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.

THE END