Indian Nullification of the Unconstitutional Laws of Massachusetts
by
William Apes
Part 3 out of 3
William,) _race of guilt_, (meaning that said William had been
guilty of immorality, dishonesty, irreligion, offences and
crimes;) _these men_, (meaning one Joseph Snelling and one
Norris,) _were earnestly importuned to investigate his_
(meaning said William,) _conduct, and enforce the discipline_
(meaning the discipline of the church,) _upon him_ (meaning
said William,) _for crimes committed since his_ (meaning
said William's) _arrival in this city_, (meaning said city of
Boston, thereby meaning that said William Apes had been guilty
of crimes in said Boston,) _though well acquainted with
facts, which are violently presumtive of his_ (meaning said
William's) _being a deceiver, his_ (meaning said William's)
_friends stand by him_, (meaning said William's) _and will not
give him_ (meaning said William,) _up, though black as hell_,
(meaning that said William was a deceiver, and of a wicked and
black character.) _When I am informed that he_ (meaning said
William) _is ordained_, (meaning as a minister of the gospel,)
_that he_ (meaning said William,) _is by permission of the
brethren travelling, and permitted to collect money to build
the house aforesaid_, (meaning the aforesaid Meeting-house,)
_for his_ (meaning said William's,) _Indian brethren to
worship God in, I shudder not so much because he_ (meaning
said William,) _is purchasing Lottery Tickets_, (meaning that
said William was purchasing Lottery Tickets, and had spent
some of the aforesaid money for that purpose,) _but because I
know of his_ (meaning said William's) _pledge to the citizens
of New York and elsewhere_, to the great injury, scandal, and
disgrace of the said William Apes, and against the peace and
dignity of the Commonwealth aforesaid.
SAMUEL D. PARKER, Attorney of said Commonwealth, within the
County of Suffolk.
PARKER H. PEIRCE, Foreman of the Grand Jury.
A true Copy.--Attest,
THOMAS W. PHILLIPS, Clerk of the Municipal Court of the
City of Boston.
Subsequently, I entered civil actions against two others, for the
same offence, and had them held to bail in the sum of fifteen hundred
dollars, with sureties. This soon made them feel very sore. They had
put it in my power to punish them very severely for giving rein to
their malignant passions, and they asked mercy. I granted it, in order
to show them that I wanted nothing but right, and not revenge; and
that they might know that an Indian's character was as dearly valued
by him as theirs by them. Would they ever have thus yielded to an
Indian, if they had not been compelled? I presume it will satisfy
the world that there was no truth in their stories, to read their
confessions, which are as follows:
_Extract from a letter written by David Ayres, to Elder T.F.
Norris, dated New Orleans, April 12, 1833_.
"I have arrived here this day, and expected to have found
letters here from you, and some of my other brethren
respecting Apes' suit. I never volunteered in this business,
but was led into it by others, and it is truly a hard case
that I must have all this trouble on their account."
_Extract of a letter written by David Ayers to William Apes,
dated July 1, 1833_.
"I am, and always have been your friend, and I never expected
that any things I wrote about you, would find their way into
the public papers. I am for peace, and surely I have had
trouble enough. I never designed to injure you, and when all
were your enemies, I was your warm friend."
_Extract from a letter written by G. Thomas to Rev. Thomas F.
Norris, dated New York, July 12, 1833_.
"William Apes might by some be said to be an excepted case;
but when this is fairly explained and understood, this would
not be the fact. My good friends of Boston, and my active
little brother Ayres, are to blame for this, and not me. I had
no malice against him, I never had done other than wish him
well, and done what I hoped would turn out for the best; but
knowing he was liable to error (as) others, and the case being
placed in such colors to me, I awoke up; and being pressed to
give what I did in detail as I thought, all for the good of
the cause and suffering innocence; but I am sorry I ever
was troubled at all on the subject; I thought that brother
Reynolds was a fine catch; but time I acknowledge is a sure
tell-tale. And by the by, they have caught me, and eventually,
unless Apes will stop proceedings, I must bear all the
burthen. Reynolds has got his neck out of the halter, and
Ayres is away South, and may never return; and poor me must be
at all the trouble and cost, if even the suit should go in my
favor. Can I think that Apes will press it? No. I think he has
not lost all human milk out of his breast, and will dismiss
the suit; and, as to my share of the cost, if I was able, that
should be no obstacle. If he will stop it all, if my friends
do not settle it, I will agree to, as soon as I am able."
* * * * *
I hereby certify, that I have copied the foregoing passages
from the letters purporting to be from David Ayres and G.
Thomas, respectively, as above mentioned, and that said
passages are correct extracts from said letters. I further
certify, that, as the Attorney of said William Apes, I acted
for him in the suits brought by him against said Thomas and
Ayres for libel, that while said suits were pending, said Apes
manifested a forgiving and forbearing disposition, and wished
the suits not to be pressed any further than was necessary to
show the falsehood of the statements of said Ayres and Thomas,
and contradict them; and, that he expressed himself willing to
settle with them upon their paying the cost, and acknowledging
their error, in consequence of which, by direction from him,
after he had perused said letters, I accordingly discharged
both suits, the bail of said Thomas and Ayres paying the
costs, which amounted to fifty dollars.
I further certify, that during my acquaintance with said Apes,
which commenced as I think, in March last, I have seen nothing
in his character or conduct, to justify the reports spread
about him, by said Thomas and Ayres; but on the contrary, he
has appeared to me to be an honest and well disposed man.
HENRY W. KINSMAN, No. 33, Court Street. _Boston, November 30,
1833_.
I, the subscriber, fully concur in the above statement.
JAMES D. YATES, Elder of the Methodist Protestant Church.
The original confession of Reynolds being lost, I trust that the
following certificate will satisfy the reader that it has actually had
existence.
_To whom it may concern_.
This is to certify that I have repeatedly seen, and in one
instance, copied a paper of confession and _retraction_
of Slanders, which the writer stated he had uttered, and
published in papers of the day, against William Apes, the
preacher to the Marshpee tribe of Indians, signed, John
Reynolds, and countersigned as witness, by William Parker,
Esq. The copy taken of the above mentioned confession by the
subscriber, was sent to the Rev. T.R. Witsil, Albany, N.Y.
