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 99
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53 | Part 54 | Part 55 | Part 56 | Part 57 | Part 58 | Part 59 | Part 60 | Part 61 | Part 62 | Part 63 | Part 64 | Part 65 | Part 66 | Part 67 | Part 68 | Part 69 | Part 70 | Part 71 | Part 72 | Part 73 | Part 74 | Part 75 | Part 76 | Part 77 | Part 78 | Part 79 | Part 80 | Part 81 | Part 82 | Part 83 | Part 84 | Part 85 | Part 86 | Part 87 | Part 88 | Part 89 | Part 90 | Part 91 | Part 92 | Part 93 | Part 94 | Part 95 | Part 96 | Part 97 | Part 98 | Part 99 | Part 100 | Part 101 | Part 102 | Part 103 | Part 104 | Part 105 | Part 106 | Part 107 | Part 108 | Part 109 | Part 110 | Part 111 | Part 112 | Part 113 | Part 114 | Part 115 | Part 116 | Part 117 | Part 118 | Part 119 | Part 120 | Part 121
7
581
NOTES AND ILLUSTRATIONS.
two rare instances occurred of the holding both courts baron and courts leet in two distinct manors. "A court baron was held at the manor of St. Gabriel, on the 7th of March, 1656, by the steward of the lady of the manor, when one Mar- tin Kirke took of the lady of the manor in full court, by delivery of the said steward, by the rod, according to the custom of the said manor, one messuage, &c., lying in the said manor, by the yearly rent of, &c., and so the said Kirke, having done his fealty to the lady, was thereof admitted tenant." (MS Extracts from the records.) This seems to have been conformable to the ancient practice of courts baron in England, on the admission of any tenant of a manor. The steward thereof, taking hold of one end of a rod and the tenant of the other, the former repeats to him ;- " The lord of this manor by me his steward doth here- by deliver you seisin by the rod, and admit you tenant to the premises," &c. (See the Practice of Courts Leet and Courts Baron, by chief justice Scroggs.) Also, " in October, 1661, Thomas Gerrard petitioned to the provincial court, stating, that at a court leet and court baron, held for the manor of St. Clements, on the 27th of October, 1659, Robert Cole was fined, for marking one of the lord of the manor's hogs, and prayed to have satisfaction for the unlawful marking and killing such hog, as the laws of the province provided." The grant of this manor, which lay in St. Mary's county, was made to Thomas Gerrard in the year 1639, and appears to be one of the oldest grants of a manor now extant on the records of the province. It contained a clause of power to Thomas Gerrard to hold a court baron and court leet. The last mentioned case, which occurred in this manor, seems to have been one of those petty misdemeanors, which would have been properly cognizable by a court leetin England ; but, as the lord of a manor could not be a judge in his own case, for a trespass to himself, (see 2 Bac. . Abr. 505,) this principle probably occasioned his application, as above, to the provincial court.
Few, if any, other privileges attached to manors in England, appear to have been exercised in Maryland by the grantees of manors. Fines for alienation, and escheats for want of heirs, are well known to have usually gone to the lord proprietary of the province, and not to the lords of the manors. It was decided indeed, by the provincial court in 1648, in a particular case, (which is recorded in "Council Proceedings from 1636 to 1657," p. 215, and also stated in Kilty's Landholder's Assistant, p. 104,) that forfeitures for treason or "rebellion" apper- tained to the lord of the manor ; but the legality of this decision might well be questioned, since forfeitures for treason were prior to the introduction of feudal tenures in England, and paramount to the right of the lord of a manor by escheat upon an attainder or conviction of a felon, which formerly included that of a traitor; (see 2 Bl. Com. 251;) and, therefore, among the bills of the next ses- sion following that last mentioned in the text, to wit, that of 1638-9, is one en- titled, "an act for treasons," by which the offender was "to forfeit all his lands, tenements, goods, &c. to his lordship ;" as will be hereafter more fully stated. It would appear also, that even in cases of treason against the king, under the statute of.25 Ewd. 3, and not under the act of assembly just mentioned, the lord pro- prietary of the province would have been entitled to the forfeiture accruing on the commission of all treasons within this province. For, the lord proprietary, by his charter of grant from the king was to have "all and singular such and as ample rights, prerogatives, royalties, royal rights, and temporal franchises what- soever, within his province, as any bishop of Durham within his county palatine ever had ;" and it seems, from Darey's case, (stated in 1 H. H. P. C. 254, 359,) that a bishop of Durham had by the common law, in virtue of his palatinate regalia, a right to all forfeitures for treason within his county palatine. These forfeitures also for felony, as well as treason, appertained to the lord proprietary and not to the lords of manors granted by him to individuals, unless a particular clause in
582
NOTES AND ILLUSTRATIONS.
