USA > New Hampshire > The history of New-Hampshire > Part 22
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1692.
1693.
1694.
1695.
Uncert.
MS. Laws. 1697.
Portsmouth,
70
210
167
129
6
140 1 6
Hampton,
66 13 4
200
230
172 14 6
187 2 41-2
Dover,
30
110
90
117 16 6
127 9 71-2
Exeter,
33 6 8
80
127
106 16
115 14
New-Castle,
86
73
7
79 12 6
£200
£600
£700
£400
£600
£650
157
PROVINCE. BELLOMONT.
1700.]
by a long war, and were now struggling under an heavy debt, besides being engaged in a controversy with " a pretended pro- prietor ;" that they had expended more " blood and money" to secure his majesty's interest and dominion in New-England than the intrinsic value of their estates, and that the fortifying of the harbor did as much concern Massachusetts as themselves ; but they concluded with assuring his lordship, that if he were " thoroughly acquainted with their miserable, poor and mean cir- " cumstances, they would readily submit to whatever he should " think them capable of doing."] They were also required to furnish their quota of men to join with the other colonies in de- fending the frontiers of New-York in case of an attack .* This, they thought extremely hard, not only because they had never received the least assistance from New-York in the late wars, but because an opinion prevailed among them, that their enemies had received supplies from the Dutch at Albany, and that the plunder taken from their desolated towns had been sold in that place. There was, however, no opportunity for affording this assistance, as the New-Yorkers took care to maintain a good understanding with the French and Indians, for the benefit of trade.2
But to return to Allen : He had as little prospect of success in the newly established courts, as the people had, when Mason's suits were carried on under Cranfield's government.3 On ex- amining the records of the superior court, it was found that twen- ty-four leaves were missing, in which, it was supposed, the judg- ments recovered by Mason were recorded. No evidence appeared of his having obtained possession. The work was to begin anew ; and Waldron, being one of the principal landholders and most strenuous opposers of the claim, was singled out to stand fore- most in the controversy with Allen, as his father had with Mason. The cause went through the courts, and was invariably given in favor of the defendant with costs. Allen's only refuge Aug. 18. was in an appeal to the king, which the court, following the example of their brethren in the Massachusetts, refused to admit. He then petitioned the king ; who, by an order in coun- cil, granted him an appeal, allowing him eight months to prepare for its prosecution.
The refusal of an appeal could not fail of being highly resented in England. It was severely animadverted on by the 1701. lords of trade, who, in a letter to the Earl of Belloniont Apr. 24. upon this occasion, say : " This declining to admit ap-
(1) MS. in files. (2) Smith's Hist. New-York, p. 108, 175, 214. (3) Print- ed state of Allen's title, p. 9.
* The quotas of men to be furnished by each government for the defence of New-York, if attacked, were as follows, viz.
Massachusetts 350 New-York 200
Pennsylvania 80
New-Hampshire 40
East New-Jersey 60
Maryland 160
Rhode-Island 48
West New-Jersey 60
Virginia 240
Connecticut 120
158
HISTORY OF NEW-HAMPSHIRE. [1701.
" peals to his Majesty in council, is a matter which you ought
" very carefully to watch against in all your governments.
Apr. 29. " It is an humor that prevails so much in proprieties and " charter colonies, and the Independency they thirst after is now " so notorious, that it has been thought fit those considerations, " together with other objections against those colonies, should be " laid before the parliament ; and a bill has thereupon been " brought into the house of lords for re-uniting the right of gov- " ernment in their colonies to the crown."1
Before this letter was written, the earl died at New-York, to the Mar. 5. great regret of the people in his several governments, among whom he had made himself very popular. A copy of the letter was sent to New-York; but the hill mentioned in it was not passed into an act of parliament. For some reasons of state, it was rejected by the house of lords.
The assembly of New-Hampshire, having now a fair opportu- nity, endeavoured as much as possible to provide for their own Sept. 13. security ; and passed two acts, the one for confirming the grants of lands which had been made within their several townships ; the other for ascertaining the bounds of them.2 Part- ridge gave his consent to these acts; but Allen had the address to get them disallowed and repealed because there was no re- serve made in them of the proprietor's right.3
The controversy being brought before the king, both sides pre- pared to attend the suit. Allen's age, and probably want of cash, prevented his going in person ; he therefore appointed Usher to Oct. 14. act for him, having previously mortgaged one half of the province to him, for fifteen hundred pounds. Vaughan was appointed agent for the province, and attorney to Waldron.
