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.
WORCESTER, JULY 1, 1834.
DEAR SIR,
I last evening received your favor of the 28th ult. The Committee of the Legislature, who had in charge the Marshpee business, intentionally avoided expressing any opinion in regard to the tenure by which Mr. Fish held the parsonage. In our report we merely adverted to the facts, that in 1783, Lot Nye, and several Indians granted 400 acres of the common land, "to be forever for the important purpose of propagating the Gospel in Marshpee." There were no grantees named in the deed. In 1809, the General Court confirmed this grant of a parsonage, "to be held forever for a Congregational Gospel Minister." We found Mr. Fish in possession of the parsonage, as such a minister. But whether by virtue of said grant, and his settlement at Marshpee he could hold the parsonage, as a sole corporation, we regarded it as a question of purely a judicial character, and one with which it was "not expedient," and might we not have added proper, "for the Legislature to interfere." If Mr. Fish has rights under these grants, and by virtue of his settlement, I know you will agree with me, that the Legislature can do nothing to divest him of them. And if he had no such right, we were not disposed to create them. I am entirely satisfied with the course which the Committee took in relation to the parsonage; and the circumstance that questions are now agitated in relation to it, show that in one particular, at least, the Committee acted judiciously. We left the parsonage precisely as we found it; leaving to another branch of the government the appropriate responsibility of settling all questions growing out of the grant of 1783, the confirmation of 1809, and the settlement of Mr. Fish. Could we by legislation settle those questions, it might have been our duty to do so, for the sake of the harmony of the District. But it seems to me that any such attempt would have had a tendency to create new difficulties, rather than to diminish old ones.