USA > New Hampshire > The history of New Hampshire, Volume I > Part 23
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27
" and
xxxiv
APPENDIX.
"and longitude of and within all the breadth aforefaid " throughout the main lands there, from the Atlantic and " Weftern fea and ocean on the eaft part to the South fea " on the weft." By the faid letters patents the king con- firmed 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 4° Caroli primi is invalid, (1) Becaufe there was a precedent grant, 18° Jacobi, of the fame thing then in being, which patent was furrendered afterwards and before the date of the other, 15° Car. primi. (2) The grant of the government can extend no farther than the ownerfhip of the foil, 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 Mer- rimack.
We having confidered thefe matters do humbly con- ceive as to the firft matter, that the patent of 4º Caroli rmi is good notwithftanding the grant made in the 18° Jac : for it appeared to us by the recital in the patent 4° Caroli I mi that the council of Plymouth had granted away all their intereft in the lands the year before, and it muft be prefumed they then deferted the government ; whereupon it was lawful and neceffary for the king to eftablifh a fui- table frame of government, according to his royal wifdom, which was done by that patent, 4° Caroli Imi making the adventurers a corporation upon the place. As to the fecond matter it feems to us to be very clear that the grant of the government 4º Caroli Imi extends no farth- er than the boundaries expreffed in the patent, and thofe boundaries cannot be conftrued to extend further north- wards along the river Merrimack than three Englifh miles, for the north and fouth bounds of the lands granted fo far as the river extends are to follow the courfe of the rivers which make the breadth of the grant, the words defcrib- ing the length to comprehend all the lands from the At- lantick ocean to the South fea of and in all the breadth aforefaid, do not warrant the over reaching thofe bounds by imaginary lines or bounds, other expofition would (in our humble opinion) be unreafonable and againft the intereft of the grant. The words " of and in all the breadth aforefaid" fhew that the breadth was not intend- ed an imaginary line of breadth, laid upon the broadeft
part
XXXV
APPENDIX.
part but the breadth refpecting the continuance of the boundaries by the river as far as the rivers go, but when the known boundary of breadth determines it muft be carried on by imaginary lines to the South fea. And if the province of Maine lies more northerly than three En- glifh miles from the river Merrimack, the patent of 4º Caroli Imi gives no right to govern there, and thereupon the patent of the fame 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 govern- ment, that the refpondents, the Maffachufetts and their fucceffors, by their patent of 4° martis 4° Caroli I mi have fuch right of government as is granted them by the fame patent within the boundaries of their lands expreffed therein, according to fuch defcription and expofition as we have thereof made as aforefaid, and the petitioner Sir Ferdinando Gorges his heirs and affigns by the patent 3d April, have fuch right of government as is granted them by the fame patent within [the territory] called the pro- vince of Maine according to the boundaries of the fame expreffed in the fame patent.
Ri. Rainsford, Fra. North.
All which being the opinion of the lords chief juftices, and fully agreeing with what we have to report unto your majefty upon the whole matter referred unto us by the faid order, we humbly fubmit the determination thereof unto your majefty.
Anglefey,
Craven, J. Williamfon,
Ormond, H. London, Tho. Chickley,
Bath, G. Carteret, Edw. Seymour.
Which having been read at the board the 18th inftant, it was then ordered that the faid Mr. Mafon and Mr. Gorges, as alfo that the agents of the corporation of the Maffachufetts Bay fhould be this day heard upon the faid report, if they had any objections to make thereunto. In purfuance whereof all parties attending with their coun - cill, who not alledging any thing fo material as to prevail with his majefty and the board to differ in judgment from the faid report ; his majefty was thereupon pleafed to approve of and confirm the fame, and did order that all parties do acquiefce therein, and contribute what lies in
them
xxxvi
APPENDIX.
them to the punctual and due performance of the faid report, as there fhall be occafion.
JOHN NICHOLAS.
N. B. The above paper, of which the copy is attefted by Edw. Rawfon, Secretary of Maffachufetts, and John Penhal- low, clerk of the Superior court of New-Hampshire, is in the files of the faid Superior court, and in the Mafonian proprieta- ry office.
No. XVI.
Copy of that part of Prefident Cutts's commifion in which the claim of Robert Mafon is recited.
