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.