USA > Maryland > Chronicles of colonial Maryland, with illustrations > Part 8
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The Maryland grant was to be held by Baltimore of the "Kings of England, * * in free and common socage, by fealty only for all services," and subject to the annual render of "two Indian arrows from those parts", to be delivered at Windsor Castle on Tuesday of Easter week in every year, and also, the fifth part of all the gold and silver found within the Province.3
Constable. The Bishop's Council had its counterpart in the Proprietor's Council, which, while it had less legislative, had more judicial power, and also retained great influence in legislation.
The division of the Courts into County Courts and Halmote Courts, was followed in the powers given to the Provincial, Chancery, Admi- ralty and Council, and to the County Courts. While allegiance to the King was reserved, the oath of fidelity was taken to the Proprietor, and all writs ran "in the year of our dominion." In the period now to be considered, it will be seen that the Proprietor had vastly more power in Maryland than the King had in England, and freely exercised his power. In no other American colony was there such despotic authority. In none was such absolute government ever established as existed in Maryland in this period .- Causes of The Maryland Revolution of 1689; pp. 27-29, Sparks.
1 The statute "Quia Emptoris," enacted in the reign of Edward I, directed that in all sales or feoffments of land, the purchaser of the land should not hold of his immediate feoffer, but of the chief lord of the fee. The aim of the statute was to strengthen the hands of the King, and to prevent the intermediate lords from subinfeudating their lands. This great land law, marking an epoch in the constitutional history of England, enacted in 1290, was virtually set aside by Charles I, after an interval of three and a-half centuries, and the privilege denied the great feudal barons of England was bestowed in all its fullness upon the young Irish peer .- Local Institutions of Maryland, p. 13, Wilhelm.
2 The Charter; Kilty, p. 28; Ground Rents in Maryland, pp. 1I-13. 3 Maryland Charter.
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By a species of tenure similar to that under which he held the Province, Baltimore granted land to the Maryland Colonists. The fact that his lands would be unproductive unless they were occupied, prompted him at once to adopt and publish a general land system. It proved a good one, not only as a means of producing a constantly increasing revenue to himself, but in its results upon the economic welfare of the community and the material development of the Province.1
To encourage persons to come and bring their dependents and servants with them, his lands were offered on the most generous terms. These, it is true, were less liberal at a later period than at first, but they were always sufficiently so to stimulate the growth of the Colony, and at the same time, afford a source of lucrative revenue to the Proprietary. The conditions upon which land could be obtained, and the terms and character of the grant, were fully set forth in proclama- tions, or "Conditions of Plantation", as they were called, issued by the Proprietary from time to time.
Under the first "Conditions of Plantation", every free- man who came to Maryland to "inhabit and plant" was entitled, without cost or charge, except the annual quit rent, to one hundred acres of land for himself, a like quantity for his wife, every child over sixteen, and each servant, and fifty acres for every child under sixteen years of age, to be held
1 The area of Maryland is 6,000,000 acres, exclusive of its water area, which is about 1,000,000 acres. The territory within its charter limits comprised about 10,000,000 acres of land, embracing, in addition to its present domain, the entire State of Delaware, that part of Pennsyl- vania lying south of the parallel of Philadelphia, extending to the most westerly ridge of the Alleghanies, a part of the Eastern Shore of Vir- ginia, and that part of West Virginia lying between the North and South Branches of the Potomac-McMahon, pp. 18-59; Brown, pp. 134- 137; Local Institutions of Maryland, pp. 8-9. While not within the scope of this treatise to deal with the methods by which Maryland was robbed of her territory, it should be noted in passing, that they furnish a disgraceful commentary upon the times, reflecting alike upon the English Crown and the beneficiaries of the spoils.
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by "him and his heirs and assigns forever", in free and common socage" of Baltimore as the Lord Proprietary.1
In 1641, the amount of land given, was reduced to fifty acres for every adult, and twenty-five acres for every child .?