such grant of a manor specifically conveyed to the grantee a right to such for- feiture, (see 2 Bac. Abr. 577.) Accordingly, in instructions from the proprietary to the governor and council, dated 29th September, 1659, where a question is stated to have been raised, -.- " Whether felon's goods are not included in or un- der these words in a grant of a manor, ("profits most usually belonging to ma- nors in England :") lord Baltimore says, that " felon's goods are not profits either most usually or at all belonging to any manor in England by virtue of its being a manor, but is and must be granted by especial favour and special words, and is many times granted to some in other men's manors." (See Kilty's Landhold- er's Assistant, p. 104.) Lord Baltimore had, most probably, the advice of good counsel in England on this point.
NOTE (X.) p. 70.
The following is a copy of Clayborne's petition, as it appears on our records, with the immediate proceedings of the council thereon. Why so imperfect a copy of it was placed there, is not easily to be accounted for at this day. It is probable, that the book, from which the transcript was made into that in which it now remains recorded, was one of those, which were seized and embezzled, or defaced by Clayborne's party in 1644, as before mentioned. The blank spaces are so in the record. See the volume in the council chamber entitled, "Council Proceedings from 1636 to 1657," p. 4.
"The petition of captain William Clayborne on the behalf of himself and partners to the king shewing ;
That the petitioners by virtue of a commission under his majesty's hand, &c., divers years past, discovered and did then plant upon an island in the great bay of Chesapeake 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 beavers and other com- modities like to ensue by the petitioners' discoveries, hath since obtained a pa- tent from your majesty comprehending the said island within the limits thereof, and sought thereby to dispossess the petitioners thereof, and debar them of their
discovery, &c. Complaint thereof being made, your majesty was pleased to signify your royal pleasure by letter, intimating that it was contrary to justice and the true intent of your majesty's grant, to the said lord that not- withstanding the said patent the petitioners should have freedom of trade, re- quiring the governor and all others in Virginia to be aiding and assisting unto them, prohibiting the lord Baltimore and all other pretenders him to offer them any violence, or to disturb or molest them in their - plantation, as by your majesty's letter annexed appeareth ; since which * be it your -
majesty's, said royal pleasure hath been made known to Sr.
- governor of
Virginia, (who slighted the same,) as also to the lord Baltimore - agents there, yet they have in a most wilful and contemptuous manner disobeyed the same and violently set upon your petitioner's 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 pinnace and goods to enable them to trade for corn - boat approaching near unto some vessel of the said lord Baltimore's - agents, they shot among the petition-
* It may be supposed, that the obsolete adverb, "Albeit," was here intended, which is syoni- mous to the word-"although,"
583
NOTES AND ILLUSTRATIONS.
er's 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 - - pair into this kingdom, and humbly prostrates himself and his cause - majesty's feet to be relieved therein.
And the petitioners having likewise discovered - plantation and factory upon a small island in the mouth of a river at the bottom of the said bay in the Susquehannock's country, at the Indians' desire and purchased the same of them, by means whereof, they are in great hopes to draw thither the trade of beavers and fur, 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 now from thenceforth your petitioner is advised, that the lord Balti- more's agents are gone with 40 men to supplant the petitioners' said plantations, and to take possession 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-be certain to enjoy the same with the fruits of their labours, they offer unto your majesty £ 100 per ann. viz. £50 for the said isle of Kent, and £50 for the said plantation in the Susquehannock's country, to have there 12 leagues of land, &c., from the mouth of the said river on each side thereof down the said bay southerly to the seaward 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 unto your majesty's exchequer, to be governed according to the laws of England, with such privileges as your majesty shall please to grant, by which means your ma- jesty may raise a great revenue annually, and all planters will be encouraged to proceed cheerfully in their designs.
