The first known Smallwood to come to America was Matthew
Smallwood. His son, Lt. Col. James Smallwood was born 1638 in
Middlewich, England and married Hester (or Esther) Evans in Maryland.
She was the daughter of William Evans and Alice Norris. Their first son, James II, married Mary Boyden, daughter of John Boyden
and Eleanor Ashbrooke. John and his brother William were probably
first of this Boyden line to come to America. They both owned
property in Charles County, Maryland and are mentioned quite frequently in
the Maryland Archives.
A record proving that they were brothers was found in the
Charles County Court Proceedings, 1671—1674.
Liber E Parties have Interchangeably sett their handes and Seales the day
and year first above written John Hill (locus
Testibus George Godfrey Sigilli)
John Boyden Acknowledgeth ths Inseweing Conveyance of Lande
To William Boyden
This Indenture made the Eleventh day of march Annoq domini
1672 Between John boyden of Charles County in the Province of
Maryland Planter of the one parte, and William Boyden of the same
Place Planter of the Other part, Witnesseth tht the said John Boyden
doth Acknowledge himselfe for divers good considerations and Satis-
factions me thereunto Moveing whereof the sd John Boyden doth
Acknowledge himselfe fully Sattisfied Contented and Payd hath
granted bargained solde and Aliened Assigned and sett over, and by
thesse presentes doth for and from him his heyrs Executors and
Administratours and Assignes grante bargaine Sell Alien Assigne
sett over to my Brother William Boyden to him his heyrs Execu-
tors Administratours and Assignes A parcell or tract of land Scituate
lying and being in Mattawoman Or St Thomas Creeke in the County
aforsaid being th Parcell of Lande wch William Boyden had For-
merly Given to me the sd John Boyden being Part of the land wch Will
now lives on beginning Att A bounded White Oake standing neer a
litle house on the said land and runing up by the Creek to the Further-
most bound Tree of the said lande From thence running up the sd
lyne in the woodes to the ende of the lyne and running from the first
mentioned bound white Oake Oake by A line drawne South and by
East into the Woodes unt the miles Ende wth all and Singuler the
rightes Priviledges members And appurtenances thereunto belonge-
ing or in any manner of wayes apertayning together Wth All houses
buildeings or Edifices thereon Erected woodes underwoodes pastures
Feedinges watercourses thereunto belonging wth All my right Title
Interest Clayme or demand of me the sd John Boyden To and in the
same, To Have & to hold to him the said Wm Boyden his heyres
Executors Administratours and Assinges for Ever And the said John
Boyden doe for my Self e my heirs Execrs Administratours and As-
signes Covenant Grante and Agree To and wth the said Will Boyden
his heirs Executors Administrs and Assignes tht he the said Wm
Boyden his heirs Execrs Administrs and Assignes shall and may by
force and virtue of thesse Presents from time to time and Att all times
for ever hereafter Have hould use occupy Posses and Injoy the
before granted parcell of lande all and singuler the appurtenances
thereunto Belongeing or in any wise appertaining and have receive
and Take the Rentes Issues and Proffittes Thereof to his and their
one proper uses and behoofe wthout any manner of lett trouble Evic-
tion Interruption or demand of or by the said John Boyden his heyres
Executrs or Administrs or any or Either of them Or of or by any Liber E
other Person or persons lawfully Claiming From by or under thm
or any of them the sd Boyden his Heyres Executrs Administraturs
or Assignes the rentes and Services wch From Henceforth shall Grow
dew to the Lord Or Lordes Thereof, for and in respect of his or their
Seignory or Seignoryes for the before Granted Premisses onely Ex-
epted and foreprized In Wittnesse whereof I have hereunto Sett my
Hand and Seall ths day and year first above written
Testibus William Nevill John Boyden (locus
Simon Stephens Sigilli)
The reason I believe they were the first of this Boyden
line to come to America is because there is no mention of the Boyden name
(or variations that I can find) in the Maryland Archives prior to 1650.
They may have gone to Maryland from another state. There were quite
a few Boydens in early Massachusetts and Vermont.
