Indian Nullification Of The Unconstitutional Laws Of Massachusetts Part 11

MARSHPEE, JULY 19, 1834.

Mr. WM. APES,

_Sir_,--Perceiving by a notice in the "Barnstable Journal," of last week, that you have appointed a Camp-meeting, to commence on the 30th inst. and to be holden on the Parsonage, and in the vicinity of the Meeting-house,

_This is to forbid the proceeding altogether_!

You have no pretence for such a measure; and if you persist in your purpose to hold such Meeting, either near the _Meeting-house_, or on _any part of the Parsonage allotment_, you must consider yourself _responsible for the consequences_.

I am &c.

PHINEAS FISH.

Rev. WILLIAM APES.

Soon after this, the Selectmen, one of whom was a member of my church, applied to Mr. Fish respecting holding the Camp-meeting on the parsonage. The place selected could not have disturbed Mr. Fish, any more than people pa.s.sing in carriages in the main road. We had no Meeting-house, our School-houses would not hold the people, and we had no other means but to erect our tents and worship G.o.d in the open air.

A pious family of whites from Nantucket, came on the ground, and began erecting their tent. Mr. Fish came there in person and ordered them off. The man told him that he had his family there, and had no other shelter for the night but his tent, which he should not remove, but would do so the next day, if he found that he was trespa.s.sing on any man's rights. But he added, if Mr. Fish turned him off, he would publish his conduct to the world. Mr. Fish's interference to break up our religious meeting, created much talk, and finally he wrote the following letter to the Selectmen; after which we went on and had our meeting, in a quiet, orderly and peaceful manner, and we believe it was a season of grace, in which the Lord blessed us.

_To the Selectmen of Marshpee_.

On mature thought, and in compliance with your particular request, I consent to your holding the Camp-meeting, which is this day commenced, on the spot near the river, where the first tent was erected. I consent, (I say,) on the following conditions, viz: That you undertake that no damage come upon the parsonage property, either wood land, or Meeting-house; that no attempt be made to occupy the Meeting-house; that there be no attempt on the Sabbath, or any other day, to interrupt the customary worship at the Meeting-house, and, _that peace, order, and quietude_ be maintained during the time of the Camp-meeting. It is also distinctly understood, that this license is of _special favor_, and _not conceded as your right_, and no way to be taken as a ground for similar requests in future, or for encouraging any future acts of annoyance, vexation, or infringement of the quiet possession of the privileges, secured to me by the _Laws_. And that should any damage be done in any way as aforesaid, you will consider yourselves responsible to the proper authorities.

With my best wishes for your welfare, your friend,

PHINEAS FISH.

_Marshpee, July 30, 1834_.

The reader may now ask, how came Mr. Fish in possession of this property, which he claims to hold by the Laws? I am at liberty to publish here, the following views of the law and the facts in the case, drawn up by legal counsel whom the Selectmen have consulted. And here I take my leave.

OPINION AS TO THE t.i.tLE REV. PHINEAS FISH HAS TO THE PARSONAGE, SO CALLED, IN MARSHPEE.

The first act of the General Court which interfered with the right of the Indians to sell their own lands, all of which they owned in common in Marshpee Plantation, (including what is now called the parsonage,) was in 1650, which provides that no person shall _buy_ land of any Indian without license of the General Court. In 1665, this was extended to grants for term of years. In 1693, the Indians were put under guardianship.

In 1701, an Act was pa.s.sed specially to protect the Indians in the enjoyment of their lands. [Col. Laws, page 150,] It also shows why the restriction in the sale of their lands was adopted.

"Whereas, the government of the late Colonies of the Ma.s.sachusetts Bay and New Plymouth, to the intent the native Indians might not be injured or defeated of their just rights and possessions, or be imposed on and abused in selling and disposing of their lands, and thereby deprive themselves of such places as were suitable for their settlement", did inhibit the purchase of land without consent of the General Court, notwithstanding which, sundry persons have made purchases, &c.; therefore, all such purchases of lands were vacated, with the exception of towns, or persons who had obtained lands from the Indians, and also by virtue of a grant or t.i.tle made or derived by or from the General Court. All leases of land from Indians for any term or terms of years to be void, unless license was obtained for such lease from the County Court of Sessions. _Provided_, nevertheless, that nothing in this act shall be held or deemed in any wise to hinder, defeat or make void any bargain, sale or lease of land, made by an Indian to another Indian or Indians.

