The history of Maryland : from its first settlement, in 1633, to the restoration, in 1660 ; with a copious introduction, and notes and illustrations, Part 104

Author: Bozman, John Leeds, 1757-1823
Publication date: 1837
Publisher: Baltimore : J. Lucas & E.K. Deaver
Number of Pages: 1062

USA > Maryland > The history of Maryland : from its first settlement, in 1633, to the restoration, in 1660 ; with a copious introduction, and notes and illustrations > Part 104

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NOTE (XXXIX.) p. 166.

Prior to the commission appointing Mr. Giles Brent commander of the isle of Kent, it may be proper to state, that soon after the passage of the act of 1638-9, ch. 2, sect. 8, and the bill entitled, "an act for military discipline," recited in the preceding chapter, a commission issued to the same gentleman appointing him "captain of the military band," for the purpose, as it would appear, of carrying into effect, these legislative proceedings relative to the militia. As Mr. Brent was a man of the first rank in the province during his time, these commissions to him seem to assume the importance of state papers, the exhibition of which it would be improper to omit, especially as they illustrate the military proceed- ings of the province at this period of time.

Commission to Mr. Giles Brent, appointing him "captain of the military band."

"Cecilius, &c., to our dear and faithful councillor Giles Brent, esqr., of St. Mary's in our province of Maryland, greeting. Whereas the military band of our colony of St. Mary's is now destitute of a captain to lead and command them and to exercise them in the military discipline, we, much relying upon your diligence, skill, and knowledge, have thought fit to commend unto your- self that care and charge, and therefore we do hereby constitute and ordain and appoint you to be captain of the said military band next under our lieutenant general, and to be henceforth called and esteemed, authorizing and withal re- quiring you according to the trust and charge belonging to that place to train and instruct all the inhabitants of our said colony able to bear arms, (those of our council excepted,) in the art and discipline of war on holydays and at any other time when there shall be need, and by yourself or your serjeant or other officer, once in every month if you shall find it needful, to view at every dwell-

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ing house within the said colony the provision of necessary arms and ammuni tion, and where you find any defect to amerce the party failing at your discre- tion, so that it exceed not 30 lb. tobacco for one default, and further to punish. any delinquent in any kind offending against the discipline military, and with the consent or direction of our lieutenant general to use, appoint, and command all power and means necessary or conducing in your discretion to the safety or defence of the province in as ample manner and with as ample and full power to all intents and purposes as any captain or commander useth or of right may or ought to use by virtue of his office of captain. Witness our dear brother Leonard Calvert, esqr .- Given at St. Mary's this 29th of May, 1639."

From "Council Proceedings from 1636 to 1657," p. 38.

Commission to Mr. Giles Brent, appointing him "commander of the isle of Kent."

"Cecilius, &c. to all persons, &c., know ye, that we, reposing especial trust and confidence in the fidelity and wisdom of captain Giles Brent, esqr., one of the council of our said province, have constituted and appointed, and by these presents do constitute and appoint the said Giles Brent to be commander of our isle of Kent within our said province, to rule and govern the inhabitants and all other persons for the time being or which shall be within our said island ac- cording to the powers hereafter committed to him, that is to say, in all matters of warfare by sea and land necessary to the training of soldiers and levying of them upon all occasions to the resisting of the enemy or suppressing of mutinies and exercising of martial discipline within or about the said island, to do all such things as to a captain do belong by the law of war, and in all causes civil where- in right or damages is demanded by or of any inhabitant of that island to cause right and justice to be done according to the laws or laudable usages of this province, or otherwise according to the laws or laudable usages of England in the same or the like causes as near as he shall be able to judge, and to try all the said causes, and to use, command, and appoint all power and means necessary or conducing to the doing of right and justice as aforesaid, and in all causes criminal prosecuted for correction, not extending by the laws of England to the taking away of life or member, to try and censure all the aforesaid offences and offenders in any punishment as he shall think the offence to deserve and to elect and appoint all necessary officers for the execution of the power hereby com- mitted unto him, and to use exercise and execute all or any other power or pow- ers for the conservation of the peace within that island as may be exercised by any justice of peace in England by virtue of his commission or the law of Eng- land, and for the better assistance of the said Giles Brent in the execution of the premises we have appointed our beloved friends William Brainthwayte, gent., captain John Boteler, and Thomas Adams gent., inhabitants of the said island to be aiding and assisting to him both in their council and otherwise to the ut- termost of their skill and power to which end we likewise require the said Giles Brent to consult and advise with them on all occasions of importance. Given at St. Mary's, 3d of February, 1639. Witness our dear brother, &c."

