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a valuable Consideration, by his deed-poll dated the 9th May,
1691, granted, released, confirmed, enfeoffed, bargained, & sold
the said Lands & Premises to the said Sir W. Phipp.s in fee,
which Deed was afterwards, viz't the 10th May 1694, personally
acknowledged by the said Madakowando before two of the Mem-
bers of H. then My's Council of Massachusetts Province, & has
been since acknowledged & allowed of by the Chief-Sachems of
the Indians & their Tribes, & particularly was shewn to &
acknowledged & allowed of by them so lately as the 4tli day of
August 1726. —

That after the Peace of Utrecht, which was also attended by
a Peace with the Eastern Indians of New England, the said Jolin
Leveret formed to himself an intention of resettling the said
Land with all possibi e vigour & dispatch, but in regard all the
old Settlements were destroyed ; apin-ehending the undertaking
too extensive for a single Person, he invited & agreed with
several Gentlemen of considerable Substance & Fortune to
associate & join with him therein ; & liaving brought his designs
to a degree of Maturity in the year 1719, that nothing miglit Lie
in his Way & to remove all possible obstructions, & as an addi-
tional strength to & confirmation of his title, & thereby the more
to encourage his associates to carry on the said Settlements with
Spirit & Vigour, the said John Leveret treated & agreed with
Spencer Phipps Esq'r. adopted son & heir, & also devisee of the
said Sir W. Phipps, to puichase out his interest in the said
Premises, & accordingly the said Spencer Phipps by his deed-
poll, indorsed on the said Indian purchase deed, & having <late
the 13th day of August 1719, for a f ull & valuable Consideration,
released, assigned, conveyed, & confirmed to the said John
Leveret, as well the said deed from the said Madakowando to the
said Sir W. Phipps, as also the tracts & parcels of Land thereby
granted & conveyed to the said Sir W. Phipps & which are
mentioned in the said deed to be then in the seizin & possession
of the said Leveret, with their Appurtenances to hold to the
said John Leveret, his heirs, & assigns, to his & their only proper
use & benefit forever. —



408 MAINE HISTORICAL SOCIETY.

That the said John Leveret having thus a secure title in him
to the said tract of land, both by grant from the Crown, &
by purchase from the Indians, which is always held inviolable in
these parts, & having associated several gentlemen of consider-
able fortune to join with him in settling & improving these lands,
for the better effecting the same the said John Leveret by deed
of association bearing date the 14th day of August 1719, admitted
& joined the Petitioners, Elisha York, Nathaniel Hubbart,
Hannah Davis, Rebecca Lloyd, Sarah Byfield, John Radford, &
Spencer Phipps, as associates to & with himself in the said lands
& premises conveying to each of them such parts and shares of
the said Lands as in the said deed is particularly mentioned; &
by another deed of Association bearing date the 15th day of the
same Month of August between the said John Leveret & the
last named Petitioners of the one part, &the Petitioners Jahaliel
Brenton, John Clark, Sara. Brown, Thos. Fitch, whose right is
vested in the Petitioners, John Fitch, Adam Winthrop, Sam.
Thaxter, Oliver Noise, Stephen Minott, Nat'l. Hubbart, Thos.
Westbrook, Thos. Smith, John Smith, Joseph Appleton, whose
right is now vested in the Petitioners, Nat. Appleton, Thos.
Fairweather, Henry Franklyn, Gilbert Baut, Benjamin Bronsdon,
William Clarke, John Palton, Jonathan Waldo, Cornelius
Waldo, & John Jeffreys, of the other part, reciting the several
Deeds Deeds aforesaid, the said last named Petitioners & those
under whom they claim, as aforesaid, are admitted & joined
together as Associates in the said lands & premises, & such parts
thereof alloted to them as in the said last deed is particularly
mentioned, the whole to be divided into 30 equal parts, to be
holden by all the said petitioners, & those under whom they
claim as aforesaid, their respective heirs & assigns forever, as
tenants in common & to be no survivorship with ])roper
covenants each obliging the other to procure People to plant,
settle & inhabit two Towns of 80 Families each in a Christian
Manner, in & upon the said tract of Land under such limitations,
conditions, & reservations, as in the said deed is expressed, & to
erect two saw-mills on the said Land ; & for the better ordering
& regulating the said designed Settlements, it was covenanted &



