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The charter granted June 20, 1632, by Charles II to Cecilius
Calvert, Baron of Baltimore, contains no reference to the Indians.
By section 18, however, full and absolute power is given to the
Baron of Baltimore, his heirs and assigns, to assign,
| alien, grant, demise or
enfeoff such and proportionate parts and parcels of the
premises, to any person or persons willing to purchase
the same as they shall think convenient, to have and to
hold to the same person or persons willing to take or
purchase the same, and his and their heirs and assigns
in fee simple, or feetail, or for term of life, lives or
years; to hold of the aforesaid now Baron of Baltimore,
his heirs and assigns, by so many, such and so great
services, customs and rents of this kind, as to the same
now Baron of Baltimore, his heirs and assigns, shall
seem fit and agreeable, and not immediately of us our
heirs or successors. |
The King's right of granting lands in the province being thereby
fully and completely transferred to Lord Baltimore, his heirs and
assigns, without any reservation or exception in regard to the
natives, gave him full authority to deal with them in his own way in
reference to their title to and possession of the lands.
The policy to be pursued was made evident first by action, several
years having elapsed after the first settlement before it was
announced in an official manner or enacted into a law.
The first settlers under Leonard Calvert, brother of the Baron,
as leader and governor, landed on the 27th of March, 1631, on the
north bank of the Potomac and planted themselves in the Indian town
of Yoamaco (probably Wicomoco), which they named St Mary's. This was
done, however, with the consent of and by agreement with the
Indians. In order to pave the way to a peaceable admission into the
country, the governor presented to the chief and principal men of
the Yoamacoes "some English cloth, axes, hoes, and knives," which
they accepted with pleasure. They also agreed to leave the whole
town to the English as soon as their corn was gathered, which
agreement was faithfully carried out. It is supposed that this
agreement was facilitated By an anticipated attack by the
Susquehanocks, whom they feared.
That this was considered a purchase is asserted by Chalmers, who
says that Calvert "purchased the rights of the aborigines for a
consideration which seems to have given them satisfaction and lived
with them on terms of perfect amity till it was interrupted by
Clayborne."1 It does not appear,
however, that the extent of territory was indicated or that any
metes and bounds were designated.
It will perhaps not be considered out of place to insert here the
somewhat strong defense of Maryland's justice and humanity in
dealing with the Indians, presented by her historian, Bozman.2
It is given partly because of its bearing on a question which will
be alluded to in speaking of the Pennsylvania policy:
| As philanthropists have
been excessively clamorous in the praises of William
Penn for his ostentatious purchase of the lands of the
aborigines, particularly at the time of his supposed
treaty with the Indians under the great elm at
Shackamaxon, (so brilliantly illustrated by the pencil
of his Britannic majesty's historical painter,) it is
here thought, that the conduct of Leonard Calvert, on a
similar occasion will not shrink from a comparison with
that of William Penn. It will not be fully admitted,
that William Penn, or any other European colonist, or
even the United States at this day, can with perfect
honesty and integrity purchase the lands of the
aboriginal natives of America; for several reasons;
first, it is not a clear proposition, that savages can,
for any consideration, enter into a contract obligatory
upon them. They stand y the laws of nations, when
trafficking with the civilized part of mankind, in the
situation of infants) incapable of entering into
contracts, especially for the sale of their country.
Should this. be denied, it may be then asserted, that no
monarch of a nation, (that is no sachem, chief, or
headmen, or assemblage of sachems, &c.) has a power to
transfer by sale the country, that is, the soil, of the
nation over which they rule. But neither did William
Penn, make, nor has any other European since made, a
purchase of lands from any tribe or nation of Indians
through the agency of any others than their sachems or
headmen; who certainly could have no more right to sell
their country, than any European monarch has to sell
theirs. But should it be contended, that savages are
capable of entering into contracts, and that their
sachems have a power to transfer y sale the country of
the people over whom they rule, it may be safely asked,
what could William Penn, or at least what did he give,
which could be considered, in any point of view, as a
consideration or compensation to those poor ignorant
aborigines for their lands? If we are to follow Mr.