ND whereas the inhabitants of faid province of
A New-Hampfhire have many of them been long in poffeffion of feveral quantities of lands, and are faid to have made confiderable improvements thereupon, having no other title for the fame than what has been derived from the government of the Maffachufetts Bay, in virtue of their imaginary line ; which title, as it hath by the o- pinion of our judges in England been altogether fet afide, fo the agents from the faid colony have confequently dif- owned any right either in the foil or government thereof, from the three mile line aforefaid ; and it appearing to us that the anceftors of Robert Mafon Efq. obtained grants from our great council of Plymouth for the tract of land aforefaid, and were at very great expence upon the fame until molefted and finally driven out, which hath occafi- oned a lafting complaint for juftice by the faid Robert Mafon ever fince our reftoration. However to prevent in this cafe any unreafonable demands which might be made by the faid Robert Mafon for the right he claimeth in the faid foil, we have obliged the faid Robert Mafon under his hand and feal that he will demand nothing for the time paft untill the 24th of June laft paft, nor mo- left any in their poffeffions for the time to come, 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 fixpence in the pound according to the juft and true yearly value of all houfes built by them and of all lands, whether gardens, orchards, arable, or pafture, which have been improved by them, which he will agree fhall be bounded out unto every of the parties concerned, and that the refidue may remain unto himfelf to be dif- pofed of for his beft advantage.
" But
APPENDIX. xxxvii
"`But if notwithftanding this overture from the faid Robert Mafon which feemeth to be fair unto us, any of the inhabitants of the faid province of New-Hampfhire fhall refufe to agree with the agents of the faid Robert Mafon upon the terms aforefaid, our will and pleafure is, that the prefident and council of New-Hampfhire a- forefaid for the time being fhall have power and are here- by impowered to interpofe and reconcile all differences if they can that fhall or may arife between the faid Robert Mafon and the faid inhabitants, but if they cannot then we do hereby command and require the faid prefident and council to fend into England fuch cafes fairely and im- partially ftated, together with their own opinions upon fuch cafes, that we, our heirs and fucceffors, by and with the advice of our and their privy council may determine therein according to equity."
N. B. The fame ( mutatis mutandis ) is inferted in Cran- field's commifion.
No. XVII.
To his moft excellent majefty Charles the 2d, by the grace of God, of England, Scotland, France and Ire- land, king, defender of the faith, &c.
The humble addrefs and petition of the prefident and councill of his majefty's province of New-Hampfhire, in N. England,
Humbly theweth,
T HAT it having pleafed your moft excellent majefty to feperate us the inhabitants of this province from that fhadow of your majefty's authority and government under which wee had long found protection, efpecially in the late war with the barbarous natives, who (thro' di- vine protection) proved a heavy fcourge to us, and had certainly been the ruin of thefe poor weake plantacons, (being few in number and otherwaies being under great difadvantages) if our brethren and neighbours had not out of pity and compaffion ftretched forth their helping hand, and with their blood and treafure defended us, our lives, and eftates ; neverthelefs upon the receipt of your majefty's pleafure delivered by Edward Randolph, efq. upon the firft of January laft, directing unto and commanding the erecting of a new government in and over thefe four townes (the government of the Maffatu-
fetts
xxxvii
APPENDIX.
fetts yielding readie obedience to your majefty's com- mands with reference to our relation formerly to them) altho' deeply fenfible of the difadvantages likely to accrew to your majefty's provinces and ourfelves more efpecially, by the multiplying of fmall and weake governments unfit either for offence or defence, (the union of thefe neigh- bour collennyes, having been more than a little inftru- mental in our prefervation. ) Wee have taken the oathes prefcribed us by your majefty, and adminiftered to your fubjects of thefe four townes the oath of allegiance, and convened a general affembly for regulating the common affairs of the people and making of fuch laws as may be of more peculiar ufe to ourfelves, having fpeciall regard to the acts for trade and navigation fet forth in the booke of rates commonly printed and fold, and if fome obstruction occationed by fuch 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 fomething by the firft opportunity of fhipping from hence, but feared it might be too long to defer our humble ac- knowledgment of your majefty's grace and favour in com- mitting the power into fuch hands as it pleafed your ma- jefty to nomynate, not impofing ftrangers upon us, and it much comforts us againft any pretended claimers to our foil or any malevolent Spirits which may mifreprefent us(as they have done others) unto your majefty or honourable coun- cill, while befide the knowne laws of the realm, and the undoubted right of English men, wee have the favour of a gracious prince to fly to. We do therefore moft humbly begg the continuance of your majefty's royall favour and protection, without which wee are dayly liable to difturbance if not ruine.