Research done by others reveals that William was born 1633
possibly in England. He married Anne and they had at least one son -
John, born 1658 in Charles, MD, who married Elizabeth Moore and Eleanor
Research done by others reveals that John was born 1639
possible in Charles, MD, but I believe this is an error. I believe
he was born in England, as was his brother. John married Eleanor
Ashbrooke ca. 1671 in Charles, MD. Little is known about their
family except their daughter Mary, who married first a Griffin and then
James Smallwood II.
GOV. JOSIAS FENDALL IN COUNCIL OF
MARYLAND DOCUMENT WITH WILLIAM EVANS
Gov. Josias Fendall (later
convicted and banned from Maryland) was mentioned in a Council
of Maryland document with William Evans. This William Evans may be
the son of William Evans who married Alice Norris and was the father of
Hester Evans who married Matthew Smallwood's son, Lt. Col. James
Smallwood. Here is the document transcript:
Archives of Maryland, Volume 0003,
Page 0346 - Proceedings of the Council of Maryland, 1636-1667
... , 1636-1667
Proceedings of the Council of Maryland, 1657-1660.
Liber H. H.
Commission Cap: William Evans
Iosias Fendall Esqr Captaine Generall of all
the forces within this Province of Maryland
Under the Right Honorable Caecilius absolute lord & proprie-
tary of the same To Captaine William Evans Greeteing
According to the power to me by his said Lordship Committed
and vpon the speciall trust and confidence I haue in your fidel-
ity circumspection courage and good conduct I doe heereby
constitute ordaine & appoint you Captaine vnder me of all the
forces, betweene Wicocomaco River and Poplar Hill exclu-
siuely, them to muster Exercise and traine vp in the art of
Warre & discipline military & in all things to do as any
Captaine of a Company of foote may or of right ought to do
to the resistance of all ennimys suppression of all mutinys inso-
lencys insurrections & rebellions whatsoeuer according to such
orders and directions as you shall from time to time receaue
from me and to that end to list such & so many of the inhab-
itants within the precincts aforesaid as you shall thinke fitt, and
them when and as often as you shall thinke convenient to
muster and traine so that they may be in a readynesse as occa-
sion shall require to attend my further Comands with fitting
armes and Ammunicon for the purpose aforesaid. To haue
and to hould the said office & Command till the Lord Proprie-
tary or his heires or his or theyr Lieutenat cheife Governor or
Captaine Generall for the time beeing shall signify his or theyr
pleasure to the Contrary And all persons Whatsoeuer are
heereby Strictly Charged and required to yeald all due obedi-
ence to you the said Captaine Evans in all things appertaine-
ing to the Command & office heereby conferred on you as
they will answer the contrary at theyr perill Given vnder my
hand & Seale this 15th day of June in the 26th yeare of his lops
dominion ouer this Province Annoq Domini 1658.
BOYDEN, FENDALL, SMOOT AND DENT INVOLVED IN THE
To more fully understand the famous Maryland trial that
took place in 1681, it helps to review the history of events that took
place prior to that. The following review will help set the stage
for a court trial involving the then former governor of Maryland, Josias
Fendall. William Boyden and John Dent were called as witnesses
against Josias. It was essentially a religious battle between the
Protestants and the Catholics that eventually led to the "Toleration Act"
establishing freedom of religion.
When Virginia became crown property
(1624), the king could do with it what he pleased. King Charles I
accordingly cut off a piece and gave it to George Calvert, Lord
Baltimore.1 This Lord Baltimore was a Catholic who had tried in vain to
found a settlement in Newfoundland. He
died before the patent, or deed, was drawn for the land cut off from
Virginia, so (1632) it was issued to his son Cecilius, the second Lord
Baltimore. The province lay north of the Potomac River and was called
By the terms of the grant Lord Baltimore was to pay the king each year two
arrowheads in token of homage, and as rent was to give the king one fifth
of all the gold and silver mined. This done, he was proprietor of
Maryland. He might coin money, grant titles, make war and peace, establish
courts, appoint judges, and pardon criminals. But he was not allowed to
tax the people without their consent. He had to summon a legislature to
assist him in making laws, but the laws when made did not need to be sent
to the king for approval.
