USA > New Hampshire > The history of New-Hampshire > Part 32
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' ferred to them, they were of opinion, that according to the char- ' ter of William and Mary, the dividing line ought to be taken ' from three miles north of the mouth of Merrimack, where it runs ' into the sea.' Copies of this opinion were given to each 1735. party ; and the lords of trade reported, that the king should June 5. appoint commissioners, from the neighboring provinces, to mark out the dividing line. This report was approved by the lords of council.
Much time was spent in references, messages and petitions, concerning the adjustment of various matters ; and at 1737. length, the principal heads of the commission were deter- Feb. 4-9. mined. The first was, that the commissioners should be appointed, from among the counsellors of New-York, New-Jersey, Rhode-Island and Nova-Scotia. These were all royal govern- ments, except Rhode-Island ; and with that colony, as well as New-York, Massachusetts had a controversy, respecting bounda- ries. Connecticut, though proposed, was designedly omitted, because it was imagined that they would be partial to Massachu- setts, from the similarity of their habits and interests. The other points were, that twenty commissioners should be nominated, of whom five were to be a quorum ; that they should meet at Hamp- ton, in New-Hampshire, on the first of August, 1737; that each province should send to the commissioners, at their first meeting, the names of two public officers, on whom any notice, summons, or final judgment might be served ; and at the same time should exhibit, in writing, a plain and full state of their respective claims, copies of which should be mutually exchanged ; and that if either province should neglect to send in the names of their officers, or the full state of their demands, at the time appointed, then the commissioners should proceed ex parte. That when the com- missioners should have made and signed their final determination, they should send copies to the public officers, of cach province ; and then should adjourn for six weeks, that either party might enter their appeal.2
(1) Printed brief. MS. report. (2) Printed brief.
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HISTORY OF NEW-HAMPSHIRE. [1737.
These points being determined ; the board of trade wrote let- ters to Belcher, enclosing the heads of the proposed commission, Feb. 18. and directing him to recommend to the assemblies of each
province, to choose their public officers, and prepare their demands, by the time when the commissioners were to meet. These were accompanied with letters to the governors of the several provinces, from which the commissioners were elected, informing them of their appointment. The letters were delivered to Parris, and by him to Thomlinson, to be sent by the first ship to America.1 Those to Massachusetts and New-Hampshire, were directed, the one to Mr. Belcher, by name, as governor of Massachusetts ; the other, to the commander in chief, resident in New-Hampshire ; and it was required that the delivery of the letters should be certified by affidavit. The design of this singu- lar injunction was, that Dunbar, if present, should receive the letter, and call the assembly of New-Hampshire immediately ; and that if Belcher should forbid or hinder it, the blame of the neglect should fall on him. At the same time, another letter, respecting a petition of a borderer on the line, and containing a reprimand to Belcher, was sent in the same manner, to be delivered by Dun- bar, into Belcher's hands. These intended affronts, both failed of their effect ; Dunbar having, before the arrival of the letters, taken his passage to England.
The anxiety of Thomlinson, to have the earliest notice possible, of the intended commission sent to New-Hampshire, led him not only to forward the public letters ; but to send copies of all the transactions, to his friends there. In a letter to Wiggin Feb. 15. and Rindge, (the committee who corresponded with him) he advised them, to make the necessary preparations, as soon as possible, to act in conformity to the commission and instructions ; and even went so far as to nominate the persons, whom they should appoint, to manage their cause before the commissioners.2
These papers were communicated to the assembly, at their session in March; and at the same time the governor laid before them, a copy of the report of the board of trade, in favor Mar. 18. of a commission, which had been made in the preceding December. In consequence of which, the assembly appointed a April 1. ' witnesses, pleas and allegations, papers and records, to committee of eight* who were empowered 'to prepare ' be laid before the commissioners ; to provide for their reception ' and entertainment, and to draw upon the treasurer for such $ supplies of money as might be needful.'3 This appointment was
(1) Original letters of Parris. Records and printed brief.
(2) Original MS. letter. (3) Assembly
* Of the Council. Shadrach Walton, George Jaffrey, Jotham Odiorne, Theodore Atkinson.
Of the House.
Andrew Wiggin,
John Rindge,
Thomas Packer,
James Jeffrey.
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PROVINCE. JONATIIAN BELCHER.