1702. It being a general interest, the assembly bore the expense,
and notwithstanding their pleas of poverty on other occa- May 29. sions, provided a fund, on which, the agent might draw in case of the emergency.
In the mean time, King William died, and Queen Anne ap- pointed Joseph Dudley, Esq., formerly president of New-England, to be governor of Massachusetts and New-Hampshire ; whose commission being published at Portsmouth, the assem- July 13-18. bly, by a well timed present, interested him in their favor, and afterward settled a salary on him during his adminis- tration, agreeably to the queen's instructions, who, about this time, forbade her governors to receive any but settled salaries.4
When Allen's appeal carne before the queen in council, it was found that his attorney had not brought proof that Mason had ever been legally in possession ;5 for want of this, the judgment recov- ered by Waldron was affirmed ; but the order of council directed that the appellant 'should be at liberty to begin de novo by a writ
(1) MS. in files. (2) Hutch. vol. 2, p. 131. (3) MS. Laws. (4) Council and Assembly Records. (5) Printed state of Allen's title, p. 9.
159
PROVINCE. JOSEPH DUDLEY.
1702.]
' of ejectment in the courts of New-Hampshire, to try his title to ' the lands, or to quit rents payable for the same ; and that if any ' doubt in law should arise, the jury should declare what titles each ' party did severally make out to the lands in question, and that ' the points in law should be referred to the court ; or if any doubt ' should arise concerning the evidence, it should be specially ' stated in writing, that if either party should appeal to her maj- " esty, she might be more fully informed, in order to a final de- ' termination.'1
While this appeal was depending, a petition was presented to the queen, praying that Allen might be put in possession of the waste lands. This petition was referred to Sir Edward Northey. attorney general, who was ordered to report on three questions, viz. 1. Whether Allen had a right to the wastes. 2. What lands ought to be accounted waste. 3. By what method her majesty might put him into possession. At the same time, Usher was making interest to be re-appointed lieutenant-governor of the province. Upon this, Vaughan entered a complaint to the queen, setting forth that Allen claimed as waste ground, not only a ' large tract of unoccupied land, but much of that which had been ' long enjoyed by the inhabitants, as common pasture, within the ' bounds of their several townships. That Usher, by his former ' managements and misdemeanors when in office, had forced ' some of the principal inhabitants to quit the province, and had ' greatly harassed and disgusted all the rest, rendering himself ' quite unacceptable to them. That he was interested in the suits ' now depending, as on Allen's death, he would, in right of his ' wife, be entitled to part of the estate. Wherefore, it was hum- ' bly submitted, whether it would be proper to appoint, as lieu- ' tenant-governor, one wliose interest and endeavor it would be ' to disseize the people of their ancient estates, and render them ' uneasy ; and it was prayed that no letters might be wrote to put ' Allen in possession of the wastes, till the petitioner should be ' heard by council."2
Usher's interest however prevailed. The attorney-general reported, that ' Allen's claim to the wastes was valid ; that 1703. ' all lands unenclosed and unoccupied were to be reputed Jan. 28. ' waste ; that he might enter into and take possession of
' them, and if disturbed, might assert his right and prosecute tres- ' passers in the courts there ; but that it would not be proper for ' her majesty to interpose, unless the question should come be- ' fore her by appeal from those courts ; save, that it might be ' reasonable to direct (if Allen should insist on it at the trials) ' that matters of fact be found specially by the juries, and that ' these special matters should be made to appear on an appeal.'3
(1) MS. Copy of Lords Trade Report in 1758. Files of the Superior Court. (2) Usher's papers. (3) Superior Court Files.
160
HISTORY OF NEW-HAMPSHIRE. [1703.