The Roman Catholics were among those who suffered persecution in England,
and Maryland was founded as a place of refuge for them. Among the most
prominent of the English Catholics was Sir George Calvert, known as Lord
Baltimore. His first attempt to found a colony was in Newfoundland, but
the rigorous climate compelled him to give it up. He decided that the most
favorable place was that portion of Virginia lying east of the Potomac.
Virginia had its eye already upon the section, and was preparing to settle
it, when Charles I, without consulting her, granted the territory to Lord
Baltimore. Before he could use the patent, he died, and the charter was
made to his son, Cecil Calvert, in 1632. He named it Maryland in
compliment to the queen, Henrietta Maria.
Leonard Calvert, a brother of Lord Baltimore, began the settlement of
Maryland at St. Mary's, near the mouth of the Potomac. He took with him
200 immigrants and made friends with the Indians, whom he treated with
justice and kindness. Annapolis was founded in 1683 and
Baltimore in 1729.
Despite the wisdom and liberality of Calvert's rule, the colony met with
much trouble, because of Virginia's claim to the territory occupied by the
newcomers. William Clayborne of Virginia had established a trading post in
Maryland and refused to leave, but he was driven out, whereupon he
appealed to the king, insisting that the Catholics were intruders upon
domain to which they had no right. The king decided in favor of Lord
Baltimore. Clayborne however, would not assent, and, returning to Maryland
in 1645, he incited a rebellion which was pressed so vigorously that
Calvert was forced to flee. He gathered enough followers to drive
Clayborne out in turn. The Catholics then established a liberal government
and passed the famous "Toleration Act," which allowed everybody to worship
God as he saw fit. Many persons in the other colonies, who were suffering
persecution, made their homes in Maryland.
After a time, the Protestants gained a majority in the assembly and made
laws which were very oppressive to the Catholics.. The strife degenerated
into civil war, which lasted for a number of years. The proprietor in 1691
was a supporter of James II, because of which the new king, William, took
away his colony and appointed the governors himself. The proprietor's
rights were restored in 1716 to the fourth Lord Baltimore. The Calverts
became extinct in 1771, and the people of Maryland assumed proprietorship
five years later. Comparative tranquillity reigned until the breaking out
of the Revolution.
The First Settlers - The
first settlement was made by a company of about twenty gentlemen and three
hundred artisans and laborers. They were led and accompanied by two of
Lord Baltimore's brothers, and by two Catholic priests. They came over in
1634 in two ships, the Ark and the Dove, and not far from the mouth of the
Potomac founded St. Marys. In February, 1635, they held their first
Assembly. To it came all freemen, both landholders and artisans, and by
them a body of laws was framed and set to the proprietor (Lord Baltimore)
Self Government Begun - This was refused, and in its place the
proprietor sent over a code of laws, which the Assembly in its turn
rejected. The Assembly then went on and framed another set of laws.
Baltimore with rare good sense now yielded the point, and gave his brother
authority to assent to the laws made by the people, but reserved the right
to veto. Thus was free self-government established in Maryland.
Trouble with Clairborne -
Before Lord Baltimore obtained his grant, William Claiborne, of Virginia,
had established an Indian trading post on Kent Island in Chesapeake Bay.
