USA > New Hampshire > The history of New-Hampshire > Part 56
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seal, yea the great seal of England, exposed to fraud and deceit- ful clandestine practices ; yea upon his present majesty, insinuat- ing himself better acquainted with matters of state than he who allows and confirms our grant as authentic by his gracious letter of sixteen hundred sixty-two, which intolerable boldness how unbecoming (not to say more) in a subject, it is not easy for us to say. To all which we may add Sir Ferdinando Gorges' appli- cation to the authority here to interpose in his affair, which he, being one of the great council, would have been far from ac- knowledging, had Mr. Mason's allegations been founded upon trutlı.
Secondly, That articles of charge depending upon such illegal and post-dated grants cannot take place against us were their dis- burse as great as it is affirmed, which by eye witnesses upon the place and still living are proved comparatively very inconsiderable.
3dly. We affirm that the whole management of the affair re- specting our government of those castern parts was in an orderly and peaceable way, and not without the reiterated and earnest so- licitation of most of the people there inhabiting, sufficiently ap- pearing by their several petitions ; and we challenge Mr. Gorges and Mr. Mason by any living evidence or record to shew any sign of a forcible entrance : Some magistrates upon the clearing of our right to them and acceptance of the tender of themselves to us, being sent thither without any other force than each of them a ser- vant to attend them. Indeed some years after Capt. Bonytlion for mutinous carriage was seized and brought to justice ; concerning which and many other cases many inhabitants yet living and eye witnesses can give the most impartial evidence.
4thly. We offer to consideration that the deserted and ungov- erned state of the people of those places had we not had that pa- tent right so clearly evinced, might warrant our actions ; especial- ly considering the obligation upon us to secure his majesty's hon- our and maintain the public peace, so hazarded by the total want of government amongst them. Our first exercise of jurisdiction being in the year 1641, eight years after Capt. Neal, agent for Mr. Mason, had wholly deserted the improvement of land and the government of the country, which indeed he never used but one year, for in the year 1630 he first came over, and in the year 1634 he quitted the place ; and in the interim, neglected the same in making a voyage for England, the short time of his tarriance not admitting of settlement of government or improvement. We may hereto subjoin that Mr. Joseph Mason, agent for Mrs. Anne Mason, when here and all things were fresh in memory, made no demand contrary to what is affirmed, but petitioned our justice against his debtors there and elsewhere, and that Sir Ferdinando Gorges his grant being so mean and uncertainly bounded that he knew not well how to find, much less to improve, to considerable advantage, by his letter bearing date - doth devolve the whole charge and care of his pretended province upon the authori- ty here established. Lastly, That the exercise of jurisdiction in those eastern parts hath been and is his majesty's honour, the peo-
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ple's great benefit, and our charge without profit, which had it not been, the ruin of those parts would have unavoidably ensued in the want of all government, and their seizure by the French, who ever waited a fit opportunity for the same. They have part of them for thirty-five years and others twenty years (some small interruption intervening producing the stronger inclination and re- solution in them to be constant to his majesty's authority here, liv- ed under the government of the Massachusetts a quiet, well ord- ered and thriving people. And as for any complaint from ill af- fected persons, it is well known that the best and wisest govern- ment is not without disquiet from some such ; and no wonder if silly people are soon affected with such fair glossing promises as Mr. Mason hath made and published, as it were determining the case before trial by his late letters to the inhabitants in those parts, and that our government in those places have been no gain, is so unquestionable a truth, that never was any levy laid upon them for the supply of the public treasury, though much hath been and is further like to be expended for their security, who otherwise will inevitably become an easy prey to the heathen, now in hostility with us, and at this present time raging in those parts.
The before written, is a true copy transcribed from the records of the general court of the late colony of the Massachusetts Bay, held by the governor and company of the said colony, at Boston, the 6th of September, 1676.
Examd. per ISA. ADDINGTON, Sec'y.
No. 24. Copy of the Report of the Lords Chief Justices, and the King's confirmation thereof. At the Court at Whitehall, July 20, 1677.
(L. S.) Present the King's most excellent majesty.
