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UNIVERSITY
OF PITTSBURGH



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LIBRARY



Digitized by the Internet Archive

in 2009 with funding from

University of Pittsburgh Library System



http://www.archive.org/details/archivesofmaryla51brow



Archives of Maryland

LI



PROCEEDINGS



Court of Chancery of Maryland

1669-1679

COURT SERIES
(5)



Published by Authority of the State under the Direction of the
Maryland Historical Society



J. HALL PLEASANTS
Editor




BALTIMORE
Maryland Historical Society

1934




BALTIMORE, MD., tJ. S. A.



liar.

arnG

(LOO/ I



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ARCHIVES OF MARYLAND.

The following volumes have been published (under the editorship of William

Hand Browne volumes I to XVII and XIX to XXXII; Clayton Coleman

Hall volumes XXXIII to XXXV; Bernard Christian Steiner volume XVIII

and volumes XXXVI to XI.V; and J. Hall Pleasants volumes XLVI to LI) :

I. Proceedings and Acts of the General Assembly ( i ) ,

1637/8-1664, - - - 1883

II. Proceedings and Acts of the General Assembly (2),

1666-1676, 1884

III. Proceedings OF the Council ( I ), 1636-1667, - - - - 1885

iv. proceedrngs of the provincial court (court

Series i), 1637-1650, - - - - - 1887

V. Proceedings OF the Council (2), 1667-1687/8, - - - 1887
VI. Correspondence of Governor Horatio Sharpe (i),

1753-1757. ^^^^

VII. Proceedings and Acts of the General Assembly (3),

1678-1683, 1889

VIII. Proceedings of the Council (3), 1687/8-1693, - - - 1890
IX. Correspondence of Governor Horatio Sharps (2),

1757-1761, 1890

X. Proceedings of the Provincial Court (Court

Series 2), 1650-1657, - - - - - 1891

XI. Journal of the Maryland Convention, July 26-AuG.

14, 1775, Journal and Correspondence of the

, Council of Safety (i), Aug. 29, 1775-JuLY 6,

1776, 1892

XII. Journal and Correspondence of the Council of Safety

^ (2), July7-Dec. 31, 1776, - - - -1893

XIII. Proceedings and Acts of the General Assembly (4),

1684-1692, 1894

^ :> XIV. Correspondence of Governor Horatio Sharpe (3),

^ 1761-1771, 1895

'Y XV. Proceedings OF the Council (4), 1671-1681, - - - - 1896

•^ XVI. Journal and Correspondence of the Council of

Safety, Jan. i-March 20, 1777, Journal and Cor-
respondence OF the State Council (3), March
'^ 20, 1777-MARCH 28, 1778, - - - - 1897



iv Archives of Maryland.

XVII. Proceedings OF THE Council (5), 1681-1685/6, - - - 1898

XVIII. Muster Rolls and Other Records of Service of Mary-
land Troops in the American Revolution, - - - 1899

XIX. Proceedings and Acts of the General Assembly (5),

1693-1697, - -._._ 1899

XX. Proceedings of the Council (6), 1693-1697 - - - - 1900

XXI. Journal and Correspondence of the State Council

(4), April i, 1778-OcTOBER 26, 1779, - - - 1901

XXII. Proceedings and Acts of the General Assembly (6),

1697/8-1699, - - 1902

XXIII. Proceedings of the Council (7), 1696/7-1698, 1903

XXIV. Proceedings and Acts of the General Assembly (7),

I7OO-MAY, 1704, .-.. igo4

XXV. Proceedings OF the Council (8), 1698-173 1, - - - - 1905

XXVI. Proceedings and Acts of the General Assembly (8),

September, 1704-1706, - - - - - igo6

XXVII. Proceedings and Acts of the General Assembly (9),

1707-1710, - 1907

XXVIII. Proceedings OF the Council (9), 1732-1753, - - - - 1908

XXIX. Proceedings and Acts of the General Assembly (10),

1711-1714, 1909

XXX. Proceedings and Acts of the General Assembly (ii),

1715-1716, - 1910

XXXI. Proceedings of the Council (10), 1 753-1 761, Corre-
spondence of Governor Sharpe (4), 1754-1765, - 1911

XXXII. Proceedings OF the Council (ii), 1761-1770, Minutes
of the Board of Revenue, 1768-1775, Opinions on
the Regulation of Fees, Instructions to Gov-
ernor Eden, March 2, 1773, - - - - 1912