This fell within the limits given to Maryland; but Claiborn refused to
acknowledge the authority of Baltimore, whereupon a vessel belonging to
the Kent Island station was seized by the Marylanders for trading without
a license. Claiborne then sent an armed boat with thirty men to capture
any vessel belonging to St. Marys. This boat was itself captured, instead;
but another fight soon occurred, in which Clairborne's forces beat the
Marylanders. The struggle thus begun lasted for years
The Toleration Act - The year 1649 is memorable for the passage of
the Maryland Toleration Act, the first of its kind in our history. This
provided that "no person or persons whatsoever within this province,
professing to believe in Jesus Christ, shall from henceforth be any ways
troubled, molested, or discountenanced for, or in respect to, his or her
End of the Clairborne Trouble - The nine years that followed formed
a stormy period for Maryland. One of the parliamentary commissioners to
reduce Virginia to obedience was our old friend Clairborne. He and the new
governor of Virginia forced Baltimore's governor to resign, and set up a
Protestant government which repealed the Toleration Act and disfranchised
Roman Catholics. Baltimore bade his deposed governor resume office. A
battle followed, the Protestant forces won, and an attempt was made to
destroy the rights of Baltimore; but the English government sustained him,
the Virginians were forced to submit, and the quarrel of more than twenty
years' standing came to an end. Thenceforth, Virginia, troubled Maryland
Although Claiborne and Virginia bothered Maryland no more, there
was plenty of stirring up of the population going on within the Maryland
borders for several years to come. Josias Fendall who served as
governor from 1657 to 1660 was arraigned along with several others that
ended in a trial that took place in 1681. William Smoot was in
sympathy with Josias Fendall and consequently was involved in the legal
proceedings following his prosecution. On
April 17, 1661, at the Provincial Court he was arraigned with twelve
others for "mutinously, seditiously, and the instigation of the Devil ...
assembled at the house of Josias Fendall in Charles County in February
1660, and attempted by force to rescue Josias Fendall formerly the
Governor of the Province and William Hatch Secretary". The jury returned a
verdict of "not guilty".
The trial transcript is quite difficult to read because of
the extremely long sentences, the colonial methods of speaking, poor
spelling and abbreviations. Josias Fendall did not use an attorney,
but defended himself. Notes are included and shown in white.
NOTE: Mary Fendall married Mary Hanson's probably brother,
Major Samuel Hanson. Smoot is a name associated with Smallwood
research. Elizabeth Barton Smoot married Charles Philpot,
grandfather of Sarah Philpot who possibly married William Smallwood (son of William
Smallwood and Mary Hanson (?)).
TRANSCRIPT OF THE TRIAL
Proceedings of the Council of Maryland, 1681-85.
Justices psent: Coll: Thomas Taillor
Coll: Wm Stevens
Capt William Digges.
Set the Prisoner at the Barr—Thou art here indicted by the
name of Josias Fendall late of Charles County Gent: for that
thou not having the fear of God in thy heart nor weighing thy
due obedience to the Rt honble the Lord Propry but seduced by
the instigation of the Divell [Devil]
maliciously devising, contriving
and attempting with force to raise a mutiny and sedition against
the person of the said Propry the 26th day of March in the sixth
year of the Dominion of the said Lord Propry &c: Annoq Dni
1681: at Pickajawaxen in Charles County and at severall other
times and places within the said County within the year afore-
said of thy own mutinous and seditious mind and imagination
maliciously expressly and advisedly in the presence and hearing
of diverse good people of this Province these false scandalous
mutinous and seditious english words following of and con-
cerning the said Lord Propry didst say, speak, utter publish and
rehearse (that is to say) that my Lord Propry (meaning the Rt
honble the Lord Propry of this Province) was Traytor and that
you (meaning you the said Josias Fendall) could prove it,
people (the good people of this Province meaning) were fooles
if they (meaning the said people) paid any Leavyes that you
(you the said Josias again meaning) would bear them (the said
people again meaning) out, if they did not and that it was no
Treason that you (you the said Josias again meaning) hoped
within few years to have more honr in the Country (meaning
this Province then ever you (you the said Fendall meaning)
had, that the people (meaning the said good people of this
Province) might now say anything for it was no Treason: and
that you the said Josias Fendall of your further malice
instigated as aforesaid and yet still further contriving and
attempting with force to raise a mutiny and sedition against
the person of the said Lord Propr the 11th day of May in the
