USA > Maryland > A sketch of the history of Maryland during the three first years after its settlement : to which is prefixed, a copious introduction > Part 23
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On the last day of the session, (March 24th), CHAP. which according to old style, was the last day 1. of the year 1637, the several bills which had been 1638. prepared to be passed by the house were now " fair. The as- ly ingrossed and read, and after the reading of them dissolved. sembly the governour signed them, and so did the rest of the house. And so the house dissolved."
However beneficial and necessary for the province The lord those laws now enacted by the assembly, and assent- refuses his
proprietor ed to by the governour, might have been, yet it the laws assent to seems when they were sent to England and pro- enacted by the as- pounded to the lord proprietor for his assent, he sembly. thought it proper to reject them. Of his reasons for so doing, we are nowhere positively informed; but the same conjecture we have before ventured may be again hazarded ;- that he had resolved to retain the right of first propounding the laws to be enact- ed by any assembly of his province. Although a complete list of the titles of these laws remain's upon our records, yet the laws themselves at large are not extant, no copies of them appearing upon our records .* Many of these laws were, probably, afterwards reenacted under the same or similar titles. The contents of some of them, however, to which we do not find subsequently any with titles similar, would interest our curiosity even at this day, parti- cularly the first on the list, entitled, " A Bill for di- .
* See a complete list of them published in Bacon's edition of the Laws of Maryland, 1637, where it is said, " They Were never enacted into laws ;" meaning, without doubt, for want of the lord proprietor's assent to them; " nor are any copies of them, or of those sent in by his lordship to be found in our records. 4 2 T
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CHAP. viding of the province." From the titles of several I. bills immediately following, relative to manors, and 1638. one entitled, " A Bill for Baronies," we are induced to suppose, that besides the division of the province into counties, a further division of the same was con- templated into baronies and manors, with their feudal appendages of courts-baron and courts-leet. This may, probably, have been the cause of its being stated by some writers, that the province was originally divided into baronies and manors. Although many manors were subsequently laid out and granted to individuals, yet it does not appear, that this division of the province into baronies, (at Icast in the feudal sense of the word, was ever car- ried into effect; for we are told that " no grant of a barony is to be found on record."*
William Clar- borne's petition to the king in council, and order- thereup .. on.
. Clayborne having been sent to England by the" governour of Virginia, after the military outrage committed by his men, through his orders, on the Maryland colonists, as before-mentioned, he pre- - ferred a petition to the king, in order to obtain re -: dress of the " wrongs and injuries," which he had sustained, as he alleged. A very imperfect copy of this petition appears among the earliest docu- ments of our Provincial Records, t with intervening blanks therein, which render it in some places al- most unintelligible. The tenor and substance of it is, however, as follows:
" The petition of captain William Clayborne, on
* See Kilty's Landholder's Assistant, p. 93. Also note (V) at the end of this volume.
t " Council Proceedings from 1636 to 1657," p. 4.
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the behalf of himself and partners, to the king, CHAP. I. 1638.
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showing-that the petitioners, by virtue of a com- mission under his majesty's hand, &c. divers years past, discovered, and did then plant upon an island in the great bay of Chesapeak, in Virginia, by them named the isle of Kent, which they bought of the kings of that country, and built houses, transported cattle, and settled people thereon, to their very great- costs and charges ; which the lord Baltimore taking notice thereof, and the great hopes for trade of bea- vers and other commodities, like to ensue by the petitioners' discoveries, hath since obtained a patent from your majesty, comprehending the said island within the limits thereof, and sought thereby to dis- possess the petitioners thereof, and debar them of their'discovery, &c .; complaint thereof being made, your majesty was pleased to signify your royal plea- sure by letter, intimating that it was contrary to jus- tice, and the true intent of your majesty's grant to the said lord -, - that notwithstanding the said patent, the petitioners should have freedom of trade, requiring the governour, and all others in Vir .. ginia, to be aiding and assisting unto them, prohi- biting the lord Baltimore and all other pretenders · (under) him, to offer them any violence, or to dis- turb or molest them in their -- and- plantation, as by your majesty's letter annexed appeareth,- since which be it your - majesty's said royal pleasure hath been made known to Sir -
* These blank spaces are so in the record. In this place it may be supposed, that the obsolete adverb, " allbert," was in- tended, which is synonymous to the word " although."