XXXIII. Proceedings and Acts of the General Assembly (12),

1717-APRiL, 1720, 1913

XXXIV. Proceedings and Acts of the General Assembly (13),

October, 1720-1723, - - - - - - 1914

XXXV. Proceedings and Acts of the General Assembly (14),

1724-1726, - - 1915

XXXVI. Proceedings and Acts of the General Assembly (15),

1727-1729, with Appendix of Statutes, 1714-1726, 1916

XXXVII. Proceedings and Acts of the General Assembly (16),

1730-1732, - 1917



Archives of Maryland. V

XXXVIII. Proceedings and Acts of the General Assembly (17),

Acts Hitherto Unprinted, 1694-1729, - - - - 1918
XXXIX. Proceedings and Acts of the General Assembly (18),

1733-1736, 1919

XL. Proceedings and Acts of the General Assembly (19),

1737-1740, 1921

XLI. Proceedings of the Provincial Court (Court

Series 3), 1658-1662, - - - - - 1922

XLII. Proceedings and Acts of the General Assembly (20),

1740-1744, 1923

XLIII. Journal and Correspondence of the State Council

(5), October 27, 1779-NovEMBER 11, 1780, - - - 1924

XLIV. Proceedings and Acts of the General Assembly (21),

1744-1747. 1925

XLV. Journal and Correspondence of the State Council

(6), July i, 1780-NovEMBER 13, 1781, - - - 1927

XLVI. Proceedings and Acts of the General Assembly (22),

1748-1751, - - 1929

XLVII. Journal and Correspondence of the State Council
(Letters to the Governor and Council) (7),
1781, - 1930

XLVIII. Journal and Correspondence of the State Council

of Maryland (8), 1781-1784, - - - - 1931

XLIX. Proceedpngs of the Provincial Court (Court

Series 4), 1663-1666, - - - - - 1932

L. Proceedings and Acts of the General Assembly (23),

1752-1754, - - - - - - - 1933

LI. Proceedings of the Court of Chancery of Maryland

(Court Series 5), 1669-1679, - - - - 1934



CONTENTS.

Page
Letter of Transmittal - - - - - - - - ix

Introduction to the Legal Procedure, Carroll T. Bond - - - - xxii

The First Century of the Court of Chancery of Maryland, The

Editor - - - - - - - - - xxxii

Chancery Court Proceedings

The Reg'' Book in the Chan.^ 1668/9- 1679: Liber CD. - - i

An Entry of AH Such Writts as Issued Out of the Chancery, 1668/9-

1672: Liber CD. - - - - - - - 321

The Register in Chancery, 167 1-1679: Liber P. C - - - - 383

Appendix

First Charter of St. Mary's City, 1668 - - - - - 567

Table of Cases - - - - - - - - - c^yi



Index



573



LETTER OF TRANSMITTAL.

September i, 1934.
To The Maryland Historical Society,

Gentlemen :

In this the fifty-first volume of the Archives of Maryland your Committee
on Publications has the honor to present the Proceedings of the Court of
Chancery of Maryland from 1669 to 1679 inclusive. This is to be considered
the fifth volume of the sub-series dealing with the records of the early courts
of the Province. Of this court sub-series four volumes of the Proceedings of
the Provincial Court have already appeared.

The seventeenth century courts of Maryland, to begin with the highest, were
(i) the appellate court of the Governor and Council sitting as the Upper
House down through the year 1694, and after this date sitting separately under
the name of the Court of Appeals, (2) the Provincial Court or general law
court of the Province, (3) the Court of Chancery for hearing equity cases, (4)
the several county courts, and ( 5 ) the manorial or leet courts which functioned
on the larger manors. A brief general sketch by the editor of the development
of these courts will be found in the introduction to Volume L of the Archives
of Maryland.

Since the publication of the hist Provincial Court Proceedings as Volume L
of the Archives, there was published in 1933, as the first volume of American
Legal Records of the American Historical Association, the Proceedings of the
Maryland Court of Appeals, 1695-1729, edited by Judge Carroll T. Bond,
Chief Judge of the Maryland Court of Appeals. This is a study of the records
of the Court of Appeals for the thirty-five years after the Governor and Council
began to meet separately in 1695 to hear cases on appeal and to keep separate
records. The cases heard on appeal by the Governor and Council before 1695
are to be iound scattered among the records of the Upper House, and have
already been printed in the several volumes of the Archives of Maryland known
as the Assembly Proceedings. As a rule the records of these cases heard on
appeal before the Governor and Council sitting as the Upper House are reported
more briefly than are the cases recorded after 1694 in the Proceedings of the
Court of Appeals.

