USA > New Hampshire > The history of New Hampshire, Volume I > Part 18
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ยท agreement. That upon Allen's accept- ' ance, and underwriting of thefe articles, ' they would give perfonal fecurity for the ' aforefaid payment ; and that all actions ' and fuits depending in law' concerning " the premifes fhould ceafe till the queen's
' pleafure fhould be known.'
Thefe
321
NEW-HAMPSHIRE.
Thele articles were ordered to be pre- fented to Allen for his acceptance : But fo defirable an iffue of the controvefy was prevented by his fudden death, which hap- pened on the next day. He left a fon and four daughters, and died inteftate.
Colonel Allen is reprefented as a gentle- man of no remarkable abilities, and of a folitary, rather than a focial difpofition ; Atkinfon's Letter MS. but mild obliging and charitable. His Emerfon's funeral fer- mon and letter to Mr. Prince, MS.
character, whilft he was a merchant in Lon- don, was fair and upright, and his domeftic deportment amiable and exemplary. He was a member of the church of England by profeffiun, but conftantly attended di- vine worthip in the congregation at New- Caftle, and was a ftrict obferver of the chriftian fabbath. He died on the fifth of May 1705, in the feventieth year of his age, and was buried in the fort.
After his death his only fon, Thomas Allen, Efq. of London, renewed the fuit, by petitioning the queen, who allowed him to bring a new writ of ejectment, and ordered a revival of the directions given to the governor in 1703, with refpect to the jury's finding a fpecial verdict. Ac- cordingly Allen, having previoufly con- veyed one half of the lands in New-Hamp- thire by deed of fale to Sir Charles Hobby
Y and
1705.
MS Copy of Report of Lord's of Trade. 1753.
1 706.
May 16.
Auguft 20
322
HISTORY OF
1707. April 15.
and appointed his mother Elizabeth Allen his attorney, brought his writ of ejectment againft Waldron in the inferior court of common pleas, where he was caft. He then removed it by appeal to the fuperior court, where it had been tried three years before. As this was the laft trial, and as all the ftrength of both parties was fully difplayed on the occafion, it will be prop- er to give as juft a view of the cafe as can now be collected from the papers on file in the office of the fuperior court.
On Allen's part were produced copies of the charter by which King James I. con- ftituted the council of Plymouth ; their grants to Mafon in 1629 and 1635 ; his laft will and teftament ; an inventory of artillery, arms, ammunition, provifions, merchandize and cattle left in the care of his agents here at his death ; depofitions of feveral ancient perfons taken in 1685, who remembered the houfes, fields, forts, and other poffeffions of Capt. Mafon at Portfmouth andNewichwannock, and were acquainted with his agents, ftewards, fac- tors and other fervants, who divided the cattle and merchandize among them after his death ; the opinions of Sir Geoffry Palmer, Sir Francis Winnington and Sir William Jones in favour of the validity of
Mafon's
323
NEW-HAMPSHIRE.
1 707.
Mafon's title ; King Charles's letter to the prefident and council of New-Hampfhire in 1680; the paragraph of Cranfield's commiffion which refpects Mafon's claim in 1682 ; the writ, verdict, judgment and execution againft Major Waldron in 1683 ; the decifion of the king in council againft Vaughan in 1686 ; Dudley's writ of cer- tiorari in 1688 ; the fine and recovery in Weftminfter-hall whereby the entail was cut off, and the confequent deed of fale to Allen in 1691 ; Sir Edward Northey's re- port in 1703 ; and evidence of Allen's taking poffeffion of the waftes, and of his inclofing and occupying fome land at Great Ifland. On this evidence, it was pleaded that the title derived from Mafon, and his poffeffion of the province, of which the lands in queftion were part, was legal ; that the appellee's poffeffion had been in- terrupted by the appellant and thofe from whom he derived his title, more efpecially by the judgment recovered by Robert Ma- fon againft Major Waldron ; and a fpecial verdict was moved for, agreeably to the royal directions. The council on this fide were James Meinzies and John Valentine.
On Waldron's part were produced the deed from four Indian fachems to Whele- wright and others in 1629 ; and depofi- Y 2 tions
324
HISTORY OF
1707.
tions taken from feveral ancient perfons who teftified that they had lived with Ma- jor Waldron when he began his planta- tion 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 oppofite fide, it was pleaded, That the grant from the council of Plymouth to Mafon in 1629, was not figned; that livery and feizin were not endorfed on it as on other 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 according to law, renders this fubfequent grant fufpicious ; and that his pretending to procure another grant of part of the fame lands in 1635, was an argu- ment 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 grant in 1635 was equally defective ; and that he muft reliquith one or the other, it being contrary to the reafon and ufage of law to rely on two feveral titles at once.