And as in duty bound wee fhall humbly pray, &c. March 29, 1680.
No. XVIII.
To the kings moft excellent majeftie.
W EE the prefident and councill of your province of New-Hampfhire having (according to the royal pleafure) given an account of our alleigiance and obfervance of your commiffion by Mr. Jowles in March laft, and therefore fhall not give you the trouble of re- petition. According to your majefty's command, wee
have
APPENDIX.
XXXIX
have with our general affembly been confidering of fuch laws and orders, as doe by divine favor preferve the peace and are to the fatisfaction of your majefty's good fubjects here, in all which wee have had a fpeciall regard to the ftatute book your majefty was pleafed to honour us with, for which together with the feale of your province, wee returne moft humble and hearty thanks ; but fuch has been the hurry of our neceffary occafions and fuch is the fhortnefs of the fomer, (the only feafon to prepare for a long winter,) that wee have not been capeable of fitting fo long as to frame and finifh ought that we judge worthie to be prefented to your royal view, but fhall as in duty bound give as fpeedy a difpatch to the affare as wee may. In the mean time your fubjects are at quiet under the fhadow of your gracious protection, fearing no difturbance unless by fome pretended claimers to our foil, whom we truft your majefty's clemencie and equity will guard us from injury by ; and confidering the purchaifs of our lands from the heathens the natural proprietors thereof, and our long qui- et poffefion not interrupted by any legall claime, our defence of it againft the barbarous adverfary by our lives and eftates, wee are encouraged that we Shall be maintained in our free enjoy- ment of the fame, without being tennants to those who can Jhew no fuch title thereunto. Further wee doe gratefully ac- knowledge the marke of your princely favor in fending us your royal effigies and imperiall armes, and lament when wee thinke that they are (thro' the lofs of the thip) mifcarried by the way. And feeing your majefty is gra- cioufly pleafed to licence us to crave what may conduce to the better promoting of our weal and your majefty's authority, wee would humbly fuggeft whether the allow- ance of appeales mentioned in the commifion may not prove a great occasion by meanes of malignant Spirits for the obstruct- ing of justice among us. There are alfo fundry other things that a little time and experience may more evidently dif- cover a great convenience, in which upon the contineu- ance of the fame liberty from your majefty wee fhall with like humilitie prefent. Thus craving a favourable con- ftruction of what is above fuggefted and praying for your majefty's long and profperous reigne, begging alfo the continuance of your majefty's favor, out of which, if any of our adverfarys under a pretence of loyalty or zeale for your majefty's interift fhould endeavor to eieet us, wee
Gg
hope
x1
APPENDIX.
hope upon liberty granted us to fpeak for ourfelves, weè fhall aboundantly demonftrate that wee doe truly and fin- cerely fubfcribe,
Your majefty's moft loyall and dutiful fubjects. JOHN CUT T, Prefident with the confent of the councill.
Portfmouth, in the Province of
New-Hampfhire, June 11, 1680.
No. XIX.
Copy of the Mandamus by which Robert Mafon, Efq. was admitted to a fect in the council, Dec. 30, 1680.
Trufty and well beloved, We greet you wel.
HEREAS we have thought it fit to take into our
W fpecial care and protection our province of New- Hampfhire and provide for its profperity and good gov- ernment and the fettlement of the eftates and poffeffions of our good fubjects there. And that for the avoiding any fuits or contentions in matters of title, and the determining any demands which might be made by our wel beloved fubject Robert Mafon, Efq. as propietor under us of that province by vertu of a grant derived from our royal grandfather King James under the great feal of England :* Wee have fo compofed all matters with him that for the time paft untill the 24th day of June 1679, he fhall not claimn or demand any rent, dues, or arrears whatfoever : And for the future he, his heirs or affigns fhall receive only fix pence in the pound yearly of every tenant by way of quit rent, according to the true and juft yearly valu of what is improved by any of the inhabitants ; as is more fully expreffed in our commiffion under our great feal, bearing date the 18th day of September in the 31ft year of our raign. And whereas the faid Robert Mafon hath humbly fignified to us that he is preparing to tranfport himfelf, for the taking care of his affairs and intereft in the faid province, and for the giving a fecure and legal con- firmation of the eftates of fuch perfons as are now in pof- feffion but without any right or legal title to the fame. And he being a perfon whom wee have efteemed ufeful to our fervice, as he is chiefly concerned in the welfare of that our province ; wee have further thought fit to conftitute and appoint him to be one of our council there- in, and we do hereby order and require you our prefident and
* This muft mean the charter to the council of Plymouth.
