Warning out in New England

Table Of Contents

PAGE

Chapter 1. Introduction. — Examples of Warning Out. — Inhabitancy. — Land Titles in New England 1-17

Chapter 2. Admission of Inhabitants. — Grants of Land by Towns. — Restraint of Alienation of Lands. — Proceedings in Boston and Other Massachusetts and Plymouth Towns . . 18-45

Chapter 3. Massachusetts Colony and State Laws. — Plymouth Colony Laws. — Further Illustrations of Town Action as to Inhabitancy, Alienation of Land, Warning Out, etc 46-62

Chapter 4. Inhabitancy and Warning Out in Connecticut. — Early Colony and State Laws. — Illustrations of Action of Towns, etc 63-87

Chapter 5. New Hampshire Colony and State Laws. — Action of Towns as to Inhabitancy, Warning Out, Relief of the Poor, etc 88-98

Chapter 6. Rhode Island Colony and State Laws as to Inhabitancy, Relief of the Poor, Town Settlement, etc. — Maine and Vermont State Laws as to Warning Out, Inhabitancy, Settlement, Relief of the Poor, etc 99-113

Chapter 7. The Length of Time Warning Out was practised.— Effect of Warning Out, How Avoided. — Value of Warning Out Records. — Summary as to Reasons for Warning Out, etc 114-121

Chronology 122

CHAPTER I.

Introduction. — Examples of Warning Out. — Inhabitancy. — Land Titles in New England.

The information contained in this book was gathered in the preparation of a paper read before the New England Historic-Genealogical Society. The paper was not printed, because it was thought the subject was of sufficient general interest to warrant its presentation in a book for the use of the public at large. This volume has therefore no claim to merit except that it contains material which has not before been brought together, relating to an interesting chapter in the Colonial and early State history of New England.

I have attempted to tell the story mainly in the language of the records and statutes of the time. I believe that real history is thus best written. As the eminent historian of New England so well said: —

The peculiar language of the men whom the historian describes is a substantive part of their peculiar history. It displays the form and pressure of the place and time. The phraseology of the actors is a constant expositor and reminder of the complexion of the thoughts and sentiments that determined the course of affairs.*

In the records of the town of Alstead, New Hampshire, is found this: —

State of New Hampshire, Cheshire ss.

To Saml. Kidder one of the Constables of Alstead, Greeting:

In the name of the Government & people of said state you are hereby Required forthwith to warn Jacob Benton & Hannah his wife, Mabel, Jacob, Reynold, Mary & Samuel Benton, their children to Depart out of this Town Immediately & no longer make

* Palfrey, History of Nnv England, Vol. I, p. xvi.

it the place of their Residence under the pains that will follow. Hereof fail not & make Return of this warrant with your doings thereon as soon as may be.

Given under our hands and seal of office this 26th March 1783.

April 7, 1783 Simon Brooks, Jr. 3

Serv'*. this warrant by reading the same in the hearing of s"*

persons

Saml. Kidder

Const.

The Jacob Benton named in this notice was my greatgrandfather, and the Samuel, who was then about five years old, was my grandfather.

In the records of the town of Rockingham, Vermont, there is found this: —

State of Vermont, \ To either Constable of Rockingham in Windham County ss j the County of Windham. Greeting.

You are hereby required to summon Joseph Bellows and Mary Bellows his wife and George Bellows, Henry A. Bellows and Fanny A. Bellows, their children, now residing in Rockingham to depart s'd Town.

Hereof fail not, but of this precept & your doings herein due return make according to law.

Given under our hands at Rockingham this 30 day of May 1813.

Jonathan Barron \ Selectmen Sam'l W. Pulsipher >• of

Elias Olcott ) Rockingham

The return upon this warrant was that it had been served "by putting a true and attested copy into the hands of the within named Joseph Bellows with this my return endorsed thereon."