1718. This is the first act which took from the Indians their civil capacity to make contracts. It says, "whereas, notwithstanding the care taken and provided (by the former act,) a great wrong and injury happens to said Indians, natives of this country, by reason of their being drawn in by small gifts, or small debts, when they are in drink, and out of capacity to trade, to sign unreasonable bills or bonds for debts which are soon sued, and great charge brought upon them, when they have no way to pay the same, but by servitude"; therefore no contract whatever shall be recovered against any Indian native, unless entered into before two Justices of the Peace in the County, both to be present when the contract is executed by the Indian.

The act of 1725, recognizes the rights of Indians to employ persons to build houses on _their own lands_. Their own lands then were the commons, including the parsonage.

In 1763, Marshpee was incorporated as a District, including the land now called the parsonage. "_Be it enacted_, &c. that all the lands _belonging_ to the Indians and mulattos in Mashpee be erected into a district, by the name of Mashpee." The Proprietors are empowered to meet "IN THE PUBLIC MEETING HOUSE," [the one now claimed by Mr. Fish,]

to elect a Moderator, five Overseers, two to be Englishmen, a town Clerk and Treasurer, being Englishmen, two Wardens, and one or more Constables. The majority of the Overseers had the sole power to regulate the fishery, to lease such lands and fisheries as are held in common, not exceeding for two years, and to allot to the Indians their upland and meadows. This act was to continue for three years and no longer. It does not appear ever to have been revived. The revolutionary war intervened, and there is no act after 1766, until the act of 1788, after the revolutionary war, which last act put the Indians and their lands under strict guardianship.

In this interval between 1766 and 1788, the only transaction on which Mr. Fish can found any claim to the parsonage look place. There was then either no law existing, which could empower any person to sequester and set apart the lands of the Indians, or the law of 1693, (if that of 1763 had expired,) was revived, by which the guardianship again attached to the Indians. The Indians, it is believed, continued to choose their own Overseers, under the charter of 1763, after it had expired, and without any authority to do so. It was the only government they had during the troubles of the revolution.

We now come to the first evidence of any thing relating to the parsonage land being set apart from the common land. This was in 1783, and the following is the Deed from the Records of Barnstable County, and the only deed relating to this property.

DEED OF MARSHPEE PARSONAGE.

_Know all Men by these Presents_, That we, Lot Nye, Matthias Amos, Moses Pognet, Selectmen, and Israel Halfday, Joseph Amos and Eben Dives, of the district of Marshpee, _for the support of the Gospel in said Marshpee in all future generations, according to the discipline and worship of the Church in this place, which is Congregational_, do allot, lay out, and _sequester_ forever, a certain tract of land, being four hundred acres more or less, lying within the Plantation of Marshpee, and _being Indian property_, which is to lay as a parsonage forever and to be _improved and used for the sole purpose aforesaid_; and the said tract or parcel of land for the said Parsonage, is situated on the East side of Marshpee river, and bounded as follows, viz: Beginning at a certain spring of fresh water which issues from the head a small lagoon on the East side of Marshpee river aforesaid, and runs into said river a small distance below, and South of the spot where negro Scipio and his wife Jemimai had their house, which is now removed, and from thence running due East into the land until it comes to the great road which leads into Marshpee Neck, so called, and from thence Northwardly bearing Eastward as the said road runs, until it comes to the great road, which is the common road from Barnstable to Falmouth, and then bounded by the last mentioned road Northwardly, and running Westwardly until it comes to Ashir's road, then crossing Falmouth road and running in Ashir's path till it comes to Marshpee river aforesaid, and then upon the said river Southwardly, and on the East side, until it comes to the first station, leaving Quokin, and Phillis his wife, quiet in their possessions; which tract of land, (except Mary Richards'

fields and plantation,) which is within the said boundaries, and wood for Mary's own use, and fencing stuff for her fences as they now stand, with all the appurtinances and privileges thereunto belonging, shall be forever for the important purpose of propagating the Gospel in Marshpee, without any let, hindrance or molestation. In confirmation whereof, we have hereunto set our hands and seals, this seventh day of January, one thousand seven hundred and eighty-three. 1783.

LOT NYE, MATTHIAS X[Note: sideways X] AMOS, his mark.

MOSES X[Note: sideways X] POGNET, "

N.B. Before the insealing the premises, reserve was made by the signers of this instrument, for the heirs of Mary Richards, that they forever be allowed her in her life time, and Abraham Natumpum and his heirs, be allowed severally to enjoy and possess Scipio's cleared spot of land, and fencing stuff for the same.

ISRAEL X[Note: sideways X] HALFDAY, his mark.