THOMAS F. NORRIS, President of the Protestant Methodist
Conference, Mass.
Attest,
JAMES D. YATES.
_Boston, May 7, 1835_.
Nevertheless, lest this should not be sufficient, I am prepared to
defend myself by written certificates of my character and standing
among the whites and natives, (the Pequod tribe,) in Groton. They are
as follows:
We the undersigned, native Indians of the Pequod tribe, having
employed Rev. William Apes as our Agent, to assist us, and to
collect subscriptions and monies towards erecting a house to
worship in, do hereby certify, that we are satisfied with
his agency; and that we anticipated that he would deduct
therefrom, all necessary expenses, for himself and family,
during the time he was employed in the agency, as we had no
means of making him any other remuneration.
By permission, FREDERICK X[Note: sideways X] TOBY,
LUCRETIA GEORGE,
By permission, MARY X[Note: sideways X] GEORGE,
By permission, LUCY X[Note: sideways X] ORCHARD,
WILLIAM APES,
By permission, MARGARET X[Note: sideways X] GEORGE.
I, Pardon P. Braton of Groton, in the County of New London,
and State of Connecticut, of lawful age, do depose and say,
that I was present when the above signers attached their names
to the above certificate, by them subscribed, and am knowing
to their having full knowledge of the facts therein contained;
and further the deponent saith not
PARDON P. BRATON.
_Groton, Dec. 3, 1832_.
County of New London, ss.--Groton, Dec. 3, 1832. Personally
appeared, Pardon P. Braton, and made solemn oath to the truth
of the above deposition, by him subscribed. Before me,
WILLIAM M. WILLIAMS, _Justice of the Peace_.
GROTON, INDIAN TOWN, CONN.
This may certify, that we, the subscribers, native Indians
of the Pequod tribe, do affirm by our signatures to this
instrument, that William Apes, Senior, went by our request
as Delegate, in behalf of our tribe, to New York Annual
Conference, of the Methodist Protestant Church, April 2, 1831.
The above done at a meeting of the Pequods, Oct. 6, 1830.
WILLIAM APES, JR. Minister of the Gospel, and Missionary to
that tribe.
As witness our hands, in behalf of our brethren,
By permission, MARY X[Note: sideways X] GEORGE,
By permission, LUCY X[Note: sideways X] ORCHARD,
WILLIAM APES,
By permission, MARGARET X[Note: sideways X] GEORGE.
I, Pardon P. Braton of Groton, New London County, State of
Connecticut, do depose and say, that I am acquainted with the
Pequod tribe of Indians empowering William Apes, Sen. as their
Delegate to the New York Conference, as is above stated; and
further the deponent saith not.
PARDON P. BRATON.
_Groton, Dec. 3, 1832_.
New London County, ss.--Groton, Dec. 3, 1832. Personally
appeared, Pardon P. Braton, and made solemn oath to the truth
of the above deposition, by him subscribed. Before me,
WILLIAM M. WILLIAMS, _Justice of the Peace_.
_To all whom it may concern_.
This may certify, that we, the undersigners, are acquainted
with William Apes and his tribe, of Pequod, and that we live
in the neighborhood with them, and know all their proceedings
as to their public affairs, and that Mr. Apes, as far as we
know, has acted honest and uprightly; and that he has done his
duty to his Indian brethren, as far as he could consistently.
And that he has duly made known his accounts, and appropriated
the monies that was in contemplation for the Indian
Meeting-house, for the Pequod tribe; and we also certify that
said monies shall be duly appropriated.
Dated North Groton, Conn, Aug. 28, 1833.
JONAS LATHAM,
ASA A. GORE,
JOHN IRISH,
WILLIAM M. WILLIAMS.
[Footnote 1: Here we were a little mistaken, not knowing in our
ignorance, that we were making the Lieut. Governor commander in chief,
and using his name to nullify the existing laws. Nevertheless, our
mistake was not greater than many that have been made to pass current
by the sophistry of the whites, and we acted in accordance with the
spirit of the constitution, unless that instrument be a device of
utter deception.]
[Footnote 2: "In respect to the measures you may deem advisable, let
them be confined in their adoption to an application of the _civil
power_. If there is resistance, the Sheriff will, with your advice,
call out the _posse comitatus_, and should there be reason to fear the
inefficiency of this resort, I will be present personally, to direct
any _military_ requisitions," &c.]
[Footnote 3: Surely it was either insult or wrong to call the
Marshpees citizens, for such they never were, from the declaration of
independence up to the session of the Legislature in 1834.]
[Footnote 4: I do not recollect uttering this expression, and it is
not one that I am in the habit of using. It surprised me much, too,
that the Sampsons should all swear alike, when it was impossible that
they could have heard alike. If I used the word _shine_, it must have
been in speaking to Mr. William Sampson, in a low tone, about fifty
yards from the others.]
[Footnote 5: Christmas.]
[Footnote 6: By an Act of the Legislature in April last, 1835, _One
Hundred Dollars_ is hereafter to be appropriated annually, from the
School Fund, for the public schools in Marshpee. For this liberal
act the Marshpees are indebted to the representations made to the
Committee on education by their Counsel, B.F. HALLETT, Esq. This is
an evidence of the paternal care of the Legislature, for which we can
never be too grateful.]
[Footnote 7: Meaning Envoy.]
[Footnote 8: His Excellency LEVI LINCOLN, who proposed to raise
a regiment to exterminate our tribe, if we did not submit to the
Overseers.]
[Footnote 9: The Counsel for the Indians, B.F. HALLETT, Esq. could not
find a member of the House from Barnstable County, who would present
the petition. The Indians will not forget that they owed this act of
justice to Mr. CUSHING of Dorchester.]
[Footnote 10: Mr. Apes did not attend.]
AN INQUIRY INTO THE EDUCATION AND RELIGIOUS INSTRUCTION OF THE
MARSHPEE INDIANS.
On the subject of the means taken to educate the Indians, I will say
a few words in addition to what has already been said, because we wish
to show that we can be grateful when we have favors bestowed on us. Up
to 1835, the State had done nothing for education in Marshpee, except
build us two School-houses in 1831.