Lord Chancellor,
Earl of Craven,
Lord Treasurer,
Lord Bishop of London,
Lord Privy Seal,
Lord Maynard,
Duke of Ormond,
Lord Berkley,
Marquis of Worcester,
Mr. Vice Chamberlain,
Lord Chamberlain,
Mr. Secretary Coventry,
Earl of Northampton,
Mr. Secretary Williamson,
Earl of Stratford,
Earl of Sunderland, Earl of Bath,
Mr. Chancellor of the Exche- quer, Master of Ordnance,
Earl of Peterborough,
Mr. Speaker.
Whereas the right honorable the lords of the committee for trade and plantations, did, in pursuance of an order of the 7th of Febru- ary last, make report to the board, of the matters in controversy, between the corporation of the Massachusetts Bay, in New-Eng- land, and Mr. Mason and Mr. Gorges, touching the right of the soil and government, claimed by the said parties in certain lands there, by virtue of several grants from his majesty's royal father and grandfather, as followeth, in these words,
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May it please your majesty,-Having received your majesty's order in council, of the 7th of February last past, whereby we are directed to enter into the examination of the bounds and limits, which the corporation of the Massachusetts Bay, in New-England, on the one hand, and Mr. Mason and Mr. Gorges on the other, do pretend by their several grants and patents to have been assigned unto them, as also to examine the patents and charters which are insisted on by either side, in order to find out and settle how far the rights of soil and government do belong unto any of them. In consideration whereof, the lords chief justices of your majesty's courts of king's bench and common pleas, were appointed to give us their assistance, we did, on the 5th of April last, together with the said lords chief justices, meet in obedience to your majesty's commands, and having heard both parties by their counsel, learned in the law, we did recommend unto their lordships to receive a state of the claims made by both parties, and to return their opin- ions upon the whole matter unto us, which their lordships have accordingly performed, in the words following :
In obedience to your lordships' order, we appointed a day for the hearing of all parties, and considering the matters referred, having received from them such papers of their cases as they were pleas- ed to deliver ; at which time all parties appearing, the respondents did disclaim title to the lands claimed by the petitioners, and it appeared to us that the said lands are in the possession of several other persons, not before us, whereupon we thought not fit to ex- amine any claims to the said lands, it being (in our opinion) im- proper to judge of any title of land, without hearing of the ter ten- ants, or some other persons on their behalf; and if there be any course of justice upon the place, having jurisdiction, we esteem it most proper to direct the parties to have recourse thither, for the decision of any question of property, until it shall appear that there is just cause of complaint, against the courts of justice there, for injustice or grievance.
We did, in the presence of said parties, examine their several claims to the government, and the petitioners having waived the pretence of a grant of government from the council of Plymouth, wherein they were convinced, by their own counsel, that no such power or jurisdiction could be transferred or assigned by any color of law ; the question was reduced to the province of Maine, where- to the petitioner, Gorges, made his title, by a grant from king Charles the First, in the 15th year of his reign, made to Sir Fer- dinando Gorges, and his heirs, of the province of Maine and the government thereof. In answer to this, the respondents alleged, that long before, viz. in quarto Caroli primi, the government was granted to them, and produced copies of letters patents, wherein it is recited, that the council of Plymouth, having granted to cer- tain persons a territory thus described, viz. " all that part of New- " England in America, which lies and extends between a great " river that is commonly called Monomack alias Merrimack, and a " certain other river there, called Charles river, being in the bot- · " tom of a certain bay there, called the Massachusetts bay, and
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" also all and singular the lands and hereditaments whatsoever, " lying and being within the space of three English miles on the " south part of the said Charles river, or any or every part thereof; " and also all and singular the lands and hereditaments whatsoev- " er, lying and being within the space of three English miles to " the southermost part of the said bay, called Massachusetts bay ; " and all those lands and hereditaments whatsoever, which [lie] " within the space of three English miles to the northward of the " said river, called Monomack alias Merrimack, or the north ward " of any and every part thereof, and all lands and hereditaments " whatsoever, lying within the limits aforesaid, north and south in " latitude and breadth, and in length and longitude of and within " all the breadth aforesaid, throughout the main lands there, from " the Atlantic and western sea and ocean on the east part, to the " south sea on the west." By the said letters patents, the king confirmed 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 4º Caroli. 1mi is invalid. 1. Because there was a precedent grant 18º Jacobi, of the same thing, then in being, which patent was surrendered af- terwards, and before the date of the other 150 Car. Imi. 2. The grant of the government can extend no farther than the ownership of the soil, the boundaries of which, as recited in that patent, whol- ly excludes the province of Maine, which lies northward more than three miles beyond the river Merrimack.
