USA > Maryland > Chronicles of colonial Maryland, with illustrations > Part 9
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1 Scharf, 2, p. 394. 2 Ground Rents in Maryland, p. 37.
3 Charles Lord Baltimore, died in 1751, having devised the Province of Maryland to his son Frederick and his assigns, for life; remainder to the sons of said Frederick, lawfully begotten, successively in tail male ; remainder to the daughters of said Frederick; in default of such issue, then to his oldest daughter, Louisa (wife of John Browning), in fee, subject to a charge of £20,000 sterling in favor of his daughter, Caro- line (wife of Governor Robert Eden). Frederick Lord Baltimore, died in 1772, without lawful issue, having devised the Province to his illegiti- mate son, Henry Harford and his heirs male, lawfully begotten, and in default, to the heirs male of his illegitimate daughter, Frances Mary Harford, subject to a charge of £20,000 sterling for his two sisters, Louisa Browning and Caroline Eden. In 1761, and again in 1767, Frederick Lord Baltimore attempted to dock the entailment of Maryland
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est, that, for certain considerations, the devise of the Province to Henry Harford should be allowed to stand.1
The last public use and official notice made of the old "Rent Rolls"" and "Debt Books", in which were kept the rents and fines due by each individual, and the land on which it accrued, was in 1777. That year, land in Maryland, for the first time, was made the subject of direct taxation. The Act under which this was done-one of the earliest passed by the first General Assembly of the Republic-provided that from "them" should be made "complete lists of the names and quantity of acres of every tract of land, and to whom the
made by his father's will. Query-Could 'the Province itself be en- tailed? If it could, was it practicable to dock the entailment by a com- mon recovery suffered by the Proprietary, in person or by attorney, in one of his own courts in Maryland? By the will of Frederick, Lord Baltimore, £1500 sterling were bequeathed to Peter Prevost, and a like sum to Robert Morris, and made chargeable upon Maryland. Peter Prevost married Hester Wheland, the mother of Henry and Frances Wheland, alias Harford, and Robert Morris married Frances Harford. -2d H. & McH. Maryland Reports, p. 277; Scharf, 2, pp. 137, 139. 1 Cassell vs. Carroll, II, Wheaton, p. 136.
2 When Cecilius, Lord Baltimore, established his "Conditions of Plantations," he furnished the basis of a pretty accurate census of the early settlers of his little American kingdom. From the first, lands were granted to those who transported persons into the colony, "to inhabit," and the names of those "transports," as they are called, are entered in the records of the Land Office of the Proprietary. At least this is true up to about 1680, a few years after the death of Cecilius, when the practice seems to have fallen into disuse, and from that time on, the record of immigrants is fragmentary and of little value. Prior to that time, however, it is safe to say that nearly every one who came as a "transport" had his name recorded, and of these an index has lately been compiled in the Land Office of the State.
It was found that of the 20,859 persons who came to Maryland prior to 1680, 15,640, or 74.98 per cent., were males, and 5,219, or 25.02 per cent., were females. Eighty-two family names were represented by more than twenty-five persons each, and aggregated 4,471 immigrants, being 22.87 per cent. of the whole number. The Smiths lead with 262 representatives, but the Joneses are a close second, with 254, and if we. include the twenty-five Joaneses-evidently a misspelling-they lead the, Smiths by seventeen. The Williamses hold a respectable third place, with 194 names, and the Johnsons are not a bad fourth, with 133. The Davises and Taylors each number over a hundred.
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same belonged", for the tax commissioners of the several counties, as a means of supplying the data and information by which the new law was to be put into operation.1
Thus was the fabric of Maryland's early land tenure swept away by the storm of the American Revolution. All landed rights which were granted under the Charter to Cecilius
There is little doubt that the different spellings of the same sound- ing name are to be attributed more to the clerks, who had no settled rule about it, than to the fancy of the individuals, very few of whom, probably, could spell at all.
Twenty-nine of the ships, which traded with the mother country, are recorded in the index, including the Ark, and among them we find the names, Baltimore, Cecilius, Constant Friendship, Golden Wheat Sheaf, King Solomon, Maryland Merchant, True Love, and others.
