Legal Opinions of Counsel in the Case of Marshpee Indians vs Reverend Phineas Fish

Headnote

Editorial Note: The following document was printed as part of William Apes' Indian Nullification of the Unconstitutional Laws of Massachusetts Relative to The Marshpee Tribe: or The Pretended Riot Explained (Boston, MA: Press of Jonathan Howe, 1835), 142-167.   An unknown reviewer made several revisions to the text after publication.  These changes were not incorporated into any subsequent reprinting of the volume.  For a copy of the original, see Indian Nullification as provided by Amherst College Digital Collections, Amherst College Archives & Special Collections.

B.  Legal Opinions of Counsel in the case of Marshpee Indian vs Reverend Phineas Fish, May 20, 1835 (Is not on file)

Opinion as to the Title Reverend Phineas Fish Has to the Parsonage, So-Called, in Marshpee   

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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.[1] In 1665, this was extended to grants for term of years.  In 1693, the Indians were put under guardianship.[2]

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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.[3]

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“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, etc.; 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.[4]

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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.[5]

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In 1763, Marshpee was incorporated as a District, including the land now called the parsonage.[6]  “Be it enacted, etc.,[7] that all the lands belonging to the Indians and mulattos in Mashpee be [8] 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.  [9] This act was to continue for three years and no longer. It does not appear ever to have been revived.[10]   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.

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In this interval between 1766 and 1788, the only transaction on which Mr. Fish can found any claim to the parsonage took 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.

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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.

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Deed of Marshpee Parsonage

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Know all men by these presents, that we, Lot Nye, Matthias Amos, Moses Pocknet, 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[11] and his wife Jemima 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 Asher’s Road, then crossing Falmouth Road and running in Asher’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 appurtenances 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.

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Lot Nye

Matthias Amos, his mark

Moses Pocknet, mark

January 7, 1783

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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 lifetime, and Abraham Nautumpum and his heirs be allowed, severally to enjoy and possess Scipio’s cleared spot of land and fencing stuff for the same. Israel Halfday, his mark, Joseph Amos, his mark, Eben Dives, his mark.  In possession of Gideon Hawley, Simon Fish

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Recorded:

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.

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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,[12] till the new law of 1834,[13]) 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, etc. 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.”

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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 twenty-six years before, by men who had no power to make such a deed.

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Commonwealth of Massachusetts

House of Representatives, June 15, 1809[14].

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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,[15] for the support of the Gospel ministry among them, should be confirmed and rendered valid.

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Resolved,  That a certain grant or allotment of land made by Lot Nye, Matthias Amos, Moses Pocknet, 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, [16] 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, [17] said land being four hundred 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.

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Timothy Bigelow, Speaker.

In Senate, June 19, 1809

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Legislative Action:

Read and concurred.  H. G., President.  June 19, 1809, Approved,  C. Gore. True Copy.

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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 twenty-six 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 this Senate in 1809.

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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 name for them, for their power only extended to allotting [18] lands 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.

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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.”

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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.”

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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 ten-

ants 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.[19]  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.[20]  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.

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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?

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Look at this subject also, in connection 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, etc. “shall at all times have the exclusive right of electing their public teachers, and of contracting with them for their support and maintenance.”[21]

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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.

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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.”[22]

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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 [23] 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.

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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.”[24]  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 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.

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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.

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Dear Sir,

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I, last evening, received your favor of the 28th ult.[25] 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 four hundred acres of the common land, “to be forever for the important purpose of propagating the Gospel in Marshpee.”[26]  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.”[27]  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 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.

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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 than an attempt would be made by the Natives to take possession of the meeting-house, parsonage, etc.  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, etc. was by resorting to the courts.  That any forcible attempt by single individuals to obtain possession of the meeting-house, etc. 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.

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I am, very respectfully yours,

I.[28] Barton

Worcester, July 1, 1834

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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 [29] 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 anything 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.[30]  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.)[31]  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.[32]) 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 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.

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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.[33]) and a church cannot exist for any legal purposes, except as connected with a congregation or some regularly constituted religious society.  (16 Mass. 488[34]).  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).

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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.[35])  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.

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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.

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There is a case in point in the 13th Mass. Rep. 190,[36] 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.

