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 New 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. AMOS SHEPARD

April 7, 1783

TIMO FLETCHER

SIMON BROOKS, Jr..

Selectmen.

Servd. this warrant by reading the same in the hearing of sd 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:

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STATE OF VERMONT, To either Constable of Rockingham in WINDHAM COUNTY SS 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.

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 Fram

ingham, 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 within 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?

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 prinDillon, 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 community 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.