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.