Most of the old noted families of the State, have here recorded the first of their names who came to Maryland-the Lloyds, Goldsboroughs, Tilghmans, Dents, Winders, and scores of others. There was also an Arnold Elzey in those days. Naturally, there were some odd names- "Ringing Bell" and "Thomas Birdwhistle" have a cheerful sound; "Peter Blackboard," is decidedly pedagogic; "Nicholas Broadway," smacks of arrogance; while, "Samuel Churchyard," casts a gloom over the company, which needs "Hannah Godsgrace," as an antidote. "John Godsgrass" and "James Tendergrass" are properly within easy reach of "Mary Greengoose." We run across "John Halfway," "John Halfe- head" -- who, by the way, sat in the first Assembly, in 1634 and 1635- and "Thomas Halfpenny." "Margaret Nutbrown" suggests the fields and forests of merry England. "Edward Rainbow" seems to have faded away in the morning of the young commonwealth, as we find no further trace of him. "Robert Sidebottom" is a little contradictory. "Francis Silversides" was a palpable anacronism; he should have lived in our day, and represented Nevada in the Senate of the United States. "James Wildgoose" led quite a flock into the colony, but they seem to have sought other feeding grounds. In "All Saints Buelis" and "Jehovah Jones," we catch a strong whiff of the Puritan element in Baltimore's followers. "John the Fidler" is suggestive of revelry.
While the Maryland colony was, in the main, free from hostile Indian incursions, its early history had, nevertheless, its tragic side, as we discover in the following entry: "Richard Thompson further pray- eth, in consideration of transporting his wife, child, maidservant, Don- sabel Gladdus, and other two men servants, that is to say John Thomp- son and Hubert Smith, to have confirmed to him the island to the south-
1 Act, 1777, C. 21.
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Calvert, the Baron of Baltimore, became merged in the sov- ereignty of Maryland and vested in her citizens, and lands became allodial, subject to no feudal incidents and to no tenure, save allegiance to the State.1
ward of the isle of Kent, called Poplar's Island, which he was possessed of by grant of Capt. Wm. Claybourne, and where he inhabited till in the year 1637 they were massacred by the Indians.
Negroes were brought in very early, the first entry being of "Dina" in 1637. A few others are named including Mathias Tousa, "a molatta." It would seem that lands were not always granted for negroes trans- ported. Thomas Skinner, in 1664, transported fifteen persons, including the negroes Robert, Francis and Maria, but "rights" were refused for the negroes.
Lord Baltimore made many special grants of land to friends, and gave substantial recognition to those who had performed meritorious service. Thus, in a special warrant dated at London, May 22, 1637, his lordship recites :
"Whereas we are informed that Cyprian Thoroughgood hath done unto us and the colony good service, especially in the business of Pocomoke, we have therefore thought fit, at his request and for his better encouragement, to give him 300 acres of land."
A similar warrant was given to Lieut. Robert Troop for "services at Severn ;" and also to John Bayley, "son of John Bayley, late of our said province, planter, who lost his life in our service in Anne Arundel county in the late war there."
The allusions to expeditions to distant parts of the colony are frequent, but unfortunately no details are given.
A strange warrant was given to John Abbington, Gent., "to hunt wild cattle and keep an Indian."-Baltimore Sun, Feb. 9, 1894.
1 10 G. & J. Maryland Reports, p. 444.
CHAPTER VII
The Land Tenure of Colonial Maryland
T HERE was no legally established system of transferring land in the earlier history of Maryland, and the records are replete with examples of the inconveniences felt and the losses sustained in consequence of it.
In the absence of a better method, it was usually done by writing the transfer on the back of the patent, or on a sepa- rate sheet of paper and delivering it to the grantee, or by placing the grantee in possession of the land by livery of seizin.1
The latter-a mode of conveyancing at common law-was accomplished by the actual or constructive entry of the grantor and grantee on the land, which was then symbolically delivered in the presence of witnesses from the neighborhood, thus giving notoriety to the transaction and making known the change of owners.2 In 1663, a more uniform system of conveyancing was adopted. By this Act, transfers, by bargain and sale, of real estate were to be in writing in- dented and sealed, and recorded within six months, either in the Provincial Court, or in the Court of the County in which the land lay.3
1 Kilty, Appendix, p. 36; Bozman, p. 58. 2 Blackstone. On Saint Gabriel's Manor (now Point Lookout) Martin Kirk, in 1656, was given seizin of a part of the Manor "by the rod," which was done by the steward and said Kirk each taking hold of an end of the rod, and the former saying, in the presence of witnesses, "the lord of this manor, by me, the steward, doth hereby deliver you seizin by the rod, and admit you as tenant of the premises," and the said Kirk, "in full court," "having done his fealty to the lady of the manor (Miss Margaret Brent) is thereof admitted tenant."-Bozman, p. 581.