1737.]
made by the united voice of the council and representatives, and consented to by the governor ; and though it was made, three weeks before the reception of the letters, from the lords of trade; directing the appointing of public officers, and preparing a state- ment of claims ; yet it was understood to be a full compliance with the orders and expectations of the government in England.
The same day on which this order passed, the governor pro- rogued the assembly to the sixth of July ; and on the twentieth of June, he prorogued it again, to the fourth of August.
The letters respecting the commission, were delivered to Mr. Belcher, on the twenty-second of April ; and he acknowledged the receipt of them, in a letter to the board of trade, on the tenth of May. The commission itself was issued on the ninth of April, and sent to Mr. Rindge ; who kept it till the meeting of the com- missioners, and then delivered it to them. The expense of it, amounting to one hundred and thirty-five pounds sterling, was paid by the agents of New-Hampshire.
At the spring session of the general court in Massachusetts, the governor laid before them the letter from the lords of May 27. trade, inclosing an order from the privy council, and re- commended to them to stop all processes in law, respecting any disputes of the borderers, till the boundaries should be determin- ed.1 During the same session, he reminded them of the order, and desired them to consider it ; telling them that he had July 4. no advice of the appointment of commissioners. His meaning was, that the commission itself, in which they were named, had not been sent to him ; nor was he actually informed that it was in America, till after he had prorogued the assemblies of both provinces to the fourth of August. In obedience to the royal order, the assembly of Massachusetts appointed Josiah July 5. Willard, secretary, and Edward Winslow, sheriff. of Suf- folk, to be the two public officers ; on whom, or at whose place of abode, any notice, summons, or other process of the commission- ers, might be served.
On the day appointed, eight of the commissioners met at Hampton .* They published their commission, opened Aug. 1.
their court, chose William Parker their clerk, and George Mitchel, surveyor. On the same day, the committee of eight, who had been appointed by the assembly of New-Hampshire, in April, appeared ; and delivered a paper to the court, reciting the order of the king, for the appointment of two public officers ; al-
(1) Journal of Assembly.
* From Nora-Scotia.
William Skene, President, Erasmus James Plullips, Otho Hamilton.
From Rhode-Island. Samuel Vernon, John Gardner, Jolın Potter, Ezekiel Warner, George Cornel.
33
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HISTORY OF NEW-HAMPSHIRE.
[1737.
leging that the assembly had not been convened since the arrival of that order ; but, that there should be no failure for want of such officers, they appointed Richard Waldron, secretary, and Eleazar Russell, sheriff.1 They also delivered the claim and demand of New-Hampshire, in the following words. 'That the southern ' boundary of said province should begin at the end of three miles ' north from the middle of the channel of Merrimack river, where ' it runs into the Atlantic ocean ; and from thence should run, on ' a straight line, west, up into the main land (toward the south sea) ' until it meets his majesty's other governments. And that the ' northern boundary of New-Hampshire should begin at the en- ' trance of Pascataqua harbor, and so pass up the same, into the ' river of Newichwannock, and through the same, into the farthest ' head thereof ; and from thence northwestward, (that is, north, ' less than a quarter of a point, westwardly) as far as the British ' dominion extends ; and also the western half of the Isles of ' Shoals, we say, lies within the province of New-Hampshire.'2
The same day, Thomas Berry and Benjamin Lynde, counsel- lors of Massachusetts, appeared and delivered the vote of their assembly, appointing two public officers, with a letter from the secretary, by order of the governor, purporting, that 'at the last ' rising of the assembly, there was no account that any commission ' had arrived ; that the assembly stood prorogued to the fourth ' of August ; that a committee had been appointed, to draw up a ' state of their demands, which would be reported at the next ' session, and therefore praying that this short delay might not ' operate to their disadvantage.' Upon this, the committtee of
Aug. 2. New-Hampshire drew up and presented another paper, charging the government of Massachusetts with 'great ' backwardness, and aversion to any measures, which had a ten- ' dency to the settlement of this long subsisting controversy ; and " also charging their agent, in England, with having used all im- 'aginable artifices, to delay the issue ; for which reason, the ' agent of New-Hampshire had petitioned the king, to give direc- ' tions, that each party might be fully prepared, to give in a state ' of their demands, at the first meeting of the commissioners ; ' which direction they had faithfully observed, to the utmost of ' their power ; and as the assembly of Massachusetts had made ' no seasonable preparation, they did, in behalf of New-Hamp- ' shire, except and protest against any claim or evidence being ' received from them, and pray the court to proceed ex parte, ' agreeably to the commission.'3
It was alleged in favor of Massachusetts, that by the first meet- ing of the commissioners could not be meant the first day, but the first session. The court understood the word in this sense, and
(1) MS. original Minutes by Mr. Parker. (2) MS. Minutes, and Massa- chusetts Journal, p. 34. (3) MS. Minutes.