xli
APPENDIX.
and councill, that immediately after his arrival you do admit him one of our council of our province of New- Hampfhire, he firft taking the oaths mentioned in our faid commiffion. And we do further require you and him, that you do betake yourfelves to fuch difcreet and equitable ways and methods in your proceedings, agree- ments and fettlements for the future, that there may be no occafion of complaint to our royal perfon and autho- rity here. We being refolved to difcountenance all fuch as fhall wilfully or unneceffarily avoid or delay your fub- mitting to thofe determinations which may be reafonably decreed according to juftice and good confcience. Which you are to fignify to all our good fubjects within our faid province that they may govern themfelves accordingly. And fo we bid you heartily farewell. Given at our court at Newmarket the first day of October 1680, in the two and thirtieth year of our raign.
By his majefty's command, SUNDERLAND.
To our trufty and well beloved the prefident and council of our province of New-Hamp- fhire in New-England.
No. XX:
Answer to the claim made by Mr. Mafon to the houfes and lands of New-Hampshire. [ In Mr. Weare's hand writing, but without date or fig- nature.]
TT. does not legally appear that Mr. Mafon can lay any juft claime to any of the lands in New-Hampfhire, for what right he pretends is either derived from Capt. Jno. Mafon, (whom he fays was his grandfather) or from his majefty's commiffion : But prefume from neith- er of thefe has he any right. Not from Capt. Jno. Mafon ; for, (1) It does not legally appear that ever he had any right to the province of New-Hampfhire. It is true there is a copy of a pattent or deed from the coun- cell of Plymouth, which he brings over without attefta- tion of publique notary or any other authority. Befides in faid coppy there is not the leaft intimation of any hand or feale to the originall, and there is two men that fwears this is a true coppy of the originall, which plainly de- monftrates that the originall is but a blanck ; the truth whereof
xhỉ
APPENDIX.
whereof we are the more confirmed in, becaufe it is not rational to imagine that Mr. Mafon would come from England to profecute a right and not bring with him what he had to make good his claime ; but having noth- ing but blanck coppies, he could bring no better than he had, which cannot be looked upon as authentique in any court.
(2) If it fhould be fuppofed that ever Capt. Jno. Ma- fon had a right by pattent, yet it does not appear how Robert Tufton Mafon (as the plantiffe calls himfelf) de- rives a title from him either as his heir, executor or ad- miniftrator, or by deed of gift ; all that we can hear in court is that the plantife calls himfelf Capt. Mafon's heir.
(3) If the plantiffe or his anceftors ever had a title to the lands he claims by pattent from the councill of Ply- mouth, yet they have loft it by non ufe, for they never attended the ends of granting patents by king James, of bleffed memory, in his hynefs pattent to the great coun- cell of Plymouth, which was the peopling of the land, inlargeing the king's dominions, propagating the gofpel, converfion of the heathen the native proprietor's &c. Now the plantife nor anceftors never planted this pro- vince nor expended any thing upon it to the upholding of it in peace nor war, but the prefent inhabitants did either by themfelves or predeceffors, purchafe their pof- feffions from the natives, and by their permiffion did fit down upon the land and manured, to the vaft expence of above 50 years time in hard labor, and expending upon it their whole eftate. And in the late Indian war did defend it againft the enimy to the lofs of many of their lives and confiderable part of their eftates, without any affiftance from Mr. Mafon who now claimes not only what poor people have purchafed and laboured hard upon but alfo conquered or relived from cruell attempts of the barbarous heathen, and we conceave we were under no obligation to run fuch adventures to make ourfelves flaves to Mr. Mafon.
(4) It does not appear that there was a quorum of the great councell of Plymouth to the making of Capt. Ma- fon's deed according to the patent granted to the great councell of Plymouth, which renders his claime unvalide,
if
xliii
APPENDIX.
if ever any thing in that kind was done, which we quef- tion.
From what is faid we humbly conceave Mr. Mafon has no right from Capt. Jno. Mafon.