We having considered these matters, do humbly conceive as to the first matter, that the patent of 4º Caroli Imi is good, notwith- standing the grant made in the 18º Jac : for it appeared to us by the recital in the patent 4º Caroli 1mi that the council of Plymouth had granted away all their interest in the lands the year before, and it must be presumed they then deserted the government ; whereupon it was lawful and necessary for the king to establish a suitable frame of government, according to his royal wisdom, which was done by that patent, 4º Caroli Imi making the adventur- ers a corporation upon the place. As to the second matter it seems to us to be very clear that the grant of the government 4° Caroli Imi extends no farther than the boundaries expressed in the patent, and those boundaries cannot be construed to extend further northwards along the river Merrimack than three English miles, for the north and south bounds of the lands granted so far as the river extends, are to follow the course of the river, which make the breadth of the grant, the words describing the length to comprehend all the lands from the Atlantic ocean, to the South sea, of, and in all the breadth aforesaid, do not warrant the over reaching those bounds by imaginary lines or bounds, other expo- sition, would (in our humble opinion) be unreasonable and against the interest of the grant. The words ' of, and in all the breadth aforesaid,' shew, that the breadth was not intended an imaginary line of breadth, laid upon the broadest part, but the breadth re- specting the continuance of the boundaries by the river, as far as the rivers go, but when the known boundary of breadth determines
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it must be carried on by imaginary lines to the South sea. And if the province of Maine, lies more northerly than three English miles from the river Merrimack, the patent of 4º Caroli Imi gives no right to govern there, and thereupon the patent of the same 15° 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 government, that the respondents, the Massachusetts and their successors, by their patent of 4º martis 4° Caroli 1mi have such right of government as is granted them by the same patent within the boundaries of their land expressed therein, according to such description and exposition, as we have thereof made as aforesaid, and the petitioner, Sir Ferdinando Gorges, his heirs and assigns, by the patent 3d April, have such right of government, as is granted them by the same patent, within (the territory) called the province of Maine, according to the boundaries of the same expressed in the same patent.
RI. RAINSFORD, FRA. NORTH.
All which being the opinion of the lords chief justices, and fully agreeing with what we have to report unto your majesty upon the whole matter referred unto us by the said order, we humbly sub- mit the determination thereof unto your majesty.
ANGLESEY, CRAVEN, J. WILLIAMSON,
ORMOND,
H. LONDON, THO. CHICKLEY,
BATH,
G. CARTERET, EDW. SEYMOUR.
Which having been read at the board the 18th instant, it was then ordered that the said Mr. Mason and Mr. Gorges, as also that the agents of the corporation of the Massachusetts Bay, should be this day heard upon the said report, if they had any objections to make thereunto. In pursuance whereof, all parties attending with their counsel, who not alleging any thing so material as to prevail with his majesty and the board to differ in judgment from the said report ; his majesty was thereupon pleased to approve of and confirm the same, and did order that all parties do acquiesce therein, and contribute what lies in them to the punctual and due performance of the said report, as there shall be occasion.
JOHN NICHOLAS.
(The above paper, of which the copy is attested by Edward Rawson, secre- tary of Massachusetts, and John Penhallow, clerk of the superior court of New-Hampshire, is in the files of the said superior court, and in the Mason- ian proprietary office.)
No. 25. Copy of that part of President Cutt's commission, in which the claim of Robert Mason is recited.
" And whereas the inhabitants of said province of New-Hamp- shire, have many of them been long in possession of several quan- tities of lands, and are said to have made considerable improve- ments thereupon, having no other title for the same than what has been derived from the government of the Massachusetts Bay, virtue of their imaginary line ; which title, as it hath by the o- pinion of our judges in England been altogether set aside, so the
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agents from the said colony have consequently disowned any right, either in the soil or government thereof, from the three mile line aforesaid ; and it appearing to us, that the ancestors of Robert Mason, Esq. obtained grants from our great council of Plymouth, for the tract of land aforesaid, and were at very great expense upon the same, until molested and finally driven out, which bath occasioned a lasting complaint for justice, by the said Robert Ma- son, ever since our restoration. However, to prevent in this case any unreasonable demands which might be made by the said Rob- ert Mason, for the right he claimeth in the said soil, we have obliged the said Robert Mason under his hand and seal, to declare that he will demand nothing for the time past, until the 24th of June last past, nor molest any in their possession 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, sixpence in the pound, according to the just and true yearly value of all houses built by them, and of all lands, whether gardens, or- chards, arable, or pasture, which have been improved by them, which he will agree shall be bounded out unto every of the parties concerned, and that the residue may remain unto himself to be dis- posed of, for his best advantage.