Last winter the subject came up in the Legislature of distributing the
School fund of the State among the towns. A bill was reported to the
House, in which Marshpee was made a School District and entitled to
receive a dividend according to its population by the United States
census. Now this was meant well, and we feel obliged to the Committee
who thought so much of us as this; but had the law passed in that
shape, it would have done us no good, because we have no United States
census. The people of Marshpee, nor the Selectmen knew nothing of this
law to distribute the School fund, and our pretended missionary, Mr.
Fish, never interested himself in such matters; but our good friend
Mr. Hallett, at Boston, thought of us, and laid our claims before the
Committee, by two petitions which he got from the Selectmen and from
himself, and the Commissioner. We are told that the chairman of the
School Committee, Hon. A.H. Everett, took much interest in getting a
liberal allowance for education in Marshpee. He was once before a
warm friend to the Cherokees, and his conduct now proved that he was
sincere. He presented the petitions and proposed a law which would
give us one hundred dollars a year forever, for public Schools in
Marshpee, which was the largest sum that had been asked for by our
friend Mr. H. A number of gentlemen spoke in favor of this allowance,
and all showed that a spirit of kindness as well as justice toward the
long oppressed red men, begins to warm the hearts of those who make
our laws, and rule over us. We trust we are thankful to God for so
turning the hearts of men toward us.
The Bill passed the House and also the Senate, without any objection,
and it is now a law of the State of Massachusetts, that the Marshpee
Indians shall have one hundred dollars every year, paid out of the
School fund, to help them educate their children. Our proportion as a
District, according to what other towns receive, would have been but
fifteen dollars. By the aid of our friends, and particularly of our
counsel, (Mr. H.) who first proposed it, we shall now receive one
hundred dollars a year; and I trust the Indians will best show their
gratitude by the pains they will take to send their children to good
schools, and by their raising as much more money as they can, to get
good instructers; and give the rising generation all the advantages
which the children of the whites enjoy in schooling. This will be one
of the best means to raise them to an equality, and teach them to put
away from their mouths forever, the enemy which the white man, when he
wanted to cheat and subdue our race, first got them to put therein, to
steal away their brains, well knowing that their lands would follow.
The following are the petitions presented to the Legislature, which
will give some light on the history of Marshpee.
To the Honorable General Court:
The undersigned are Selectmen and School Committee of the
District of Marshpee. We understand your Honors are going to
make a distribution of the School Fund. Now we pray leave to
say that the State, as the guardians of the Marshpee Indians,
took our property into their possession, so that we could not
use a dollar of it, and so held it for sixty years. We could
make no contract with a school-master, and during that time,
till 1831, we had no school house in Marshpee, and scarcely
any schools. We began to have schools about five years ago,
but still want means to employ competent white teachers
to instruct our children. Our fathers often petitioned the
Legislature to give them schools, but none were given till
1831, when the State generously built us two school-houses.
We also beg leave to remind your Honors that our fathers shed
their blood for liberty, and we their children have had but
little benefit from it. When a continental regiment of
four hundred men were raised in Barnstable county, in 1777,
twenty-seven Marshpee Indians enlisted for the whole war. They
fought through the war, and not one survives. After the war
our fathers had sixty widows left on the Plantation, whose
husbands had died or been slain. We have but one man living
who draws a pension, and not a widow. We pray you, therefore,
to allow to Marshpee, out of the School Fund, a larger amount
in proportion than is allowed to other towns and districts who
have had better means of education, and to allow us a certain
sum per year--and as in duty bound, will ever pray.
EZRA ATTAQUIN, : Selectmen and School
ISAAC COOMBS, : Committee of Marshpee
ISRAEL AMOS, : District.
* * * * *
To the Honorable, the Senate and House of Representatives in
General Court assembled:
The undersigned beg leave to represent in aid of the petition
of the Selectmen and School Committee of the District of
Marshpee, praying for a specific appropriation from the School
Fund for the support of public schools in said district, that
we are acquainted with the facts set forth in said petition,
and believe that the cause of education could no where be more
promoted in any District in the Commonwealth than by making
a specific annual allowance to said Marshpee District. The
Legislature have made a specific annual appropriation of
fifty dollars to the Indians on Martha's Vineyard for public
schools, and the undersigned are of opinion, that an annual
appropriation of double that amount, would be no more than a
fair relative proportion for the District of Marshpee. It is
highly important that the District should be able to employ
competent white teachers, until they can find a sufficient
number of good teachers among themselves, which cannot be
expected until they have enjoyed greater means of education
than heretofore. The undersigned therefore pray that the
petition of said Selectmen may be granted, by giving a
specific annual allowance to said District.
BENJ. F. HALLETT, Counsel for the Marshpee Indians.
CHARLES MARSTON, Commissioner of Marshpee.
Here it will be seen that the missionary for the Indians on Martha's
Vineyard, did not go to sleep over his flock, or run after others
and neglect what ought to be his own fold, as did the missionary,
Mr. Fish, whom Harvard College sent to the Marshpees, and pays for
preaching to white men. Mr. Bayley, the white missionary on the
Vineyard, as I understand, took pains to send a petition to Boston,
and he got fifty dollars a year for our brethren there, of which we
are glad. From all we can judge of Mr. Fish, we should have sooner
expected that instead of trying to help our schools, he would opposed
our getting any thing for schools, as he also opposed our getting our
liberty. He has done nothing for us, about our schools, and even tried
to set the Indians against their counsel, Mr. Hallett, by pretending
he had lost his influence. When Mr. Fish does as much for our liberty,
and for our schools, as Mr. Hallett has done, we will listen to his
advice.
Mr. Bayley, the missionary on the Vineyard, we understand has but
two hundred dollars a year from Harvard College, while Mr. Fish, at
Marshpee, has between four and five hundred, and wrongly uses as
his own about five hundred acres of the best land on the plantation
belonging to the Indians. The Legislature in 1809, took this land from
the Indians, without any right to do so, as we think, and thus
compel them, against the Constitution, to pay out of their property
a minister they never will hear preach. Is this religious liberty
for the Indians? Mr. Fish is now cutting perhaps, 200 cords of wood,
justly belonging to the Indians, when there is scarce five who will
go and hear him preach in the Meeting-house, erected by the British
Society for propagating the gospel among the Indians, and given to the
Indians, but in which Mr. Fish now preaches to the whites, (having but
one colored male member of his church,[1]) and keeps the key of it,
for fear that its lawful owners, the Indians, should go in it, without
his leave. He will not let them have it for holding a camp meeting, or
for any religious purpose.