The publication of Judge Bond's book has focused the attention of students
of early American law and history upon the judicial system of Maryland. It



X Letter of Transmittal.

has therefore seemed an opportune time to round out the seventeenth century
judicial picture by the publication of a volume of the records of the equity
court, and to follow this by printing the earliest proceedings which have been
preserved of certain of the county courts. With this aim in view, the mid-
seventeenth century court records of Kent, Charles, Talbot and Somerset coun-
ties are now being prepared for publication. As the only extant record of a
Maryland manorial court, that of the Court Leet and Court Baron of St.
Clement's Manor, St. Mary's County, is already in print (/. H. U. Studies in
Hist. & Pol. Sc. ser. i, no. 7), the student of the early development of Ameri-
can law will soon have before him in printed form a complete cross section
of the entire judicial system of the Province of Maryland — and one which is
perhaps more complete for the period than that possessed by any other colony.

A history of the Maryland Court of Chancery for the first century of its
existence, by the editor, appears elsewhere in this volume. Down through the
year 1668, the proceedings of the Court of Chancery and of the Provincial
Court were recorded together in the same old libers, for the judges of both
Courts, the Governor and Council, at the same court sessions sat in Chancery
to hear equity cases, and in the Provincial Court as a court of law, and both
courts had the same clerk. Beginning in 1669, however, separate records for
each Court were kept, and although until 1694, the same individual acted as
clerk and recorder for both courts, in the Court of Chancery he was called
" Register in Chancery ", and in the Provincial Court was styled " Clerk ".

The material to be found in this volume is taken from two old Chancery
libers. One of these, known as Liber C. D., was transcribed in 1729 by Griffith
Beddoe, from an older liber then designated by the same initials, which was
at that time in a very defective condition, the transcriber certifying that the
blanks to be found in his copy were for words defaced or not legible in the
original. The copy is in a clear hand and is well transcribed, but like the
original from which it was transcribed, has suffered severely from the ravages
of time, and most of the omissions in this printed volume are due to the dis-
integration of the copy of 1729. As no Chancellor, Recorder, or Clerk in Chan-
cery with the initials C. D. is known, the designation is puzzling. There is
some reason to think, however, that it originally bore different initials. This
liber is divided into two parts. The first part, designated by the clerk as " The
Reg' Book in the Chan? * * * of Maryland Beginning \G^ ffebT [1668/69]
2,7° Csecilii &"," and which extends through the year 1684, was evidently
begun by Robert Carvile, then Register in Chancery. This portion of the old
liber fills the first three hundred and ninety-nine folio pages, and is followed
towards the end of the book by a second section, designated as " An Entry
of All Such Writts as Issued Out of the Chancery Since the 13'^ of February



Letter of Transmittal. xi

i668[/69] ". This second part runs to April 13, 1672, and fills pages 399 to
446 of the old liber, thus overlapping in point of time the period covered by
the earlier portion of the first part. It is unfortunate that the entire contents
of Liber C. D. cannot be printed in this volume, but for lack of space, it has
been found necessary to omit that portion of part one for the years 1680 to
1684, which fills pages 261 to 399 of the old liber. The copy of Liber C. D.
made in 1729, has marginal references to the pagination of the original liber
from which the copy was made, and the transcriber has also adopted a new run-
ning pagination for his own copy. In this printed volume both paginations are
given, the original folio numbers, printed in parentheses, are indicated by the
abbreviation " fol.", followed by the old folio page number ; and the pages of
the copy of 1729 by the abbreviation " p." followed by the copyist's page
number, without parentheses.

The other old liber from which this volume is in part taken is known as
Chancery Liber P. C, and is a volume of 884 pages of which only the first 171
pages are printed here. The designating initials are of course those of Philip
Calvert, Chancellor from 166 1 to 1682. Although begun in 1671 when Philip
Calvert was Chancellor and Robert Ridgely, Register, this liber runs down to
the year 1712, with a break of about six years in the late eighties, and after
1682 covers the incumbancy of several later chancellors. We are concerned
here, however, only with the records in it extending from 1671 to 1679. The
handwriting foimd in Liber P. C, varies with the several registers, or clerks,
who have made the entries. Some of this writing, a mixture of late eighteenth
century and old court hand, is very difficult to decipher.

It will be seen that libers C. D. and P. C. overlap in time for the period
from 1671 to 1684. A study of the contents of these two old volumes fails
to disclose clearly what system, if any, was used by the registers in selecting
the entries recorded in each, except that it may be said in general that Liber
P. C. was used principally as a record of court sessions and of the judicial
activities of the Court of Chancery, as well as for recording cases and decrees,
while Liber C. D., after 1671, was used principally to record writs, appoint-
ments to office, commissions, inquisitions, pardons, proclamations and similar
instruments, not strictly judicial, issued under the Great Seal, of which the
Chancellor was the Keeper, although a few of the earlier court sessions and
cases are recorded in Liber C. D.