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CHAP. ,* governour of Virginia, (who slighted the I. same,) as also to the lord Baltimore - agents 1638. there ; yet they have in a most wilful and contemp- tuous manner, disobeyed the same, and violently set upon your petitioners' pinnaces and boats - goods to trade, and seized them, and do still detain the same by the -- , of which pinnaces and goods the inhabitants within the said isle were - so great famine and misery, as they became utterly destitute of any corn - sustain themselves, which enforced them to send a small boat -. why they obeyed not your majesty's said royal letters and commands - - the said pinnaces and goods to en- able them to trade for corn-seed - boat approach- ing near unto some vessel of the said lord Balti- more's - agents, they shot among the petition- ers' men and slew three of them and - more ; and not content with these great injuries, the said lord Baltimore and his agents, have openly defamed and unjustly accused the petitioners of - crimes, to his exceeding great grief, which hath caused him purposely - pairt into this kingdom, and humbly prostrates himself and his cause majesty's feet, · to be relieved therein.
" And the petitioner having likewise discovered - plantation and factory, upon a small island, in
the mouth of a river, at the bottom of the said bay,
. This must mean Sir John Hervey ; for Sir William: Berkeley, his successor, was not appointed governour of Vir- Binia until the year 1639.
t Probably intended for the words, " purposely to repair -into," &c.
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in the Susquehannock's country, at the Indians de- CHAP. 1 .-- 1.
: sire, and purchased the same of them ; by means . whereof, they are in great hopes to draw thither the , trade of beavers and furs, which the French now „wholly enjoy, in the grand Lake of Canada, which . may prove very beneficial to your majesty and the commonwealth; but, by letter sent him thenceforth, your petitioner is advised, that the lord Baltimore's
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: agents are gone with forty men, to supplant the pe- - titioners' said plantations, and to take possesssion . thereof, and seat themselves thereon.
" And the petitioner being desirous to propose a way, whereby your majesty may receive to the crown for plantations, an annual benefit, (and) be certain to enjoy the same, with the fruits of their labours, they do offer unto your majesty 100/. per : annum, viz. 50/. for the said isle of Kent, and 50l. : for the said plantation, in the Susquehannock's ¿ country, to have there twelve leagues of land, &c. , from the mouth of the said river, on each side - thereof, down to the said bay southerly, to the sea- ward, and so to the head of the said river, and to the , grand Lake of Canada ; to be held in fee from the crown of England, and to be yearly paid into your : majesty's exchequer; to be governed according to the . laws of England, with such privileges as your ma- , jesty shall please to grant : by which means, your majesty may raise a great revenue annually, and all planters will be encouraged to proceed cheerfully . on their designs. ..
" And the petitioners having now a ship ready to depart, with goods and people, for the prosecuting and managing of their said discoveries and trade,
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CHAP. I. which without speedy supply, and your majesty's favour, &c. is like to come to ruin, --
1638.
" May it therefore please your majesty, to grant a confirmation of your majesty's said commission and letter under your majesty's broad seal, for the quiet enjoyment of the said plantations, &c. to send now with the said ship; and to refer the speedy ex- amination of the said wrongs and injuries, unto whom your majesty shall please to think fit, to cer- tify your majesty thereof, and that your petitioner may proceed without interruption of the lord Balti- more's agents," &c. . .
Immediately following the foregoing petition, there appears on the provincial records, the follow- ing entry, which is probably a copy from the pro- ceedings of the privy council in England, relative to the same :
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" At the court at Newmarket, the 26th of February, 1637," (1638, N. S.)
" His majesty approved the proposals made in the foregoing petition, and confirmed what was con- tained in his former condition and letter under the broad seal; and to that end, referreth to the lord archbishop of Canterbury, lord keeper, lord privy seal, and any other the commissioners for planta- tions, who shall be near at hand, &c. and with Mr. Attorney's advice, to prepare a grant for the king's signature. The said lords were also to examine the wrongs complained of, and certify his majesty accordingly.