Last August we invited Mr. Hallett to come and address us on
Temperance, and to explain to us the laws. We appointed to meet at the
Meeting-house, as the most central place. Mr. Fish at first refused to
let the Indians go into their own Meeting-house, and the people began
to assemble under the trees, when it was proposed for the Selectmen to
go and ask for the key, that they might see if Mr. Fish would refuse
it. At this moment, a white man who had been there some time, and had
tried to pick a quarrel with Mr. Hallett and the Indians,[2] said he
was sent by Mr. Fish with the key, and would let the people in, if
they would promise to come out when _he_ told them to. Mr. Hallett
declined going in on such terms, and proposed to hold the meeting
under the trees. This shamed the messenger of Mr. Fish, and he opened
the door, and the people went in, where Mr. Hallett addressed them.
While the Indians were thus gratified in meeting their friends, and in
hearing good advice from Mr. Hallett, on temperance and their affairs,
Mr. Fish's messenger interrupted the speaker, in a very abrupt and
indecent manner, and tried to bring on a quarrel and break up the
meeting. Captain George Lovell, always a friend to the Indians,
tried to keep Mr. Crocker still, and Mr. Hallett declined having any
controversy, yet the man persisted in his abuse, until he broke up
the meeting. Had it been thought best, this insulting ambassador would
have been put out of the house as a common brawler and disturber; but
Mr. Hallett forbore to have any controversy with him. He afterwards
met the Indians in their School-houses, and delivered two addresses
without interruption from the emissaries of Mr. Fish. This is a
sample of the way the Indians have been treated about their own
Meeting-house. In some of the old petitions, the Indians speak of
this Meeting-house as _our_ Meeting-house, and it was built for them,
without a dollar from the white men of this country, except when the
Legislature, at the petition of the Indians, repaired it in 1816. And
now, no Indian can go inside of it, but by the permission of Mr. Fish,
whom they will not hear preach.
It seems that the Indians are not to have the benefit of any thing
given to them. It must all go to the whites. The whites have our
Meeting-house, and make Marshpee pay about one-third the support of a
minister they will not hear preach. The other two-thirds comes from a
fund. In 1711, a pious man named Williams, died in England, and in his
will he said, "I give the remainder of my estate to be paid yearly to
the College of Cambridge, in New England, or to such as are usually
employed to manage the blessed work of _converting the poor Indians_
there, to promote which, I design this part of my gift."
This was the trust of a dying man, given to Harvard College, that
great and honorable Literary Institution. And how do they fulfil the
solemn trust? They have been and still are paying about five hundred
dollars a year to a missionary for preaching to the whites. This
missionary, by his own statement, [see Mr. Hallett's argument,] shows
he has added to his church _twenty_ members from the tribe of over
three hundred persons, in _twenty-two years_. Is not this more
expensive in proportion to the good done, than any heathen mission
on record? Mr. Fish has now been preaching in Marshpee _twenty-four
years_. In that time he has received from the Williams fund, given
solely to convert the poor Indians, about five hundred dollars a year,
as nigh as can be ascertained, which is TWELVE THOUSAND DOLLARS for
persuading twenty colored persons to join his church. This is six
hundred dollars for every member added to his church, and if his other
pay is added, it amounts to nine hundred dollars for each member.
Besides this, Mr. Fish has derived an income, we think not much,
if any, short of two hundred and fifty dollars a year, from the
wood-land, pasturage, marshes, Meeting-house, house lot, &c. which he
has wrongfully held and used of the property of the Indians. Add this
to his pay from Harvard College, and he has had EIGHTEEN THOUSAND
DOLLARS, of money that belonged to the Indians, and which, if it had
been laid up for a fund, would have supplied missionaries for all
the Indians in New England, according to the will of the pious Mr.
Williams. We respect the President and Trustees of Harvard College.
They are honorable men and mean to do right, but I ask them to look
at this statement, then to read the will of Mr. Williams, and laying
their hands upon their heart, to ask in the presence of the God of
the Indian as well as the white man, whether they have done unto the
Indians of New England and their children, as they would that the
Indians should do unto them and their children? We are told that we
might bring a suit in equity, or in some way, to compel the Trustees
of the Williams fund, to distribute it as the pious donor meant, not
for the conversion of the whites, even to the taking away from the
Indians of their Meeting-house and lands, but for "the blessed work of
converting the poor Indians," as Mr. Williams says in his will.
But it is hard for Indians to contend in the courts of white men,
against white men. We can have none of our people to decide such
questions, and what could we do against all the power and influence
of the Corporation of Harvard College? If the President and Fellows
of Harvard College prefer to deal unjustly by the poor Indians, and
violate the trust of Mr. Williams, by giving the funds to the whites
instead of the poor Indians, they must submit to the wrong, we
suppose, for there are none strong enough to help them. They can take
the money from the Indians, but cannot compel them to hear a preacher
they dislike.
Some people may say that William Apes wants to get what Mr. Fish
has, but all he asks is, that Harvard College and the State will not
support an _established religion_ in Marshpee, but leave the Indians
free to choose for themselves. Mr. Williams did not give his property
to the Marshpee Indians, more than to any others. It was designed for
all the Indians in New England, and we cannot see what right Harvard
College has to give it all for the whites near Marshpee and the
Indians on Martha's Vineyard. If they are afraid that blind Joseph or
William Apes, the Indian preachers, should have any of this money, if
it is withdrawn from Mr. Fish, let them take it, and send a missionary
among the Marshpee Indians they like. Or let them employ a man, some
Elliot, if they can find one, to visit all the Indians in New England,
to find out their condition and spiritual wants, and try to relieve
them. This would be doing some good with money that is now only used
to disturb the Indians, to take from them their Meeting-house, to
create divisions among them, and turn what the pious Williams meant
for a blessing into a curse to the Indians. What would the pious
Williams say to Harvard College, could he visit Marshpee on a Sabbath?
