- " in three months to iffue writs under the ' province feal, for calling an affembly, ' to whom the prefident fhould recommend ' the paffing fuch laws as fhould eftablith ' their allegiance, good order and defence, " and the raifing taxes in fuch manner and " proportion as they fhould fee fit. All # laws to be approved by the prefident and ' council,
172 1679.
HISTORY OF
' council, and then to remain in force till ' the king's pleafure fhould be known, for ' which purpofe they fhould be fent to ' England by the firft fhips. In cafe of " the prefident's death, his deputy to fuc- ' ceed, and on the death of a counfellor, ' the remainder to elect another, and fend ' over his name with the names of two " other meet perfons, that the king might ' appoint one of the three. The king en- « gaged for himfelf and fucceffors to con- ' tinue the privilege of an affembly, in the ¿ fame manner and form, unlefs by in- ' convenience arifing therefrom he or his " heirs fhould fee caufe to alter the fame. ' If any of the inhabitants fhould refufe ' to agree with Mafon or his agents, on ' the terms before mentioned, the prefident ' and council were directed to reconcile ' the difference, or fend the cafe ftated in ' writing with their own opinions, to the ' king, that he with his privy council might ' determine it according to equity.'
The form of government defcribed in this commiffion confidered abftractedly from the immediate intentions, characters, and connexions of the perfons concerned, appears to be of as fimple a kind as the nature of a fubordinate government and the liberty of the fubject can admit. The people,
NEW-HAMPSHIRE.
people, who are the natural and original fource of power, had a reprefentation in a body chofen by themfelves ; and the king was reprefented by a prefident and coun- cil of his own appointment ; each had the right of inftructing their reprefentative, and the king had the fuperior prerogative of difannulling the acts of the whole at his pleafure. The principal blemifh in the commiffion was the right claimed by the king of difcontinuing the reprefentation of the people, whenever he fhould find it inconvenient, after he had folemnly en- gaged to continue this privilege. The claufe, indeed, is artfully worded, and might be conftrued to imply more or lefs at pleafure. Herein Charles was confift- ent with himfelf, parliaments being his averfion. However, there was in this plan as much of the fpirit of the British conftitution as there could be any founda- tion for in fuch a colony ; for here was no third branch to form a balance between the king or his reprefentative, and the peo- ple. The inftitution of an houfe of peers in Britain was the refult of the feudal fyf- tem : the barons being lords of the foil and enjoying a fovereignty within their own territories and over their own vaffals ; the conftitution was formed by the union
173 1679.
of
174
HISTORY OF
1679.
of thefe diftinct eftates under one common fovereign. But there was nothing fimilar n New-England. The fettlements began here by an equal divifion of pro- perty amongindependent freemen. Lord- fhip and vaffalage were held in abhorrence. The yeomanry were the proprietors of the foil and the natural defenders of their own rights and property ; and they knew no fuperior but the king. A council, whether appointed by him or chofen by the people could not form a diftinct body, becaufe they could not be independent. Had fuch a fimple form of colony government been more generally adopted, and perfevering- ly adhered to, and adminiftered only by the moft delicate hands, it might have ferved better than any other, to perpetu- ate the dependence of the colonies on the Britifh crown.
CHAP.
175
NEW-HAMPSHIRE.
CHAP. VII.
The administration of the first council. Op- position to the acts of trade. Mafon's arrival. Opposition to him. His de- parture. State of trade and navigation.
T HE commiffion was brought to Portf- mouth on the firft of January by Ed- wardRandolph, than whomthere could not bea more unwelcome meffenger. It was re- ceived with great reluctance by the gentie- men therein named ; who, though they were of the firft character, intereft and in- fluence, and had fuftained the principal offi- ces civil and military under the colony go- vernment* ; yet eafily faw that their ap- pointment
1680.
Council Rec.
Fitch's MS.
# The prefident JOHN CUTTS was a principal merchant, of great probity and efteem in Portfmouth ; but then aged and infirm.
Richard Martyn, was of good character, and great influence He had been very active in procuring the fettlement of a minifter in the town of Portfmouth.