And the petitioners having now a ship ready to depart with goods and people for the prosecution and managing of their said discoveries and trade, which with- out speedy supply and your majesty's favour, &c., is like to come to ruin.
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 enjoy- ment of the said plantations, &c., to send now with the said ship, and to refer the speedy examination of the said wrongs and injuries unto whom your majesty shall please to think fit, to certify to your majesty thereof, and that your peti- tioners may proceed without interruption of the lord Baltimore's agents."
[Immediately following the foregoing petition, there appears on our provincial records the following entry ; which is probably a copy from the proceedings of the privy council in England.]
" At the court at New-market, the 26th of February, 1637.
His majesty approving the proposals made in this petition for the advance- ment of those plantations and the hopeful trade of furs, is graciously pleased to confirm what was contained in his former commission 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 plantations, who shall be near at hand and whom they please to call, the consideration of all the contents of this petition, and with Mr. Attorney's advice to settle such a grant of the things herein desired, as they shall think fit to be prepared by him for his majes- ty's signature. Their lordships are also to examine the wrongs complained of,; and certify his majesty what they think fit to be done for redress hereof.
JOHN COOKE, EXD. T. MEAUTYS.
We appoint the first council day after Easther for the hearing of this business at the council board, and do hereby will and require, that present notice be given to the lord Baltimore or any else whom it may concern, together with a true copy
584
NOTES AND ILLUSTRATIONS.
of this petition and reference, and that they, by themselves or counsel, fail not to attend accordingly.
WM. CANT, THOS. COVENTRY, W. MANCHESTER.
NOTE (XI.) p. 72.
Reports of the lords commissioners for plantations, to whom Clayborne's pe- tition was referred :
At Whitehall, 4th of April, 1638. PRESENT,
Lord Archbishop of Canterbury.
Lord Keeper,
Lord Cottington,
Lord Treasurer,
Mr. Treasurer,
Lord Privy Seal,
Mr. Comptroller,
Earl Marshall,
Mr. Secretary Cooke,
Earl of Dorset,
Mr. Windebank.
Whereas a petition was presented to his majesty by captain William Clayborne, on the behalf of himself and partners, shewing, 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 Chesapeake, in Virginia, named by them the isle of Kent, whereupon, as they pretended, they had bestowed great charges ; and that the lord Baltimore, as they alleged, taking notice of the great benefit that was likely to arise to them thereby, obtained a patent from his ma- jesty, 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 Susquehanough's country, which the said lord Baltimore's agents there, as they allege, sought to dispossess them of, pretending likewise great injuries and violence offered to them in their trade and possessions in those parts by the said agents, in killing some of the said captain Clayborne's men and taking their boats, contrary to the said commission and the express words of a letter from his majesty under his hand and signet ; and therefore besought his majesty to grant to the petitioners a confirmation, under the great seal, of his majesty's said commission and letter, for the quiet keeping, enjoying, and governing, of the said island, plantation, and people, with other additaments of lands and im- munities 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, on the 26th of February, 1637, to refer the consideration of the petitioners' request unto the lord archbishop of Canterbury, 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 with all to advise with Mr. Attorney General, for preparing and settling the grant desired for his majesty's signature, and to examine the wrongs complained of, and to certify his majesty what they thought fit to be done for redress thereof. Whereupon all parties at- tending their lordships this day, with their counsel learned, and being fully heard, the said commission and letters being likewise read, it appeared 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 lord Baltimore's pa- tent, and that the said captain Clayborne's commission, (as it likewise appeared, ) was only a license, under the signet of Scotland, to trade with the Indians of America, in such places where the said trade had not formerly been granted by his majesty to any other; which commission, 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 island 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
585
NOTES AND ILLUSTRATIONS.