He might go to the Meeting-House built for the Indians, by the society
in England, of which I believe he was a principal member. He would
find a while man in the pulpit, white singers loading the worship, and
the body of the church occupied by seventy or a hundred white persons,
of the neighboring villages, scarcely one of whom lives on the
plantation. Among these he would see four, five, six, or possibly ten
persons with colored skins; not but one male among them, belonging to
the church. He would probably think he had made a mistake, and that
he was in a white town, and not among the Indians. He might then go to
the house of blind Joseph, (the colored Baptist preacher,) or to the
School-house in Marshpee, and he would there find twenty, thirty, or
forty Indians, all engaged in the solemn worship of God, united and
happy, with a little church, growing in grace. He might then visit the
other School-house, at the neck, where he would find William Apes,
an Indian, preaching to fifty, sixty, or seventy, and sometimes an
hundred Indians, all uniting in fervent devotion. After the sermon, he
would hear a word of exhortation from several of the colored brethren
and sisters, in their broken way, but which often touches the heart
of the Indian, more than all the learning that Harvard College can
bestow. He would hear the Indians singing praises to God, and making
melody in their hearts if not in their voices. What would he say then,
when told that Harvard College had paid twelve thousand dollars of his
funds for converting the poor Indians, to the white minister, who
had made twenty members in twenty-four years, while the two Indian
preachers, with forty-seven members to their churches, added in
three years, were like St. Paul, laboring with their own hands for a
subsistence?
All the Indians ask of Harvard is, take away your pretended gift. Do
not force upon us a minister we do not like, and who creates divisions
among us. Let us have our Meeting-house and our land, and we will be
content to worship God without the help of the white man.
This Meeting-house might as well be in India as in Marshpee, for all
the benefit the Indians have of it. It is kept locked all the time,
with the key in Mr. Fish's possession. It is seen that he would not
let the Baptist church of Indians have it to ordain their beloved
pastor, blind Joseph in, and we see how it was granted to the Indians,
when they wanted it for Mr. Hallett to address them last summer. Not
only were we forbidden the use of the Meeting-house, but even the land
which the Legislature unconstitutionally as we think, took from the
Indians to give to Mr. Fish, is considered by him too holy to be
defiled by the Indians, who are its true owners.
Last summer, sometime in July, my church desired to have a
Camp-meeting, of which we had had one before, attended, as we believe,
with a great blessing. We selected a spot some distance from the
Meeting-house, in a grove, beside the river; but though not in sight
of the Meeting-house, it was on the ground which Mr. Fish thinks has
been set apart for his sole use. After the notice was given of the
Camp-meeting, I received from Mr. Fish the following note, which is
here recorded, as an evidence of the Christian spirit with which
a church in Marshpee consisting of thirty-five members, who were
Indians, was treated and molested in their worship, by the missionary
Harvard College has paid so liberally to "convert the poor Indians,"
and who had but five Indians in his church, not one being a male
member.
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 passing 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 God 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 trespassing 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 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.
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.
A word in regard to my advice to Mr. Fish. I received a letter
from Mr. Fish some time since, in which he expressed some
apprehensions that an attempt would be made by the natives
to take possession of the Meeting-house, parsonage, &c. His
letter enclosed rather a singular communication, signed by the
Selectmen of Marshpee. I did not keep a copy of my answer
to Mr. Fish, but recollect distinctly the substance of it. I
alluded to the authority of the Legislature in the premises
as I have above. That they intended to leave the parsonage
as they found it, without undertaking to limit or modify
the effect of former acts. That the appropriate mode for the
natives to ascertain their rights to, or to obtain possession
of, the parsonage, &c. was by resorting to the courts.
That any forcible attempt by single individuals to obtain
possession of the Meeting-house, &c. would be a trespass; that
if numbers combined for that purpose, it would constitute
a riot. I take it I hazarded no professional reputation by
giving these opinions. For you very well know, that they would
be correct, Mr. Fish being in peaceable possession of the
premises, whether he were so by seisin or disseisin, by right
or by wrong. I hope, my dear sir, that our experiment in
regard to the affairs of our Marshpee friends may yet succeed.
If not, I think we may console ourselves as one of old did:
that if Rome must fall, we are innocent.
I am, very respectfully yours,
J. BARTON.
The Legislature having thus left the question, to be decided by the
Courts, if Mr. Fish insists on holding the parsonage, the inquiry must
arise on legal principles, how was Mr. Fish settled in Marshpee, and
by what right does he, as a sole corporation, or otherwise, hold the
parsonage, as an allotment set apart forever for the support of a
Congregational minister, in Marshpee? Harvard College in which he was
then, or had been a tutor, sent him there as a missionary under
the Williams fund. The Legislature took no part whatever in the
settlement. The Overseers permitted him to take possession of the
Meeting-house and the parsonage land, so called, and it is understood
that they consented he should cut the annual growth of the wood off
the parsonage. But even admitting that the Overseers could so dispose
of the property of the Indians, for promoting a particular religious
worship in Marshpee, (which is explicitly denied,) could they convey
any thing to Mr. Fish beyond the period of their own existence? By the
law establishing the Overseers, they had no power beyond leasing land
for two years. How then, could the Overseers grant for life to Mr.
Fish the improvement of the parsonage and Meeting-house? They might
have given it to him from year to year, while they were in office, but
on the abolition of the Overseers, in 1834, and a restoration of
civil rights to the owners of the fee of the parsonage, the Marshpee
Proprietors, how could Mr. Fish continue to hold the parsonage against
their will? Was it by virtue of his settlement, so that he now claims
the land as a sole corporation? But a minister cannot be settled or
constituted a sole corporation, without a parish to settle him. "A
minister of a parish seized of lands in its _right_ as parsonage
lands, is _a sole corporation_, and on a vacancy, the parish is
entitled to the profits;" 2d Dane's Abrg. 342. 7 Mass. Rep. 445. Mr.