Soon after this, Usher obtained a second commission as lieu- tenant-governor ; but was expressly restricted from intermedling July 26. ' with the appointment of judges or juries, or otherwise, in
' matters relating to the disputes between Allen and the ' inhabitants.' The people did not relish this re-appointment, nor did his subsequent conduct reconcile them to it. Upon his first Oct. 27. appearance in council, Partridge took his seat as counsel- lor ; but the next day, desired a dismission on account of a ship in the river, which demanded his constant attention. This request was granted, and he soon after removed to Newbury, where he spent the rest of his days in a mercantile department, and in the business of his profession .*
It had always been a favorite point with Usher to get the books and files, which had been taken from Chamberlain, lodged in the secretary's office. Among these files, were the original minutes of the suits which Mason had carried on, and the verdicts, judg- ments and bills of cost he had recovered. As they were commit- ted to the care of the recorder, who was appointed by the general court and removable only by them, no use could be made of these papers, but by consent of the assembly. When Usher produced Nov. 4. to the council an order from Whitehall that these records should be deposited with the secretary, Penhallow, the 1704. recorder, who was a member of the council, refused to deliver them without an act of the general assembly au- thorising him to do so.
Usher succeeded but little better in his applications for money. He alleged that he had received nothing for his former services, though they had given hundreds to Partridge ; and he complained that no house was provided for him to reside in, which obliged him to spend most of his time at Boston. The plea of poverty always at hand was not forgotten in answer to these demands. But at length, upon his repeated importunity and Dudley's earn- est recommendation, after the assembly had refused making any provision for him, and the governor had expressly directed him to reside at New-Castle, and exercise a regular command, July 7. it being a time of war ; the council were prevailed upon to allow him two rooms in any house he could procure " till the next meeting of the assembly," and to order thirty-eight shillings to be given him for the expense of his " journey to and from Boston."
When Dudley acquainted the assembly with the royal deter- mination in Allen's suits, they appeared tolerably satisfied with Feb. 10. the equitable intention discovered therein ; but begged
him to represent to her majesty that 'the province was at ' least sixty miles long and twenty wide, containing twelve hun-
* His son Richard Partridge was an agent for the province in England. One of his daughters was married to Governor Belcher, and was mother to the late lieutenant-governor of Nova-Scotia.
161
PROVINCE. JOSEPH DUDLEY.
1704.]
' dred square miles, that the inhabitants claimed only the property ' of the lands contained within the bounds of their townships, ' which was less than one third of the province, and had been ' possessed by them and their ancestors more than sixty years ; ' that they had nothing to offer as a grievance if the other two ' thirds were adjudged to Allen ; but should be glad to see the ' same planted and settled for the better security and defence of ' the whole ; withal desiring it might be considered how much ' time, blood and treasure, had been spent in settling and defend- ' ing this part of her majesty's dominion, and that the cost and ' labor bestowed thereon far exceeded the true value of the land, ' so that they hoped it was not her majesty's intention to deprive 'them of all the herbage, timber and fuel, without which they ' could not subsist, and that the lands comprehended within the ' bounds of their townships was little enough to afford these neces- ' sary articles ; it not being usual in these plantations to fence in ' more of their lands than would serve for tillage, leaving the rest ' unfenced for the feeding their cattle in common.'1
Notwithstanding this plea, which was often alleged, Allen, by virtue of the queen's permission, had entered upon and Dec. 22. taken possession by turf and twig of the common land 1703. in each township, as well as of that which was without their bounds. He brought his writ of ejectment de novo against Waldron, and when the trial was coming on, informed Governor Dudley of it, that he might come into court and demand a special verdict agreeably to the queen's instructions.2 Dudley, from Boston, in- formed the court of the day when he intended to be at Ports- mouth, and directed the judges to adjourn the court to that day. Before it came, he heard of a body of Indians above 1704. Lancaster, which had put the country in alarm, and or- Aug.10. dered the court to be again adjourned. At length, he be- gan his journey ; but was taken ill at Newbury, with a seasonable fit of the gravel, and proceeded no farther.3 The jury in the mean time refused to bring in a special verdict ; but found for the de- fendant with costs. Allen again appealed from the judgment.
Perplexed, however, with these repeated disappointments, and at the same time being low in purse, as well as weakened with age, he sought an accommodation with the people, with whom he was desirous to spend the remainder of his days in peace. It has been said, that he made very advantageous offers to Vaughan and Waldron, if they would purchase his title ; but that they ut- terly refused it. The people were sensible that a door was still open for litigation ; and that after Allen's death, they might, per- haps, meet with as much or more difficulty from his heirs, among whom Usher would probably have a great influence. They well
(1) Records of the Council and Assembly. (2) Usher's papers. (3) Print- ed state of Allen's title, p. 9.