sixth year of the Dominion of the said Lord Propry &c: Annoq
Dni 1681 at Pickajawaxen aforesaid in Charles County afore-
said and divers other daies and times between the said 11ith day
of May aforesaid and the 4th day of June then next following
as well at Pickajawaxen aforesaid as elsewhere in Charles
County aforesaid having communication with severall good
people of this Province of and concerning the murder of
severall persons, then lately by certain supposed Indians un-
known murdered at or neer a certain place called point look
out in St Michaels hundred in St Maries County in the Province
aforesaid of your own mutinous and seditious mind and imagi-
nation falsly maliciously advisidly expressly in the presence
and hearing of divers good people of this Province these other
false scandalous mutinous and seditious english words follow-
ing, of and concerning the said Lord Propry did say, speak,
utter publish and rehearse (to is to say) that you (you the said
Josias Fendall meaning) did beleive in your conscience the
Paptists and Indians joyned together and that his Lordship the
Lord Propry nor the Chancelor would beleive any thing as the
Indians did do but that my Lord (the said Lord Propry mean-
ing) and they (meaning the said Indians) together had a mind
to destroy all the Protestants and that you the said Josias the
10th day of Aprill in the year of our Lord 1681. aforesaid at
Pickajawaxen aforesaid in Charles County aforesaid of your
own further malice being instigated as aforesaid did practice
and attempt with one John Dent of St Maries County Gent:
with force and armes to attempt the securing making sure and
imprisonment of the persons of the said Lord Propry and
severall of his honble Councill (that is to say) the honble Philip
Calvert Esqre Chancelor of this Province William Calvert Esqre
principal secretary of this Province and Coll: Darnall to the
great contempt scandall and derogation of the person and
honour of the said Lord Propry and to the subversion of the
Government and state of this Province against the form of the
Act of Assembly in this case made and provided
What sayst thou ? art thou guilty of these false, scandalous
mutinous seditious speeches practices and attempts whereof
thou standst indicted or not guilty ?
Cl—How wilt thou be tryed ?
Fendall—By my Country
Cler:—God send thee a good Deliverance.
Chancelor—It is only matter of form Capt Fendall, you had
as good say, by God and your Country.
Fendall—Then, by God and my Country.
Chanc—Give the Clark leave so to enter it
Fendall—Yes he may
Clerk.—Cryer make Proclamation
Cryer.—You good men that be empanelled to enquire be-
tween the Rt honble the Lord Propry and the Prisoner at the
Barr answer to your names, everyman at the first call upon
pain and perill that shall fall thereon.
Clerk.—Call the Jury.
Cryer.—Capt Peter Sayer, Philip Lynes, Anthony Dawson
John Richardson, William Hill, John Hungerford John Salis-
bury John Evans, James Peterkin William Stevens and William
Clerk.—These good men that were last called and have
app:ared are those that shall pass between the Rt honble the
Lord Propry and you—If therefore you will challenge them or
any of them you may challenge them as they come to the book
to be sworn and you shall be heard.
Cryer.—If any man can inform his Lps Justices, the Attorney
Genll or this Inquest to be taken between the Rt honble the
Lord Propry and the Prisoner at the Barr of any Treason
Murder, Felony or other misdemeanour comitted or done by
the Prisoner at the Barr let them come forth and they shall be
heard for the Prisoner stands at the Barr upon his Deliverance.
Cryer.—Capt Peter Sayer one &c:
Clerk.—Capt Peter Sayer you shall well and truly try and
true deliverance make between the Rt honble the Lord Propry
and the Prisoner at the Barr according to you evidence—So
help you God.
Fendall.—hold I except against him
Chanc:—He is sworne
Fendall.—He is not sworne untill he hath kissed the book.
Chanc:—The oath has been read to him and his hand upon
the book all the while signifies his assent
Just. Tailler—You ought to have made your Objection as he
came to the book before the Oath had been read.
Fendall—I do not readily apprehend what he was.
Chanc—It is too late to object or make exceptions when the
words of the Oath are read and the persons hand on the book,
pray the opinion of the Board.
Just. Lowe—You shall well and truely try and true deliver-
ance make &c. The essential part of which oath is when the
words are pronounced and the kissing of the book but the
Just. Digges—I am of that opinion and that the Juror is
Just. Stevens—Lett him have another
Scry:—The words pronounced are the essential part of the
Oath the kissing the book only matter of Forme.
Sayer—I humbly pray the exception may be admitted
Just. Lowe—As matter of Favour such a Request may be
Fendall—I beg it not as matter of Favour but as matter of
Chanc:—In favour to the prisoner notwithstanding we think
the Juror is duely sworne yet we are willing to dismiss Sayer.