The Chancery in Maryland as in England had two aspects, the " ordinary "
functions of the Chancellor as Keeper of the Great Seal for the sealing of
various legal and extra-legal papers, and the Court of Chancery in its strictly
judicial aspect. Although for nearly a century after the settlement the Court
was a body composed of a Chief Judge in Equity with associate judges, of



xii Letter of Transmittal.

which the Chancellor was one, it was not until 1720 that it became in form
a one-man court with the Chancellor as sole judge. The editor feels that the
story of the development of the Court of Chancery of Maryland has never been
adequately told, so elsewhere in this volume, under the title " The First Cen-
tury of the Chancery Court of Maryland ", he presents in considerable detail
the history of the first hundred years of its existence, together with a list of
all the chancellors from its beginning, until the Court ended its existence in

1854-

To the student of early American history the contents of this volume are
perhaps of less human interest than are the records of the Provincial Court, or
general law court of the Province, where we find reflected more vividly the
every day life of the people in their relation to each other and to the Proprietary
Government, and where both civil and criminal cases are found recorded. To
the student of equity as it evolved during the seventeenth century in an Ameri-
can commonwealth from its English beginnings, and to those who ard interested
in the uses which this commonwealth made of writs in their varying forms,
as the community adapted them to its needs and discarded those that ceased to
be useful, the contents of this volume will be of no little interest. Nor is it
fair to say that all the entries are without human interest. Most of the cases
recorded seem to have originated in the Court of Chancery, although a few,
which had their beginnings in the Provincial Court, were brought into Chancery
on technical grounds rather than by direct appeal. The editor, who is not a
lawyer, has not undertaken an explanation of the writs and proceedings re-
corded, but this has been contributed by Chief Judge Bond, who, as previously
stated, has been making a study of seventeenth century Maryland judicial
records. His explanation is designed for the general reader.

As Judge Bond has pointed out in his Proceedings of the Maryland Court of
Appeals, the Province was fortunate in that it had among the members' of its
seventeenth and eighteenth century bench and bar a number of competent
lawyers who had received their training at the Inns of Court of London, al-
though in the decade covered by this volume but two names occur of men
who are known to have had this training. During our period the Chief Judge
in Equity from 1669 to 1676 was Gov. Charles Calvert, who, after his father's
death in 1675, became third Lord Baltimore and Lord Proprietary, although
during his absence in 1676, 1677 and 1678, Thomas Notley was Governor and
Chief Judge in Equity. It does not appear that either of these had an English
legal training; nor is it likely that the Chancellor, Philip Calvert, had received
such a training in England; and the same may be said of the other associate
justices of the Court of Chancery who served during our decade. As the same
judges or justices who sat in the Chancery Court also sat in the Provincial



Letter of Transmittal. xiii

Court, and as they were the same men who composed the Council and the
Upper House of the Assembly, sessions of the Court of Chancery and of the
Provincial Court (and even of the Council), were frequently joint sessions,
the clerk's entries then reading thus : " At a Court held for the Chancery and
Provincial Court ". Separate sessions, however, if the amount of business
to be transacted was large, were often held for each court. As stated previ-
ously beginning in 1669 separate record books were kept for the Chancery and
the Provincial Court, although until 1694 the same individual served as Register
or Clerk for both. During the period covered by this volume the registers in
Chancery were Robert Carvile (1669-1670), Thomas Cabewood (1670-1671),
Robert Ridgely (1671-1674), John Bloomfield (1674-1678), and Nicholas
Painter (1678- 1682).

All the members of the Court of Chancery during our decade held other
prominent offices, and, with few exceptions, were extensive land planters with
much common sense and a varying amount of legal training to guide them.
The records of the period show that when difficult legal questions came up
they often sought the advice of the lawyers practicing before the courts, and
of the Proprietary's Attorney General and Solicitor General. I^ack of space
does not permit much more than a mere recital of the names of the various
councillors who at this period sat on the two courts as associate justices. The
Council was a small body and we rarely find more than five or six judges sitting
at any one session of the Chancery Court. When this volume opens in 1669,
the members of the Court were Gov. Charles Calvert, Chief Judge in Equity,
Philip Calvert, Chancellor, with three members of the Council sitting as asso-
ciate justices, whose years of service are given following their names. These
were, Jerome White (1664-1670), Baker Brooke (1658-1679), and Thomas
Truman (1665-1676). In December 1669, William Calvert (1669-1682), a
nephew of Cecilius, the Lord Proprietary, and a practicing attorney, was sworn
in as a member of the court, and Samuel Chew (1669- 1677), a prominent
planter of Anne Arundel County, was sworn in as a justice. In December 1670,
Sir William Talbot, Baronet (1670-1671), the Provincial Secretary and a
relative of the Proprietary, and Edward Fitzherbert (1670-1671), were added
to the Council and became members of the court. Talbot and White both dis-
appeared from the court early in 1671. Jesse Wharton, at one time President
of the Council, became a member of the court in December 1672, and served
until May 1677; Henry Coursey, who was on the Council as early as 1660,
remained with some apparent short breaks until 1688. Henry Rozer first ap-
pears as a justice of the court in October 1667 and served until 1681 ; he had
been admitted an attorney, October 16, 1666 (Prov. Ct. Proc, FF, 340).
Thomas Taylor was a justice of the court from 1673 to 1678.