If those transported exceeded a certain number, he was entitled for their transportation, not only what they could each separately have claimed, had they come at their own expense, but to an additional quantity, proportioned to the number, age, and sex of such persons transported, the largest premiums being paid for males between sixteen and fifty, and females between fourteen and forty, years of age-thus induc- ing small but vigorous settlements in the Province, which would become the industrial centres of their respective locali- ties.3 It also depended upon the time of immigration. At first 2000 acres were given for the transportation of five men, but, in 1636, the number was increased to ten, and, in 1641, to twenty able men and women, between the ages above mentioned.4 A further consideration imposed by the last mentioned proclamation, was that each of said twenty-persons, as a means of giving additional military defense, should come provided with the following arms and ammunition: "one musket or bastard musket ; 10 ibs. of powder ; 40 lbs. of lead, bullets, pistol and goose shot, each sort some; one sword and belt, and one brandeleer and flask"." Special grants of larger size were sometimes made from personal considerations, or on account of public or private services rendered.
In 1683, however, Baltimore, deeming these inducements no longer necessary to insure the success and prosperity of the colony, abolished them, and adopted a new "land system", under which no premiums were offered for the transportation
1 The grants, it appears, were intended to be for an indefeasable estate of inheritance in fee simple .- Kilty, p. 32.
2 Kilty, pp. 29-31 ; Relation, 1635; Archives (Cl. Pro. 1636 and 1641) pp. 47 and 99.
3 Local Institutions of Maryland, p. 15.
+ Kilty, pp. 29-31 ; Archives (C1. Pro. 1636 and 1641) pp. 47 and 49. 5 Ibid.
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of person, and those desiring to obtain land had to pay, in addition to the annual quit-rent, a definite amount of purchase money. This was called "caution money", because it had to be paid before the warrant could issue.1 At first, the amount charged was only 50 lbs. of casked tobacco for every fifty acres, if along the seaboard, or 100 lbs. if in the interior,2 Subsequently it was increased to 40 shillings per one hundred acres, and, in 1738, to £5 sterling, on which basis it continued until the American Revolution.8
Under the first proclamation the right to take up land, was without restriction as to nationality, but by the one of 1636, it was expressly limited to persons of "British and Irish descent",4 except that grants could be made, after 1648, to persons of "French, Dutch, and Italian descent", in the discretion of the Governor®-a limitation which was not removed until 1683, when, for the first time, the lands of Maryland were open to all persons "living in or trading within the Province", who choose to purchase them.ª
This right, however, did not extend to corporations, religious or temporal, which, indeed, as early as 1641, were prohibited from acquiring or holding land in Maryland in any manner whatsoever, or enjoying any of the uses in them which were forbidden by the "Statutes of Mortmain prior to Henry VIII", without special license under the hand and seal of the Lord Proprietary.
In no other State did the statutes of Mortmain take root, but the early act of Baltimore in introducing them in Mary- land, made a lasting impression. His order, as applicable to ecclesiastical bodies, was substantially incorporated in the Maryland Bill of Rights, and it is the law of Maryland to-day, that lands cannot be given, sold, or devised to religious
1 Kilty, p. 124. 2 Archives (C1. Pro. 1683) p. 142.
3 Ground Rents in Maryland, p. 19.
4 But this included natives of Scotland, the union having previously taken place, and also natives of Wales, who were British by a still older title.
6 Archives (C1. Pro. 1636, 1641, 1648) pp. 48, 99, 222.
6 McMahon, p. 173.
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bodies, or for religious uses, except to the extent of two and a-half acres for church and church yard, without sanction of the General Assembly.1
At first, the grant was obtained by filing an application with the Secretary of the Province. If the claim was duly substantiated by proof of the date of immigration, etc., a certificate to that effect was issued and addressed to the Governor, who, on application of the holder thereof, issued a warrant to the Surveyor General, commanding him to "survey and lay out" the land therein specified. On the execution of this warrant, and on the application of the holder, a patent was issued, signed by the Governor and attested by the Secretary and Surveyor General of the Province.
There being no time at first fixed for the surrender, and the certificates and warrants being assignable before the patent was issued on them, owing to the scarcity of coin, and the inconvenience of tobacco as a currency, they were fre- quently transferred and passed about as so much money.3
But, in 1643, it appearing that many persons had long since obtained certificates and warrants for land for which no patent had been issued, (thus depriving the Proprietary of his "quit rents", which did not commence until after the date of the patent), a proclamation was issued, requiring the holder to surrender them and take out grants for the same within twelve months from that date, under "pain of being refused the grant after said time",4 which largely did away with their value as a circulating medium.