West's imagination, (in his celebrated picture of
"Penn's treaty with the Indians;") for, history
recognizes no such treaty, and the late biographer of
William Penn, (Clarkson,) fairly acknowledges, that 11
in no historian could he find any account of it;" but
from "traditions in Quaker families," and "relations in
Indian speeches," it might be inferred, that there was
such a treaty; if then, the pencil of the artist is
correctly warranted by "tradition," William Penn gave
nothing more than some English broad cloth, or perhaps
some beads or other trinkets, which might have been
contained in the trunk displayed in the fore ground of
the picture, for all the lands, on which he built his
city, including also a large portion. of his province;
and this he seems to have been induced to do, not from
his owe original perception of the justice of the thing,
but, as he acknowledges in his letter to the lords of
the council composing the committee of Plantations,
dated August 14th, 1683, '!that he might exactly follow
the bishop of London's counsel, y buying, and not taking
away, the native's land." (See this letter at length in
Chalmers's Annals, ch. XXI: note 38.) Now, the presents
of Leonard Calvert really seem to have been of greater
value; for, besides broad cloth, history says, that he
gave them "axes and hoes;" thereby endeavoring to
introduce among them, as it were the first rudiments of
civilization the implements of agriculture. With this,
it seems, they were as well satisfied to give up the
lands of St. Mary's, as the Indians of Shackamaxon were
to give up those where Philadelphia stands.
The foregoing remarks would,
perhaps, not have been matte, had they not been drawn
forth by a part of a speech, }which the before mentioned
biographer of William Penn has dressed tip for him, on
the occasion of this celebrated treaty, entirely from 11
tradition," as he acknowledges, in which he makes him to
say to the Indians; "that he would not do as the
Marylanders did, that is, call them children or
brothers only; for, often parents were apt to whip their
children too severely, and brothers sometimes would
differ: but he should consider them as the same flesh
and blood with the Christians, and the same as if one
man's body were to be divided into two parts." |
By section 3 of the act of March 19, 1638,3 it was
decreed that:
| No subject of his
majesty's the king of England, or of any other foreign
prince or state shall obtain, procure, or accept of any
land within this province from any foreign prince or
state, or from any person whatsoever, (the natives
owners of the land excepted,) other than from the lord
proprietary or his heirs or some person claiming under
him or them. Neither shall he obtain, procure, or accept
of any land within this province from any Indian to his
own or the use of any other than of "the lord
proprietary or his heirs, nor shall hold or possess any
land within this province by virtue of such grant, upon
pain that every person offending to the contrary hereof
shall forfeit and lose to the lord proprietary and his
heirs all such lands so accepted or held without grant
of the lord proprietary or under him." |
It is probable that this law was enacted at this time because of
the fact that Lord Baltimore's title to some of the lands of the
province was disputed by William Clayborne and those who claimed
under him. This claim was based upon a royal license he had obtained
to trade with the Indians and an alleged purchase from the Indians
(Susquehanocksl) of the Island of Kent. As it does not appear that
the Indian title to this island was subsequently purchased or
extinguished by the Maryland government, the inference is that,
although the lords commissioners of the plantations decided the
dispute in Lord Baltimore's favor, the purchase by Clayborne was
accepted as an extinguishment of the Indian title. This is confirmed
by the fact that in the treaty with the Susquehanocks in 1652
(mentioned below) it is expressly stated that 'the Isle of Kent and
Palmer's Island belong to Captain Clayborne."