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" The lords accordingly appoint a day for the hearing of this business at the council board, and
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direct notice thereof to be given to the lord Balti- CHAP. more, to be heard by himself or council. Signed,
1. Wm. Cant, Tho. Coventry, W. Manchester." 1638.
." The following order in council appears to be the result of the foregoing proceedings :
" At Whitehall, the fourth of April, 1638.
" Present, lord archbishop of Canterbury, lord keeper, lord treasurer, lord privy seal, earl Marshall, earl of Dorset, lord Cottington, Mr. Treasurer, Mr.
- Comptroller, Mr. Secretary Cooke, Mr. Secretary Windebank.
5.," Whereas a petition was presented to his ma- jesty, by captain William Clayborne, on the behalf of himself and partners, showing, that by virtue of a commission under his majesty's hand and signet,. they, divers years past, discovered, and planted- upon an island in the great bay of Chesapeak, in Virginia, named by them, the isle of Kent, where- upon (they pretended) they had bestowed great charges ; and that the lord Baltimore (as they al- leged,) taking notice of the great benefit that was likely to arise to them thereby, obtained a patent from his majesty, comprehending the said island within the limits thereof; and that they had likewise settled another plantation upon the mouth of a river, in the bottom of the said bay, in the Susquehannah's . country, which the said lord Baltimore's agent there (as they allege,) sought to dispossess them of, pre- tending likewise, great injuries and violence offered to them in their trade and possessions in those parts by the said agent, in killing some of the said cap. tain Clayborne's men ; taking their boats contrary .
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CHAP. to the said commission and express words of a let- I. ter from his majesty, under his hand and signet ; 1638. and therefore, besought his majesty to grant unto the petitioner a confirmation, under the great seal, of his majesty's said commission and letter, for the quiet keeping, enjoying, and governing of the said islands, plantation, and people, with other addita- ments of lands and immunities in those parts ; and likewise, that his majesty would refer the examina- tion of the said wrongs and injuries, to such as his majesty should think fit, as by the said petition more at large appeareth. Forasmuch as his majesty was pleased, at New Market, the twenty-sixth of February, 1637, to refer the consideration of the pe- titioner's request unto the lord archbishop of Can- terbury, the lord keeper, the lord privy seal, and any other the commissioners for plantations, who should be near at hand, and whom they pleased to call, and withal to advise with Mr. Attorney-general, for the preparing and settling the grant desired, for his ma- jesty's signature, and to examine the wrongs com- plained of, and certify his majesty what they thought fit to be done for redress thereof : whereupon, all parties attending their lordships this day, with their counsel learned, and being fully heard, the said commission and letter being likewise read, it ap- peared clearly to their lordships, and was confessed by the said Clayborne himself, then present, that the said isle of Kent is within the bounds and limits of the said lord Baltimore's patent ; and the said cap- tain Clayborne's commission, (as it likewise appear- cd,) was only a license under the signet of Scotland, to trade with the Indians of America, in such places
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where the said trade had not been formerly granted CHAP. .by his majesty to any other; which commission, I. 1638. their lordships declared, did not extend, nor give any warrant to the said Clayborne, or any other; nor had they any right or title thereby to the said isle of Kent, or to plant or trade there, or in any other parts or places, with the Indians or savages within the precincts of the lord Baltimore's patent; and their lordships did likewise declare, that the afore- said letter, under his majesty's signature, which had reference to the said commission, under the signet of Scotland, was grounded upon misinformation, by supposing that the said commission warranted the plantation in the isle of Kent, which (as now appears) it did not. Whereupon, as also upon con- sideration of a former order of this board of the third of July, 1633,* wherein " it appeared, that the difference now in question being controverted,' the lord Baltimore was left to the right of his patent, and the petitioners to the course of law, their lord -? ships having resolved and declared as aforesaid, the right and title to the isle of Kent, and other places' in question, to be absolutely belonging to the lord Baltimore, and that no plantation or trade with the : Indians ought to be within the precincts of his pa- tent, without license from him, did therefore like- wise think fit and declare, that no grant should pass - to the said Clayborne or any others, of the said isle of Kent, or other parts or places within the said pa- tent; whereof his majesty's attorney and solicitor- general are hereby prayed to take notice; and con-
* See the order in note (S) at the end of this volume.