Fish is not seized of a parsonage in right of any parish or religious
society, and therefore he cannot be a sole corporation. In point of
fact, there was no legal parish in Marshpee, when Mr. Fish went there
and took possession, under the Overseers, and not in right of
the parish. A parish or precinct as the law then was, must be a
corporation entitled and required to support public worship, and
having all the powers and privileges necessary for that purpose. (See
8th Mass. Rep. 91.) And where there has been no parish as such created
in a town, the town itself will be considered a parish. (15 Mass. Rep.
296.) Marshpee was not a town. The Marshpee Indians were minors in
law, and there was no legal parish to settle a minister, or to hold a
parsonage, and no one to make contracts as such. Harvard College had
no power to settle a minister in Marshpee, nor had the Overseers any
such power. Their supervision was temporal and not ecclesiastical.
Besides, the actual Congregational society which subsisted in
Marshpee, when Mr. Fish was sent there, in 1811, was composed of a
majority of _whites_. Mr. Fish himself testified before the Committee,
that the church at Marshpee, in 1811, consisted of sixteen whites
and but five colored persons. The church members were a majority of
whites, so that even had the church voted to settle Mr. Fish, it would
have been a vote of white men having no interest in the premises, and
not of Indian Proprietors. Mr. Fish admits that the church passed no
vote. It was asserted by one of the old Overseers, Mr. Hawley, that
five Indians called on him, after Mr. Fish had preached there, and
personally expressed a wish to have him stay with them, but there was
no official act, and no vote of the church or society, and no assent
of the Proprietors of Marshpee in any form.
Who were the Congregational church, and who the society in Marshpee,
in 1811? A regularly gathered Congregational church, is composed
of several persons associated by covenant or agreement of church
fellowship, (9th Mass. 277.) and a church cannot exist for any legal
purposes, except as connected with a congregation or some regularly
constituted religious society. (16 Mass. 488.) Where there are no
special powers given to the church by the Legislature, the church
cannot contract with or settle a minister, but that power resides
wholly in the parish, of which the members of the church, who _are
inhabitants_, are a part. (9 Mass. Reports, 277. Burr vs. First Parish
in Sandwich.)
We have seen that there was no legal parish in Marshpee, in 1811, and
therefore the Congregational church, if there were such then, had no
power to settle Mr. Fish, even had they done so, which they did not.
A parish may elect a public teacher, and contract to support him,
without the consent of the church, if he be ordained by a council
invited by the parish; but in Mr. Fish's case, he was ordained by the
request and under the direction of the President and Corporation of
Harvard College, the Trustees of the Williams fund, with the assent of
the Overseers. There is then no ground whatever for assuming that
Mr. Fish ever was settled legally over a Congregational parish in
Marshpee, so as to establish him a sole corporation, to hold the lands
belonging to the Proprietors of Marshpee, under the dedication deed of
1783. If that deed and the subsequent act of 1809, conveyed any thing,
the conveyance was for the use of the inhabitants as a parsonage,
there being no parish in Marshpee, distinct from the Plantation. In
such case, it would be held to be a grant to Marshpee, (that is
the town,) for the use of its ministers, (14 Mass. 333.) The grant,
therefore, could it be regarded as such, was to the whole Proprietors
of Marshpee, and they must first settle a minister before he could
claim the use of the grant as a minister of the parish.
Neither has Mr. Fish, even if he had been legally settled, any just
right, under the deed of 1783, to take the whole parsonage, because
that deed states the principal object of the sequestration of the land
to be, for the important purpose of promoting the gospel in Marshpee,
and merely referred to the only worship then known there, which was
Congregational. When Mr. Fish went there in 1811, there was a Baptist
church, and they objected to his taking possession of the parsonage.
There is a case in point in the 13th Mass. Rep. 190, which decides,
that where the original Proprietors of a township appropriated a lot
of land for a parsonage, and at the same time voted that they would
endeavor that a Congregational minister should be settled in the
township, such vote ought not to be construed to limit the benefit of
the parsonage to a minister of the Congregational order, and that if
the inhabitants of the parish should become Christians of any other
Protestant sect, they would be entitled to the land, and that a
Congregational society, incorporated as a full parish would have no
right to the parsonage. Neither can a parish convey a parsonage to a
minister to be held by him in his personal right. By this decision,
the Baptist or Methodist church in Marshpee have as good claim to the
parsonage as Mr. Fish has.
The dedication, or whatever it may be called, of Marshpee parsonage,
was made by Lot Nye, &c. in 1783, and confirmed in 1809, by the
General Court. Mr. Fish did not become a minister in Marshpee, until
1811. Whoever settled him there, for the Indians did not, made no
stipulation as to the income of the parsonage, which could bind the
Plantation. The society only, could make such stipulation, and they
did not act in the premises. The Overseers could make no stipulation
either to bind the parish or the proprietors, because their power only
extended to giving a lease of land not exceeding two years. In the
case of Thompson vs. the Catholic-Congregational Society in
Rehoboth, (5th Pickering, 469,) it was settled that where there was
a ministerial fund in a parish, and the society settled a minister
stipulating to pay him a salary, without taking any notice of the
income of the fund, he must be considered as accepting the salary as
a full compensation, and the society are entitled to the fund. Harvard
College settled Mr. Fish in Marshpee, and agreed to pay him about five
hundred dollars, or two-thirds the proceeds of the Williams fund. The
society to which Mr. Fish was sent to preach, took no notice of the
parsonage, nor did the Proprietors of Marshpee, hence Mr. Fish cannot
hold the proceeds of the parsonage by right of succession, or by
stipulation, either from the society or the Marshpee Proprietors, and
therefore the Proprietors of Marshpee are entitled to the parsonage.
There is one other consideration that might legally deprive Mr.
Fish of his rights in the parsonage, even if he acquired any by the
transaction in 1811, which is denied. When he went to Marshpee, and
first preached there, he was of the Unitarian faith, and so continued
some time. Subsequently, (and most undoubtedly from high conscientious
motives,) he became Orthodox in his creed, and has remained so ever
since. [This fact has been named by the President of Harvard College,
as one reason why the Williams fund has continued to be diverted from
its proper use; the delicacy Harvard College felt at dismissing Mr.