On April 21, 1649, an act entitled "Ail act concerning purchasing
lands from the Indians" was passed, which Bozman says was, as to
principle, a law of general utility even up to his day. The
substance of this law as given in Bacon's Collection (unpaged) is as
follows:
| Whereas divers Persons
have heretofore purchased or accepted of lands, &e. from
the Indians, and made use of and possessed the same,
without any lawful Title and Authority derived from the
Lord Proprietary, neglecting also to take out Grants
from his Lordship, under the Great Seal, for such Lands
as have been clue to them by virtue of his Lordship's
Conditions of Plantations, or other warrant from his
Lordship, which Proceedings are not only very great
Contempt's and Prejudice to his Lordship's Dignity and
Rights, but also of such dangerous Consequence, if not
timely prevented, that they may hereafter bring a great
Confusion in the Government and public Peace of this
Province. Be it therefore enacted etc.
(1) All Purchases or
Acquisitions whatsoever, of any Lands, &c. within this
Province, made or to be made, from any Person
whatsoever, not deriving at the same Time a, lawful
Title thereto, by, from, or under, his Lordship or his
Heirs, under the Great Seal, shall be void and null.
(2) It shall be lawful for his Lordship to enter upon,
seize, possess and dispose of, any such Lands, &c. so
purchased or acquired from, any Indian or other, at his
Will and Pleasure, unless such Purchaser, at the Time of
such Purchase or Acquisition, have some lawful right or
Title to such Lands, &c. y some Grant from his Lordship,
&c. under the Great Seal.
(Confirmed among the perpetual Laws, 1676, ch. 2.) |
In regard to this law the author above mentioned remarks, in
addition to what has been noted, that "The. principle upon which it
was founded seems to have been adopted by the United States in the
disposition of all the territories conquered or purchased by them
from the Indians."
It is worthy of notice that the lords commissioners for
plantations, in the decision between Clayborne and Lord Baltimore,
declared that the principle enacted in the above law held good even
against the King. "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 Clayborne or any others, of the said Isle of
gent or other places within the said patent."4
On the 5th of July, 1652, a treaty was made with the Susquehauocks,
the first article of which contained the following cession of land
to the English:
| First, that the English
nation shall have, hould, and enjoy to them their heires
and assigns for ever, all the land lying from Patuxent
river unto Palmer's island on the western side of the
baye of Chesepiake, and from Choptank river to the north
east branch which lyes to the northward of Elke river on
the eastern side of the said bay with all the islands,
rivers,. creeks, . . . fish, fowle, deer, elk, and
whatsoever else to the same belonging, excepting the
isle of Kent and Palmer's island which belongs to
captain Clayborne, But nevertheless it shall be lawful
for the aforesaid English or Indians to build a house or
fort for trade or any such like use or occasion at any
time upon Palmer's island.'' |
Bowman thinks that Patuxent river, the southern (or southwestern)
limit, on the west side of the bay, of territory assigned by this
treaty, was the extent of the Susquehanock's claim in this
direction, as Powhatan claimed from James river to the Patuxent. It
does not appear, however, how far west the granted territory
extended.
As nothing appears after this date to show that other cessions were
obtained from Indians in this part of the state, it was probably
assumed that this grant covered all the territory on the eastern
side of the bay north of Dorchester county, and on the western side
all east and north of Patuxent river. It is also probable that it
was assumed that the purchase from the Yoamacoes embraced all the
territory west of Patuxent river and north of the Potomac as far
westward as no other claim intervened. There is nothing on record,
so far as the writer has been able to find, showing any purchase of
land from the Indians, or any treaty with them in regard to any
lands west of Monocacy river.