In 1791 this warrant was issued in Lancaster, Massachusetts : —

You are directed to warn and give notice unto the Hon. John Sprague, late of Rochester, in the County of Plymouth, Esq., a sheriff of the County of Worcester, John Maynard, late of Framingham, in the County of Middlesex, Esq., Edmund Heard, late of Worcester, in the County of Worcester, Esq., Ebenezer Torrey, late of Boston, in the County of Suffolk, gentleman; William Stedman, late of Cambridge, in the County of Middlesex, Esq., Merrick Rice, late of Brookfield, in the County of Worcester, gentleman, Joseph Wales, late of Braintree, in the County of Suffolk, gentleman, who have lately come into this town for the purpose of abiding therein, not having obtained the town's consent therefor, that they respectively depart the limits thereof, with their children and all under their care w^ithin 15 days.

Upon reading these records, we are naturally led to inquire why these persons were thus summarily notified to leave their homes and depart out of the towns in which they lived. The notices themselves give no reason, and there was no reason in the character of the persons, why they should be thus treated. My greatgrandfather was a good soldier, a devout Christian, and a peaceable citizen. Joseph Bellows was a distinguished soldier, a charming man, and an excellent citizen. He had moved from Walpole, New Hampshire, across the Connecticut River, to Rockingham, Vermont, to a new farm, and was a desirable addition to the population of the town. Henry A. Bellows, one of the persons named among his children, and warned out, was Henry Adams Bellows, who became an eminent lawyer, and was for many years the chief justice of the State of New Hampshire. The persons named in the Lancaster warrant were all desirable and excellent citizens. Obviously, none of these were persons whom the citizens desired to have depart out of their towns. Why, therefore, were they thus summarily warned to depart.? What was the reason of this apparently extraordinary and unjust treatment of these persons.^ The treatment was, of course, authorized by law; but why was there such a law.? What was the reason for it.?

Warnincf Out in New EnL>land

To answer that question intelligently requires an examination of the principles of law and custom underlying the establishment of towns in New England, and of the rights and obligations of their inhabitants. This requires us also to ascertain the law and the custom with regard to municipalities in England, from which the early New England settlers came. They brought with them the customs and the laws of their forbears in England as a part of themselves, and they necessarily developed the government of their towns on the principles of the municipal English common law. No people can break from their past. Bands of custom and heredity, invisible as they may be at times to all but close students of history, bind every generation of men to their historic past. The fundamental principles of the laws and the customs of the people of New England can be traced step by step to the laws and customs of ancient England and Germany, and even to the remote villages of the Aryan East. As has been finely said by an eminent scholar and jurist of our own day.

When we touch to-day, even in our frontier settlements, the electric chain wherewith Providence hath bound the ages and the generations of men together, we discover that we are in historic communion with rude and remote ancestors although separated from us by seas, mountains and centuries.*

History is like a stream in which every particle affects the condition and the flow of every other particle. It is this historic continuity that gives the study of history its chief charm to the philosophic mind. The early settlers of New England did not, as has sometimes been said, break with their past. They could not have done so. They necessarily brought with them the ancient and fundamental prin-

* Dillon, Municipal Corporations, Vol. I, p. 23.

ciples of the English law, one of which was that the inhabitants of a municipality were responsible for the conduct and support of each other, each for all and all for each.

The right of inhabitancy, sometimes called the freedom of the community, existed in the Teutonic townships. Palgrave says: —

The earliest notices respecting the Teutonic Townships are to be collected from the laws of the Salic Franks. A "Villa" was entirely the property of the inhabitants, and no stranger could settle within its boundaries, unless with the consent of the whole incorporation. Any one individual Townsman could forbid the entrance of the new colonist upon the common fields of the Sept. If, after three warnings had been given, and thirty nights had elapsed, the intruder continued contumacious, he was summoned to the "Mallum" or Court; and in default of appearance, the "Gravio" [Mayor] proceeded to the spot, and by force expelled the occupant from the purpresture which he had made. But it is important to remark, that the freedom of the community might be legally acquired by an uncontradicted residence; for if the stranger remained in the Township, without challenge, during twelve months, he was from thenceforth allowed to dwell in peace and security, like the other neighbours of the community.*