From "Council Proceedings from 1636 to 1657," p. 43.

NOTE (XL.) p. 176. ".An act touching tobaccoes."

(As it is abridged in Bacon's Collection of the Laws, 1640, ch. x.)

"By this ancient inspection law, made within eight years from the first set- tlement of the colony (so early a regulation of the staple being found necessary ) it was enacted. (1.) No tobacco to be exported, till sealed by a sworn viewer, on pain of treble forfeiture. (2.) The commander of every county"to appoint and swear three viewers in every hundred. (3.) Any person might demand a

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viewer to view any tobacco wherein he might have interest, paying the fee. (4.) If any exception was taken at the viewer's judgment, the owner of the tobacco was to name one, the creditor or viewer another, and (if they dissented) the commander to name a third, which two or three should determine the ques- tion. (5.) Bad tobaccoes were to be judged, ground leaves, second crop leaves, notably bruised or worm eaten, or leaves house burnt, frost bitten, weather beat- en in the house, sooty, wet, or in too high case, so that the viewer, upon his- conscience, might reasonably think, that it was not likely to last sound till mid- summer following. (6 ) Where a hogshead was found bad for the greater part, it was to be burned ; where, for the less part, the owner was to forfeit four fold the quantity of the bad (so as it exceeded not the quantity in the case or chest) one half to the viewer, the other half to the lord proprietary. (7.) The viewer to have, for viewing, two pounds of tobacco per hogshead ; for receiving, four pounds ; and for burning, ten pounds of tobacco per hogshead. (8.) All cases and offences against this act, to be determined, &c., by the lieutenant general and council, or by the commander and assistants of any county, &c."

See also the record book in the office of the present court of appeals, entitled Liber C. & WH. p. 70.

NOTE (XLI.) p. 185.

The following document, relative to an election in England, illustrates that stated in the text. [Taken from the Annual Register, from the year 1769, p. 152.] "To our much honoured and worthie friend, J. H. esqr., at his house at Kelston near Bathe.

"WORTHIE SIR,-Out of the long experience we have had of your approved worth and sincerity, our citie of Bathe have determined and settled their reso- lutions to elect you for burgess of the house of commons, in this present parlia- ment, for our said citie, and do hope you will accept the trouble thereof ; which if you do, our desires is, you will not fail to be with us at Bathe, on Monday next, the eighth of this instant, by eight of the clock in the morning, at the furthest, for then we proceed to our election. And of our determination we intreat you to certifie us by a word or two in writing, and send it by the bearer to your as- sured loving friends,

JOHN BIGG, the Major, WILLIAM CHAPMAN."

Bathe, Dec. 6, 1645.

NOTE (XLII.) p. 186. "An act for measures." (1641, ch. 2.)

"Whereas the want of a sett and appointed measure whereby corne and other graine might be bought and sold within this provinee doth daily breed inconve- niences in passing thereof from man to man amongst the inhabitants thereof ; Be it enacted by the lord proprietarie of this province by and with the assent and approbation of the freemen of this province, that from henceforth the mea- sure used in England called the Winchester bushel be only used as the rule to measure all things which are sold by the bushel or barrel and all under propor . tions of dry measures to the bushel. The barrel to contain five of the said bush- ell and no more or lesse ; And that within forty days next after the proclamation of this act in every county the sheriff shall procure a good bushell to be made and syzed as above, and shall have a seal whereby he shall seal that and all other measures by, which bushell and seal the sheriff shall have always in his custody as a rule whereby others shall be syzed and sealed which are to be used in buy- ing and selling within the province and at the expiration of his office shall de- liver the said measure and seal to his successor to be kept as aforesaid.

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And every partie convict to have sold by any bushell or lesse or greater mea- sure unsealed or differing from the foresaid after the feast of all saints next shall pay treble damages to the parties grieved and a fine of one barrell of corne to the lord proprietarie. Provided likewise that for every bushell so syzed and seal- ed by that in the sheriff's keeping, the sheriff for his fee shall have from the par- ties whose bushell is, four pounds of tobacco. This law to continue for two years next after the day of this session."