CHARTER RIGHTS OF MASSACHUSETTS IN MAINE. 409

agreed that the extent of the said two Towns should be described
& that the same should be laid out in a regular & defensible
manner upon St. George's River, & that pioper lots in each Town
should be set apart for a Minister & a school inalienable, & that
lands should also be set apart, to be bestowed on the settlers in
the said Townships, with covenants for the Association to do the
utmost for the completing & perfecting the said designed Settle-
ments. —

That the rest of the Petitioners have since purchased several
parts of shares from the other Petitioners in the said Lands. —

That hereupon, the Petitioners & those under whom they
claim immediately, began on making the said Settlements, & soon
after they agreed to have as much Laud broke up and cultivated
as would accommodate a sufficient number of families for two
more Towns, to consist each of 80 Families at least, & the
Houses for their reception to be made comfortable ; & in order
to prosecute & eflfectually bring forward the said intended
Settlements, they built & finished two strong large block Houses
with a covered Way from them to the Water side to secure the
Men from the incursions & injuries of the Indians who daily
resorted there in great numbers, & oft-times threatened those
employed in building & clearing the Land who used several
Stratagems to get them from off those lands, & the Petitioners also
built a double saw-Mill to facilitate the Settlements, & bought a
Sloop, & hired men to transport People & their effects, besides
several other Sloops employed by them in the said Undertaking,
and had for above 12 months a Captain & 20 Soldiers whom they
paid & subsisted in the said block Houses, & who were pro-
vided with great & small Artillery to defend themselves & the
Woi'kraen from the Attacks of the French Indians at the sole
charge of the Association. —

That by this Means, notwithstanding the great many dis-
turbances they received from the French Indians, the Petitioners
very vigorously pushed forward in settling & bringing those
Lands into a capacity of receiving & securing a number of Inhab-
itants, & actually built & erected several Houses thereon. —

That in June, 1721, the French Indians to the number of 200



410 MAINE HISTORICAL SOCIETY.

surprised, took, & burnt one of the Petitioner's sloops, & killed
one of their Men & took 6 captive, & then immediately made up
in a body to the Block Houses & the next day attacked them
with fire arms for several hours, & used several devices to have
burnt the block Houses, but were defeated by the Courage of the
Men employed by the Petitioners ; but in this attack the Peti-
tioners were great sufferers, the Indians having killed one &
taken 6 Prisoners, burnt their saw Mill, a large Sloop ; &
Sundry Houses, & killed many of their Cattle, but notwithstand-
ing this great destruction made on the Petitioners, they still
kept & maintained the two Block Houses, with Men & War-
like Stores & Provisions, for several Months afterwards altho'
the Govt, of the Massachusetts had proclaimed War with these
Indians, & the other Eastern Tribes. —

That the Petitioners being by this War incapacitated from
pursuing the Settlements they had so successfully begun, were
obliged to desist therefrom ; but they yet held the two Block
Houses, & defended the same against a seige laid to it by the
Indians for 12 days together & killed 20 of the enemy; & appre-
hending the same might be of great service to the Massachusetts
Gov't in carrying on the War, they made a tender of them to
the Gov't, there, during the War & until the Petitioners should
have occasion to use them, for the purposes at first designed,
which offer the Gov't, accepted, & to whom they proved of great
service in the War & were the sole Means of keeping that part
of the Country from falling into the hands of the Indians, & have
ever since continued under the protection of the Gov't. & since
the War ended, a truck House is erected in the block houses,
which are used as Magazines, or Store Houses for Indian Goods.