From this custom came the fundamental principle of the ancient law of England, that every place where people lived must be a free communitj^ or settlement, every member of which was answerable for the good conduct of, or the damage done by, any one of the other members. This obligation was termed "frankpledge," later "peacepledge." Bracton says: —

Every man, whether free or a serf, either is or ought to be in frankpledge or in somebody's household unless he be somebody itinerant from place to place, who does not keep himself to one more than to another, or who has something which suffices for a frankpledge, as a dignity or an order or a free tenement or real

* Francis Palgrave, Rise and Progress of the English Commonwealth, London, 1832, Part I, p. 83.

l)roperty in a city. . . . Every person who has land and house, who are called "householders," ought to be in frankpledge, and also others who serve them, who are called "followers." He is of the household and family of any one who has food and clothing from him, or who has food only with wages such as are the domestics or servitors and hirelings of the house.

Likewise according to ancient custom he may be said to be of any one's family who has dwelt in the house of another person for three nights, because on the first night he may be termed uncuth [unknown] but on the second gust [i.e., guest] on the third night hoghenehgue [or his own hind.]*

Upon this obligation to be in frankpledge, all freemen below a certain rank in England were, after the Danish conquest, required to be numbered in groups of ten, called tithings, and each member of a tithing made responsible for the good behavior of every other member, f

This responsibility was at first, by custom only, for a payment in money to the persons injured by crime, or to his relatives in case he was killed, and for a fine to be paid to the king as a punishment for the crime. J

From this communal responsibility, and from the division of land under the feudal system, as perfected and extended throughout England after the Norman conquest,! the civil institutions and the law of England were developed.

The local and municipal development of government in England was: first, from the hundred; second, from the tithings; third, from the parish, or ville, or town. The parish was originally intended for secular purposes

* Bracton, De Legibus Anglice, edition 1879, Vol. II, p. 307.

t Pike, History of Crime in England, Vol. I, p. 58.

J Stephen, Criminal Law of England, p. 10.

§ "Of all the feudal services enforced by the Normans, there is not perhaps one of which some obscure trace may not be discovered among the Anglo-Saxons." Lingard, History of England, Vol. I, p. 488 (5th edition).

only, and was responsible for the maintenance of the public peace and for the support of the poor.* In 1628 Lord Coke defined a town as follows: —

It cannot be a town in law, unless it hath, or in past time hath had, a church, and celebration of divine services, sacraments and burial.

Blackstone in 1765 said, —

Tithings, towns or villes, are of the same signification in law; and are said to have had each of them, originally, a church and celebration of divine service, sacraments and burials, though that seems to be rather an ecclesiastical than a civil distinction.!

A later English writer says, —

The township is now known by its ecclesiastical name of parish, and the shire by its Norman name of county, but the old identity is still preserved, and the institutions themselves are as much alive today as they were a thousand years ago.

Again the same writer says: —

The original unit of settlement among the Saxons in England was the tun, now town. This meant simply an enclosure surrounded by a wall or hedge, and the township was merely the area claimed by the town.

In the process of the English civil wars responsible local government practically disappeared, and in the general break-up of local conditions a question of very great magnitude arose, which was the relief of the poor. There was no local machinery available for this and it was taken up by the parish, which became the poor-law unit; that is, the church assumed the duty of looking after the poor, which had always been one of its primary duties, and hence the poor-law officials were elected by the parish vestry, which levied taxes

* Toulmin Smith, The Parish, pp. 16, 44, 45. t Blackstone, Commentaries, Vol. I, p. 115.

8 Waniiiii? Out in New Endand for the support of the poor upon the householders of the parish.

In 1601, the date of the first great poor law of England, the parish or township began to revive as the machinery of local government and highways, bridges, drainage, police, education, and other local matters became parochial, and the old powers of the town meeting were resumed.*

It was upon this foundation of English affairs that the settlers of New England constructed their town or local governments.

Inhabitancy and "warning out" in the New England States were so connected that neither can be intelligently considered without examination of the other.

The theory of the early settlers with regard to inhabitancy was thus stated in the beginning: —

If we here be a corporation, established by free consent, if the place of our co-habitation be our own, then no man hath right to come in to us without our consent.