243
PROVINCE. JONATHAN BELCHER.
1737.]
resolved, that Massachusetts should be allowed time, till the eighth of August, and no longer, to bring in their claims ; and that if they should fail, the court would proceed ex parte. The court then adjourned to the eighth day.
The assembly of New-Hampshire met on the fourth ; and the secretary, by the governor's order, prorogued them to the tenth, then to meet at Hampton-Falls. On the same day, Aug. 4. the assembly of Massachusetts met at Boston ; and after they had received the report of the committee, who had drawn up their claim, and despatched expresses to New-York and New-Jersey, to expedite the other commissioners ; and appointed a committee to support their claims ;* the governor adjourned them, to the tenth day, then to meet at Salisbury. Thus the assemblies of both provinces were drawn within five miles of each other ; and the governor declared, in his speech, that he would 'act as a ' common father to both.'1
The claim of Massachusetts being prepared, was delivered to the court, on the day appointed. After reciting their grant Aug. 8. and charters and the judicial determination in 1677, they asserted their " claim and demand, still to hold and possess, by a ' boundary line, on the southerly side of New-Hampshire, begin- ' ning at the sea, three English miles north from the Black Rocks, " so called, at the mouth of the river Merrimack, as it emptied ' itself into the sea sixty years ago ; thence running parallel with ' the river, as far northward as the crotch or parting of the river ; ' thence due north, as far as a certain tree, commonly known for ' more than seventy years past, by the name of Endecott's tree ; ' standing three miles northward of said crotch or parting of Mer- " rimack river ; and thence, due west to the south sea; which, ' (they said) they were able to prove, by ancient and incontestible ' evidence, were the bounds intended, granted, and adjudged to ' them ; and they insisted on the grant and settlements as above ' said, to be conclusive and irrefragable.2
' On the northerly side of New-Hampshire, they claimed a " boundary line, beginning at the entrance of Pascataqua harbor ; ' passing up the same, to the river Newichwannock ; through that ' to the farthest head thereof, and from thence a due north west ' line, till one hundred and twenty miles from the mouth of Pas- ' cataqua harbor be finished.'
(1) Massachusetts Assembly Records. (2) Journal, p. 6.
* This committee consisted of Edmund Quincy, William Dudley, Samuel Welles, Thomas Berry, and Benjamin Lynde, of the council ; and ELISHIA COOKE, Thomas Cushing, Job Almy, Henry Rolfe, and Nathaniel Peaslee, of the house. Cooke died while the commissioners were sitting. He had been employed on the same affair at Newbury in 1731, and it was by his means that the business was then obstructed. In reference to this, Belcher, in a private letter says, ' Generations to come will rise up and call him cursed.' On account of Cooke's death, and the absence of another member, they ap- pointed John Read and Robert Auchmuty. August 13.
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HISTORY OF NEW-HAMPSHIRE.
[1737.
The court ordered copies of the claims of each province, to be drawn and exchanged ; and having appointed Benjamin Rolfe of Boston,* an additional clerk, they adjourned to the tenth of the month.
