OPINION AS TO THE TITLE 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 passed 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 Massachusetts 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 title 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 partition, 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 title 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 passed by the Legislature, attempting to confirm a deed made 26 years before, by men who had no power to make such deed.
COMMONWEALTH OF MASSACHUSETTS,
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.
H.G. OTIS, President. Approved, C. GORE.
June 19, 1809,
[True Copy.]
Now, if the deed was not valid in 1783, without the concurrent action of the General Court, it could not be made valid by an act of the General Court 26 years afterwards. Besides, the land had been in possession of the Indians, by virtue of their title, more than twenty years, after the making of the pretended deed. The power of the grantors, if they ever had any power, had long expired, and Marshpee was governed by new laws. We might as well hold that an act passed by the House of Representatives in 1783, could be made valid by a concurrence of the Senate, in 1809.
It is plain, therefore, that unless the General Court had power without the consent of the Indians, to sequester this land in 1809, the setting of it apart from the common land, is wholly void, and an act of mere arbitrary power. But the general Court never assumed the power to convey any land for any purpose, belonging to the Indians without their consent. Where and how was their consent given to this act of 1809? They were minors in law, and could give no such consent. Their Overseers could give none for them, for their power only extended to alloting laws to the Indians, and leasing them. The pretence, therefore, that this was done at the request of the Overseers, gives no strength to the act.
Let another fact be remarked. The original sequestration in 1783, was to promote the gospel in Marshpee. The General Court profess to confirm and render valid the deed of Lot Nye and others, but they say that this four hundred acres "shall remain forever as a parsonage for the use and benefit of a Congregational gospel minister, as expressed in their said deed."
Now no such thing is expressed in their deed. There is not a word about a Congregational minister; only "for the support of the gospel, according to the discipline and worship of the church in this place, which is Congregational."
The General Court, therefore, gave a construction to the deed, which the deed never warranted. The whole proceeding must be illegal and void. The fee still remains in the Indians, and no power existed to take it from them without their whole consent as tenants in common, which they have never given, and could not give, because they were in law minors. Mr. Fish was sent to Marshpee as a minister, and ordained in 1811. The Indians, as a society, never invited him to come, or settled him. They never gave him possession of the land or Meeting-house. They were then minors in law, and could give no consent. The white Overseers and Harvard College, were the only powers that undertook to give Mr. Fish possession of the property of the Indians. It is true, he has held it twenty years, but the statute of quiet possession does not run against minors. The Indians were declared minors, and could bring no action in court.
This is the true history of the parsonage and Meeting-house now wrongfully held by Mr. Fish. Have not the Indians a right to their own property? Has the Legislature and Harvard College, a right to establish a religion by law in Marshpee, and take the property of the Indians to support a minister they will not hear? Where did the General-Court get any power to give away the property of the Indians, any more than the lands of white men, held in common? They cannot take the property of the Indians to support a private individual. Was it then a public use? But the Constitution says "no part of the property of any individual, can with justice be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people, and whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor." Apply this to the act of the General Court, by which Mr. Fish holds four hundred acres of the common lands of the Indians, against their consent, and for which they never received a dollar, and answer. Is not the Constitution violated, every day he is suffered to remain on the plantation, against their consent, subsisting on the property of the poor Indians, not to benefit them, but to preach to the whites?
Look at this subject also, in connexion with religious freedom. The old article of the Constitution, gave the Legislature power to require the towns to provide for public worship at their own expense, where they neglected to make such provisions themselves; but it also provided that the towns, &c. "shall at all times have the exclusive right of electing their public teachers, and of contracting with them for their support and maintenance."
This right the Indians have never had in regard to Mr. Fish, nor did they neglect to support worship, and if they did, the Legislature had no power to take their property and set it apart, but might impose a tax or a fine.
But what says the amended article on this subject of religious freedom? "The several religious societies of this Commonwealth, (the Indian as well as the white man,) whether corporate or unincorporate, shall ever have the right to elect their pastors or religious teachers, to contract with them for their support, to raise money for the erecting and repairing houses of public worship, for the maintenance of religious instruction, and all religious sects and denominations, demeaning themselves peaceably, and as good citizens, shall be equally under the protection of the law."
Are the Indians at Marshpee, protected in the same manner the whites are, in their religious freedom? The Indians think not, and with good reason; and yet they cannot get redress. They have warned Mr. Fish to leave their property; they have dismissed him as their minister, if he ever were such, and have forbidden his using their Meeting-house, or carrying off their wood. But he persists in holding and using their property, as they say wrongfully, and even prohibits their having a religious meeting in the woods, without his consent. He is, it is stated, at this time employing men to cut and cart wood off the plantation, for his support, and it is supposed he will thus take of the property really belonging to the Indians, about two hundred cords of wood the present year.
Now if this land belongs in common to the Marshpee Indians, as they contend it does, Mr. Fish and the white men he employs, (and it is understood he employs no others,) violate the law of 1834, and are liable to indictment. That law says, "that no person other than proprietors or inhabitants of said District, shall ever cut wood [upon the common lands,] or transport the same therefrom. And every person offending against this provision, shall be liable to indictment therefor, and upon conviction, shall pay a fine of not less than fifty, nor more than one hundred dollars, to the use of said District." In this mode, by indicting the white men employed by Mr. Fish, to cut and carry off wood, the question could be tried, which is simply whether the fee of the parsonage is in the Indians, or whether it is in Mr. Fish, who never had any deed of it in any way. The parsonage was common land in 1783. Has it been legally changed since in its title, is the question. But even in this matter, as we are informed, the courts of justice which are open to white men, are closed to the poor Indians. At the last session of the court in Barnstable, the Selectmen of Marshpee complained against the white men employed by Mr. Fish, for cutting wood on their common lands. The District Attorney on ascertaining that the wood was taken from the parsonage, so called, undertook to decide the whole question, before it went to the court, as it is stated to us, and without any examination as to Mr. Fish's title, refused to act upon the complaint. Had the indictment been found, the question could have gone to the Supreme Court, and been there settled. The Indians now must either submit to be wronged until some prosecuting officer will hear their complaints, or they must apply for an injunction, to stop Mr. Fish cutting any more of their wood. These are believed to be substantially the facts and the law, in this case. They are left with a candid public to consider, and to form their opinion on, if they cannot be shown to be unfounded.
It should be understood that the Committee who reported the act of 1834, giving the new law to the Indians, did not decide any question touching the parsonage. They treated all the plantation as lands owned in common. It has been said that the Chairman of the Committee, Mr. Barton, had given an opinion that Mr. Fish was entitled to hold the property. This is incorrect. To obviate such an impression, Mr. Hallett, the counsel for the Indians, wrote to Mr. Barton, and received the following reply, which will fully explain the position in which the question was left by the Legislature. In the views expressed by Mr. Barton, Mr. Hallett fully concurs. Too much praise cannot be given to Mr. Barton for the zeal, patience and ability with which he discharged the duties of Chairman of the Committee.