William Vaughan, was a wealthy merchant, generous and public fpirited, and of undaunted refolution. He was of Welch extraction, but was bred in London under Sir Jofiah Child, who had a great regard for him, and whofe intereft he made ufe of for the good of the province.
Thomas Daniel was a perfon of fuch note and importance, that wlien he died in a time of general ficknefs and mortality, Mr. Moody preach- ed his funeral fermon from 2 Sam. ii. 30. " There lacked of David's "" fervants, nineteen men and Afabel." (Fitch's MS.)
John Gilman was a principal man in Exeter, as was Christopher Hufley, in Hampton.
Richard Waldron, was a native of Somerietfhire, and one of the first fettlers in Dover. He was much refpected and eminently ufeful, having fuftained divers important offices civil and military, and approved his courage and fidelity in the moft hazardous enterprizes.
176
HISTORY OF
Council Rec.
1680. pointment was not from any refpect to them or favour to the people ; but merely to obtain a more eafy introduction to a new form of government, for a particular purpofe, which they knew would be a fource of perplexity and diftrefs. They would gladly have declined acting in their new capacity ; but confidering the temper of the government in England, the una- voidable neceffity of fubmitting to the change, and the danger (upon their refufal) of others being appointed who would be inimical to the country, they agreed to qualify themfelves, determining to do what good, and keep off what harm they were able. They therefore took the oaths on the twenty firft day of January, which was the utmoft time limited, and publifhed the commiffion the next day. Agreeably to the royal direction they chofe three other gentlemen into the council ; Elias Stileman of Great Ifland who had been a clerk in the county courts, whom they now appointed fecretary, Samuel Dalton of Hampton and Job Clements of Dover. The prefident nominated Waldron to be his deputy or vice prefident, Martyn was appointed treafurer, and John Roberts, marthal.
This
177
NEW-HAMPSHIRE.
This change of government gratified the difcontented few, but was greatly dif- relifhed by the people in general ; as they faw themfelves deprived of the privilege of choofing their own rulers, which was ftill enjoyed by the other colonies of New- England, and as they expected an invafion of their property foon to follow.
When writs were iffued for calling a ge- neral affembly the perfons in each town who were judged qualified to vote were named in the writs *; and the oath of al- legiance was adminiftered to each voter. A public faft was obferved, to afk the di- vine bleffing on the approaching affembly and " the continuance of their precious " and pleafant things." The affembly+ met at Portfmouth on the fixteenth of March, and was opened with prayer and a fermon by Mr. Moody. N To
1680.
Febru. 25.
The number of qualified voters in each town was,
In Portfmouth 71
Dover
Hampton 57
Exeter 20
209
+ The deputies in this firft affembly were,
For Portfmouth. Hampton.
Robert Eliot,
Anthony Stanyon,
Philip Lewis,
Thomas Marfton,
John Pickering. Dover.
Edward Gove. Exeter.
Peter Coffin,
Bartholomew Tippin.
Anthony Nutter,
Ralph Hall.
Richard Waldron, jun.
178 1680.
Council Records.
HISTORY OF
To exprefs their genuine fentiments of the prefent change, and invalidate the falfe reports which had been raifed againftthem, as well as to fhow their gratitude and re- fpect totheir former protectors, they wrote to the general court at Bofton "acknow- " ledging the kindnefs of that colony in " taking them under their protection and " ruling them well ; affuring them, that " it was not any diffatisfaction with their " government, but merely their fubmiffion " to divine providence and his majefty's " commands, without any feeking of their " own, which induced them to comply " with the prefent feparation, which they " fhould have been glad had never taken " place ; fignifying their defire that a " mutual correfpondence might be conti- " nued for defence againft the common " enemy, and offering their fervice when " it fhould be neceffary *. "
Their next care was to frame a code of laws, of which the firft, conceived in a ftyle becoming freemen, was " that no " act,
* This letter fully fhews the abfordity of the reafon affigned by Doug- Jas in his Summary, vol. 11. page 28, for the erecting this new gov- ernment. " The proprietors and inhabitants of New- flampfhire not. " capable of protecting themfelves againft the Canada French and "their Indians, defired of the crown to take them under its immedi- "ate protection." A random affertion, unfupported by any proof, and contrary to plain fact ! The crown could afford them no protection againft Indians. With the French the crown was in alliance, and the nation was at peace.