While it would seem that the Proprietary intended from the outset, that all land grants should be under the great seal of the Province, for many years they were issued under the hand and seal of the Governor alone, and it was not until 1644, when the duty of authenticating patents devolved upon the Chancellor of the Province, that the great seal was
1 Maryland Bill of Rights; Maryland Constitution, Article xxxviii.
Kilty, pp. 64, 65; Local Institutions in Maryland, p. 27.
3 Kilty, p. 77.
4 Ist Council Book, p. 98; Kilty, p. 35.
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attached.1 In 1680, the "Land Office", under the super- vision, at first of a "Register", but later of a "Land Council", and still later of a "Judge of the Land Office", was established, and it became the place where all proceedings relating to the sale and granting of land were subsequently conducted.2
The Lord Proprietary, by the express terms of the Char- ter, held his lands of the Crown, in "free and common socage, by fealty only for all services", and his grantees held of him by the same tenure.8
Tenure is the "stipulated condition under which real property is held" and socage tenure was that class of them in which the conditions were honorable in respect to quality and certain in respect to quantity and the time of exacting them, as distinguished from other species of tenures, which were base and servile as to character of conditions, and precarious
1 Bland, Maryland Reports, I, p. 308. 2 Ibid.
The first "Surveyor General" of Maryland, was John Langford, and his commission, dated March 24, 1641, furnishes the only instance on record of an office held for life. The first Register of the Land Office was John Llewellin, who had been Chief Clerk to the Secretary of the Province and was hence familiar with its land affairs. The first "Land Council," appointed 1684, consisted of Major Nicholas Sewall, Colonel Henry Darnall, Colonel Edward Digges ard Mr. John Darnall. The first Judge of the Land Office appointed 1715, was Mr. Philomea Lloyd, then Deputy Secretary of the Province. He was succeeded in turn by Edmond Jennings, 1732; Levin Gale, 1738; Phillip Thomas, 1743; (the last sole Judge) Benjamine Tasker and Benjamine Young, 1746; Bene- dict Calvert and George Steward, 1755; who continued until the Revo- lution .- Kilty, pp. 64, III, 270.
3 The estates held by the settlers were called freeholds in Acts of Assembly and elsewhere, but they were not freeholds of the present day. Being subject to the annual quit rent, they were estates in trust, rather than allodial estates, and were feudal in form, if not in essence. The holdings being assignable and transmissable, formed an actual estate of inheritance.
Restrictions, however, could be placed by lords of manors upon their under tenants, and there is no evidence that a manor could be sub-divided into smaller manors by the tenants. But it was quite common for the lords of manors to subinfeudate parts of their estate. This privilege was granted by the conditions of 1649. They were empowered
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and uncertain as to quantity and time.1 At the date of the Maryland Charter, this was the most popular of all the English tenures, and the "free, certain, and pacific services" incident to it, gave it advantages, as applicable to Maryland, in encouraging immigration and promoting industry, which none other possessed.2
It was a remnant of feudal tenure, and to maintain its character as such, the Proprietary grants were so framed as to require the land to be held as of one of his manors, named in the patent, the grant to him being held of the Castle of Windsor.ª
The condition and services attached to the grants, were also of a feudal nature, and while many of the feudal incidents of socage tenure in England appear never to have prevailed in Maryland, those of fealty, rent, escheat, relief, and fines for alienation and devises were exacted.
Fealty-allegiance or fidelity to the Lord Proprietary- was an inseparable incident of every grant, and all persons holding land in the Province, were required to take either the "oath of fidelity" or "subscribe the engagement" (a substi- tute for the oath) before the patent was issued. And this could be demanded more than once, under penalty of being "proceeded against as rebels and traitors", and seizure and forfeiture of the lands.4
Escheats, as they existed in early Maryland, may be defined to be, the reversion to the Proprietary, of the land granted, upon the conviction of the tenant of crime, or upon his death without heirs-the land being taken in lieu of the feudal services, which there was no one to perform. They still exist, but upon a wholly different principle-that of property without an owner, and which reverts to the State, to
to grant any portion of their manor, save the demesnes to any English subject, either in fee simple or fee tail for life, lives, or years, and under such rents not prejudicial to his lordship's royal jurisdiction .- Local Institutions of Maryland.