That on the ending of that War the Petitioners again resolved
to continue & go on with their said Settlements, & for that pur-
pose they applied for & obtained a Letter from Samuel Shute
Esq'r then Governor of the Massachusetts Bay to the Chief of
the said Penobscot Indians, to facilitate the Petitioners going on
with & finishing their said Settlements, but soon afterwards
another War broke out with those Indians which then prevented
the Petitioners further proceeding in their Intended Settlements ;



CHARTER RIGHTS OF MASSACHUSETTS IN MAINE. 411

but a Peace being again concluded with them, some short time
before Mr. Burnet's coming to that Gov't, the Petitioners being
still intent & resolved on bringing forward & finishing the said
Settlements, obtained a like letter from Governor Burnet, as they
had done before from Governor Shute, & were going on to settle
& improve those Lands with all possible Vigour & Dispatch, &
had actually got a Minister & 120 Families ready to go & settle
one of the said intended towns, but to their great Surprise,
disappointment, & Loss, the Petitioners have met with an inter-
ruption herein from David Dunbar Esq'r. Surveyor Gen'l. of H.
M's Woods in America, who being waited on by a number of the
Petitioners, hath forbid the Petitioners from going on with the
said Settlements, & informed the Petitioners that he could not
permit their going on with their Settlements, on any other Terms
but their taking grants from him in the same Manner as if they
had not already any title thereto ; upon which the Petitioners
informed Mr. Dunbar that they thought it their Duty to lay
before H. Majesty, the Matters aforesaid ; & Mr. Dunbar prom-
ised the Petitioners not to intermeddle with the said lands till
H. M's pleasure should be known. —

Therefore & as the Petitioners have so clear a Title to their
Lands both by grant from the Crown, & purchase from the
Natives, & have had possession thereof for so many Years, &
been at a very great expence in erecting the block houses, &
several other buildings thereon and defending the same in the
Manner before stated, & their endeavours & attempts to improve
& settle the same, which had been long since completed by the
Petitioners, but from the unavoidable interruptions given them
by the Wars; but liave always by means of their Blockhouses
kept possession thereof & thereby guarded & protected all that
part of the Country, & as the Petitioners are determined to
complete the said Settlements with all possible dispatch, which
being of great advantage to the Province of the Massachusetts,
& H. M's Interest there ; the Petitioners in consideration of the
Premises most humbly prayed His M. that he would be pleased
to send the necessary Orders or Instructions to the said D. Dun-
bar not to intermeddle with the said Tract of Land, to which the



412 MAINE HISTORICAL SOCIETY.

Petitioners are so entitled as aforesaid; & that he do not inter-
rupt, obstruct, or disturb tlie Petitioners in carrying on their
Settlements there on any pretence whatsoever, that so the Peti-
tioners may be quieted in the enjoyment thereof, & carry on the
Settlements intended by them without Molestation, — And we
certify your Lordships that we have been attended by Mr. Pax-
ton Solicitor for the Affairs of H. My's Treasury & by the
respective Agents of the Province of the Massachusetts Bay in
New England & of the Petitioners, & have heard Counsel on
behalf of the Crown & of all the said Parties, at which hearing
were laid before us a Copy of the Charter granted by Their late
Majesties King William & Queen Mary on the 7th day of
October in the 3d. year of their Reign, to the Inhabitants of the
said province of the Massachusetts Bay, & the several Affidavits
hereunto annexed, together with Copies of divers, Conveyances
of particular Parcels of Land, lying within the tract in Question,
which were certified under the seal of the said Province. —

Upon considering the said Case & petitions, & the evidence
laid before us & what was alledged on all Sides, it appears to us
that all the said Tract of Lands lying between the Rivers of
Kennebeck & St. Croix is (amongst other things) granted by the
said Charter to the Inhabitants of the said Province, & that
thereby power is given to the Governor & General Assembly of
the said Pi-ovince to make grants of Lands within the said
Limits, subject to a Proviso that no such grants should be of
any Force until their said late Majesties, their Heirs, or Suc-
cessors should have signified their Aj^probaiion of the same. —

It appears also by the said Charter that the Rights of Govern-
ment granted to the said Province extend over tliis tract of
Land. —

It doth not appear to us, that the Inhabitants of the said
Province have been guilty of any such neglect or refusal to
defend this part of the country, as can create a forfeiture of that
subordinate right of Govern't. of the same, or of such Property
in the soil as was granted to them by the said Charter ; it being
sworn by several of the Affidavits that a fort was erected there
& for some time defended at the Charge of the Province, & that
Magistrates & Courts of Justice have been appointed within this