179
NEW-HAMPSHIRE.
"act, impofition, law or ordinance fhould 1680.
" be made or impofed upon them, but " fuch as fhould be made by the affembly " and approved by the prefident and coun- " cil." Idolatry, blafphemy, treafon, re- bellion, wilful murder, manflaughter, poifoning, witchcraft, fodomy, beftiality, perjury, man-ftealing, curfing and rebel- ling againft parents, rape and arfon were made capital crimes. The other penal laws were in their main principles the fame which are now in force. To prevent conten- tions that might arife by reafon of the late change of government, all townfhips and grants of land were confirmed. and ordered to remain as before ; and contro- verfies about the titles of land were to be determined by juries chofen by the feveral towns, according to former cuftom. The prefident and council with the affembly were a fupreme court of judicature, with a jury when defired by the parties ; and three inferior courts were conftituted at Dover, Hampton and Portfmouth. The military arrangement was, one foot com- MS Laws, pany in each town, one company of artil- lery at the fort, and one troop of horfe, all under the command of Major Waldron. During this administration, things went on as nearly as poffible in the old channel, N 2 and
180
1680.
March 23.
Council Records and Files,.
HISTORY OF
and with the fame fpirit, as before the fe- paration. A jealous watch was kept over their rights and privileges, and every en- croachment upon them was withftood to the utmoft. The duties and reftrictions eftablifhed by the acts of trade and navi- gation were univerfally difguftful, and the more fo as Randolph was appointed col- lector, furveyor and fearcher of the cuftoms throughout New-England. In the exe- cution of his commiffion he feized a ketch- belonging to Portfmouth, but bound from Maryland to Ireland, which had put into this port for a few days. The mafter Mark Hunking, brought an action againft him at a fpecial court before the prefident and council, and recovered damages and cofts to the amount of thirteen pounds. Randolph behaved on this occafion with fuch infolence, that the council obliged him publickly to acknowledge his offence and afk their pardon. He appealed from their judgment to the king ; but what the iffue was doth not appear. Having con- ftituted Captain Walter Barefoote his dep- uty at this port, an advertifement was publifhed requiring that all veffels fhould be entered and cleared with him. Upon which Barefoote was brought to examina- tion, and afterward indicted before the prefident
181
NEW HAMPSHIRE.
prefident and council, for, ' having. in an 3 1680. March 25.
' high and prefumptuous manner fet up ' his majefty's office of cuftoms without ' leave from the prefident and council ; in ' contempt of his majefty's authority in ' this place; for difturbing and obftruct- ' ing his majefty's fubjects in paffing from ' harbour to harbour, and town to town ; ' and for his infolence in making no other ' anfwer to any queftion propounded to ' him but " my name is Walter." He was fentenced to pay a fine of ten pounds, and ftand committed till it was paid. But though Randolph's authority was denied, yet they made an order of their own for the obfervation of the acts of trade, and appointed officers of their own to fee them executed. They had been long under the Maffachufetts government, and learned their political principles from them ; and as they had been ufed to think that all royal authority flowed in the channel of the charter, fo they now thought that no authority derived from the crown could be regularly exercifed in the province but through their commiffion. In this they reafoned agreeably not only to their former principles, but to their fundamental law, to which they fteadily adhered, though they had no realon to think it would be allowed
182
HISTORY OF
1680. allowed by the crown ; and though they knew that a rigid adherence to rights, however clear and facred, was not the way to recommend themfelves to royal favour. But they were not fingular in thefe fenti- ments, nor in their oppufition to the laws of trade. Randolph was equally hated, and his commiffion neglected at Bofton ; where the notary refufed to enter his proteft againft the proceedings of the court ; and he was obliged to poft it on the exchange.
MSS in files.
Dec. 30. 1681.