3 Archives, Act, 1663, p. 489.
Bozman says a system was adopted in 1639, but this is an error.
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To this was added, in 1671, the necessity for the acknowl- edgment of deeds, to be made either before a Judge of the Provincial Court, two members of the Privy Council, or two Justices of the Peace of the County in which the land was situated, the acknowledgment of married women to be taken privately, and out of the hearing of their husbands.1
These acts, however (which were re-enacted in 1692, when the government of the Province was assumed by the Crown), did not apply to conveyances of land made by Lord Baltimore, and were confined in their application, as between other persons, to deeds of "bargain and sale" only2-a deed in which the grant is made for a valuable consideration, as distinguished from a feoffment-a deed of gift, accompanied by formal delivery of the property.3
As enrollment took the place of livery of seizin, the latter became unnecessary after 1715, in case the deed was recorded ; but, as no deeds could be recorded, except deeds of "bargain and sale", this ancient custom still continued in practice, to give efficacy to other species of conveyancing, and it was not until 1766, when provision was made for the acknowledgment and enrollment of all kinds of deeds, that it was formally abol- ished.4 After 1766, deeds took effect from the date of their execution, and not from the date of enrollment, as the law had hitherto provided they should.5
A bill for that purpose was introduced, but did not pass. Bacon inti- mates that the Act of 1663, did not pass, but this is an error also. See Archives (Ass. Pro. 1663) p. 487, and same 1666, p. 46.
1 Archives, Act, 1671, p. 305.
22 H. & McH. Maryland Reports, p. 279.
3 If, however, the owner of the property was a non-resident, but a "trader" in the Province, before the deed or conveyance became effec- tive, the person to whom it was made had to give bond, approved by the Chancellor, to pay and satisfy all debts of the grantor due and owing to any person or persons living in the Province, to the extent of the value of the land conveyed .- Act. 1753, C. 36.
4 IO G. & J. Maryland Reports, p. 443; Act, 1715, C. 47.
5 Act, 1766, C. 14.
Under the Act of 1766, C. 14, deeds had to be acknowledged either in the Provincial Court, or before a Judge thereof; or in the County
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The old custom of indenture-cutting the deed unevenly on the top and sides so as to make it correspond to a duplicate -was as indispensable to the validity of deeds in early Mary- land as was the name of the grantor. And it was necessary too, for it to be actually indented, and not simply an indenture in name.
The last mentioned Act made this necessary as to feoff- ments and other deeds to which it extended, but as it did not apply to deeds of "bargain and sale", then the most general in use, the indenting of that class of deeds continued to be necessary until 1794, when this requisite was declared no longer essential.1
A good possessory title to lands in Maryland, could be acquired under the Act of 1663, by an "undisputed, contin- uous, and uninterrupted possession" for the period of five years, except as against married women, infants, lunatics, and persons out of the Province, or of unsound mind, any of whom could sue for the recovery of the lands and within five years after the removal of such disability .? Nor did it apply to the Proprietary of the Province, as to his unpatented lands, though it did as to those he claimed by escheat, until he had formally repossessed himself of them.8
The Act of 1663, however, did not remain in force many years. It was superseded by the English statute (21 James I. ch. 16), and the one by which questions of possessory title are still determined in Maryland.4
The descent of lands in early Maryland was regulated by the English rules and canons of inheritance. By the Act of
Court, or before two Justices of the Peace. If made before either of the two latter, and out of the county in which the land lay, the clerk's certificate to their official character was required. Deeds thus acknowl- edged could be enrolled either in the county in which the land lay, or in the Provincial Court, and, after 1776, in its successor, the General Court-2nd H. & McH. Maryland Reports, p. 45I.
12 H. & McH. Maryland Rep., p. 176; Act, 1766, C. 14; Act, 1794, C. 57.
2 Archives, Act, 1663, p. 501.
33 H. & J. Maryland Reports, p. 507.
‘I H. & J. Maryland Reports, p. 350; Venable, p. 23.