And that his majeftie's commiffion does neither give nor confirme any title to the lands claimed, we prove :
(1) \Ve humbly conceave that his royal majefty who is fo prudent a prince and fo folicitous for the peace of his fubjects, would not have left that matter doubtfull to his fubjects of this province but rather have told us that he had given all the lands to Mr. Mafon, but there is noth- ing of gift to him in the commiffion and if bis majofty had (which we cannot believe he would) we thould crave the benefit of the ftatute in the 17º of Charles the firft, which fays, No king and councell can alienate lands but by due courfe of law. But wee were never yet heard, and when it comes to legal tryal wee prefume the law of poffeffions will confirm our lands to us, feeing we have had peaceable poffeffion 50 yeares.
(2) If his majefty had given the lands in the province to Mr. Mafon, what can be underftood by that claufe in the commiffion ' That in cafe the inhabitants fhall refufe ' to agree with Mr. Mafon, then the governor fhall inter- ' pole and reconcile all differences if he can, but if he ' cannot then to fend the cafe, fairly ftated to England that ' his majefty and privy councell might determine accord- 'ing to right ;' which wee humbly conceave puts a barr to any legal proceedings until his majefty's mind be furth- er known therein. The inhabitants have offered their reafons to the governor according to commiffion, which he will not admit of, only did take of one, viz. Capt. Stileman, and promifed to fend them to England, but we can hear of no anfwer and much fear his neglect.
(3) His majefty in his commiffion fays, 'To prevent ' unreafonable demands that may be made by Mr. Mafon ' for the right he claimes,' which claime may prove good or bad when it comes to tryall. We underftand to claime and to have are different things.
(4) His majefty intimates in his royal commiffion by what title Mr. Mafon does claime, viz. by a grant to lis anceftors, ' who improved and poffeffed the province with ' great expence, until molefted and finally driven out ;' but this province cannot be concluded to be the place he
clain.s
xliv
APPENDIX.
claims until he make thefe circumftances appear, whichi we are fure he never can doe.
Now Mr. Mafon 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 becaufe we fee no right he ever had, or believing if ever any was he hath mortgaged it already in England, and fo alienated what right he had.
Although upon the former grounds we have good plea againft Mr. Mafon's claime, yet we did not fee caufe to join iffue, not only becaufe judges and jurors were not qualified according to law, all of them being pickt for ef- poufing Mr. Mafon's intereft by the governor's order, who has a mortgadge for 21 yeares from Mr. Mafon for all the lands in the province. But alfo becaufe wee was willing to attend the methods prefcribed by his majefty in his royal commiffion.
No. XXI.
The anfwer of Elias Stileman to the fummons from the honble Edward Cranfield, efq. governor of his majef- ty's province of N. Hampfhire in N. E. in purfuance of the method which his majesty hath been gratioufly pleafed to prefcribe in his commitlion.
Portfmo. the 15th of November, 1682.
May it pleafe your Honour.
N obedience to your command that I fhould render a reafon why I refufe to pay quitrent unto Robert Ma- fon, efq. (as he titles himfelf) for my houfe and lands, and take deeds from him for the confirming of the fame, I aníwer as followeth :
Iftly. Becaufe my faid land I bought and paid for. The title unto which is fucceffively derived unto me from thofe that have poffeffed it, without any claime for at leaft thefe 50 yeares, upon which I have built at my own charge without any interruption, and am in the pof- felfion thereof as my owne. As to what is faid in the comiffion concerning Mr. Mafon's proprieters, with all due fubmiffion to his majefty, I conceive it implys rath- er his claime than a pofitive determination of his title.
2dly. I humbly conceive that being in poffeffion of what I have bought and built upon, it refts upon the claimer to make out his title (if he have any by law),
begging
xi:
APPENDIX.
begging the favour of an Englifh fubject therein, that it may be firft tryed upon the place according to the flatute 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,
3dly. Should Mr. Mafon obtaine his demands, my- felf and the reft of the inhabitants would be undone for- ever, for then all his granted to him which hee calls com- mons being out of fence, which, yet hath been bounded out by the feveral towns and poffeffed by them for thefe 50 yeares, and improved for the' maintainance of their cattle both winter and fummer, and for timber and fire wood, without which there is no liveing for us, it being impoffible for us to fubfift upon that which in the com- miffion is called gardens, orchards, if he may have the dif- pofal of the reft.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.