Sayer—I humbly thank you.
Scry.—Swear the next
Chanc:—Capt Fendall if you have any objections to make
speak first before he comes to the book.
Fendall—I make none
Cl—You shall well and truly try &ca
Fendall—Are you a Catholick or a Protestant
Daws:—It is hard to answer
Fendall—I make bold to ask
Daw:—I am a Protestant
Fendall.—I make no exceptions
Cl:—You shall well and truly try &ca
Fendall—Are you a Catholick or a Protestant?
Fendall—I make no objection
Cl:—You shall well and truly try &ca
Fendall—I ask you the same Question
Hill—I know not that I am bound to give an Account here
Just Tailler—But you may give that satisfaction to the
Hill—I am a Protestant
Fendall—I am content
Clerk—You shall well and truly try &ca
Fendall—What are you ?
Hung:—I am not bound to tell
Fendall—It is but a small request I desire to be satisfied.
Hung:—I am a Catholick
Fendall— If you be a Roman Catholick I except against you.
Hung:—I am a Roman Catholick
Court—He is dismissd
Serj:—I am sick and weak not able to serve
Chanc:—What say you Gentlemen of the Jury
Jur:—He is very weak and we think him not capable to
Court.—Dismiss him and call another
Fendall—Are you a Protestant ?
Fendall—I except not
Fendall—Are you a Protestant
Evans—Yes I am
Fendall—I am content
Fendall—Are you a Protestant
Fendall—You are Protestant
Fendall—Are you a Protestant ?
Fendall—Are you a Protestant? I make no exception.
Hems:—I am a Catholick
Fendall—I cry mercy then I except
Chanc:—You first admitted him then afterward make your
exceptions which is not fair
Fendall—I was mistaken in his religion
Court—In favour he is dismissed.
Fendall—Good I make no exceptions
Fendall—I except against him
Chanc:—You except agat him for Religion that has hardly
—He is gone
Fendall—I make no exceptions
(The Croud naming Jurors to
the Sheriff who was to return
a Tales sayes the
Chanc:—I do not think it a fair return for any person to
nominate a Juror but the Sheriff himself who is to make the
Fendall—I object not
Cl:—You shall well and truly try &ca
Cryer—Philip Lynes one &ca 12 good men and true stand
together and hear your Evidence
Cl:—Are you all sworn
Cl:—Josias Fendall hold up thy hand at the Barr.
Look upon the Prisoner you that are sworn and
hearken to his cause, you shall understand that he stands in-
dicted by the name of Josias Fendall late of Charles County
Gent: for that &ca (ut Jndictmt fo: Is) upon his Indictmt he hath
pleaded not guilty and for his Tryall hath put himself upon
God and his Country which Country you are so that your
charge is to enquire whether he be guilty of those false
scandalous mutinous and seditious speeches practices and
attempts whereof he stands indicted or not guilty If you find
him guilty you shall enquire what Lands Tenemts goods or
chattels he had at the tyme he comitted the same or at any
tyme sythence If you find him not guilty then shall you
enquire if he did fly for it If you find that he did fly for it
Then shall you enquire what goods or chattels he had at the
tyme when he did fly for it or at any time sithence. If you find
him not guilty nor that he did fly for it say so and no more,
and hear your Evidence.
Att: Genl—Call first Boyden and Taylor
Fendall—I should have had due notice of my Tryall that I
might have provided my evidence wch I have been prevented
in by being kept close prisoner without knowledge of either
my charge or the persons in evidence against me.
Chanc:—What you have alleadged (if it might make for
your advantage) should have been urged before the Jury had
been sworn but by consenting thereunto you have submitted
to your Tryall neither in Truth can you plead Ignorance for
that you very well know the last Court your Tryall was deferred
by reason of the absence of some of the Justices who were
wanting to make a full Court and then you had notice given
you that you should come to Tryall this very Court
Fendall—True, but still I knew not my Evidence nor Crime
Chanc:—It was not at all convenient for you to know all the
Evidence but most of their depositions were read to you before
Just. Tailler—If you had known the Evidence you would
have known what they had to say against you and taken them
off by your Influence upon the people in that County where
Chanc.—To end the dispute, the short and the long is this
You have suffered the Jurors to be sworne, have had Liberty
to except and have made your excepcons which have been
allowed of much in your favour you must now proceed to your
Just. Tailler—Capt Fendall you have by that put yourself
now upon your Tryall
Fendall—If I must be so surprised I cannot help it, but this I
can say and alledge that the persons impeached for the plot
have had that Liberty granted them to produce their Evidence.