Inhabitancy, or the right to live in a town as one of its inhabitants, did not necessarily include the right to vote in town affairs, nor was it always dependent upon the ownership of land. For instance, in the Massachusetts Colony the right to vote was confined by colony ordinance in 1631 to those inhabitants who were in full church communion, which put the government into the hands of a minority of the male inhabitants.!

In Plymouth and in Connecticut the franchise was given by vote of the freemen of the towns, but the candidate was required to be "of sober and peaceable

* Jenks, English Local Government, pp. 11, 19, 23, 28. t Massachusetts Colony Records, Vol. I, p. 87.

conversation, orthodox in the fundamentals of religion and to have at least twenty pounds of rateable estate." *

It is true the word "inhabitants" was sometimes used as though it meant persons entitled to vote, as where the record speaks of a town meeting as a general meeting of the inhabitants, but I use it here as meaning simply persons who had been, by some general law or by the action of the town itself, admitted to be permanent residents in the town. This right of inhabitancy included by the common law of England the right to be supported by the town, if the inhabitant became unable to support himself. In other words, a legal inhabitancy comprehended a legal settlement, which in England could be acquired by residence in a place for a required period, originally forty days.f

This responsibility of municipalities for the proper conduct and for the support of their inhabitants, when they were unable to support themselves, properly implied the right to exclude from inhabitancy persons for whose conduct or support they did not desire to become responsible. In this is found the effective meaning of "giving the freedom of the city"; that is, the right to inhabit or dwell in the city. This also is the origin of the liability of municipalities for property destroyed in riots, which still exists by statute in many cases. |

It is probably also the origin of the common law of the New England States, derived from immemorial usage, that the estate of any inhabitant of a town is liable to be taken in execution on a judgment against the town.§

* Plymouth Colony Laws (Brigham edition), 1671, p. 258; Connecticut Colony Records, Vol. I, pp. 290, 297, 331, 389, 417.

t Blackstone, Commentaries, Vol. I, p. 362.

X General Laws of Rhode Island, 1909, Chap. 344, Sect. 10; Massachusetts Laws, 1839, Chap. 54, Sects. 2, 3; Revised Laws of Massachusetts, Chap. 211, Sect. 8.

§ Hill V. Boston, 122 Mass. 349; Beardsley v. Smith, 16 Conn. 368.

This right of the towns to exchide from inhabitancy within their Hmits was undoubtedly exercised in the New England Colonies of New Plymouth, Massachusetts Bay, Connecticut, and even in Rhode Island, for the purpose of keeping out persons whose religious or political opinions were unsatisfactory to the towns. But the reason for the existence of this right was that inhabitancy, or the right to live in a place, always imposed upon the inhabitants of the place responsibility for the good conduct and support of the inhabitant.

The right to live in a town was then understood to imply a right to have land upon which to live, and therefore, when towns admitted persons to be inhabitants, they impliedly agreed to allot to them land upon which they could live as inhabitants from the town lands, and to give them the right of commonage in the common lands of the town. This also carried with it the right of free fishing and fowling in the great ponds and in the rivers and tidal-waters within the limits of the town.* In some cases, how^ever, this right of commonage was restricted by the town in case of new-comers. In Boston it was ordered on May 18, 1648, at a town meeting that all inhabitants who had been admitted by the townsmen should have equal "Rights of Commonage in the towne," but that no one who should thereafter come to be an inhabitant in the town should have "right of Commonage" "unlese he hier it of them that are Commoners."! In Dorchester on January 18, 1635, it was ordered

that all the hoame lots within Dorchester Plantation which have bene granted before this p'sent day shall have right to the

* Body of Liberties, 1641; Massachusetts Laws, 1660-1672 (Whitmore edition), p. 37.

t Boston Town Records, 1634-1660, p. 88.

