Marshpee, July 30, 1834.
The reader may now ask, how came Mr. Fish in possession of this property, which he claims to hold by the Laws? I am at liberty to publish here, the following views of the law and the facts in the case, drawn up by legal counsel whom the Selectmen have consulted. And here I take my leave.
The first act of the General Court which interfered with the right of the Indians to sell their own lands, all of which they owned in common in Marshpee Plantation, (including what is now called the parsonage,) was in 1650, which provides that no person shall buy land of any Indian without license of the General Court. In 1665, this was extended to grants for term of years. In 1693, the Indians were put under guardianship.
In 1701, an Act was passed specially to protect the Indians in the enjoyment of their lands. [Col. Laws, page 150,] It also shows why the restriction in the sale of their lands was adopted.
“Whereas, the government of the late Colonies of the Massachusetts Bay and New Plymouth, to the intent the native Indians might not be injured or defeated of their just rights and possessions, or be imposed on and abused in selling and disposing of their lands, and thereby deprive themselves of such places as were suitable for their settlement”, did inhibit the purchase of land without consent of the General Court, notwithstanding which, sundry persons have made purchases, &c.; therefore, all such purchases of lands were vacated, with the exception of towns, or persons who had obtained lands from the Indians, and also by virtue of a grant or title made or derived by or from the General Court. All leases of land from Indians for any term or terms of years to be void, unless license was obtained for such lease from the County Court of Sessions. Provided, nevertheless, that nothing in this act shall be held or deemed in any wise to hinder, defeat or make void any bargain, sale or lease of land, made by an Indian to another Indian or Indians.
1718. This is the first act which took from the Indians their civil capacity to make contracts. It says, “whereas, notwithstanding the care taken and provided (by the former act,) a great wrong and injury happens to said Indians, natives of this country, by reason of their being drawn in by small gifts, or small debts, when they are in drink, and out of capacity to trade, to sign unreasonable bills or bonds for debts which are soon sued, and great charge brought upon them, when they have no way to pay the same, but by servitude”; therefore no contract whatever shall be recovered against any Indian native, unless entered into before two Justices of the Peace in the County, both to be present when the contract is executed by the Indian.
The act of 1725, recognizes the rights of Indians to employ persons to build houses on their own lands. Their own lands then were the commons, including the parsonage.