" But if, notwithstanding this overture from the said Robert Mason, which seemeth to be fair unto us, any of the inhabitants of the said province of New-Hampshire, shall refuse to agree with the agents of said Robert Mason upon the terms aforesaid, our will and pleasure is, that the president and council of New- Hampshire aforesaid, for the time being shall have power, and are hereby impowered to interpose and reconcile all differency, if they can, that shall or may arise between the said Robert Mason and the said inhabitants, but if they cannot, then we do hereby com- mand and require the said president and council to send into Eng- land such cases, fairly and impartially stated, together with their own opinions upon such cases, that we, our heirs and successors, by and with the advice of our and their privy council, may deter- mine therein according to equity."
(The same mutatis mutandis is inserted in Cranfield's commission.)
No. 26. The General Laws and Liberties of the Province of New- Hampshire.
[Not inserted in the former editions.]
The general laws and liberties of the province of New-Hamp- shire, made by the General Assembly, in Portsmouth, the 16th of March, 1679-80, and approved by the President and Council.
Forasmuch as it hath pleased our sovereign lord, the king, out of his princely grace and favor to take us, the inhabitants of New- Hampshire, into his immediate government and protection, the which, as we are ever bound to acknowledge with great thankful- ness, so we have great reason to hope and believe that his majesty will still continue to countenance and encourage us with the enjoy-
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ment of such liberties, immunities and pp'ties [properties] as be- long to free born Englishmen.
And whereas, his majesty hath been pleased by his letters pa- tents, sent to us to confer such power upon the General Assembly as to make such laws and ordinances as may best suit with the good government and quiet settlement of his majesty's subjects within this province :-
It is therefore ordered and enacted, by this General Assembly and the authority thereof, That no act, imposition, law, or ordin- ance be made or imposed upon us, but such as shall be made by the said assembly, and approved by the president and council from time to time ; and, that justice and right be equally and impartial- ly administered unto all, not sold, denied or causelessly deferred unto any.
9 Hen. 3. Ch. 29 .- Stat. 2. Edw'd 3. Ch. 8 .- Stat. 5. Edw'd 3-9 .- Stat. 14. Edw'd 28 .- Edw'd 3, 3 .- Stat. 11. R. 2-10 .- 17 Caro. 1-10.
CAPITAL LAWS.
1. It is enacted by this assembly and the authority thereof, That if any person having had the knowledge of the true God, openly and manifestly have or worship any other God but the Lord God, he shall be put to death. Ex. 22. 20. Deut. 13. 6 and 10.
2. If any person within this province, professing the true God, shall wittingly and willingly presume to blaspheme the holy name of God, Father, Son or Holy Ghost, with direct, express, presump- tuous or high-handed blasphemy, either by wilful or obstinate, de- nying the true God, or his creation or government of the world, or shall curse God, Father, Son or Holy Ghost-such person shall be put to death. Levit. 24. 15, 16.
3. Treason against the person of our sovereign, the King, the state and commonwealth of England, shall be punished with death.
4. If any man conspire and attempt any invasion or insurrec- tion, or public rebellion against this his majesty's proving, or shall endeavor to surprise any town or towns, fort or forts_therein, or shall treacherously or perfidiously attempt the alteration or subver- sion of the fundamental frame of this government according to his majesty's constitution by his letters patents, every such person shall be put to death or otherwise grievously punished.
5. If any person shall commit wilful murder by killing any man, woman or ehild, upon premeditated malice, hatred or cruelty, not in a way of necessary and just defence, nor by casualty against his will, he shall be put to death.
6. If any person slayeth another person suddenly in his anger and cruelty of passion, he shall be put to death.
7. If any person shall slay another through guile either by poisoning or other such devilish practice, he shall be put to death.
8. If any christian, so called, be a witch, that is, hath or con- sulteth with a familiar spirit, he or they shall be put to death.