It
325
NEW - HAMPSHIRE.
It was urged, That Waldron's poffeff- ion was grounded on a deed from the native lords of the foil, with whom his father had endeavoured to cultivate a friendly connexion ; that he had tak- en up his land with their confent, when the country was a wildernefs ; had cul- tivated it, had defended it in war at a great expenfe, 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 Ma- fon 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 country and chriftian- ize the natives, for the honour and intereft of the crown and the trade of England, all which ends had been purfued and at- tained by the appellee and his anceftor. It was alfo alleged, that the writ againft Major Waldron in 1683 was for " lands " and tenements," 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
1703.
326
HISTORY OF
1707.
the copies produced were not attefted, no book of records being to be found. To invalidate the evidence of Mafon's poffef- fion, it was obferved, that he himfelf was never here in perfon ; that all the fettle- ment made by his agents or fucceffors was only a factory for trade with the Indians, and principally for the difcovery of a coun- try called Laconia; and that this was done in company with feveral other merchant- adventurers in London, who, for the fecu- rity 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 Englifh- men that a jury fhould be compelled to find fpecially. In addition to thefe pleas, it was further alleged, that by the ftatute law no action of ejectment can be main- tained except the plaintiff, or thofe under whom he claims, have been in poffeffion within twenty years ; and if they have been
327
NEW-HAMPSHIRE.
been out of poffeffion fixty years, then not only an ejectment, but a writ of right, and all other real actions are barred in re- fpect of a fubjest, 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 tenements, unlefs the feller, or- they by whom he claims, have been in poffeffion of the fame or the reverfion or remainder thereof, or have taken the rents or profits thereof by the fpace of one whole year next before fuch bargain is made ; and that the appellee and his an- ceftor, and no other perfon whatever had been in poffeffion of the premifes, nor was it ever pretended by the appellant that the Mafons, of whom the purchafe was made, were in poffeffion within one year, or at any time before the alleged purchafe ; that all the mifchiefs provided againft by the above ftatute have been experienced by the people of New-Hampfhire from the purchafe made by the appellant's fa- ther, 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-gover- nor refpecting the queen's directions was delivered to the jury who returned the fol- lowing
1707,
Ang 12.
328
HISTORY OF
1707.
lowing verdict : " In the caufe depending " between Thomas Allen, Efq. appellant " and Richard Waldron, Efq. defendant, " the jury finds for the defendant a con- et firmation of the former judgment and " coftofcourts. 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-directions to find fpecially, " and your oaths." They returned the fecond time with the fame verdict ; upon which the court ordered judgment 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 allowed on their giving bond in two hundred pounds to profecute it.
Council & Affembly's Records.
Printed ftate of Al- len's title, P. 10.
But the loyalty of the people, and the diftreffes 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 mi- nors, did not renew.
CHAP.
329
NEW HAMPSHIRE.
CHAP. XII.
The war with the French and Indians, called Queen Anne's war. Conclusion of Dudley's and Ufher's administration.
T HE peace which followed the treaty of Ryfwick was but of fhort duration, for the feeds of war werealready fown both In Europeand 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 Englith court underftood St. Croix to be the boundary between their territories 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 fifh on the banks of Nova-Scotia. A French miffion was eftablifhed, and a chapel erected at Norridgwog, on the upper part of Kenne- beck, which ferved to extend the influence of the French among the ndians. The governor of Canada, affuming the cha- racter of their father and protector, in- ftigated them to prevent the fettlement of the Englifh to the eaft of Kennebeck, and found fome among them ready to liften
to
330
HISTORY OF
to his advice. The people in thofe parts were apprehenfive of danger and meditat- ed a removal, and thofe who had enter- tained thoughts of fettling there were re- ftrained.
1 703. June 20.
Things were in this pofture when Dud- ley entered on his government. He had particular orders from England to rebuild the fort at Pemaquid ; but could not pre- vail on the Maffachufetts affembly to bear the expence of it. However he determin- ed on a vifit to the eaftern country, and having notified his intention to the Indians, took with him a number of gentlemen of both his provinces*, and held a conference at Cafco with delegates from the tribes of Norridgwog, Penobfcot, Pigwacket, Pena- cook and Amarifcoggin ; who affured him that " as highas the fun was above the earth, " fo far diftant was their defign of making " the leaft breach of the peace." They pre- fented him a belt of wampum in token of their fincerity, and both parties 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 al- fo declared, that although the French emif- faries among them had been endeavouring to
Mr. Hutchinfon has mifplaced this tranfaction by a year.