CHARTER RIGHTS OF MASSACHUSETTS IN MAINE. 413

district & that one of the Counsel of the Province hath always
been chosen for this Division, & Tho' it is certain that this part
of the Province hath not been improved equally with the parts
thereof, yet considering the vast extent of Country granted by
this Charter, & the great Improvements made in several parts of
it, we conceive that will not create a forfeiture, because in such
Cases it is not to be expected that the whole should be cultivated
& improved t o the same advantage ; & whether there hath been
such a neglect or nonuser of any part as may amount to a for-
feiture, must be judged of, not upon the particular Circumstances
attending that part only, bat upon the Circumstances of the
whole. —

And if the province had incurred any forfeiture in the present
case no advantage should be taken thereof but by a Legal pro-
ceeding, by scire facias, to repeal their Charter, or by inquisition
finding such Forfeiture. —

As to the question stated in the case upon the effect of the
Conquest of this tract of County by the French & the reconquest
thereof by Geo'l. Nicholson, We conceive that the said tract not
having been yielded by the Crown of England to France by any
Treaty the Conquest thereof by the French created according to
the Law of Nations only a Suspension of the property of the
Former Owners, & not an extinguishment of it, & that upon the
reconquest by Gen'l Nicholson, all the ancient rights, both of the
Province & of private Persons, Subjects of the Crown of Great
Britain did revive & were restored jure postlimine. This rule
holds the more strongly in the present Case in regard it appears
by the Affidavits that the Province joined their forces to those
which came thither under the command of Gen'l. Nicholson in
this Service. —

For these reasons, We are of opinion, that the said Charter
still remains in force, & that the Crown hath not power to
appoint a particular governor over this part of the Province, or
to assign lands to persons desirous to settle there, nor can the
Province grant those Lands to private Proprietors without the
Approbation of the Crown according to the Charter.

As to the Case of the Petitioners, in the two Petitions referred
to us, who insist upon particular Titles in themselves to certain



414 MAINE HISTORICAL SOCIETY.

Parcels of Land lying between the District in question, We have
examined into their claims & find by the above mentioned
Copies of Deeds & Writing produced by them, that several of
the Petitioners & those under whom they claim, have had con-
veyances made to them of several of the said Parcels of Land,
some from the Council of Plymouth which was constituted by
Charter in the Reign of King James the 1st & whose grants are
confirmed by the Charter of William & Mary, & others from
Indians pretending to be owners thereof under which Grants
large sums of Money appear by the said Aflidavits to have been
laid out in endeavoring to settle & improve the lands therein com-
prised several of which sums were expended not many years ago,
particularly a Sum of £2000 by Sir Bibye Lake in the year 1714,
& other Sums of Money by others of the Petitioners in the
Years 1719 & 20 ; And tho' these Settlements & improvements
have been in a great Measure interrupted & defeated by frequent
Wars & Incursions of the Indians, yet several of the Petitioners
or their Tenants appear to be still in possession of some Parts of
the said tract of Land. —

Some objections were made before us, to the Nature of the
grants & Conveyances under which the Petitioners claimed, & to
the Manner of deducing down their Titles ; but We conceive
that in questions of this kind concerning right of lands in the W.
Indies, & upon inquiries of this nature, the same regularity &
exactings is not to be expected as in private Suits, concerning
Titles to Lands in England; but that in these Cases, the princi-
pal regard ought to be had to the possession & the expenses the
Parties have been at in endeavoring to settle & cultivate such
Lands. —

Therefore upon the whole Matter, We are of opinion that the
Petitioners, their Tenants, or Agents, ought not to be disturbed
in their possession, or interrupted in carrying on their Settle-
ments in the Lands granted to them within the District in
Question. —

(Signed) P. Yorke )

C. Talbot j
11th August 1731.—



THE SETTLEMENT OF SCARBOEOUGH. 415



THE SETTLEMENT OF SCARBOROUGH.

BY AUGUSTUS F. MOULTOST, ESQ.
Bead b^'ore the Maine Historical Society, May 10, 1895.

