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.