_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.