23
162
HISTORY OF NEW HAMPSHIRE. [1705.
knew his indefatigable industry in the pursuit of gain ; that he was able to harass them in law, and had great interest in Eng- land. They, therefore, thought it best to fall in with Allen's
1705. views, and enter into an accommodation with him. A May 3. general meeting of deputies being held at Portsmouth, the following resolutions and proposals were drawn up, viz : ' That they had no claim or challenge to any part of the prov- ' ince without the bounds of the four towns of Portsmouth, Dover, ' Hampton and Exeter, with the hamlets of New-Castle and ' Kingston, which were all comprehended within lines already ' known and laid out, and which should forthwith be revised ; but ' that Allen and his heirs might peaceably hold and enjoy the said ' great waste, containing forty miles in length and twenty in ' breadth, or thereabouts, at the heads of the four towns afore- ' said, if it should so please her majesty ; and that the inhabitants ' of the four towns would be so far from interrupting the settle- ' ment thereof, that they desired the said waste to be planted and ' filled with inhabitants, to whom they would give all the encour- ' agement and assistance in their power. That in case Allen ' would, for himself and heirs, forever quit-claim, to the present ' inhabitants and their heirs, all that tract of land comprehended ' within the bounds of the several towns, and warrant and defend ' the same against all persons, free of mortgage, entailment and ' every other incumbrance, and that this agreement should be ac- ' cepted and confirmed by the queen ; then they would lot and ' lay out to him and his heirs five hundred acres within the town ' of Portsmouth and New-Castle, fifteen hundred in Dover, fif- ' teen hundred in Hampton and Kingston, and fifteen hundred in ' Exeter, out of the commonages of the said towns, in such plac- ' es, not exceeding three divisions in each town, as should best ' accommodate him and be least detrimental to them ; and that ' they would pay him or his heirs, two thousand pounds current ' money of New-England at two payments, one within a year after ' receiving the royal confirmation of this agreement, and the other ' within a year after the first payment. That all contracts made ' either by Mason or Allen with any of the inhabitants, or others, ' for lands or other privileges in the possession of their tenants in ' their own just right, beside the claim of Mason and Allen, and ' no other, should be accounted valid ; but that if any of the pur- ' chasers, lessees or tenants should refuse to pay their just part ' of the sums agreed on, according to the lands they held, their ' share should be abated by Allen out of the two thousand pounds ' payable by this agreement. That upon Allen's acceptance, and ' underwriting of these articles, they would give personal security ' for the aforesaid payment ; and that all actions and suits de- ' pending in law concerning the premises should cease till the ' queen's pleasure should be known.'
163
PROVINCE. JOSEPH DUDLEY.
1705.]
These articles were ordered to be presented to Allen for his acceptance :1 But so desirable an issue of the controversy was prevented by his sudden death, which happened on the next day. He left a son and four daughters, and died intestate.
Colonel Allen is represented as a gentleman of no remarkable abilities, and of a solitary rather than a social disposition ; but mild, obliging and charitable. His character, whilst he was a merchant in London, was fair and upright, and his domestic de- portment amiable and exemplary. He was a member of the church of England by profession, but constantly attended divine worship in the congregation at New-Castle, and was a strict ob- server of the christian Sabbath. He died on the fifth of May, 1705, in the seventieth year of his age, and was buried in the fort.2
After his death, his only son, Thomas Allen, Esq. of London, renewed the suit, 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 respect 1706. to the jury's finding a special verdict. Accordingly, Al- May 16. len, having previously conveyed one half of the lands in New-Hampshire, by deed of sale, to Sir Charles Hobby, and ap- pointed his mother Elizabeth Allen, his attorney, brought Aug. 20. his writ of ejectment against Waldron in the inferior court of common pleas, where he was cast. He then re- moved it by appeal to the superior court, where it had April 15. been tried three years before. As this was the last trial, and as all the strength of both parties was fullly displayed on the occa- sion, it will be proper to give as just a view of the case as can now be collected from the papers on file in the office of the su- perior court.