1 Kilty, p. 24; McMahon, p. 168.
2 Ibid.
3 Ground Rents in Maryland; Kilty, p. 24.
4H. & McH. Maryland Reports, 3; Bozman, p. 403.
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be held for the benefit of all of its citizens. For many years , it was deemed necessary here, as in England, to establish the fact of the escheat by the inquisition of a jury, before the lands could be again disposed of by the Proprietary, and for that purpose an "Escheator" was appointed. But in the interval between 1692 and 1715, when the government of the Province was in the hands of the Crown, although the Proprie- tary's right to the soil was admitted, it was found impracti- cable to have the "inquest of office" executed, and grants for escheated lands came to be made without it, a practice which continued after the government was restored to the Proprietary, and the one which has been followed ever since.1
Fines were the charges imposed upon the tenant for the privilege of selling or devising the land. Under the socage tenure, the tenant could not pass his title to another without the consent of the landlord, who, for the trouble and incon- venience of accepting a new tenant, was entitled to compen- sation. In Maryland this consisted of one year's rent, equal in amount to the quit-rent reserved on the land disposed of, and it had to be paid before the sale or the devise became effective or capable of passing the title.ª This badge of feudalism was abolished in England as early as 1660, but remained in force in Maryland until 1780, except fines for devises which were suspended by order of the Proprietary, in 1742.3
Relief, as applicable to Maryland, bore close analogy to fines, it being the sum exacted upon the tenant dying intestate, and the land passing to the heir at law. It, too, was equal in amount to one year's rent, and had to be paid before the title could vest in the heir, after which the estate was "relieved" from the lapsed state into which, by theory of the feudal law, it had fallen.4 This, like fines for devises,
1 10th G. & J. Maryland Reports, p. 451; Ist Bland, Ibid, p. 307; Ist Gill, Ibid, p. 506.
2 Ground Rents in Maryland, p. 31.
3 McMahon, p. 175.
4 Ground Rents in Maryland, 23 and 24. -
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was considered by the inhabitants of the Province a great hardship, and, in 1742, it was abolished.1
Rent, as an acknowledgment of the tenancy, as well as for the revenue, was always reserved in the grants of Mary- land lands. These rents were called "quit rents", because being a fixed sum reserved in lieu of the indefinite feudal services due the lord of the fee, the tenant was "quit" and discharged from the performance of such services.2 They were payable annually, and were perpetual in point of dura- tion and irredeemable.3 The amount depended upon the date of the grant, or rather the date of the "Condition of Plantation" under which it was issued. In the earlier grants it was only Ioibs. of wheat per annum for every 50 acres. This was soon increased to 151bs., then to one shilling, and, in 1648, it was raised to 3 shillings,4 after the first seven years of the lease and to 20 shillings after the next 14 years on which basis it continued until the Revolution. After 1648, manorial lands were subject to 40 shillings for every 2000 acres, for the first seven years ; 40 bushels of wheat, or £6 sterling, for each of the succeeding fourteen years, after which to the twentieth part of the annual yield of the land, of fio sterling.5 In a few special cases, however, grants were made, by order of the Proprietary, for a mere nominal consideration, exacting as a token of fealty only, for the whole tract granted, the annual render of a capon, a pair of pullets, an Indian arrow, or a bushel of corn.®
Owing to the scarcity of money in the Province, quit rents were, in 1671, commuted to payments in tobacco, at the rate of two pence per pound, a duty of two shillings (half for
1 Proclamation of Governor Bladen, October 20, 1742.
2 Ist Bland, Maryland Reports, pp. 43, 96; Ground Rents in Mary- land, p. 15.
3 See interesting and valuable criticism of Mr. Lewis Mayer ("Ground Rents in Maryland," 15 and 16) as to whether Maryland quit rents were "rent charges" or "rent service."