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1642, lands were to "descend to the heir who hath right by the law of England". If such heir was not in the Province, the heir next in succession was to hold it for his use, which possession, if undisturbed for seven years, ripened into actual ownership. The widow, in addition to one-third of the land, was entitled to the mansion house during her widowhood.1 Among the curious bills introduced in the first Assembly held in the Province, but which, like all the others of that session, failed to become a law, was one which deprived a woman of lands descending to her, unless she married within the age fixed by law.'
Under the English rule, thus introduced in Maryland, males inherited to the exclusion of females, and of the male issue, the oldest son, in the absence of a will, succeeded to the entire estate. Custom followed close to the law, and even where wills were made, the oldest son generally received the "lion's share" of the estate.
This partial and unjust rule of "primogeniture", as it was called, had its origin in the feudal ages, when it was deemed important to keep the estate entire, and when the oldest son was supposed to be the one best capable of taking his father's place, and of performing the military services which were incident to the grant. Later, it was maintained in England as a means of supporting nobility and its titles. Its introduction in Maryland was not due to either of these reasons, though it did, in effect, help to sustain the leadership of the great Maryland families, but was most probably the result of the want of a better system, and the bondage of the people, at that day, to English traditions and institutions.3
At the time of the American Revolution, however, Eng- lish ideas and customs were not so popular in Maryland, and in 1786, the General Assembly declared, "that the law of
1 Archives, Act, 1642, p. 157.
2 Shea, p. 51.
3 There were, also certain local modes of inheritance, which pre- vailed in England by custom, such as "borough English" and "ultimo- geniture"-the former the right of the youngest son to the entire estate, and the latter the right of the youngest son to the homestead. These customs were predicated upon the theory that the oldest sons were pro-
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descent in Maryland, which originated in the feudal system and military tenures in England, was contrary to justice, and ought. to be abolished". It was, accordingly, done, and sub- stantially the same rules of descent as those now in force, were adopted in its stead.1
The law of entailments, by which lands could be trans- mitted for generations in the line of a particular heir, was also practically swept away by the same Act, which declared, that estates in tail general, should descend in fee simple, and to the same heirs at law, as fee simple estates.
An Act2 had hitherto been passed, making it practicable to "bar" or "dock" entailments, by a simple conveyance of the property, and though neither of these, in terms, converted estates in fee tail into fee simple estates, they did so in effect, by vesting in the owner all the rights and powers incident to the ownership of fee simple estates.3
While entailments found a successful lodgment in Mary- land, the restrictions surrounding them were too numerous and inflexible for popularity, and the records furnish repeated instances of efforts having been made to "dock" them by the old process known as "common recovery", long before the Revolution.4
vided for during the lifetime of the father, and that the youngest re- mained at home and cared for his parents in their old age and infirmity. They were never introduced in Maryland, but the latter of them did pre- vail in some of the New England colonies, and, it is said, still exists in some of the northern counties of New York .- Social Condition of the Colonies.
1 Act, 1786, C. 45.
2 Act, 1782, C. 23.
3 21 Maryland Reports, p. 477.
The Act of 1786, providing for the descent of estates tail, applied only to estates of fee tail general-those limited to heirs of the body generally. This Act, as re-enacted in 1820, is the one now in force, and, as it does not embrace estates tail special-those limited to particular heirs of the body-the latter class, it would seem, can still be created and exist in Maryland, but subject always to the possibility of being barred by the tenant in tail conveying the property as provided by Act of 1782, which applies to all classes of entailments, and which makes the grant of the tenant in tail, operate to convert the entailment into a fee simple estate.
4 It is curiously recorded of one of the patriarchs of Colonial Mary-
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THE LAND TENURE
Under the Maryland Charter, the Proprietary was ex- pressly authorized to erect manors "according to English customs and usages", and in the exercise of this right, he directed that every distinct tract of two thousand acres, or more, might be erected into a manor, under such name as the owner desired.1
While many of the larger tracts in Maryland were called manors by reason only of the quantity of land they contained, there were a large number of manors, formally erected in the Province and invested with all the "royalties and privileges usually belonging to manors in England", among them the right of the lord of the manor to establish and hold Courts Baron and Court Leet." This clause in the grant of Mary- land manors, was not a mere "high sounding symbol", but meant the practical introduction into Maryland of the English system of manorial holdings, with all the customs, powers, and emoluments, as well as the halo of importance, and dignity attached thereto.