On that day, both assemblies met at the appointed places. A cavalcade was formed from Boston to Salisbury, and the governor Aug. 10. rode in state, attended by a troop of horse. He was met at Newbury ferry by another troop ; who, joined by three more at the supposed divisional line, conducted him to the George tavern, at Hampton-Falls ; where he held a council and made a speech to the assembly of New-Hampshire. Whilst both assemblies were in session ; the governor, with a select com- pany, made an excursion, of three days, to the falls of Amuskeag ; an account of which was published in the papers, and concluded in the following manner : 'His excellency was much pleased ' with the fine soil of Chester, the extraordinary improvements at ' Derry, and the mighty falls at Skeag.'1
In the speech, which the governor made to the assembly of New-Hampshire, he recommended to them to appoint two officers, agreeably to his majesty's commission. The assembly appeared to be much surprised at this speech ; and in their answer, said, that ' the committee before appointed had already given in the ' names of two officers, which they approved of ; for had it not ' been done, at the first meeting of the commissioners, they might ' have proceeded ex parte."2
Considering the temper and views of Mr. Belcher's opponents, this was rather unfortunate for him, so soon after his profession of being ' a common father to both provinces.' For if the commit- tee had a right to nominate the two officers, then his recommen- dation was needless ; if they had not, it might justly be asked,
(1) Boston Weekly News Letter, Aug. 25. (2) Assembly Journal and printed brief. 1
[Benjamin Rolfe was afterwards one of the early settlers of Concord, then called Rumford, where he died 20 December, 1771. He graduated at Har- vard college in 1727, and for some time was the only magistrate in Concord. He married Sarah, daughter of Rev. Timothy Walker, and she, after the death of Mr. Rolfe, became the wife of Benjamin Thompson, afterward the distin- guished German count, who from his early residence in New-Hampshire, took the name of Rumford.]
t This procession occasioned the following pasquinade, in an assumed Hibernian style.
' Dear Paddy, you ne'er did behold such a sight, As yesterday morning was seen before night. You in all your born days saw, nor I didn't neither, So many fine horses and men ride together. At the head, the lower house trotted two in a row, Then all the higher house pranced after the low ; Then the governor's coach gallop'd on like the wind, And the last that came foremost were troopers behind ; But I fear it means no good, to your neck or mine ; For they say 'tis to fix a right place for the line.'
Collection of Poems, p. 54.
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PROVINCE. JONATHAN BELCIIER.
1737.]
why did he not call the assembly together, on the sixth of July, to which day they had been prorogued ? The excuse was, that he did it, to avoid any objection, which might be made to the re- gularity of their appointment ; and to give them an opportunity to ratify and confirm it. The truth was, that Mr. Belcher high- ly resented the conduct of the committee of New-Hampshire, who concealed the commission, and never communicated it to him in form. Had he been aware of the use, which his enemies might make, of his rigid adherence to forms, when he could not but know the contents of the commission, and the time when it must be executed, prudence might have dictated a more flexible con- duct. They did not fail, to make the utmost advantage of his mistakes, to serve the main cause which they had in view.
The expresses which were sent by Massachusetts, to call the other commissioners, had no other effect than to add to the num- ber, Philip Livingston, from New-York ; who, being senior in nomination, presided in the court.
To prevent the delay, which would unavoidably attend the tak- ing of plans from actual surveys ; the commissioners recommend- cd, to both assemblies, to agree upon a plan, by which the pre- tensions of each province should be understood ; but as this could not be done, a plan drawn by Mitchel was accepted, and when their result was made, this plan was annexed to it. They then proceeded to hear the answers, which each party made, to the demands of the other, and to examine witnesses on both sides. Neither party was willing to admit the evidence, produced by the other, and mutual exceptions and protests were entered. The points in debate were, whether Merrimack river, at that time, emptied itself into the sea, at the same place where it did sixty years before ? Whether it bore the same name, from the sea, up to the crotch ? and whether it were possible to draw a paral- lel line, three miles northward, of every part of a river ; the course of which was, in some places, from north to south ?
With respect to the boundary line, between New-Hampshire and Maine, the controverted points were, whether it should run up the middle of the river, or on its north-eastern shore ; and whether the line, from the head of the river, should be due north- west, or only a few degrees westward of north.
The grand point on which the whole controversy respecting the southern line turned, was, whether the charter of William and Mary granted to Massachusetts, all the lands which were granted, by the charter of Charles the First? On this question, the com- missioners did not come to any conclusion. Reasons of policy might have some weight, to render them indecisive ; but, whether it were really so or not, they made and pronounced their result in the following words. In 'pursuance of his majesty's commission, ' the court took under consideration, the evidences, pleas, and ' allegations offered and made by cach party ; and upon mature
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HISTORY OF NEW-HAMPSHIRE.
[1737.