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The dedication, or whatever it may be called, of Marshpee parsonage, was made by Lot Nye, etc. 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 [Otis ]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 [37] five hundred  twenty 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, [38] he became Orthodox in his creed, and 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.[39]  Mr. Burr[40] 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 minster 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 CrockerJudge 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 Cotuit 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 two hundred acres of land on the Marshpee Plantation, called the neck,[41] of which tract she gave a deed in fee, sometime 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 lifetime, and its full confirmation by the General Court after her death.[42]

.

This took place previous to the law of 1788, putting the Indians under guardianship, when either the law of 1693 or the character of 1763, was in force.[43]  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.[44]  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, it 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 be 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.[45]

.

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 schoolmistress 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 anything 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 befall 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 he 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 is 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.

.

CataloguingU.A. I2. 108

 

[1] The Colony of New Plymouth published a law in 1643 which prohibited the purchase, rent, or hire of "any lands herbage wood or tymber of the Natives but by the Majestrates consent." The penalty for such offense was a fine of five pounds for each acre of land so-taken.    The punishment for taking timber or wood was a fine of five time the product's value.  Indians The penalty for such offense was for the land purchased under these circumstances shall be forfeited to the Colony.  It was amended in 1660 and 1668.  Records of the Colony of New Plymouth, 41, 66.  (Cf., The Colonial Laws of Massachusetts, 74-75).  Pulsipher, Records of the Colony of New Plymouth, Laws. 1623-1682, 183.

[2] "An Act for the Better Rule and Government of the Indians in Their Several Places and Plantations," Chap. 17, Acts & Resolves (Massachusetts, 1693-4), 150-151.

[3] As a penalty, the Legislature vacated all such "deeds of bargain, sale, lease, release of quitclaim."  The provisions, however, did not extend to Nantucket Indian land.  "An Act to Prevent and Make Void Clandestine and Illegal Purchases of Lands from the Indians"  Chapter 11, Acts & Resolves (Massachusetts 1701-2), 471.

[4] "An Act in Addition to the Act for Presenting Abuses to the Indians, Made in the Twelfth Year of King William," Chap. 9, Acts & Resolves (Massachusetts, 1718-1819), 104

[5] Section 4 of "An Act in Addition to the Several Acts or Laws of this Province, for the Regulation of the Civilized Indians Inhabiting this Province, and Preventing Oppression or Abuses to them," provides :That it shall and may be lawful for such of the English as are or may be concerned in the fishery, as afores[ai]d, anything in this act notwithstanding, to agree or indent with any of the Indians for that purpose for a term of two years, but no longer, at any one time, nor until said term shall be expired; and also to assist the said Indians in building houses for them on their own lands, and furnishing them and their families as well as with fuel, as necessary subsistence, during such time: provided, always, that such indenture or written agreement, and also such expense and suppl[ie][y]s be examined and allowed of in manner as is already directed by this act. Chap. 10, Acts & Resolves (Massachusetts, 1725-26), 363-364.

[6] "An Act for Incorporating the Indians and Molattoes, Inhabitants of Mashpee, with their Lands There, into a District, with Certain Privileges; and for their Better Regulation, Chap. 3, Acts & Resolves (Massachusetts, 1763-1764), 639-641.

[7] The original printed version of the Act, the line reads Be it enacted by the Governor, Council and House of Representatives. 

[8] In the original printed version of the Act, the words "and herby are" appear here.

[9] Section 2 of the Act gave the Indians and Mulattoes, inhabitants, the power to admit other Indians or Mulattoes to be inhabitants and proprietors of Mashpee.   Section 3 provided that actions against Indians or Mulattoes for any contract or debt, except for certain cases, be debarred.  Section 4 prohibited Indians from binding out their children for the satisfaction or as a security for any debt of their parents without the approbation of a majority of the overseers.   Section 5 provided Indian and Mulatto debtors the liberty to swear out of jail.  Section 6 directs the proprietors and inhabitants to vote for district officers.

[10] Section 7 provided the three year term of the Act.  Benjamin Hallett, the author of this commentary, was wrong about the provisions not being renewed.  Several successive legislative actions continued the provisions for many years later, to, at least November, 1785.  "An Act for Reviving and Continuing Sundry Laws That Are Expired, or Near Expiring," Chap. 20, Acts & Resolves (Massachusetts, 1766-1767), 920.   A subsequent similar act in November 1770 renewed the provisions to November 1, 1775. "An Act for Reviving and Continuing Sundry Laws That Are Expired and Nearly Expiring," Chap. 6, Acts & Resolves (Massachusetts, 1770-1771), 88.  In 1775, the provisions were renewed until  November 1, 1779. "An Act for Reviving and Continuing Sundry Laws That Are Expired and Nearly Expiring," Chap. 14, Acts & Resolves, (Massachusetts, 1775-1776), 460. In 1779, to November 1, 1785.  "An Act for Continuing Sundry Laws That Are Near Expiring, Chap. 15, Acts & Resolves (Massachusetts, 1779-1780), 1123.