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 com- mission 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 consideration of a former order of this board, of the third of July, 1633, wherein it appeared, that the differences now in question being then controverted, the lord Baltimore was left to the right of his patent, and the petitioners to the course of law; their lordships having resolved and declared as above said the right and title to the isle of Kent and other places in question to be absolutely belonging to the said lord Baltimore ; and that no plantation or trade with the Indians ought to be within the precincts of his patent without license from him; did, therefore, think fit and declare, that no grant from his majesty should pass to the said Clay- borne or any others, of the said isle of Kent or other places within the said pat- ent ; whereof his majesty's attorney and solicitor general are hereby prayed to take notice. And, concerning the violences and wrongs, by the said Clayborne and the rest complained of, in the said petition to his majesty, their lordships did now also declare, that they found no cause at all to relieve them, but do leave both sides therein to the ordinary course of justice.
EXT. T. MEAUTYS.
N. B. The foregoing report is recorded in a book in the council chamber of Maryland, entitled, "Council Proceedings from 1636 to 1657," p. 8. A copy of it is also published in Hazard's Collections, vol. 1, p. 130, purporting to be from "Votes of Assembly of Pennsylvania ;" and by Mr. Chalmers in his Annals, ch. ix. note 25, which, as he states, was taken " from Maryland Papers, vol. 1, bun- dle C." in the plantation office, England. This copy published by Mr. Chal- mers does not vary from either of the other copies in any material sentence or word, except only in the date of the year, which he states to have been, "the 4th of April, 1639," instead of "the 4th of April, 1638," as in the two foriner copies. Some further comments on the variance, as well as on the authenticity of the above report, will be found in the next note but one at the end of this volume. See note (XIII.)
NOTE (XII.) p. 72.
The following letter or order, from Charles I. to lord Baltimore, is copied from Chalmers's Annals, ch. ix. p. 23, who states it as taken from " Maryland Papers, vol. 1, bundle C," in the plantation office, England.
"Charles Rex .- Right, trusty, &c. Whereas formerly, by our royal letters to our governor and council of Virginia, and to others, our officers and subjects, in these parts, we signified our pleasure, that William Clayborne, David Morehead, and other planters in the island near Virginia, which they have nominated Kent- ish island, should in no sort be interrupted in their trade or plantation by you, or any other in your right, but rather be encouraged to proceed cheerfully in so good a work; we do now understand, that though your agents had notice of our said pleasure, signified by our letters, yet, contrary thereto, they have slain three of our subjects there, and by force possessed themselves by right of that island, and seized and carried away both the persons and estates of the said planters. Now, out of our royal care to prevent such disorders, as we have referred to our commissioners of plantations the examination of the truth of these complaints, and required them to proceed therein according to justice ; so now, by these par- ticular letters to yourself, we strictly require and command you to perform what ' our former general letter did enjoin, and that the above named planters and their agents may enjoy, in the mean time, their possessions, and be safe in their persons and goods there, without disturbance or farther trouble by you or any of yours, till that cause be decided. And herein we expect your ready conformity, that we
VOL. II .-- 74
586
NOTES AND ILLUSTRATIONS.
may have no cause of any farther mislike. Given under our signet, at our manos of Greenwich, the 14th day of July, in the 14th year of our reign, 1638."
NOTE (XIII.) p. 73.
From a provincial record-book in the council chamber of Maryland, entitled "Council Proceedings from 1636 to 1657," p. 319 ..
" By the governor and captain general of Virginia, with the advice and con- sent of the council of state,
A PROCLAMATION.
