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."]