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CHAP. cerning the violences and wrongs, by the said Clay- 1. borne and the rest complained of in the said petition 1638. to his majesty, their lordships did now also declare, that they found no cause at all relative thereto, but do leave both sides therein to the ordinary course of -justice.
Ext.
T. MEANTYS."*
Notwithstanding the apparent authenticity of the foregoing documents, the reader is to be informed, that it has been utterly denied, that any such pro- ceedings or order in council ever existed. In the bill in chancery, before-cited, filed by the Penns against the then lord Baltimore, in the year 1735, to compel a specific performance of an agreement then before entered into between these two proprie- taries, relative to the bounds of their respective provinces, it is stated that shortly after Mr. Wil- liam Penn had obtained his patent for Pennsylva- nia, which was in the year 1681, (1682, N. S.) he also purchased of the duke of York, (afterwards James II,) the three Lower Counties, (now Dela- ware state,) and that a controversy arising there- upon, between these two proprietaries, concerning the bounds of the province of Maryland, on the side next to those Counties, the lord Baltimore (Charles, son and heir of Cecilius,) preferred his petition to the king in council concerning the same, which petition was, some time in May, 1683, " referred to the consideration of the then commit-
*" Council Proceedings from 1636 to 1657," p. 8. This order in council is also inserted at large in Hazard's Collec- tions, Vol. 1, p. 430.
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tee of trade and foreign plantations, (which com- CHAP. mittee did then consist of lords of his majesty's I. 1638. most honourable privy-council,) and before the said committee, the said lord Baltimore and your ora- tor's father (William Penn) and their counsel learn- ed in the law, were many and divers times heard for near two years and a half together, and a very long suit and trial were had thereon between your orator's said father and the then lord Baltimore, touching the right and title to the said land and soil .of the said three Lower Counties." The bill then proceeds, after stating the order in council there- upon, (which was, in substance, to divide the pe- ninsula between them) to a distinct allegation rela- ·tive to the foregoing order in council of 1638, on Clayborne's petition, as follows: " And your ora- tors further show unto your lordship, that during the said contest in the years 1683, 1684, and 1685, the said then lord Baltimore, upon the eighth of October, 1685, produced to the then committee of trade and plantations, in order to serve himself, an unauthentic, blank, fictitious paper, not pre- tended to be signed or sealed at all, but drawn up in the form of the draft of a report and order of the committee of foreign plantations, and supposed to be made on the fourth of April, 1638, touching differences between some lord Baltimore and one Mr. Clayborne about the isle of Kent, in order to show that former boards' pretended opinion touching the lord Baltimore's right to the isle of Kent, and the then said committee of trade and plantations in 1685, put off the matter, and gave the said lord Baltimore time to procure an attested copy of such
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CHAP. pretended report or order in 1638, which the . said I. lord Baltimore undertook to procure, but nine days 1638- after the said lord Baltimore declared in person to the said committee of trade and plantations, name- ly on the 17th of October, 1685, that he could not find the original, whereby an attested copy might be procured, neither, as your orators charge, is there any authentic book or office where any ori- ginal or authentic copy may be found or had but the said blank paper was a mere fiction."*
Unprovided as we are with any authority to dis- prove this allegation in the before-mentioned bill, and not being in possession of lord Baltimore's an- swer thereto, we are left to rest the authenticity of the proceedings and order in council of 1638, as before-stated, on that kind of evidence which de- pends upon concomitant circumstances. That Clayborne made resistance to lord Baltimore's pos- session of the isle of Kent; that from superior mili- tary force he was obliged to fly to Virginia- that he was there demanded by commissioners from Ma- ryland -- and that the governour of Virginia thought it proper to send him home to England for the in- vestigation of his rights and pretensions-all seem to be facts well authenticated by the historians of Virginia. There is every probable circumstance, therefore, to warrant the presumption, that he made the application by petition, as before-stated to the king in council for a redress of his wrongs. If then he did actually prefer his petition before-mentioned, some proceedings must have been had upon it. If
· Taken from a MS- copy of the bill in my possession.