Chanc:—So have you, but they have not had given them the
sume of what the Evidences could swear against them before
they came to Tryall.
Att: Genll—Every man accused is presumed to know what
he has done.
Fendall—Still I am surprised If I cannot have liberty to pro-
vide my evidences and be made sensible of my charge.
Chanc:—Never was prisoner brought to a Barr Copyes
given him of what might be brought in Evidence agl him and
if this be all you have to say it is not reason sufficient to putt
off your Tryall any longer.—We must proceed.
Att: Genll—Call William Boyden
Cl:—William Boyden—The Evidence that you shall give to
the Court and the Jury in behalf of the Rt Honble the Lord
Propry against the Prisoner at the Barr shall be the Truth, the
whole Truth and nothing but the Truth according to the best
of your knowledge—So help you God.
Att: Genll—Tell the Court and the Jury what you have to
say agt the prisoner at the Barr.
[Boyden testifies against Fendall]
Boyden.—About two years since Capt Fendall being at my
house told me that he had all the late proceedings in England
at home at his house that my Lord was a Traytor and he could
prove it, that people were fooles if they paid Taxes and he
would bear them out in it if they did not he also then said
now is the time for people to speak their minds and say any-
thing for it was no Treason and he hoped within a few years
to have more honr in the Country than ever he had. On the
Sunday after Fendall was taken Robert Middleton told me in
presence of severall others that Capt Fendall was now going
to call my Lord to an acct and it was high tyme so to do, soon
after Capt Fendall was taken att the request of Lieut: George
Godfrey and others I went down to Capt Fendall's house to
enquire whether he were kept prisoner or not and to let him
know if I saw him that George Godfrey with his Troop were
ready to serve him, but Capt Fendall was then in Custody as I
was informed and not returned home, I lay that night with one
Mr Thomas who told me that Samuel Fendall was then gone
over into Virginia for some men to assist his Brother out of
Fendall—Boyden has taken the wisest course and serves me
as he has done Godfrey knows himself guilty and to slip his
own neck out of the collar lays it upon others.
[The Chancellor reprimands Fendall for interrupting]
Chanc:—Capt Fendall you must understand that the method
of this Court in these cases is first to hear the Evidences dis-
tinctly without interruption what they had to say and then the
Fendall.—I submit, they may proceed
Att: Genll—Call William Taylor
Cl:—William Taylor The Evidence that you shall give &ca
Att: Genll—Inform the Court and the Jury what you can
concerning the Prisoner at the Barr
Taylor—About two years since Capt Fendall being at my
house I heard him say that now it was no Treason for people
to say any thing
Chanc:—Did you not hear him say they were fooles to pay
Taylor—No not any thing more (may it please your honr)
then that it was no Treason to say any thing But I heard
Robert Middleton say that there was a great disturbance up
the Bay concerning those Letters Daniel Matthena talked off
and Capt Fendall was now going to call my Lord to an Acct
and it was high time. This was Sunday after Fendall was
Att: Genll—Call John Bright and Izabella Bright.
[Another court proceeding apparently took place wherein
Mr. Bright and Fendall had a disagreement: Walter Lane of
Sommersett County craved allowance of four hundred and One pounds of
tobacco according to his Acct exhibited for the hyre of a shallop to fetch
John Bright and his wife (Evidences against Fendall) from the
Eastern shore, for provisions for them and his owne wages he charges and
is allowed ]
Cl:—John Bright, Izabella Bright The Evidence that you
shall give &ca
Att:—Acquaint the Court and the Jury with what you can
concerning the Prisoner at the Barr.