4 Archives (C1. Pro. 1636, 1641, 1648) pp. 47, 99, 22I.
5 Ibid, 1648, p. 223. " Kilty.
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the Proprietary personally, and half for the defense of the Province) being imposed on all exported tobacco, in consider- ation of an agreement on his part to receive his rents and fines in that commodity.1 This continued until 1717, when an Act was passed giving to the Proprietary, for his exclusive use, a duty of two shillings sterling on every hogshead, and four pence sterling per hundred on every box of tobacco exported from the Province, in full discharge of his rents and fines.2 But this Act expired in 1733, and they again became payable either in money, or in the commodities of the country, as the patent prescribed.ª
The "Maryland quit rents" were, from an early period, a source of trouble to the people of the Province, and a constant subject of their complaint, not because of the amount involved, but the inconvenience and difficulties attending the payment of them. This was particularly the case after the system of allowing payment in tobacco, and the subsequent provision for payment by an export duty, expired. Repeated efforts were made to get these systems renewed, or to obtain some other which would afford an easy mode of payment. In 1744, the Assembly offered to increase the former export duty on tobacco to two shillings and six pence sterling, if the pro- prietary would accept it in lieu of his rents, but the proposi- tion was declined. The following year an effort was made to purchase them, the Legislature offering to pay the Proprie- tary, in consideration of his rents and fines, five thousand pounds sterling annually, but this likewise failed, and they continued to be collected, according to the requisition of the patents, until the American Revolution,4 when, the Proprie- tary being a British subject, his rents and other landed rights in Maryland, were seized and confiscated by the State, which, declaring quit rents to be "incompatible with absolute sover- eignty", promptly abolished them, and forever "exonerated and discharged" the citizens of the State from the further payment of them. Constructively, fines were also abolished,
1 Act, 1671, C. II; McMahon, p. 178.
2 Act, 1717, C. 7.
4 McMahon, p. 170.
3 McMahon, p. 170.
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so that by this Act, the people of Maryland were relieved of two features of their land tenure, which they had so long regarded a source of public grievance.1
The quit rent, though not in all respects analogous, was the origin and foundation of the present ground rent system in Maryland. It was a small rent when considered individ- ually, but collectively, it was a large source of revenue to the Proprietary, estimated, in 1770, to amount to £8,400 sterling,2 and, at the time of the Revolution, his rents and other reve- nues from land were estimated at £30,000 sterling annually.3
In 1780, the General Assembly passed an Act which provided, "that all property within this State (debts only excepted) belonging to British subjects shall be seized, and is hereby confiscated to the use of the State", and at the same time, William Paca, Uriah Forest, and Clement Hollyday, were appointed commissioners to preserve said lands.4
It was subsequently contended that this Act was ineffec- tive, inasmuch as it provided for confiscation without formal entry and seizin. But the Supreme Court of the United States held, that under the Act no seizure was necessary, and that "the commissioners were, by operation of law, in full and actual seizure and possession of the property, though no entry or other act had been made or done", and also, that the law, itself constituting the actual confiscation and seizure, embraced all land in the State held by British subjects, even though it was not discovered until after the treaty of peace, 1783, which declared that no more confiscations should be made .*
Henry Harford, to whom the Province was devised by Frederick, the last Lord Baltimore, estimated the loss of his lands, rents, and fines in Maryland, through the "Confisca-
1 Act, 1780, C. 18. The abolition of the Proprietary "quit-rents" did not of course interfere with rents issuing from long leases, known as "ground rents" and owned by private individuals.
McMahon, p. 172.
3 Scharf, 2, p. 374.
* Act, 1780, C. 45, 49.
$6 Cranch, United States Supreme Court Reports, p. 286.
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tion Act", at £447,000 sterling, and filed a claim against the British Government for that amount. He was only allowed £90,000, of which £20,000 went to Louisa, the wife of John Browning, and Caroline, the wife of Sir Robert Eden-the devise to Harford being subject to a charge of £10,000 to each of the said sisters of Frederick, Lord Baltimore.1
In 1783, Harford applied to the Legislature of Maryland to compensate him for the loss of his "quit rents", alleging that they were not within the "Confiscation Act", but the Assembly determined that they were "subject to all the rules and consequences of real estate", and refused either to pay for or restore them, declaring at the same time that the people of Maryland should not occupy "the degraded condition of tenants to a superior lord, a foreigner, and a British sub- ject".2 A similar effort was made as late as 1821, by Charles Browning, son and heir of Louisa Browning, with like result, and five years later, it was attempted to establish the right to them through the Supreme Court of the United States, upon the ground that the Proprietorship of Maryland belonged to Louisa Browning on the death of her brother, Frederick, without lawful issue.3 This interesting question, however, was ignored by the Court, which decided that whatever rights Louisa Browning may have had in the premises, they had been extinguished (for the purposes of that case) by an agreement made in England between all the parties in inter-
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