331
1703.
Auguft se
NEWHAMPSHIRE.
to break the union, yet it was " firm as a " mountain, and fhould continue as long " as thefun and moon." Notwithftand- ing thefe fair appearances, it was obferved that when the Indians fired a falute their guns were charged with fhot ; and it was fufpected that they had then formed a de- fign to feize the governor and his atten- dants, 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 body of French and Indians, five hundred in number, having divided themfelves into feveral parties, attacked all the fettlements from Cafcoto Wells, and killed and took one hundred and thirty people, burning and deftroying all before them .*
The next week (Auguft 17) a party of thirty Indians under Capt. Tom killed five people at Hampton village ; among whom was a widow Muffy, a noted fpeak- er among the friends, and much lamented by them ; they, alfo plundered two houfes ; but the people being alarmed, and purfu- ing them, they fled.
The
* Mr. Hutchinfon takes no notice of this remarkable devaftation. which is particularly related by Mr. Penhallow in his " wars of New-England." P. 5.
332
HISTORY OF
1703.
The country was now in terror and confufion. The women and children re- tired to the garrifons. The men went armed to their work, and pofted centinels in the fields. Troops of horfe were quar- tered at Portfmouth and in the province of Maine. A fcout of three hundred and fixty men marched toward Pigwacket, and another to Offapy Ponds ; but made no difcoveries. Alarms were frequent, and the whole frontier country from Deer- field on the weft, to Cafco on the eaft 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 encou- raged 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 num- ber of fnow-fhoes ; and an expedition was planned in New-Hampfhire, againft the head quarters of the Indians. Major Winthrop Hilton, and Captain John Gil- man of Exeter, Captain Chefley and Cap- tain 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 honour- " able
333
NEW HAMPSHIRE.
" able fervice :" Hilton received a gratu- 1703. ity of twelve, and each of the captains five pounds.
1704.
April 25,
With the return of fpring there was a return of hoftilities ; for notwithftanding the pofting a few fouthern Indians in the garrifons at Berwick, the enemy appeared at Oyfter river, and fhot Nathaniel Me- dar near his own field, and the next day killed Edward Taylor near Lamprey river, and captivated his wife and fon. Thefe inftances of mifchief gave colour to a falfe alarm at Cochecho, 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 hav- ing examined her as to the ftate of the garrifon, ftunned her with an hatchet but did not fcalp her. The girl invented this ftory to palliate her too long abfence.
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, furnithed with whale-boats for going up rivers. In his way he ftopt at Pafcataqua, where he was joined by a body of men under Major Hilton, who was of eminent fervice to him in this expedition*, which lafted the whole
* This is called in the council books " an expedition to Port. " Royal,"
334
1704. L
-
HISTORY OF
whole fummer, and in which they deftroy d ed the towns of Minas and Chiegnecto, and did confiderable damage to the French and Indians at Penobfcot and Paffaquod- dy, and even infulted Port-Royal. Whilft they were at Mount Defart, Church learn- ed 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 out fkirts. At Oyfter river they wounded William Tafker ; and at Dover they laid in Ambufh for the people on their return from public worfhip, but hap- pily miffed their aim. They afterward mortally wounded Mark Gyles at that place, and foon after killed feveral people in a field at Oyfter river, whofe names are not mentioned.
Auguft 11.
In the former wars New-Hampfhire had received much affiftance from their brethren
" Royal," and this was the oftenfible object. But Church in his memoirs fays that Dudley would not permit him to go there. Church, p. 104. Hutch. II. 146.
* I fuppofe 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 ref purfued their march, and did damage at Lancafter and Groton.
335
NEW HAMPSHIRE.
brethern of Maffachufetts ; but thefe now remonftrated to the governor that his other province did not bear their proportion of the charge for the common defence. The reprefentatives of New-Hampfhire urged, in reply, the different circumftances of the two provinces ; " moft of the towns in Maffachufetts betng out of the reach of the enemy, and no otherwife affected by the war than in the payment of their part of the expence, whilft this province was wholly a frontier by fea and land, and in equal danger with the county of York, in which four companies were ftationed, and the inhabitants were abated their pro- portion of the public charges." They beg- ged that twenty of the friendly Indians might be fent. to fcout on their borders, which requeft the governor complied with.