On Allen's part, were produced copies of the charter by which King James I, constituted the council of Plymouth ; their grants to Mason in 1629 and 1635 ; his last will and testament ; an in- ventory of artillery, arms, ammunition, provisions, merchandize and cattle left in the care of his agents here at his death ; depo- sitions of several ancient persons taken in 1685, who remember- ed the houses, fields, forts, and other possessions of Capt. Mason at Portsmouth and Newichwannock, and were acquainted with his agents, stewards, factors and other servants, who divided the cattle and merchandize among them after his death ; the opin- ions of Sir Geoffrey Palmer, Sir Francis Winnington and Sir Wil- liam Jones in favour of the validity of Mason's title ; King Charles' letter to the president and council of New-Hampshire in 1680; the paragraph of Cranfield's commission which respects Mason's claim in 1682; the writ, verdict, judgment and execution against
(1) MS. Copy of Report of Lords of Trade, 1753. (2) Atkinson's Letter, MS. Emerson's funeral sermon and letter to Mr Prince, MS.
164
HISTORY OF NEW-HAMPSHIRE. [1707.
Major Waldron in 1683 ; the decision of the king in council against. Vaughan in 1686 ; Dudley's writ of certiorari in 1688 ; the fine and recovery in Westminster-hall whereby the entail was cut off, and the consequent deed of sale to Allen in 1691; Sir Edward Northey's report in 1703 ; and evidence of Allen's tak- ing possession of the wastes, and of his inclosing and occupying some land at Great Island. On this evidence, it was pleaded that the title derived from Mason, and his possession of the pro- vince, of which the lands in question were part, was legal ; that the appellee's possession had been interrupted by the appellant and those from whom he derived his title, more especially by the judgment recovered by Robert Mason against Major Waldron ; and a special verdict was moved for, agreeably to the royal di- rections. The council on this side were James Meinzies and John Valentine.
On Waldron's part, were produced the deed from four Indian sachems to Wheelwright and others in 1629 ; and depositions taken from several ancient persons, who testified that they had lived with Major Waldron, when he began his plantation at Co- checho, about the year 1640, and assisted him in building his houses and mills, and that no person had disturbed him in the possession thereof for above forty years. To invalidate the evi- dence of the title produced on the opposite side, it was pleaded, that the grant from the council of Plymouth to Mason in 1629, was not signed ; that livery and seizin were not endorsed on it as on other of their grants, and as was then the legal form ; nor was it ever enrolled according to statute : That the sale of part of the same lands in 1628 to the Massachusetts company, by an in- strument signed and executed according to law, renders this sub- sequent grant suspicious ; and that his pretending to procure another grant of part of the same lands in 1635, was an argument that he himself could not rely on the preceeding one, nor was it credible that the same council should grant the same lands twice, and to the same person : That the grant in 1635 was equally defective ; and that he must relinquish one or the other, it being contrary to the reason and usage of law to rely on two several titles at once. It was urged, that Waldron's possession was grounded on a deed from the native lords of the soil, with whom his father had endeavored to cultivate a friendly connex- ion ; that he had taken up his land with their consent, when the country was a wilderness ; had cultivated it, had defended it in war at a great expense, and at the hazard of his life, which he finally lost in the attempt ; that the Indian deed was legally exe- cuted in the presence of the factors and agents of the company of Laconia, of which Mason was one ; that this was done with the toleration of the council of Plymouth, and in pursuance of the great ends of their incorporation, which were to cultivate the
165
PROVINCE. JOSEPH DUDLEY.
1707.]
lands, to people the country and christianize the natives, for the honor and interest of the crown and the trade of England, all which ends had been pursued and attained by the appellee and his ancestor. It was also alleged, that the writ against Major Waldron in 1683 was for " lands and tenements," of which the quantity, situation and bounds were not described, for want of which no legal judgment could be given ; that no execution had ever been levied, nor was the possessor ever disturbed or amoved by reason thereof; and that the copies produced were not attest- ed, no book of records being to be found. To invalidate the evi- dence of Mason's possession, it was observed, that he himself was never here in person ; that all the settlement made by his agents or successors was only a factory for trade with the Indians, and principally for the discovery of a country called Laconia ; and that this was done in company with several other merchant- adventurers in London, who, for the security of their goods erect- ed a fort ; but that this could not amount to a legal possession, nor prove a title to the country, especially as upon the failure of trade, the object of their enterprise, they quitted their factory, after a few years stay in these parts.
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