In the latter end of the year Mafon ar- rived from England with a mandamus, re- quiring the council to admit him to a feat at the board, which was accordingly done. He foon entered on the bufinefs he came about ; endeavouring to perfuade fome of the people to take leafes of him, threaten- ing others if they did not, forbidding them to cut fire-wood and timber, afferting his right to the province and affuming the title of lord-proprietor. His agents, or ftew- ards as they were called, had rendered themfelves obnoxious by demanding rents of feveral perfons and threatening to fell their houfes for payment. Thefe proceed- ings raifed a general uneafinefs ; and pe- titions were fent from each town, as well as from divers individuals, to the council for
183
NEW-HAMPSHIRE.
for protection ; who, taking up the matter judicially, publithed an order, prohibiting Mafon or his agents at their peril to re- peat fuch irregular proceedings, and de- claring their intention to tranfmit the grievances and complaints of the people to the king. Upon this, Mafon would no longer fit in council, though defired, nor appear when fent for ; when they threat- ened to deal with him as an offender, he threatened to appeal to the king, and pub- lifhed a fummons to the prefident and fe- veral members of the council, and others to appear before his majefty in three months. This was deemed " an ufurpa- " tion over his majefty's authority here " eftablifhed," and a warrant was iffued for apprehending him ; but he got out of their reach and went to England.
During thefe tranfactions Prefident Cutts died, and Major Waldron fucceed- ed him, appointing Captain Stileman for his deputy, who had quitted his place of fecretary upon the appointment of Rich- ard Chamberlayne to that office by royal commiffion. The vacancy made in the council by the prefident's death was filled by Richard Waldron, junior. On the death of Dalton, Anthony Nutter was chofen. Henry
1681. 4
March 27. April 5.
Dec. 30. 1680.
184
HISTORY OF
1681. Henry Dow was appointed marfhal in the room of Roberts who refigned.
1682. -
March 10.
During the remainder of the council's adminiftration, the common bufinefs went on in the ufual manner, and nothing re- markable is mentioned, excepting another profecution of Barefoote, with his affiftants, William Hafkins and Thomas Thurton for feizing a veffel " under pretence of " his majesty's name, without the know- " ledge of the authority of the province, " and without fhowing any breach of " ftatute though demanded." Barefoote pleaded his deputation from Randolph ; but he was amerced twenty pounds to be refpited during his good behaviour, and his two affiftants five pounds each ; the complainant being left to the law for his damages. This affair was carried by appeal to the king : but the iffue is not mentioned.
It will be proper to clofe the account of this adminiftration with a view of the ftate of the province as to its trade, im- provements and defence, from a repre- fentation thereof made by the council to the lords of trade, purfuant to their order.
" The trade of the province ( fay they) is in mafts, planks, boards and ftaves and all other lumber, which at prefent is of little
185
NEWHAMPSHIRE.
1682.
little value in other plantations, to which they are tranfported ; fo that we fee no other way for the advantage of the trade, unlefs his majefty plcafe to make our river a free port.
" Importation by ftrangers is of little value ; fhips commonly felling their car- goes in other governments, and if they come here, ufually come empty to fill with lumber but if haply they are at any time loaded with fith, it is brought from other ports, there being none made in our province, nor likely to be, until his majefty pleafe to make the fouth part of the Ifles of Shoals part of this govern- ment, they not being at prefent under any *.
" In reference to the improvement of lands by tillage, our foil is generally fo barren, and the winters fo extreme cold and long that there is not provifion enough raifed to fupply the inhabitants, many of whom were in the late Indian war fo im- poverifhed
* When thefe iflands were firft fettled is uncertain, but it mu :: have been very early, as they are moft commodioufly fituated for the fthery, which was a principal object with the firft fettlers. Whilft New- Hampfhire was united to Maffachufetts, they were un- der the fame jurifdiftion, and the town there crested was called Appledore. [Maff, Rec. ] They are not named in Cutts's nor Cranfield's commiffion ; but under Dudley's prefidency, caufes were brought from thence to Portfmouth, which is faid to be in the fame county. In Allen's and all fucceeding commiffions, they are particularly mentioned ; the fouth half of them being in 'New- Hampshire.
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