Taken from Lib. C. & WH. p. 72.

NOTE (XLIII.) p. 205.

"Conditions propounded by the right honorable Cecilius Lord Baltimore, lord proprietor of the province of Maryland in the parts of America to such per- sons as shall adventure or go to plant in the province aforesaid, which condi- tions are to begin from the feast of the Annunciation of the Virgin Mary, 1642, and to continue until new or other conditions of plantation for the said province, shall be published under his lordship's hand and seal within the said province.

Imprimis. What person soever being of British or Irish discent that shall be at the charge to transport into the province of Maryland, himself or his deputy, with any number of able men, between the ages of sixteen and fifty years of age, of the discent aforesaid and furnished with arms and ammunition according to a particular hereunder exprest, or any number of women between the ages of four- teen and forty-three, shall be granted unto every such adventurer, for every twenty persons he shall so transport thither, in one year, a proportion of good land, within the said province, containing, in quantity, two thousand acres of English measure which said land shall be erected into a mannor and be conveyed by grant under the seal of our said province to him or her and his or her heirs forever in soccage tenure with all such royalties and privileges as are usually be 3 longing to mannors in England rendering and paying yearly unto his lordship and his heirs for every such mannor a quiet-rent of forty shillings sterling per annum to be be paid in the commodities of the country and such other services as shall be generally agreed for publick uses and the common good.

Item .- What person soever of the discent aforesaid shall at his or her own charge transport him or herself and any lesser number of persons men or women than twenty of the descent aforesaid and aged and provided as above said he or she shall have assigned to him or her and his or her heirs and assigns for ever for and in respect of him or herself and every such person as aforesaid fifty acres of land within the said province to be holden of some manor of his lordship's with- in the said province in free soccage paying therefor yearly a quiet-rent of twelve pence sterling per annum to his lordship and his heirs for every fifty acres in the commodities of the country as aforesaid.

Item .- Any person of the discent aforesaid that shall at his or her own charge transport thither any children of the discent aforesaid that is to say boys under the age of sixteen years and girls under the age of fourteen years shall have granted to them and their heirs for and in respect of every such child to be trans- ported as aforesaid twenty-five acres of land within our said province to be holden of some mannor of his lordship's within the said province as aforesaid under the yearly rent of sixpence sterling for every twenty-five acres to be paid as aforesaid.

Item .- Every person whatever that shall claim any proportion of land in the said province of Maryland by virtue of the conditions aforesaid, shall pass a grant of the said land so due to him, her, or them as aforesaid, under the seal of the province aforesaid within one year next after the said lands shall be due unto them and assigned and set forth in some part of the said province by his lord-

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ship's lieutenant general there or in default thereof they shall by virtue of these conditions lose their rights unto the said lands for ever.

A particular of such arms and ammunition as are intended and required by the conditions above said, to be provided and carried into the said province of Mary- land for every man between the ages of sixteen and fifty years which shall be transported thither.

Imprimis .- One musket or bastard-musket with a snap-hance lock.

Item .-- Ten pound of powder.

Item .- Fourty pound of lead bullets, pistoll and goose shot, each sort some.

Item .- One sword and belt.

Item .- One bandelier and flask.

Dated at London tenth day of November, 1641.

C. BALTIMORE."

[Taken from "Council Proceedings from 1636 to 1657," p. 81.]

NOTE (XLIV.) p. 205.

It may not, perhaps, be useless to every reader to observe, that a degree of latitude does not consist of a single mathematical point, but, according to the best English computations, extends in breadth on any given meridian, from south to north, sixty nine miles and a half. Although French and other European astronomers have slightly varied from this computation, ascertained as early as the year 1635, by Mr. Norwood, an Englishman, who then measured a degree on the surface of the earth between London and York, yet the learned surveyors and astronomers-Messrs. Mason and Dixon, in the year 1764, when they com- menced the running and settling the division-lines and boundaries between Ma- ryland and Pennsylvania and the three lower counties, as they now stand, as- sumed Norwood's measurement of a degree of latitude, as a datum upon which they founded their observations and calculations, as appears from their journal now before me. They then ascertained also, (as stated in their journal, ) that "the latitude of the south point of the city of Philadelphia, is 39º 56' 29/ 1 north." Supposing then, that the northern limits of Maryland extended to "where New England is terminated," (as expressed in lord Baltimore's charter,) and the charter of New England, (of November 3d, 1620,) commenced the south bounds of New England "from the fortieth degree," which is exclusive, it necessarily followed, that the whole of the fortieth degree to the commencement of the forty- first, "where New England was terminated," was within the limits of Maryland. The Marylanders, then, might have, with perfect propriety, seated themselves not only on the Schuylkill, south of the forty-first degree, as they were now doing, but to the same extent on the Delaware, and taken possession of the spot where Philadelphia now stands.