That such was the construction in reference to the latter purchase
seems to be indicated by the following fact:
By 1651 the white population in, that part of Maryland
comprehending St Mary's county and part of Charles county, had
increased to such a degree as to expel most of the aborigines
thereof from their lands. These Indians were driven out and forced
to find homes in the more interior portions of the province. They
consisted of the following tribes : The Mattapanians, the Wicomoco,
Patuxents, Lamasconsons, Highawixons, and the Chapticons, probably
divisions or bands of the Piscataway or Conoy. Lord Baltimore, being
informed of their distress and their willingness to form a
settlement by themselves under his protection and government,
directed his lieutenant-governor to cause a grant to be made to them
under his great seal "of a certain tract of land in the head of
Wicomoco river, called Chaptico" (in Charles county), containing
about 8,000 or 10,000 acres. He further ordered that the land so
granted should be erected into a manor, to be called the Calverton
Manor, and that a thousand acres thereof should be set apart as the
demesnes thereof, to be reserved for his own use, as was usual in
his grants of other manors. he also appointed Robert Clark to be the
steward of said manor
| and in his name to keep
court baron and court leet, as occasion should require,
in and for the said manor; and on his behalf to grant,
by copy or copies of court roll, copyhold estates, for
one, two, or three lives, of any part of the said manor,
except the demesnes thereof, to any Indian or Indians
that should desire the same, and as he the said steward,
with the approbation of the governor, should think fit;
provided, that no one copyhold exceed fifty acres,
unless it be to the Werowance or chief head of every of
the said six nations respectively; and not to any of
them above two hundred acres a piece; and that upon
every copy so to be granted there be reserved a rent of
one shilling sterling, or the value thereof, to be paid
yearly to Lord Baltimore and his heirs for every fifty
acres of land respectively to be granted as aforesaid,
and so proportionally for a lesser or a greater quantity
of land.5 |
As the acts of the assembly contain all the subsequent history of
the state relating to Indian lands of any importance in this
connection, and within the scope of this work, the substance of
these acts is given here as found in Bacon and Kilty's (unpaged)
Collections.
The first of these, after those already given, following the date,
is the act of May 8,1669. An act for the continuation of peace with
and protection of our neighbors and confederates, Indians on
Choptank river."
This act, because of the fidelity of the Choptank Indians in
delivering up certain murderers, etc, settles upon them and their
heirs forever "All that land on the south side of Choptank river,
bounded westerly by the freehold now in possession of William
Darrington, and easterly with Secretary Sewall's creek for breadth,
and for length three miles into the woods. To be held of his
Lordship under the yearly rent of six Beaver skins."
This is confirmed among the perpetual laws by the act of 1676 (ch.
2). By the act of 1721 (ch. 12) commissioners were appointed for
ascertaining the bounds of these lands, and the same lands are
confirmed to them by the act of 1723 (ch. 18).
The next in order of date is an act passed November 12, 1698, "for
ascertaining the bounds of a certain tract of land set apart to the
use of the Nanticoke Indians, so long as they shall occupy and live
upon the same." This act falls under the general repeal of 1704 (ch.
77), and a new act in the very same words (the enacting clause
excepted) was made in 1704. and by the act of 1723 the bounds
ascertained in this act (which are the same verbatim with those
described in the aforesaid act of 1704, ch. 58) are confirmed.
October 3, 1704. This is the act above referred to under that of
November 12, 1698. The bounds of the Nanticoke tract as set forth in
it are as follows:
| That all the Land,
lying and being in Dorchester County, and on the
North Side of Nanticoke River, butted and bounded as
followeth; (beginning at the Mouth of Chickawan Creek,
and running up the said Creek, bounded therewith to the
Head of the main Branch of the same, and from the Head
of the said main Branch, with a Line drawn to the Head
of a Branch issuing out of the North West Fork of
Nanticoke, known y the name of Francis Anderton's
Branch, and from the Head of the said Branch, down the
said Anderton's Branch, bounded therewith, to the
Mouth of the same, where it falls into the said North
West Fork: And from thence down the aforesaid North west
Fork, bounded therewith, to the main River: And so down
the main River to the Mouth of the aforesaid
Chickawan Creek;) shall be confirmed and assured,
and, by virtue of this Act, is confirmed and assured
unto Panquash and Annotoughquan, and the People
under their Government, or Charge, and their Heirs and
Successors for ever; any Law, Usage, Custom, or Grant,
to the contrary in any wise notwithstanding: To be held
of the Lord Proprietary, and his Heirs, Lord Proprietary
or Lords Proprietaries of this Province, under the
yearly rent of one Beaver Skin, to be paid to his said
Lordship and his Heirs, as other Rents in . this
Province y the English used to be paid.6 |
By an act passed November 3, 1711, commissioners were appointed
to set aside 3,000 acres on Broad creek, Somerset county, where the
Nanticokes were then residing, for their use so long as they should
occupy the same. The rights acquired by white settlers on these
lands were purchased by the province. Instead of vesting the title
in the Indians, it was conveyed by this act to certain trustees for
their use, with the proviso that when abandoned by these' Indians it
should revert to the province.