Commons and no other lotts that are graunted hereafter to be commoners: Also that Two men shall not Common for one hoame lott.*

At first it was not the practice to admit persons as inhabitants to whom the town could not allot lands upon which they could live. But it soon became the practice to admit them, provided they could, with the consent of the town, purchase land of other inhabitants to whom land had previously been allotted. The New England colonists not only had the Saxon greed for land, but their government was based upon the ownership of land, so far as possible, by all the inhabitants. They believed, and rightly, that nothing was so sure to give people an interest in sound and stable government as the ownership of their homes. They sought therefore to secure in some way to all the inhabitants of the towns an ownership in land, either by giving them lands owned by the towns or by requiring them to purchase lands in the towns before they became inhabitants. It will be seen therefore that a knowledge of inhabitancy in the early New England towns, and of the obligation of the inhabitants for the good conduct and support of each other, requires some reference to the origin of land titles in New England.

The basis of these titles was a grant from the English Crown. It is true that deeds of land were taken from the Indians, and that they were upheld by the Colonial Courts in some cases. f

It is also the fact that the original title taken by the settlers or planters of Rhode Island was by Indian grants, and that the early settlers of Connecticut also purchased their lands from the Indians in^the

* Dorchester Town Records, p. 14. t Sullivan, Land Titles, p. 43.

first instance. But in all these cases crown grants were afterwards obtained, and the colonies also passed acts with regard to the purchase of land from the natives without license from the colonies themselves, declaring all Indian deeds taken without such license to be void.*

It should be remembered, however, that the crown grant was not a grant by the English government, but solely by the King.

It has always been the theory of the English law that discovery and possession of a new country gave a valid title to its land, subject to the natural right of the natives to protection, but with no right in the natives to dispose of the land to anybody else. Under this theory the Crown was the absolute owner of the land, and could dispose of it and provide for the government of it at its discretion. For instance, grants could be made by the Crown without regard to the law of England, as was done when Charles I. authorized the grantees of land in Maryland to erect manors, anything in the statutes of quia emptores to the contrary notwithstanding, t

It was upon this theory of the right of the Crown, based upon the discovery by the Cabots in 1497, and the subsequent taking formal possession by Sir Humphrey Gilbert in 1583, that the land titles of the New England Colonies were founded. The crown grants of land carried with them the right to extinguish the Indian title as a matter of course, but that title was recognized as a right of occupancy. For instance, when in 1662 the town of Dedham and

* Connecticut Colomj Records, Vol. I, pp. 214, 3C4, 402; Massachusetts Records, Vol. I, p. 112; Plymouth Colony Records, 1634.

t Hazard, State Papers, Vol. I, p. 335; Kent, Commentaries, Vol. Ill, p. 379 et seq.

some of its inhabitants had a controversy with the Indians Hving at Naticke as to the title of certain lands, the General Court heard the parties and declared that, though the legal right of Dedham could not be denied, yet there had been such encouragement of the Indians in their improvement of the land, as "added to their native right, which cannot in strict justice be utterly extinguished," required that the Indians be not dispossessed of the lands they were then possessed of, but that compensation be given to Dedham out of other lands not then granted.*

So in 1G72, when certain inhabitants of Northampton and other towns desired a grant of land for a village at Squakeage, the land was granted upon certain conditions, and upon the further condition that, if the grantees should purchase the Indian title to the lands, it should belong to the colony, unless the grantees performed the conditions of the grant, f

In Rhode Island Roger Williams and his associates at first claimed that the only title required was the Indian title, and took conveyances of it as the titles to the land on which they settled, though they afterwards obtained and accepted a crown grant of the same land in 1663. J

The same course was pursued in Connecticut, the lands being purchased by the first planters from the Indians, or acquired, as in the case of the Pequot territorj^ by conquest from the Indians. In 1G62, however, the Connecticut Colony obtained a charter and a grant from the Crown. §

* Records of Colony of Massachuscits Bay, Shurtleff edition. Vol. IV, Part II, p. 49.

X Arnold, History of Rhode Island, Vol. I, pp. 114, 284; Rhode Island Records, Vol. I, p. 31 et scq., pp. 130, 134, 135, 143.

§ Trumbull, History of Connecticut, Vol. I, p. 249.