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the petition of Clayborne was heard, as before-sta- CHAP. ted, it is to be presumed that no order in council thereupon ever took place in favour of his claim, or . 1638. else he would immediately have availed himself of such order, by returning to the possession of his is- lands and settlements, and such order would have ap- peared in form. But this not being the case, and the order appearing of a directly opposite nature, there are strong grounds to suppose that such order was " authentic," although no original could be found, " whereby an attested copy could be procured." It is to be observed also, that the proceedings and order in council of 1638 as before stated, appear upon our ear- liest Provincial Records of Maryland. The question would naturally occur -- how came they there if such proceedings and order were " a mere fiction?" It is to be presumed, that they were placed there shortly after they occurred, and long before the contest be- tween William Penn and lord Baltimore, in 1683. It is worthy of remark also, that the copy of the same order, which Mr. Hazard has inserted in his Collections, purports to be from the " votes of assembly of Pennsylvania." The same question would here occur again. The confusion of the times, which shortly after the date of this order of 1638, ensued, by reason of the civil war in England, might afford some grounds to account for the omission of recording it in the records of the council in England, or for the loss of the original; or, if recorded there, for the loss of the roll. The signature annexed to it, as it now stands on our Provincial Records, to wit : " Ext. T. Me- antys," purports that the copy of it, there inserted,
Ilo lhnen
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CHAP. was extracted from some authentic document on I. record, by " T. Meantys," who was then " clerk 1638. of the council, and attendant upon the said commis- sioners for foreign plantations," as is expressly men- tioned in a " letter" or order in council, made on the same day, by the same lords in council, relative to Massachusetts, and now published by Mr. Hazard in his Collections, immediately following the forego- ing order, relative to Clayborne's petition. To sup- pose this order of 1638, to be " a mere fiction," we :are driven to impute the basest fraud to Charles, lord Baltimore, or his agents, in 1683, contrary to every concomitant circumstance. On the contrary, if this insinuation in the bill, be destitute of any foundation, as it really appears to be, except in the .circumstance of the loss of the original, the sugges- · tion reflects something contrary to the principles of honour in the conduct, on this occasion, of either the Penns or their agents, in 1735; and however ·elevated in history, the character of lord Mansfield may be, yet, as Mr. Murray, their counsel on this occasion, in drawing this bill, he certainly transcend- ed the duty of an honourable advocate at the bar, in ·lending himself as the instrument of so false an im- · putation.
With respect to the equity of Clayborne's claim, and the justice of the foregoing decision of the " commissioners for plantations" in 1638, the ques- tion seems to have been decided by the government of the United States since their independence. Con- gress have regulated by law, the trade and inter- course to be carried on by the citizens of the United States, with the several tribes or nations of
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Indian natives, resident within that part of the con- CHAP. tinent of America, which the United States claim as
I. their territories. They have enacted, that no per- 1638 .. son shall trade with the Indians, without special license, obtained from the government of the United States for that purpose .* This is, without doubt, founded on good policy : it tends to prevent indivi-' dual citizens, from acting in such manner with the savages, as to irritate and cause them to make at. tacks on the peaceable frontier settlers. These laws, moreover, forbid such traders from making pur -. chases of lands from the Indians, the United States claiming that privilege alone, for the government, in
. its corporate capacity. Should any trader, there- fore, obtain by purchase or voluntary grant from the Indians, even as much land as would suffice for him to put a temporary trading-house thereon, and should occupy the same for several years, during his license for such trade, and the United States should " extinguish the Indian claim" to such lands, as included the trader's purchase ; or, (what in the opinion of some philanthropists amounts to the same thing,) take the same lands from the Indians by force, and make sales and grants thereof, to such of their citizens as would purchase the same ; it is ap- prehended, that such licensed trader would not be admitted to contend, that he had bought his house and land from the Indians, and the United States ' had therefore, no right to sell or to give it away to any other citizen. He would probably be told, and
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