xiv Letter of Transmittal.

Charles Calvert, the Lord Proprietary, left the Province for England in
1676. Thomas Notley then acted as Governor and presided as Chief Judge in
Equity in the Court of Chancery. When Notley was not present in the court,
as was frequent in 1678, Philip Calvert presided, but is always designated as
Chancellor and not as Chief Judge in Equity. The Proprietary returned to
Maryland in January, 1678/9, but retained Notley as Governor until the latter
died in 1681. The Council was almost entirely changed by deaths in 1679, ^"d
when this volume closes, William Calvert, Vincent Lowe, Henry Darnall and
William Stevens appear as the associate justices at the last session of that year.

The Court of Chancery nearly always met at St. Mary's City. Of the forty-
four sessions held from 1669 to 1679, the court met elsewhere on only two
occasions, as on March 6, 1670/1, at Mattapany, and on June 26, 1673, in
special session in Charles County.

Of the lawyers practicing before the higher courts of the Province during
our decade, Gov. Charles Calvert is authority for the statement that John
Morecroft was the recognized leader in 1672 {The Calvert Papers; Number
One, Md. Hist. Soc. Fund Public. No. 28, p. 264). His name frequently occurs
in these records as the attorney in important cases. Nothing has been learned
of his antecedents in England before he came to Maryland. He was sworn in
as an attorney in 1666. After his death in 1673, it catmot be said with cer-
tainty upon whom his mantle fell, although perhaps Notley represented the
most important litigants. Three former clerks, or registers in Chancery, ap-
pear with great frequency as attorneys before both the Chancery Court and
the Provincial Court, and it is likely that such legal training as they had was
largely gained in this very practical school during their service as clerk. These
attorneys were Daniel Jenifer, Robert Carvile and Robert Ridgely. Other
names which occur frequently of those handling important cases are William
Calvert, Kenelm Cheseldyne, Thomas Notley, George Parker, Nehemiah Blakis-
ton, Christopher Rousby, and John Rousby. The names of two attorneys be-
fore the courts at this time who had received an English legal training, but who
seem to have had few cases during our period, were Thomas Bland, who
declared that he had studied law at the Inner Temple for six years ( Prov. Ct.
Proc. Liber L L, 397), and Matthew Ward of Cecil County, who was almost
certainly identical with the individual of the same name, son of Francis Ward,
gentleman, of South Walsham, Norfolk, who was admitted to Gray's Inn,
April 30, 1657 {Gray's Inn Register, 282). The names of other attorneys be-
fore the Maryland courts at this time were Charles Boteler, Thomas Carleton,
Henry Cox, Thomas Dent, Henry Johnson, John Jones, and Peter Sayer.
A " Mr. Bisse " who was admitted to practice in the Chancery Court in June
1669, but who is not mentioned again, may have been Thomas Bisse, who took



Letter of Transmittal. xv

up 1300 acres of land in Talbot County in 1663. The registers in Chancery for
the years 1671 to 1679 adopted the plan of noting frequently on the folio page
margin the initials of the attorneys in a given case. These can usually be readily
identified, but in a few instances this has not been possible. As in the case of
all marginal notes occurring in these old libers, in printing these have been
brought within the printed page margin, but to indicate their marginal posi-
tion are separated by a considerable space from the text proper which follows.
While in the early records it is not always possible to distinguish between the
regular practicing attorneys before the court and individuals who as attorneys-
in-fact merely represented others occasionally under a power of attorney, there
is little question that the men just mentioned should all be considered as prac-
ticing attorneys-at-law.

These Chancery records contain fewer references to the Attorney General of
the Province than do the proceedings of the Provincial Court. A petition for
a pardon shows that William Calvert held this office in 1664 and 1665 (pages



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