[11] Possibly Scipio Allen, although so far, there is no evidence that Allen had a wife named Jemima.

[12] "An Act in addition to the several acts respecting the Indians and other Persons, Proprietors and Residents on the Plantations of Mashpee and Herring Pond, so called," Chap. CV, Acts and Resolves (Massachusetts, 1819), 161-164.

[13] "An Act to Establish the District of Marshpee," Chap. CLXVI, Acts & Resolves (Massachusetts, 1834), 231-237.

[14] "Resolve confirming a deed of four hundred acres of land given by the Marshpee Indians for a parsonage," XLVII, Resolves (Massachusetts, 1809), 350. According to the printed legal record, the resolve was passed on June 19, 1809.

[15] The text of the printed version here reads formerly made by the said Indians.  Whether Hallett intentionally changed the text to suit his argument or was quoting an earlier version of the resolve is unclear.  Ibid.

[16] Missing from the text are the words in the year of our Lord.  Ibid.

[17] Missing from the text is the phrase as attested by Ebenezer Bacon as Register on the back of said deed.  Ibid.

[18] Textual Revision:  Cross out of the word laws

[19] Fish was ordained at Mashpee on September 18, 1811.

[20] See Contract of the Corporation of Harvard College with Phineas Fish,1811.01.18.00, and  Contract between the Marshpee Overseers and Phineas Fish, 1811.08.23.00. 

[21] Massachusetts Constitution of 1780, Part. 1, Art. III. 

[22] The Third Article of the Bill of Rights of the Massachusetts Constitution of 1780 was amended by the Eleventh Article of Amendment, submitted to the Commonwealth in November 1833 and successfully voted in.  Biblical Repository and Quarterly Observer 5, no. XVII, XVII (1835): 379.

[23] Textual Revision:  Cross out of the phrase it is stated, at this time

[24] "An Act concerning the District of Marshpee," Chap. 72, Private and Special Acts (Massachusetts, 1842), 259.

[25] ult. Latin, last

[26] Deed of Marshpee Parsonage, 1783.01.07.00

[27] "Resolve confirming a deed of four hundred acres of land given by the Marshpee Indians for a parsonage," XLVII, Resolves (Massachusetts, 1809), 350. According to the printed legal record, the resolve was passed on June 19, 1809.

[28] Textual Revision: Overwriting of the letter J

[29] Textual Revision: Cross out of the phrase in which he was then, or had

been a tutor

[30] Assumpsit, Chap. 48, Sec. 32.  First Parish in Brunswick v. Dunning et al.  Nathan Dane. A general abridgment and digest of American law : with occasional notes and comments, Vol. 2 (Boston, MA, 1823-1829), 342.

[31] Commonwealth vs. Johnson.  The correct citation should be to The Inhabitants of the First Parish in Sutton versus David Cole and Another, 8 Mass. Rep. 96.

[32] Thomas Cochran versus The Inhabitants of Camden.

[33] Jonathan Burr versus The Inhabitants of the First Parish om Sandwich

[34] Eliphalet Baker and Another versus Samuel Fales

[35] Samuel Austin versus Isaiah Thomas

[36] The Inhabitants of the First Parish in Shapleigh versus Zebulon Gilman

[37] Textual Revision: Cross out of the word about

[38] Textual Revision: Cross out of the phrase and most undoubtedly from high conscientious motives

[39] 9 Mass. Reports, 277

[40] Jonathan Burr

[41] Mary and Joseph Sunkoson owned of a neck of land at Mashpee called Caunanmut where they had built a house. 

[42] Chapter 41, Acts and Laws (Massachusetts, 1797), 304.  

[43] Footnote in original text: *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.”

[44] See The Testimonies of Gideon Hawley, Sarah Keetoh, and Hannah Babcock, "Deposition" (1797) by Sarah Keetoh and Hannah Babcock,” Indigenous New England Digital Collections, accessed July 6, 2019, https://dawnlandvoices.org/collections/items/show/267.

[45] For the opposing viewpoint presented to the Joint Committee, see Hallett, Rights of the Marshpee Indians, March 7, 1834.