Fish, lest it should be ascribed to persecution, for his change of
sentiments from Unitarian to Orthodox.]
But if Mr. Fish claims to hold the parsonage by the "_laws_," he must
be governed by the decision of the Court in the celebrated case
of Burr, vs. the first parish in Sandwich. Mr. Burr was settled an
Unitarian, and became Orthodox, and this the Supreme Court decided was
just cause for the parish to dismiss him. Chief Justice Parsons,
said in that case, that "according to the almost immemorial usage
of Congregational churches, before the parish settle a minister, he
preaches with them as a candidate for settlement, with the intent of
declaring his religious faith, and if he is afterwards settled, it is
understood that the greater part of the parish and church agree in his
religious sentiments and opinions. If afterwards the minister adopts
a new system of divinity, the parish retaining their former religious
belief, so that the minister would not have been settled on his
present system, in our opinion the parish have good cause to
complain." On this ground the Court decided that Mr. Burr had
forfeited his settlement.
The principle is the same applied to the relation Mr. Fish holds
to the Marshpee Indians. He was placed over them by others, and the
Indians are now compelled either to lose all the benefits of their own
parsonage, or to hear a man in whose doctrines they do not believe,
and whom they cannot consent to take as their spiritual teacher.
Upon a full investigation into this branch of the inquiry, there seems
to be no legal or equitable ground, on which Mr. Fish can claim to
hold the parsonage and Meeting-house against the Proprietors, and he
must therefore, be regarded as a trespasser, liable to be ejected,
and the men he employs to cut and cart wood from the plantation, are
liable to indictment under the new law of 1834.
The invalidity of title, is however, a still stronger ground against
Mr. Fish's right of adverse occupancy, which he now holds, and a case
in principle precisely like this, has been decided by the Supreme
Court of Massachusetts. It occurred in 1798, before there was a
reporter of the Supreme Court. Hon John Davis, United States District
Judge, was counsel for the Indians, and Samuel Dexter, for the
defendant. It was tried on a demurrer, before the Supreme Court in
Barnstable, upon an action of ejectment, Proprietors of Marshpee, vs.
Ebenezer Crocker. Judge Paine delivered the opinion of the Court in
favor of the Indians. Judge Benjamin Whitman of Boston, was also, we
believe, concerned in the cause. The substance of the case, as stated
by Judge Davis and Judge Whitman, was thus:
Ebenezer Crocker of Cotuet, had furnished an Indian woman, (known
as the Indian Queen,) with supplies for many years. She occupied and
claimed in severalty as her own, a valuable tract of about 200 acres
of land on the Marshpee Plantation, called the neck, of which tract
she gave a deed in fee, some time before her death, to said Crocker,
in consideration of the support he had given her. The consideration
at that time, was not very greatly disproportioned to the value of
the land. After her death, she having left no heirs, the grantee,
Mr. Crocker, who was an influential member of the General Court,
petitioned that body and procured a full confirmation of the deed
to him, in the same manner the General Court in 1809, confirmed the
parsonage deed of 1783, except that there was not so long a time
intervening between Mr. Crocker's receiving the deed from the Indian
Queen in her life time, and its full confirmation by the General Court
after her death.
This took place previous to the law of 1788, putting the Indians under
guardianship, when either the law of 1693 or the charter of 1763, was
in force.[3] When the white Overseers came in, in 1798, they found
Crocker in possession of this land, under the above title, and they
employed Judge John Davis, as counsel, to vacate the deed and the
act of the General Court. Judge Davis brought an action of ejectment
against Crocker, (not in the name of the Overseers,) but in the name
of the Proprietors of Marshpee, whose property he claimed, was as
tenants in common, on the ground that the old Queen, though she
occupied it in severalty during her life, could not, as one tenant in
common, convey the interest of her co-tenants in common. It was tried
in the Supreme Court, and the deed was set aside, for insufficiency
of title. This insufficiency of title vitiated the conveyance on the
ground that the old Queen had no power to convey when she made the
deed, and that the General Court had no power to make good, by a
resolve, a title originally invalid.
Crocker also set up the claim of quiet possession, for thirty years,
which it was supposed would secure the title; but the Court decided
that this gave no title, and the land was restored to the Indians, and
now forms a portion of their common land. Mr. Crocker of course, lost
all he had furnished to the old Queen, and in this respect, his
case was harder than it would be, were Mr. Fish dispossessed of the
parsonage, after enjoying it for twenty-four years, without any title
thereto. It would he difficult for any lawyer to show why Crocker's
deed confirmed by the General Court, should have been set aside in
1798, and Lot Nye's deed, of the parsonage, be held valid in 1834.
On referring to my minutes of the trial of the petition of the
Indians, for their liberty, in 1834, before a Committee of the
Legislature, I find the following facts stated by Rev. Phineas Fish,
who was a witness before that Committee. They will throw some light on
the subject of inquiry.
_Rev. Phineas Fish_, sworn. Testifies that he was ordained
at Marshpee in 1811. Was invited there by the Overseers of
Marshpee. There were five persons of color belonging to the
church, and sixteen whites. At the ordination, a white
man rose up and protested against it. He said all were not
satisfied. It was not a vote of the Indians by which he was
settled, and no vote of the church was taken. Five Indians had
expressed a wish that he would remain. He received two-thirds
of the Williams fund, from Harvard College. It had varied from
390 to 433 dollars. Received about 150 dollars per year from
the wood-land of the parsonage. Has built a dwelling house,
and made improvements on an acre and a half of land of the
plantation, of which he holds a deed from the Overseers,
confirmed by a resolve of the General Court.
_Mr. Gideon Hawley_ testified that the Meeting-house was
built by the funds of the English Society for propagating the
gospel, before 1757, when his father was sent as a missionary
to the Indians, by the London Missionary Society. In 1817,
five hundred dollars were granted on petition of the Indians,
as a donation by the Legislature, to repair the church for the
Marshpee Indians. After Mr. Fish had preached in Marshpee, 5
Indians came to Mr. Hawley and expressed a wish he would stay
with them. There was no vote and no record. Before his father
came to Marshpee, in 1757, Bryant, an Indian preacher, used to
preach to the Indians, in the Meeting-house. The missionary,
(Mr. Hawley,) received one hundred dollars annually, from
Harvard College, of the Williams fund. In 1778, the Indians
gave the missionary, Mr. Hawley, two hundred acres of land,
which witness inherits. [The validity of this title is not
disputed.]
