PETITION OF JOHN WINTHROP.

To the Right Honble the Lords of the Committee of Council for hearing Appeals, Complaints, &c, from the Plantations.

The Humble Petition of John Winthrop, Esq'- Humbly Sheweth

That a Petition having been preferr'd to His Majesty by Jonathan Belcher & Jeremiah Dummer, Esq, Alledg'd to be in Behalf of the whole Collony of Connecticutt in New England which Petition has been referr'd to your Lordships Consideration Your Memorialist who is the Descendant of the first Gov' in that Collony in behalf of himself and many other Principal Inhabitants there beg Leave to Acquaint your Lordships that the Mrial Allegations in the Said Petition cannot be Supported either [in] Law or in ffact.

Your Memorialist does admitt that before any form of Government was Establish'd in Connecticutt the Inhabitants frequently distributed their Lands in the manner which in the Petition is Sett forth which Distribution was no further binding than merely by Consent of Parties.

Charter P. 15.

Charter P. 4.

That in April, 1662, King Charles the 2a by Letters Patents Incorporated this Province Granting them the same Privelidges that are Enjoy'd by any Subjects of England or any Corporation or body Politick within the same, Enabling them to make Laws and Ordifor their better Government provided the same were not contrary to the Laws of this Realm and according to the Course of other Corporations within this Kingdom of England, last of all he Granted this Province of Connecticutt to

nances

Ibid.

the Corporation so Erected.

Ibid P. 6.

To have and to hold to them &c of His Said Majesty as of his manner of East Greenwich in free and common Sottage [sic]. From

all which Clauses it appears that they were Erected as a Corporation within the Dominions of England, Holding by and subject to the Laws of this Realm, a Power (frequently Granted to Corporations in the Kingdom) of making By Laws and Ordinances for their own good Government, Provided the same were not Contrary to the Laws of the Realm, And it is become the more necessary in Point of Policy as well as Justice to Confine them Strictly to these Bounds, Since His Majesty by the Charter has a Power Reserv'd to him of Appointing a Governour or any other Officer within the said Collony or of Confirming or Disallowing any Laws or Ordinances made by y Gen" Assembly, there who wou'd therefore be Vested with an Arbitrary Power over the Propertys of their Fellow Subjects were they not restrained to Act Conformably to the Laws of England.

Your Memorialist Conceives that the Act intituled an Act for ye Settlement of Intestate Estates is contrary to the Laws of this Realm in a double respect, first as it directs Intestates Real Estates to be Distributed in Single Shares to all the Children except the Eldest Son to whom a double Share is Assign'd whereas by the Course of Descents at Law He is the Sole Heir and intituled to the whole Estate exclusive of all other Children. Secondly as it Empowers the Court of Probate which is a Spiritual Court to hold Plea of ffreehold Estates which by Law can only be Subject to the Jurisdiction of Temporal Courts.

This Act being for the Reasons above mention'd in its own Nature, Null, Void and Repugnant to the very Powers granted by King Charles y Second it is a Gross Mistake in the Pet" to Alledge that the same was Annulled by His Majestys Order in Council of the 5th [15th] of February, 1727. Whereas his Majesty did upon Counsell heard on both Sides thereof only Releive your Memorialist as a Subject & an Inhabitant of the Province of Connecticutt, who Resorted to His Royall Justice for Relief against the Oppression of a Court of Probates acting without any

Legal Jurisdiction, under the pretended Authority of an Act of Assembly, which being contrary to Law and to their Charter was in it Self Void & Null, even before His Majesty for the future Information of His Maj' Subjects in Connecticutt was Graciously Pleas'd to Declare it so.

The Memorialist beggs leave further to observe to your Lordships that the pretended Custom of distributing Intestate Real Estates amongst all the Children was no otherwise introduced than by the Consent of Partys when Lands in those Parts were of little or no Value, nor was it ever Coercive till the above mention'd Act of Assembly made it so, and since the same Power which every Brittish Subject has of disposing his Estate by Will Subsists in Connecticutt, those who approve of such a method of Distribution for the Benefitt of their younger Children are at Liberty to make the same by their last Will, which will Sufficiently answer y Purposes in the Petition Sett forth of Encouraging all the Children to Contribute to the improvement of their ffathers Estates. But if upon Pretence of some Benefitt or Convenience to the Province the Legal Course of Descents can be alter'd, and Ecclesiasticall Courts can be Empower'd to have Cognizance of Mres only Subject to a Temporal Jurisdiction, and this by Virtue meerly of an Act of Assembly of the Collony of Connecticutt, this will be such an Establishment of an Arbitrary Independent Power in them as will much more Induce the Younger as well as Elder Sons to Quit that Country, than the Continuing on them according to their Charter the just Restraints of making by Laws that are Contrary to the Laws of this Realm which are the invaluable Birthright of the Subject, the best Security of their Property, and ye Strongest Motive for Natives to Remain and Strangers to come to a Collony where that is unalterably fixed.