' advisement on the whole, a doubt arose in point of law ; and " the court thereupon came to the following resolution. That if the ' charter of King William and Queen Mary, grants to the province of ' Massachusetts Bay, all the lands granted by the charter of King ' Charles the First, lying to the northward of Merrimack river ; ' then the court adjudge and determine, that a line shall run, par- ' allel with the said river, at the distance of three English miles,
' north from the mouth of the said river, beginning at the south- ' erly side of the Black Rocks, so called, at low water mark and ' thence to run to the crotch, where the rivers of Pemigewasset ' and Winnipiseogee meet ; and from thence due north three ' miles, and from thence due west, toward the south sea, until it ' meets with his majesty's other governments ; which shall be the ' boundary or dividing line, between the said provinces of Mas- 'sachusetts and New-Hampshire, on that side. But, if other-
' wise, then the court adjudge and determine, that a line on the ' southerly side of New-Hampshire, beginning at the distance of ' three miles north, from the southerly side of the Black Rocks ' aforesaid, at low water mark, and from thence running due west, ' up into the main land, toward the south sea, until it meets with his ' majesty's other governments, shall be the boundary line between ' the said provinces, on the side aforesaid : Which point in doubt, ' the court humbly submit, to the wise consideration of his most ' sacred majesty, in his privy council ; to be determined accord- ' ing to his royal will and pleasure.
' As to the northern boundary, between the said provinces, the ' court resolve and determine ; that the dividing line shall pass ' through the mouth of Pascataqua harbor, and up the middle of ' the river of Newichwannock, (part of which is now called Sal- ' mon-Falls) and through the middle of the same, to the farthest ' head thereof, and from thence north, two degrees westerly, un- ' til one hundred and twenty miles be finished, from the mouth ' of Pascataqua harbor, aforesaid ; or until it meets with his maj- ' esty's other governments. And, that the dividing line shall part ' the Isles of Shoals, and run through the middle of the harbor, ' between the islands, to the sea, on the southerly side ; and that ' the southwesterly part of said islands shall lie in, and be account- ' ed part of, the province of New-Hampshire ; and that the north- ' easterly part thereof shall lie in, and be accounted part of, the ' province of Massachusetts Bay ; and be held and enjoyed by ' the said provinces respectively, in the same manner as they now " do, and have heretofore held and enjoyed the same.
' And the court do further adjudge, that the cost and charge " arising by taking out the commission, and also of the commis- ' sioners and their officers, viz. the two clerks, surveyor and wait- ' er, for their travelling expenses, and attendance in the execu- " tion of the same, be equally borne by the said provinces.'
(1) MS. Copy Journal of Massachusetts Assembly, p. 35.
247
PROVINCE. JONATHAN BELCHER.
1737.]
Thus this long depending question, after all the time, expense and argument, which it has occasioned, remained undecided.
When this evasive decree was published, the commissioners adjourned, to the fourteenth of October, to receive appeals ; and the same day, the governor, at the request of the council only, adjourned the assembly of New-Hampshire to the twelfth of Oc- tober. By this sudden adjournment, it was impossible for them to obtain a copy of the decree, before their dispersion, or to frame an appeal, till two days before the time, when it must have been presented. The assembly of Massachusetts continued their ses- sion, at Salisbury, five days longer. On the fifth of September, they obtained copies of the royal commission, and the decree of the commissioners, which they entered on their journal. On the sixth, they agreed upon an appeal ; and on the seventh, at the united request of both houses, the governor adjourned them to the 12th of October.
The sudden adjournment of the assembly of New-Hampshire, when that of Massachusetts continued their session, was unfortu- nate for Governor Belcher ; and gave his opponents another ad- vantage, to pursue their grand design against him. The reasons assigned for it were, that the report of the commissioners being special, the whole matter would of course come before the king, without any appeal from either province. For this reason, a majority of the council were against an appeal. That as the committee, appointed in April, had the same power to act in the recess, as in the session of the assembly ; and, as the council were against appealing ; so the appeal could not be made, by the whole assembly, and therefore the governor thought, that the best service which he could do to the province, was to adjourn the assembly, and leave the whole business in the hands of the com- mittee. With respect to the short time, between the 12th and 14th of October, it was observed, that the claim of New-Hamp- shire was contained in a few lines, and their exceptions to the judgment of the commissioners might be prepared in a quarter of an hour.1
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