_Hon. Charles Marston_, (one of the Overseers,) testified that
Mr. Fish had a Sunday School, principally composed of white
children. He did not recollect ever seeing more than eight
colored children in it. There were more whites. The Overseers
paid the school mistress seven and sixpence a week, and she
board herself. To an Indian, who kept school in winter, were
paid twelve and nineteen dollars a month. The whites who
attend Mr. Fish's meeting, never pay any thing to him or the
church. When the tax was required in parishes, many whites got
rid of their tax by attending Mr. Fish's meeting. There was
always twice as many whites as blacks in the society. Last
summer, (1833,) he counted eighteen colored persons, and
twice that number of whites. Mr. Dwight, one of the Committee,
asked, if so many whites being there, did not tend to
discourage the Indians from being interested in the meeting?
Mr. Marston thought it might.
_Deacon Isaac Coombs_, who had been twenty years a deacon in
Mr. Fish's church, changed his sentiments, and was baptized
by immersion. He testified before the Committee of the
Legislature, that when he told Mr. Fish he had been baptized
again, Mr. Fish said, "that was rank poison, and that he
should expect some dreadful judgment would befal me." Deacon
Coombs, who is sixty years old, testified also, that the
Meeting-house was built for the use of the Indians. No one
could remember when it was built. There was but one colored
male church member, when Mr. Fish came to Marshpee, in
1811. He further stated to the Committee that his family got
discouraged going to Mr. Fish's meeting, from the preference
he gave to the whites. He did not come to see his family, and
lost his influence by taking part with the guardians against
the Indians. There was a difficulty in Mr. Fish's meeting
about the singing. The colored people were put back, and the
whites took the lead. Mr. Fish has 50 or 60 acres of pasture,
East of the river, besides the parsonage.
* * * * *
I have thus given my views of the law and the facts, touching the
parsonage in Marshpee, in order that the Indians and their Selectmen
who have desired legal advice on the subject, may fully understand
their rights. I am confident they will never attempt to obtain those
rights, except in a legal and peaceable way. The Courts at Barnstable,
it is said, are closed to them, in the way pointed out by the law, the
District Attorney refusing to prosecute the men who cut wood on the
parsonage. I invite the attention of that acute and learned officer,
Charles H. Warren, Esq. to the points made in this opinion, well
assured that if it can be refuted by any professional gentleman, it
can be done by him. If he cannot do so, I hope he will permit the
title of the parsonage to be brought before the Court, under an
indictment for cutting wood contrary to the act of 1834. I regret the
necessity of presenting arguments to dispossess Mr. Fish of what he
doubtless supposes be lawfully holds; but I am looking for the rights
and the property of the Indians, and am not at liberty to consult
personal feelings, that would certainly induce me to favor the Rev.
Mr. Fish, as soon as any man in his situation. I think it as important
to him as to the Indians, that the title to the parsonage should be
settled, for there will be feuds, and divisions, and strifes, as long
as that property remains as it now is, wrongfully taken and withheld
from the Indians, to support an "ESTABLISHED CHURCH," in Marshpee.
With this view I have proposed to Mr. Fish, in behalf of the Indians,
to make up an amicable suit, before the Supreme Court, and obtain
their opinion, and the parties be governed by it. The Indians are
ready to submit it to such an arbitration. Mr. Fish declines. The
only other remedy is an injunction in chancery, to stop the cutting of
wood. The Indians are not well able to bear the expense, at present,
or this course would be taken to recover their property. Until some
legal decision is had, Mr. Fish cannot but see, from an examination of
the legal grounds set forth herein, that there are strong reasons
for regarding him as holding in his possession that which rightfully
belongs to another. The public will not be satisfied, until the rights
of the Indians are fully secured. I have always been desirous that Mr.
Fish should not be disturbed in his house lot, and for my own part,
it would give me pleasure, should the Indians, immediately, on getting
legal possession of their own parsonage, unanimously invite him
to settle over them. But so long as he withholds from them their
property, it cannot be expected that they should receive him as their
spiritual teacher. It is in direct violation of the Constitution and
of religious freedom.
BENJAMIN F. HALLETT,
_Counsel for the Marshpee Indians.
Boston, May, 20, 1835_.
The Selectmen of Marshpee District, are at liberty to make such use of
the foregoing, as they think proper.
[Footnote 1: He is not an Indian, nor an original proprietor.]
[Footnote 2: This was Mr. Alvin Crocker, who had formerly enjoyed more
benefits from the Plantation, than he does under the new law.]
[Footnote 3: In June, 1763, the Governor and Council appointed
Thomas Smith, Isaac Hinckley and Gideon Hawley, "pursuant to an act
empowering them to appoint certain persons to have the inspection of
the Plantation of Marshpee."]
CONCLUDING OBSERVATIONS.
If, in the course of this little volume, I have been obliged to use
language that seems harsh, I beg my readers to remember that it was in
defence of the character of the people under my spiritual charge and
of my own. The Marshpees have been reviled and misrepresented in the
public prints, as much more indolent, ignorant, and degraded than
they really are, and it was necessary, for their future welfare, as
it depends in no small degree upon the good opinion of their white
brethren, to state the real truth of the case, which could not be done
in gentle terms. The causes which have retarded our improvement could
not be explained without naming the individuals who have been the
willing instruments to enforce them.
For troubling my readers with so much of my own affairs, I have this
excuse. I have been assailed by the vilest calumnies; represented as
an exciter of sedition, a hypocrite and a gambler. These slanders,
though disproved, still continue to circulate. Though an Indian, I
am at least a man, with all the feelings proper to humanity, and
my reputation is dear to me; and I conceive it to be my duty to the
children I shall leave behind me, as well as to myself, not to leave
them the inheritance of a blasted name. In so doing, I humbly presume
to think, I have not exceeded the moderation, proper for a Christian
man to use.
WILLIAM APES.
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