NOTE (XLV.) p. 206.

Smith, in his History of New York, (from whom, what is here stated in the text is taken,) has not given us a copy of the instructions to Alpendam, which he mentions, from whence we might have received Kieft's ideas of the right of the Dutch "to the soil and trade" on the south river. His successor, in the govern- ment of New Netherlands, Peter Stuyvesant has, however, in his negotiation with the governor and council of Maryland, in the year 1659, entered very fully into a discussion of their right. It would be improper, at this period of our history, to anticipate this negotiation by any long quotation from the record thereof, except in merely stating, that, besides his fanciful suggestions, that the Dutch derived their right to New Netherlands by reason of Columbus's first dis- covery of America, they being then subjects of Spain, (this, perhaps, as a sett- off against the English right of discovery under Cabot,) and that king James,

VOL. II .- 78

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when he divided Virginia into north and south, purposely left a space between these divisions for the Dutch, (although that division was in 1606, and Hudson's voyage in 1609,) he more particularly states, in his letter to the governor of Maryland, that "their undoubted right can be shewed by pattent of the high and mighty lords states general granted to the noble lords overseers of the West India company,-further, by bargain and sale and deeds of the natives,-and possession above these forty years." This, by calculation back, would bring the time of their first possession to the year 1619. But this same Stuyvesant, some years afterwards, in his letter to Richard Nicolls, in 1664, when he surrendered up his province, mentions, that they had then enjoyed "the South river forty years." So little accuracy was there in this governor's statements! In this last mentioned letter also, he acknowledges, that the Dutch had no patent for the lands on South river until the year 1656. More credit, however, is to be attach- ed to another part of Stuyvesant's statement in his before mentioned negotiation with the governor of Maryland, and which seems to explain what Kieft meant by saying, that the Dutch possession of South river was "sealed with their blood." "And as for the South river or as it is called by the English Delaware in the particular : The said river was in the primitive tyme likewise possessed, and a collony planted in the western shore within the mouth of the south cape called the Hoore Kill to this day. The Dutch nation erecting there and all over the country their states' armes and a little fforte, but after some tyme they were all slained and murthered by the Indians. Soe that the possessions and propriety of this river at the first in his infancy is sealed up with the blood of a great many sowles. After this in the yeare 1623 the fforte Nassaw was built about 15 leagues up the river on the eastern shore," (according to Proud, Hist. of Pennsylvania, vol. 1, p. 110,-near Gloucester in New Jersey,) "besides many other places of the Dutch, and the Dutch Swedes to and againe, untill it thought the governor generall and counsell good to remove the said fforte Nassaw in the year 1650 downwards to the westerne shore againe, and there to fix a town as it is to this day ;"-at the same place as that now called New Castle .- (See the above mentioned negotiation at large in the record book in the council chamber, Annapolis, entitled, "Council, HH, 1656 to 1668," p. 43.) From all which a short historical summary of the colonization of the Dutch and Swedes on South river, may be thus deduced to the year 1642.