In the winter, Col. Hilton with two hundred and feventy men, including the twenty Indians, were fent to Norridgwog on fnow-fhoes. They had a favourable feafon for their march, the fhow being four feet deep. When they arrived there, finding no enemy to contend with, they burnt the deferted wigwams, and the cha- pel. The officers who went on this ex- pedition complained that they had only the pay of private foldiers.
1 704.
Council Rec.
1705.
The
336
1705.
HISTORY OF
The late repairs of fort William and Mary at New-Caftle were always com- plained of, as burdenfome to the people ; and a reprefentation thereof had been made to the queen, who inftructed Dud- ley, to prefs the affembly of Maffachufetts, to contribute to the expence ; as the river bolonged equally to both provinces. They urged in excufe, that the fort was built at firft, at the fole charge of New-Hampfhire, to whom it properly belonged ; that the whole expence of the repairs did not a- mount, to what feveral of theirtowns fingly paid, toward the fupport of the war for one year ; that all the trade and navigation of the river, on both fides, paid a du- ty toward maintaining that fortrefs ; and that they had been at great expence in pro- tecting the frontiers of New-Hampshire, and the parties who were employed in getting timber and mafts for her majefty's fervice ; whilft New-Hampfhire had never contributed any thing to the fupport of the garrifons, forces and guards by fea, which were of equal benefit to them as to Maffa- chufetts. 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 never could be perfuaded to do. The repairs of the fort,
337
NEW HAMPSHIRE.
fort, however, went on without their affiftance, under the direction of Col. Romer ; and when they were completed, a petition was fent home for a fupply of cannon, ammunition and ftores.
The next fummer was chiefly fpent in negotiating an exchange of prifoners ; and Dudley had the addrefs to protract the ne- gotiation, under pretence of confulting with the other governments about a neu- trality propofed by the governor of Cana- da ; by which means, the frontiers in ge- neral were kept tolerably 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 patrole efta- blithed on the fea fhore, from Rendezvous Point to the bounds of Hampton, to pre- vent any furprize by fea ; the coafts being at this time infefted by the enemy's pri- vateers.
During this truce, the inhabitants of Kingfton who had left the place, were en- couraged 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 parfon-
Z age
* This line extended from the mill-pond on the fouth, to. the creek on the north fide of the town. It croffed the main ftree: a few rods weffivard of the foot where the State Houfe now Rand
1705.
338
HISTORY OF
I705.
age and fettle a minifter within three years. This laft condition was rendered imprac- ticable by the renewal of hoftilities.
The governor of Canada had encourag- ed the Indians who inhabited the borders of New-England to remove to Canada, where being incorporated with the tribe of St. Francis, they have ever fince re- mained. 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 ac- quainted. Dudley, who was generally apprized of their movements, and kept a vigilanteye upon them, apprehended a rup- ture in the winter; and gave orders for a cir- cular fcouting march, once a month, round the heads of the towns from Kingfton to Sal- mon falls ; but the enemy did not appear till April; when a fmall party of them attacked the houfe of John Drew at Oyfter river, where they killed eight and wound- ed 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 Joofening their hair that they might ap- pear like men, they fired fo brifkly that the enemy apprehending the people were alarmed
1 706.
339
NEW HAMPSHIRE.
alarmed, fled without burning or even plundering the houfe which they had at- tacked. John Wheeler, meeting this par- ty 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 im- mediately informed the people, and or- dered 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 ; whence they proceeded to Amefbury and Kingfton, where they killed fome cat- tle. Hilton with fixty four men march- ed from Exeter ; but was obliged to re- turn without meeting the enemy. The reafon he gave to the council for return- ing fo foon was the want of provifion, there being none in readinefs at the gar- rifons, notwithftanding a law lately enact- ed, enjoining it on every town to have ftores ready and depofited in the hands of their captains. For the fame reafon he had Z 2 been
1 706.
340
HISTORY OF
I 706.
Auguit Io.
T'enhallow P. 40. 1707.
been obliged to difcontinue 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 de- ftruction ; and for this purpofe a party of them kept lurking about his houfe, where they obferved ten men to go out one morn- ing with their fcythes, and lay afide their arms to mow ; they then crept between the men and their guns and fuddenly rufhing 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 re- turn, having nothing to fubfift on for three weeks but lilly roots and the rinds of trees. After this they killed William Pearl and took Nathaniel Tibbets at Dover. It was obferved during this war that the ene- my did more damage in fmall bodies than in larger, and by fcattering along the frontiers kept the people in continual ap- prehenfion and alarm ; and fo very few of them fell into our hands, that in comput- ing the expence of the war it was judged that every Indian killed or taken coft the country a thoufand pounds.
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