Whereas the king's most excellent majesty was pleased, by his letters-patent, to grant unto the right honourable the lord Baltimore, a territory or tract of land therein nominated and now known by the name of the province of Maryland, with divers franchises and immunities thereunto belonging as in and by the said letters-patent more at large appeareth ; notwithstanding which said royal grant and publication thereof in this colony, divers persons, ill-affected to the govern- ment established by his majesty both here and in the said province, have by pre- tence of a former commission, factiously combined to disturb the said lord Balti- more in the possession of part of his said territory, as also to infringe the privi- lege of trade, in express terms solely granted to the said lord Baltimore within the said province, and, after many violent and disorderly courses, the said pre- tenders have so far proceeded as to petition his majesty, that part of the said province, now known by the name of the island of Kent and Palmer's island,, with the trades thereof, might be confirmed to them, the consideration of which, their said petition, his majesty was pleased to refer to the most reverend and right honourable the archbishop of Canterbury, the lord keeper, the lord privy seal, and any others, the commissioners for plantations, who should be near at hand, and whom their lordships were pleased to call : Whereupon, their lord- ships meeting, after a full hearing of both sides, the said pretender's commissions being likewise read, their lordships did declare, the right and title to the isle of Kent and other places in question to be absolutely belonging to the lord Balti- more, and that no plantation or trade with the Indians ought to be within the precincts of his patent without licence from him, as in and by the order of their Jordships more at large appeareth : These are, therefore, for the future prevent- ing of further mischiefs and injuries, which may arise from ignorant mistakes or presumptions and pretences as formerly, in his majesty's name to prohibit all persons being or inhabiting, or which shall hereafter be and inhabit within the government of this colony, by themselves or others, either directly or indirectly, from the date of these presents, to use, exercise, or entertain any trade or com- merce, for any kind of commodity whatsoever, with the Indians or savages inhabiting within the said province of Maryland, viz. northward from the river Wiconowe, commonly known by the name of Onancock on the eastern side of the grand bay of Chesapeake, and northward from the river Chinquack called great Wicocomico, on the western side of the said bay ; and for the better regu- lating of all trades within the said colony, it is further hereby commanded, that no persons shall resort unto the habitations of the aforesaid Indians, without license first obtained for their so doing from the lord Baltimore or his substitute, upon forfeiture of the goods and vessels, or the full value of them, which shall be lawfully evicted to be traded or employed contrary to the premises, with such further punishment by imprisonment of the party or parties, offending against the true intent and meaning of the said proclamation, as shall be thought fit by the government and council .- Given at James city, the 4th of October, Anno Regni Regis Caroli decimo quario, Anno. Domi. 638. God save the king.
Vera Copia .- RICHARD KEMP, Secretary."
587
NOTES AND ILLUSTRATIONS.
The date of this proclamation refutes the supposition of Mr. Chalmers, before alluded to, that the decision of the lords commissioners was not made until the year 1639 ; as it expressly states, in the preamble of it, the petition of Clayborne, and the reference to and the decision of the lords commissioners. It will be ob- served, that the date of this proclamation, as to the year of the king's reign, being expressed in words, precludes the supposition, that 1638, in figures, was wrote for 1639. Counting from the 27th of March, 1625, when king James died and Charles acceded to the throne, it would make the fourth of October in the four- teenth year of his reign necessarily to have been in the year sixteen hundred and thirty-eight. Additional proof also, that this decision of the lords commission- ers was in 1638, and not in 1639, arises from an act of assembly or bill, passed at the very next session, on the first of March, 1638-9, entitled, "an act for trade with the Indians," which, see at large in the second chapter of this work. This act expressly recites the aforesaid decision and order of the lords commissioners in Clayborne's petition, as "bearing date at Whitehall, the 4th of April, 1638 ;" which it could not possibly have done, had the decision or order been on the 4tlı of April, 1639, as stated by Mr. Chalmers; for the assembly rose on the 19th of March, 1638-9, a week or two prior to this supposed date of the order. This decision of the lords commissioners is again referred to in another act of assem- bly, passed at the April session of 1650, entitled, "an act prohibiting all compli- ance with captain William Clayborne, "in opposition of his lordship's right and dominion over this province," as being of the same date as before mentioned, to wit-"the fourth of April, one thousand six hundred thirty-eight." This last act recites also the above proclamation of the governor of Virginia as being "made and published in Virginia the fourth of October, one thousand six hun- dred thirty-eight." (See this last mentioned act at large in its proper place as to date in this volume.)
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.