The bestowal of this privilege upon the first Baron of Bal- timore-one which was at that time denied the great feudal Barons of England-indicates the high favor in which he was held by the Crown, and its incorporation in the Maryland Charter shows that he possessed a keen perception of its prac- tical bearing on his Maryland enterprise. Through the sys- tem he not only made provision for the government of the larger landed communities by which they would be kept under control, and yet he be relieved of settling their local affairs,
land, that, when importuned by his sons to break the entailment upon his estate, replied : "If one of you inherit the whole estate, I shall be responsible for the production of one fox hunter; if I divide it, I shall make as many fox hunters as I make heirs," thus illustrating the preva- lence of this sport among the landed gentry of that day.
-Old Maryland Manors, p. II.
1 By the first Conditions of Plantation, tracts of one thousand acres, or more, might be erected into a manor, but after 1641, the right to erect manors was restricted to tracts of not less than two thousand acres.
2 For an account of the Manorial Courts in Maryland, see Chapter, The Judicial System of Colonial Maryland.
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but it placed him in a position to gratify the strong demand of the times for local self-government, and at the same time check any undue growth of that spirit and prevent it reaching dangerous proportions.1
On the Maryland manors, generally resided the lord of the manor and his tenants, among whom the land was divided into small farms.ª Some of the tenants were mere renters from year to year; others held under leases for life or a term of years, while others purchased and owned the land on which they lived, but subject to all the duties and customs of manors in England. Among these, were rent, escheat, forfeiture, fines for selling or devising the tenament, or a change in the ownership by death of the tenant intestate, attendance of all between the ages of twelve and sixty years upon the Manor Courts, and the oath of fealty to the lord of the manor.
To the lord of the manor also belonged all escheats and forfeitures accruing from the land leased or sold, the former extending not only to cases in which the tenant died without heirs, but to those also, in which the tenant was in arrear in rent, and did not have sufficient personal property on the premises to pay it by distraint, and the latter to cases of rebel- lion. Instances are furnished in which both of these rights were exercised upon Governor Leonard Calvert's manors, the escheats being for non-payment of three years' rent, and the forfeitures for participation in Ingle's rebellion.3
In addition to the large number of manors laid out for private individuals, the Proprietary had at least two, of not less than 6,000 acres each, surveyed in every county, and set apart for his own use.4 Many of these were still in his pos- session at the time of the Revolution, and were subject to the Maryland Act of confiscation, among them the one of 10,000
1 Local Institutions in Maryland.
2 In Maryland, the demesne (the part occupied by the manor house, etc.) was the sixth part of the manor, that had to be distinctly set apart, and which could not be alienated, separated, or leased for a period longer than seven years .- Kilty, p. 39.
3 See details of these proceedings in Kilty's, p. 103.
* Kilty, p. 63.
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THE LAND TENURE
acres lying westward of Fort Cumberland, erected in 1764, and which, with other lands, was divided into "military lots" after the Revolution, and awarded to the officers and soldiers of the Maryland Line.1
There were, also, large manors laid out for the Indians, the principal one, perhaps, being Calverton Manor, containing about 10,000 acres, and located, says the order directing it, on "a tract of land at the head of Wicocomico River, called Choptico". It was erected in 1651, for the "six nations", who wanted to be placed under the protection of the Maryland government. This scheme of colonization, however, of making copyhold tenants of the Indians, seems to have been abortive, at least, so far as instituting a confederacy of the different tribes is concerned, as in 1692, the only one of them appar- ently living on the manor was the Chopticons.2
The gradual decline of the manorial system in Maryland, was not due to adverse feeling against the institution of manors and manorial customs, but to the introduction of slavery. When labor from that source became abundant and cheap, land could be worked more profitably with slaves than by tenants. The former, therefore, gradually supplanted the latter, and the "Maryland manor" became in time a "Mary- land plantation", cultivated by slaves, either in its entirety or as separate estates.
It has been charged that it was Baltimore's plan to found in Maryland an order of nobility, based on baronia! holdings. It is true, the Charter expressly provided that dignities and titles could be conferred, and incidentally, that a provincial peerage might be established, and that among the bills transmitted by Baltimore to the Assembly, in 1637 (but
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