By the act of October 26, 1723, "for quieting the possessions of the
Indians inhabiting on Nanticoke and Choptank rivers," their right to
the lands heretofore granted them was reaffirmed as follows: "That
the Nanticoke Indians and their descendants shall have, hold,
occupy, possess, and enjoy a free, peaceable, and uninterrupted
possession of all that tract or parcel of land lying between the
northwest fork of Nanticoke river and Chicueone creek, for and
during such space of time as they or any of them shall think fit to
use, and shall not wholly and totally desert and quit claim to the
same, according as the same is butted and bounded." To the Choptank
Indians, with the same provisions, was granted "that tract of land
lying in Dorchester county, on Choptank river, according to the
metes and bounds thereof" as surveyed by the commissioners.
The act of June 221 1768, authorized the payment of $6662 to the
Nanticokes for "three certain tracts of land and also 3,000 acres
lying on Broad creek, all. in the county of Summerset," which the
said Indians agreed to accept as full payment therefore.
By section 4 of the act of March 12, 1786, authority was given to
the governor to purchase the Indian lands in Dorchester county. As
this was an important act, and specifies somewhat particularly the
steps to be adopted in dealing with the Indians in this instance, a
copy of the section is given here.
| SEC. 4. And be it.
enacted, That the governor and the council be authorized
and requested to appoint some fit and proper person to
treat with the Indians entitled, under any act of
assembly, to any lands in Dorchester County, for the
purchasing the said lands, or any part thereof, on
behalf of this state, and to agree with them on the
terms of said purchase for a certain annual sum to be
paid to the said Indians as long as any of them shall
remain, and to take a deed to the state expressing the
conditions, which said deed shall be acknowledged before
the general court of the eastern shore, or the court of
Dorchester county, in open court, at the election of the
said Indians; and if such purchase be made, the person
so appointed shall sell the same, at auction, for
current money, in such lots or parcels as will probably
bring the best price, on a credit of one third of the
purchase money annually until the whole is paid, with
interest annually on the several sums, or the governor
and the council may, in their discretion, direct a sale
of the said lands for state or continental government
securities, and eight weeks notice shall be given
previous to the sale in the Maryland, Pennsylvania,
Virginia and New York papers.7 |
A similar act, providing for the purchase of a part of the lands
of the Choptank Indians and for limiting their reservation, was
passed January 18, 1799. The reservation was limited to one hundred
acres to be laid off so as to include their settlements.
1 Annals, p 207
2 History of Maryland (1837), vol. ii, pp. 569-79.
3 Bozman, History of Maryland (1537), vol. n, pp.
112-113.
4 Bozman, History of Maryland, vol. ii, pp. 584-585;
Hazard, Collections, vol. I, p. 130; Chalmers, Annals, ch. ix, note
25.
5 Bozman, ibid., p. 422
6 Bacon's Laws of Maryland, 1765, chap. 58, under
October 3,1704.
7 William Kilty, laws of Maryland (unpaged)
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First annual Report of the Bureau of Ethnology,
1879-80
Indian
Land Cessions in the United States
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