That the Dutch had commenced a trade with the natives on the South river soon after their first permanent settlement on the North river in the year 1614, and for that purpose had occasionally fixed up small stockade forts, with, per- haps, small temporary habitations therein, at divers stations on the south river ; but these traders being harassed by the Indians and "all slained and murthered," their successors in the trade were driven from the west side of the Delaware, and constrained to erect a fort on the east side thereof, near Gloucester, in New Jersey, in the year 1623, calling it fort Nassaw. This corresponds with what is stated in Holmes's Annals, (sub anno, 1623,) under the authority of governor Bradford, to wit, "that the Dutch had traded in those southern parts several years before he and the other English adventurers came to Plymouth," (which was in 1620,) "but that they began no plantation there until after this time." The Swedes, arriving in 1627, were more successful in preserving peace and friend- ship with the Indians ; but do not appear to have fixed any permanent settlement on the south river, until the year 1631, when they built a fort, laid out a town, and fixed a settlement at the confluence of the Brandywine and Christina creeks, near Wilmington. In the year preceding that, (in 1630,) they had, it seems, some quarrel with the Dutch about the land or fort at Hoarkill, now Lewistown. In 1631 also, the Swedes built a fort on an island called Tenecum, in the river Delaware, sixteen miles above New Castle, which they called New Gottemburg ;

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here their governor, John Printz, had a fine settlement, which was named Printz's Hall; and on the same island the principal settlers are said also to have had plantations. The Swedes proceeded thus prosperously, but having in 1638 fixed a settlement or rather a factory for trade on the eastern bank of the Delaware at a place called by them Elsinburgh, near Salem in New Jersey, the Dutch could bear it no longer, and Kieft, their governor, wrote the remonstrating letter there- on to Minuits, as stated in the text. It appears, however, that Minuits was not the governor of the Swedish settlements on the south river, as is supposed by Smith, in his History of New York, (if it be true, as stated by Proud, in his Hist. of Pennsylvania-that Printz continued to be governor of the Swedes on the Delaware from his arrival till about the year 1654, when he returned home to 'Sweden,) but Minuits was only the principal factor of a trading company of Swedes, who had erected the fort at Elsinburgh. This supposition corresponds also with the statement of the anonymous Dutch author quoted by Smith in a note to this passage in his History. Minuits, however, continued his possession of Elsinburgh, and in this state the affairs of the Dutch and Swedes seem to have remained until the year 1642, the period of time of which we are now treating. The preceding summary will tend much to elucidate the subsequent fraudulent transactions, by which lord Baltimore's province became whittled down to the narrow limits of its present state.

NOTE (XLVI.) p. 220. "An act determining what shall be judged a lawful tender.

It shall be judged a sufficient tender of tobacco in any debtor if he tender it at some place within the county where the debtor dwells, (except it be other- wise agreed) upon the day when it is due or otherwise if after the striking of it at any time before the 16th day of March he warne the creditor or his attorney in the county to come and receive it and after 20 days after such warning (or in case the creditor nor his attorney be in the county to be warned) then after 20 days after such striking in the presence of two or more credible freemen that may make oath of the soundness and weight of the tobacco he weigh and mark the tobacco to the use of the creditor after which time it shall remain as the proper goods of such creditor, and any party privy other than the creditor (or some other by his consent or appointment) using hearming or taking away such tobacco after such tendure made shall make fine and pay treble damages to the party grieved. This act to endure till the end of the next assembly."

Taken from "Lib. C. & WH." p. 102; and noticed in Bacon's Laws, as "1642 ch. 30."

NOTE (XLVII.) p. 225.

"An act for the forms of proceedings in causes. [1642, ch. 10.]

Every judge and court authorized or allowed by the lord proprietarie or the law of the province shall or may have and use all necessary and sufficient power for the administration of justice and doing or causing right to be done to all persons, and appointing the formes and means of it, and awarding all necessary processe to that end in such forme and unto such effects and under such reason- able penalties as the judge or court shall think fit, guiding themselves as near as conveniently they may to the former precedents and usages of the court, and in defect thereof to the formes of England in the same or the like cases, except where any thing is specially provided by the law of the province. This act to endure till the end of the next assembly."

Taken from "Lib. C. & WH." p. 85.

NOTE (XLVIII.) p. 225.

"An act ordering some things touching the tryall and judging of causes." (1642, ch. 11.)

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The history of Maryland : from its first settlement, in 1633, to the restoration, in 1660 ; with a copious introduction, and notes and illustrations, Part 104

Author: Bozman, John Leeds, 1757-1823 Publication date: 1837 Publisher: Baltimore : J. Lucas & E.K. Deaver Number of Pages: 1062

Author: Bozman, John Leeds, 1757-1823
Publication date: 1837
Publisher: Baltimore : J. Lucas & E.K. Deaver
Number of Pages: 1062