14 Warnin": Out in New England

New Hampshire was created a royal province in 1680, the English Courts having held that the title was in the Crown, subject only to the vested rights of Mason in the soil, and it included, as was claimed, the territory now known as Vermont. The titles there were, from the government under the crown grants, somewhat conflicting, but all resting primarily upon the title of the Crown.*

In Plymouth the land was granted under a patent in 1620 and a royal grant in 1629.

The title to the land in Maine was granted under the Crown Charter of 1692, under the jurisdiction of Massachusetts, which had a right to grant the lands, subject to the approval of the Crown, within two years. f

|The origin of the title to land in all these colonies was, as stated at first, based upon the ownership by the Crown arising from discovery and possession, subject only to the right of the Indians, as natives of the soil, to the enjoyment of it, but with no power of disposal.

The English royal grants of the territory of the New England States began by a commission to John and Sebastian Cabot by Henry VH in a.d. 1495, authorizing them "to seek out countries or provinces of the heathen and infidels, wherever situated, hitherto unknown to all Christians, and to subdue and possess them as his subjects. "J

Under this commission the Cabots in 1497-98 landed upon the American coast, and explored it to some extent from Labrador to the Carolinas, more than a year before Columbus had seen the continent. Cabot drew charts of his voyage, which were referred to by Gilbert as existing in 1576, but have entirely dis-

* Belknap, History of New Hampshire, Vol. II, p. 205. t Maine Historical Collections, Vol. I, p. 239. X Hazard's State Papers, Vol. I, p. 9.

appeared.* Two years later a Portuguese explored Labrador. In 1507 the French visited the Gulf of St. Lawrence, and made a map of it and the neighboring country.

In 1522 there was a settlement of fishermen at Newfoundland, comprising, it is said, about fifty houses inhabited by people of different nationalities. In 1524 the French explored the coast from the Carolinas to Newfoundland, very much as the Cabots had done, but more in detail, and they called the country New France.

From 1534 to 1542 the Spaniards explored the coast of Florida, and the French erected monuments in token of possession in the region of the Gulf of St. Lawrence.

England, however, took no steps to maintain her rights as a discoverer by taking possession of the territory explored by the Cabots until 1578, when Queen Elizabeth gave a patent to Sir Humphrey Gilbert in the same terms as that given by Henry VII to the Cabots. t Gilbert landed at Newfoundland, called the merchants and masters of the ships of the various nations then there together, and took possession with prescribed legal formalities. He made laws which the people promised to obey, and made grants of land upon covenants of annual rent. Gilbert was lost at sea, but Sir Walter Raleigh, his half-brother and partner in the enterprise, obtained a similar patent in his own name, under which he was the first to occupy the soil of Virginia in 1584. J With his consent Gosnold visited Massachusetts Bay in 1602, but before his return to England for the purpose of obtaining supplies to establish settlements Queen Elizabeth died,

* Sir Humphrey Gilbert, A Discourse of a Discouerie for a New Passage to Cataia, London, 1576.

t Hazard, Vol. I, p. 24. % Hazard. Vol. I, p. 33.

Raleigh was imprisoned, and all traces of his attempt to colonize in America disappeared.

In 1606 a patent was granted by James I, to Sir Thomas Gates and others for the Colony of Virginia, but its limits did not include the whole of the English claim to title. It extended no further south than the present boundaries of North Carolina and no further north than the present limits of the State of New Hampshire; that is, between 34° and 45° of north latitude. It provided for two colonies, one southern, between the 34th and 41st degrees, and one northern, between the 38th and 45th degrees, leaving, as may be seen, three degrees, or the territory from about the southern point of Maryland to the southern point of Connecticut, as common territory.*

In 1620 a charter was granted by James I to forty persons called "The Council established at Plymouth, in the County of Devon, for the Planting, Ruling, and Governing of New England in America." This charter referred to the patent of 1606, and granted to the persons named in it all the territory from the 40th to the 48th degrees of north latitude, and from the sea to the sea, to be called New England; that is, its territory extended from about the latitude of the city of Philadelphia to the middle of Newfoundland and from the Atlantic to the Pacific, f