In the older parts of the state of Maine one will
often have his attention drawn to the fact that
almost every homestead has its own graveyard. In
most localities there seem to be but few ancient places
of common burial. In fact, it would appear that in
former times most of those families who were possessed
of land and who had a homestead of their own, con-
sidered it a matter of pride to have their own family
burial-place, where the remains of father and son, and
relatives also, who had gone out from the old home-
stead, might be gathered together after life's fitful
fever to sleep under the turf of the ancestral acres.
Many of these ancient places are very substantial and
elaborate. Not unfrequently one will observe upon
some dilapidated place, now in the possession of an
owner wdio speaks English with difficulty, the old two-
story square mansion house, once occupied by those
who held their heads high among their neighbors, and
nearby, on high land, walled in with massive stone, the
old family burial yard. Its graves are sunken and the
headstones are standing at every angle as the ruthless
hand of time has pushed them about ; some of ancient
slate with rounded top, a solemn death's head or a
weeping willow peering out of the moss which covers
the surface, telling the passing stranger that it is



416 MAINE HISTORICAL SOCIETY.

" sacred to the memory of" some good man or woman,
and having underneath a homely epitaph with eulogy
of the dead and warning to the living. On other
places will be seen a tomb of heavy granite with earth
piled up into a conspicuous mound around it. In
those places, which are still in the possession of
descendants of the old proprietors, such spots are
usually kept up with scrupulous care, but often you
will ask in vain for the name of the family, and \vi\\
learn of the sleepers only from what can be deciphered
upon the leaning headstones.

Near Dunstan Corner in Scarborough, upon land now
occupied as a pasture, is a large hillock or mound,
graded with geometric regularity and upon it large
pines are growing. Very few people in that vicinity
are aware of the fact that this is an artificial mound,
and that it is the resting place of the early members
of the King family, celebrated in the early histoiy of
the state and nation.

In later years the practice of burial in private lots
has greatly changed, and the towns under authority
of the state laws, have furnished public cemeteries,
into which have been made general transfers from the
old family lots.

Our early settlers came from lands where the church-
yard was regarded with reverence, and the inquiry is
often made how such a custom of interment could
have originated.

The explanation takes us back into history and is
readily apparent when one considers the manner in
which the early settlements of the state were made.



THE SETTLEMENT OF SCARBOROUGH. 417

There were no churchyards because there were in
the early times no established churches. The division
lines are irregular, and the roads wander in crooked
and vagrant courses because the settlers came first
and built their cabins and established their homes,
while civil government with its churches and schools
and surveys came afterwards.

In Massachusetts and in New Hampshire the town-
ships were located generally by grants, and after
regular organization the lands were apportioned by
systematic allotment. But in the older parts of
Maine the settlements grew up slowly and to a great
extent upon an individual basis.

The town of Scarborough is a somewhat extreme
example of the methods of early settlement. Its town
government was nominally organized in 1658, and it
was the sixth town incorporated in Maine. There
were residents wittiin the limits of the town soon after
the settlement at Plymouth in 1620 and almost con-
tinuously thereafter, but nearly a hundred years
elapsed before the settlers found themselves suffi-
ciently numerous and well enough established to
have what was really a government of their own.
For a long time there was nothing in the nature of a
permanent or organized settlement.

The first person known to have established himself
within the town limits was one John Stratton, who
lived upon the islands which still bear his name. He
evidently chose this location for the purpose of trading
with the Indians and with the crews of fishing vessels
who annually visited this coast. It is evident that
Vol. VI. 28



418 MAINE HISTORICAL SOCIETY.

European fishermen found their way here long before
the settlers came. As early as 1624 it is said there were
as many as fifty English fishing vessels that made
voyages to the coast of Maine, and for many years
before that time fishermen, both English and French,
had regularly been plying their vocation to the
eastward.

Christopher Levett in his Voyage into New England
in 1623 and 1624 says more fish were then taken in
what is now Scarborough Bay and vicinity than in any
other place in the land. There is nothing to indicate
who were with Stratton or how much of a settlement
or plantation he had. He had, however, been there
so long in 1631 that the Cammock Patent of that date
calls the islands by his name. It is doubtful whether
Stratton's full name would be known to us were it not
that the court records of York show that in 1636 one
Edward Godfrey had a legal controversy with him and
made an attachment of his " brass kettell." Walter
Bagnall had set up his trading-house upon Richmond's
Island in 1628, where he was murdered by Indians in



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