JOSEPH X[Note: sideways X] AMOS, "

EBEN X[Note: sideways X] DIVES, "

In possession of: Gideon Hawley : Simon Fish.

Received November 10, 1800, and is recorded in the 25th Book of Records, for the County of Barnstable, folio 139, and compared.

Attest, EBENEZER BACON, _Register_.

Lot Nye was a white man, a great Indian speculator. The other five were Indians, two calling themselves Selectmen. Now what power had these men in 1783, to sequester four hundred acres of the common land of the Indians, for any purpose? If they were Selectmen, and had any power, that power was expressly limited by the act of 1763, to leasing lands for a term not exceeding two years. Here they undertook to make a perpetual grant, a sort of dedication of the property to a certain purpose. If they could dispose of one acre so, they might with equal propriety, have disposed of the whole Plantation. The Indians were all tenants in common, and no dedication or transfer of the common land could be made, without a legal part.i.tion, or the consent of every individual tenant. If the pretended Selectmen acted for the Indians, they could only do so by power of attorney to act for all the tenants in common. There is no other possible legal way, by which land, the fee of which is owned by tenants in common, can be transferred, either in fee or in occupancy out of their possession forever. But besides, no act of the Indians was then valid unless confirmed by the General Court. This deed, therefore, of 1783, was void at the time. It seems nothing was done with it, until 1800, _seventeen years_ after, when it was recorded in the Barnstable County Registry of Deeds, at whose instigation does not appear. Now in 1800, when this deed was recorded, the Indians were legally minors, and could do no act, and make no contract. All the power their Selectmen had in 1783, was taken away.

They were under five Overseers, who had power to improve and _lease_ the lands of the Indians and their tenements, but no power to sell, sequester or dedicate any part of them. The Overseers had no power to take a dollar from the Indians, for religious worship. While this was the condition of the Indians under the law of 1789, (which continued in full force, with an additional act in 1819, till the new law of 1834,) the deed was recorded, in 1800, _seventeen years_ after it was made by persons who had no power at all to make such a deed. The professed object was to set apart 400 acres, of the common land, lying in Marshpee, "_and being Indian_ _property_," for a parsonage, forever. The clear t.i.tle then was in the Indians as tenants in common, for the deed so declares it, in 1783. The parsonage was their property then. How has it ever been conveyed out of their hands? The purpose for which this land was to be used, as sequestered by Lot Nye, &c. was for the sole purpose aforesaid, viz. "For the support of the Gospel in Marshpee in all future generations, according to the discipline and worship of the Church in this place, which is Congregational."

And this property, says the deed, "shall be forever for the important purpose of propagating the gospel in Marshpee, without any let, hindrance or molestation."

This, then was the design of the original signers of this deed, who had no right to sign such a deed at all. Their object was to promote the gospel in Marshpee, but how has it turned out? The property has been used for twenty-four years, to pay a minister who preaches to the whites, and whom the Indians with very few exceptions, will not hear.

Is not this a gross perversion of the design of the donors, even if they had any power to have made this grant? No lawyer will pretend that the grant was not void, under this deed alone. There was no grantee, no legal consideration, and no power to convey. The deed remained on record, until 1809, when the following act was pa.s.sed by the Legislature, attempting to confirm a deed made 26 years before, by men who had no power to make such deed.

COMMONWEALTH OF Ma.s.sACHUSETTS,

_House of Representatives, June_ 15, 1809.

On the representation of the Overseers of the Indian Plantation of Marshpee, in the County of Barnstable, stating in behalf of said Indians, that it would be conducive to their interests, that a certain grant and allotment of lands therein described, _formerly owned by said Indians_, for the support of the gospel ministry among them, should be confirmed and rendered valid.

_Resolved_, That a certain grant or allotment of land made by Lot Nye, Matthias Amos, Moses Pognet, Isaac Halfday, Joseph Amos, and Eben Dives, of the District of Marshpee, in the County of Barnstable, as appears by their deed by them, and by them signed, sealed and executed, on the seventh day of January, one thousand seven hundred and eighty-three, and recorded in the Registry of Deeds, in and for said County of Barnstable, in the fifty-fifth book thereof, and 139th folio of said book, said land being 400 acres more or less, according to said deed, be and the same hereby is confirmed and rendered valid to all intents and purposes by them in their said deed expressed, and the said tract of land shall be and remain forever as a parsonage, for the use and benefit of a Congregational gospel minister, as expressed and declared in their said deed. Sent up for concurrence.

TIMOTHY BIGELOW, _Speaker_.

_In Senate, June_ 19, 1809,

Read and concurred.