9 If any person lie with a beast or brute creature by carnal eopulation, they shall surely be put to death, and the beast shall be slain and buried, and not eaten.
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10. If any man lieth with mankind as he lieth with a woman, both of them hath committed abomination, they both shall surely be put to death, unless the one party were forced or be under four- teen years of age, and all other Sodomitical filthiness shall be se- verely punished according to the nature of it.
11. If any person rise up by false witness wittingly and of pur- pose to take away a man's life, he shall be put to death.
12. If any man stealeth mankind, he shall be put to death or otherwise grievously punished.
13. If any child or children, above sixteen years old and of competent understanding, shall curse or smite their natural father or mother, he or they shall be put to death, unless it can be suffi- ciently testified, that the parents have been very unchristianly neg- ligent in the education of such children, or so provoked them by extreme and eruel correction, that they have been forced thereun- to to preserve themselves from death or maiming.
14. If a man have a rebellious or stubborn son, of sufficient years and understanding, viz .- sixteen years of age or upward, which shall not obey the voice of his father or the voice of his mother, that when they have chastened him will not hearken unto them, then shall his father and mother, being his natural parents, bring him before the magistrates assembled in court, and testify unto them, that their son is rebellious and stubborn, and will not obey their voice and chastisement, but lives in sundry notorious crimes, such a son shall be put to death or otherwise severely pun- ished.
15. If any man shall ravish a maid or women, by committing carnal copulation with her that is above ten years of age, or if she were under ten years of age, though her will was gained by him, he shall be punished with death or some other grievous punish- ment, as the fact may be circumstanced.
16. Whosoever shall wilfully, or on purpose, burn any house, ship or barque, or any other vessel of considerable value, such person shall be put to death or otherwise grievously punished, as the case may be circumstanced.
(The two preceding papers are in the first book of MS. Laws of New- Hampshire.)
No. 27. Address of the General Court of New-Hampshire to the King.
To his most excellent majesty, Charles the 2d, by the grace of God, of England, Scotland, France and Ireland, king, defender of the faith, &c. :
The humble address and petition of the President and Council of his majesty's province of New-Hampshire, in New-England, humbly sheweth,-
That, it having pleased your most excellent majesty to separate us, the inhabitants of this province, from that shadow of your maj- esty's authority and government under which we had long found
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protection, especially in the late war with the barbarous natives, who (this divine protection) proved a heavy scourge to us, and had certainly been the ruin of these poor weak plantations, (being few in number, and otherwise under great disadvantages,) if our brethren and neighbors had not, out of pity and compassion, stretch- ed forth their helping hand, and with their blood and treasure de- fended us, our lives and estates ; nevertheless, upon the receipt of your majesty's pleasure, delivered by Edward Randolph, Esquire, upon the first of January last, directing unto and commanding the erecting of a new government in and over- these four towns, (the government of the Massachusetts yielding readier obedience to your majesty's commands with reference to our relation formerly to them,) although deeply sensible of the disadvantages likely to accrue to your majesty's provinces and ourselves, more especially by the multiplying of small and weak governments, unfit either for offence or defence, (the union of these- neighbor colonies hav- ing been more than a little instrumental in our preservation.) We have taken the oaths prescribed us by your majesty, and ad- ministered to your subjects of these four towns the oath of alle- giance, and convened a general assembly for regulating the com- mon affairs of the people and making of such laws as may be of more peculiar use to ourselves, having special regard to the acts for trade and navigation set forth in the book of rates commonly printed and sold, and if some obstruction occasioned by such as make greater pretences of your majesty's favour and authority had not hin- dered we might have brought matters to a greater maturity, yet hope to perfect something by the first opportunity of shipping from hence, but feared it might be too long to defer our humble acknowledgment of your majesty's grace and favor, in committing the power into such hands as it pleased your majesty to nominate, not imposing strangers upon us, and it much comforts us against any pretended claimers to our soil, or any malevolent spirits, which may misrepresent us (as they have done others) unto your majes- ty or honorable council, while, beside the known laws of the realm, and the undoubted right of English men, we have the fa- vor of a gracious prince to fly to. We do therefore most hum- bly beg the continuance of your majesty's royal favor and protec- tion, without which, we are daily liable to disturbance if not ruin.
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