The Memorialist beggs leave also to acquaint your Lordships that the Request of the Petition is so far from being the United Request of the whole Collony of Connecticutt that ever since the Act for Settling Intestate

Estates there has been in force Numberless Disputes have Arisen thereupon and many Persons have Groan'd under the Oppression of the Court of Probates, and Arbitrary Proceedings of the Assemblys in Support of their Jurisdiction, and tho the Memorialist only has Struggled against so weighty an Opposition and insisted on an Appeal to His Majesty from whom he has recd such Ample Justice & Redress, Yet your Lordships may be Assur'd that many other Appeals of the same Nature wou'd have been bro': had the Aggreiv'd been Enabled by their Fortunes to Support the Expence of such an Application.

As to that part of the Petition wherein it is Prayed that Persons Claiming under the acting for Distribution of Intestate Estates may be quieted in their Possessions with a Saving Clause in Behalf of your Memorialist he humbly beggs leave to Acquaint your Lordships that he has himself no particular Personal Int: to oppose the Prayer of the Petition provided the Saving be of all Rights, Claims, Estates, Int: or Demands, which he has or may have in the Said Province of Connecticutt & New England. But he hopes your Lordships will Pardon him if as the Principall Inhabitant of the Said Collony & one so highly interested in its Wellfare & Preservation, he Presumes to observe That as many Orphans will hereby be Depriv'd of their Birthright, so nothing will more Effectually Encourage Assemblys in Connecticutt for the future to Establish Acts such as they may find convenient to Support the Interest of a Party, how contrary soever they may be to the Laws of this Realm, than to See that an Act made in Open Violation of the same shall be so far Countenanc'd here as that all the illegall Settlements made pursuant thereunto shall be Ratify'd and Confirm'd. Surely the uttmost the Pet": were Entituled to have Ask'd in favour of Persons thus Openly Acting against Law was an Indemnity from further Punishment, Especially when it shall be Consider'd - That the Assembly of Connecticutt have been so farr from paying any Deference to His

Majesty's Order in Councill of 15th Feby, 1727, made in my favour & Declaring the Said Act of Intestates to be Null and Void, that they have hitherto obstinately refus'd to Comply wth: the same.

All which is most Humbly Submitted to your Lordships Consideration

J. WINTHROP.

[Endorsed] The Memoriall of John Winthrop, Esq**

DEPION JABEZ PERKINS SEN, MARTHA LATHROP, AND JABEZ PERKINS JUN3, SWORN 26TH FEBRY 1735/6.

That Mahomet Son of Oweneco the Sachem livd about a Mile from Depont: & they were much Acquainted with his Management, & Sev': of his Indian Neighbours liv'd with him & said Mahomet carried it so proudly and Lordly towards them that the Indians and he quickly contended & Mahomet threatned that he wo: kill some of them, & So he did for his usual Way was to make his Drunken frolicks upon the Sabbath or Lords day, for on the Sabbath day Morning, Sometime before the day the Indians came to their Houses in a great fright praying that they might come in to their Houses for shelter for Mahomet had killed an Indian called Capunches, & that he wo: kill all the rest of them. But there was none of the English that went nearer to them than their Houses, but when they were Coming from the Publick Worship of God on the same day they heard a Gun go off and then Supposed it to be at Supposed it to be at or near the place where they afterwds: heard Mahomet was killed, And the

*This document bears no date, but it is the second memorial of Winthrop, of which Wilks sent a copy to Gov. Talcott, March 12, 1730/31. See page 222. This was found among the papers of the Connecticut Historical Society, but not among the Talcott Papers, so-called.

+ Jabez Perkins, Sen', removed from Ipswich, Mass., to Connecticut in 1695, with his brother Joseph, and bought a tract of land in Newent Society in Norwich, now Lisbon. He died Jan 15, 1742. - Perkins' Genealogy; Part III. 12-13.