Jo: Bright—May it please your Honr about the 11th of May
last I was imployed by Capt Fendall to mark some Railes for
him at his plantacon in Charles County where I wrought till
the 4th of June within which tyme I have severall tymes heard
Capt Fendall (in cofnon discourse concerning the Indians and
particularly about the family that were murdered neer Point
Look out) say he believed in his conscience the Paptists and
Indians joined together and that neither his Lp nor the Chancellor
would beleive any thing as the Indians did but my Lord did
uphold them in what they did and my Lord and they together
had a mind to destroy all the Protestants or words to that effect-.
Chanc:—But did not you hear Fendall say what need you
go for land to the Southward here would be enough shortly to
be gotten here.
Att:—Do you not remember some such discourse.
Jo: Bright—Very well I do, I having a design to go to the
Southward with my Wife and Family I bought a boat of
Capt Fendall to carry us thither Capt Fendall used arguments
to diswade us from going thither to which I answered him Sr
you know I have a great Charge a Wife and four small children
and I cannot get a piece of land here in Maryland I must go
seek out to the Southward where is more plenty John (says
Capt Fendall) stay but a little while here and there will be land
enough for us all one of these daies Sr said I how can that be
why says Capt Fendall all the King and Parliament in England
are at warrs and there are no established Laws in England, no
Baltemore will be Propry here long so you need not fear land
enough here in a short tyme, But notwithstanding all this dis-
course I resolved to go to the Southward and desired Capt
Fendall to give me a note under his hand that I had honestly
paid him for his boat he told me he was then going on board
and when he returned he would at last I got his note and on
Saturday the 2d of July I set off with my Wife and children on
my voyage to the Southward and the winds proving cross we
were forced into Nomony in Virginia where we went to one
Mr Randall Kirkes who asked us from whence we came, I
answered from Capt Fendalls Kirk told us that Fendall had
been over there two or three daies with Capt Cood at Coll:
Spencers their business being to advise with Coll: Spencer
what they should do for that the Paptists and Indians were
joined together the said Kirk told us that Capt Fendall had
desired leave of Coll: Spencer to bring his Wife and Family
thither but Madam Spencer was unwilling to let them come
because she would not disobey my Lord Propry or words
to that effect we stayed at Kirks one night and on Sunday
after dinner we went to Coll: Spencers Point and lay there
that night where also we heard that Fendall and Coode had
been there but not to pass over, Kirk told us that he saw them
at Coll: Spencers and that Coll: Spencer being asked his advice
by Fendall and Coode what they should best do after saying
they would have a brush with the papists Coll: Spencer
advised them not to meddle in the business but let them
alone and be quiet at home and such like words but the general
discourse there was amongst the people about Fendall bringing
his Wife and Children to Coll: Spencers and Capt Coode his
Wife and children to Mr Hardwickes. On Monday we went
forwards on our intended voyage and were forced to put into
Herring Creek in St Georges where we met with one John
Wynn who enquired of us news, said I news bad, but he re-
plyed here is news bad enough There has been a Family cut
off at point lookout and we are forced to keep watch and ward
night and day expecting every hour to be cut off by the Indians
and Papists together I asked how he heard that news oh said
he Capt Fendall was this way as he went to Coll: Spencers and
intends to stirr in it to prevent the Pretestants being destroyed,
I asked Wynn how can Fendall raise men where is his power
or comission To which Wynn replyed that he knew his own
power well enough he could have men enough when he pleased
for he had once a Week or Fortnight intelligence from the
Eastern shore and all parts of the Country or words to the
Att: Genll:—Izabella Bright Let the Court and the Jury hear
what you have to say concerning Capt Fendall prisoner at the
Clerk—Isabella Bright The Evidence that you shall give
Iz: Bright—I was present by with my husband and heard the
same passages he had already given yr honrs I heard him say
that the Paptists and Indians were joined together to cut off
the Protestants and that my husband need not go to the South-
ward for land, here would be land enough for us shortly for
King and Parliament in England were at warrs I likewise
heard Kirk say that Fendall and Coode had been over there to
advise with Coll: Spencer and that the frequent discourse there
was Fendalls bringing over his Wife and children to Coll:
Spencers and Coode his Wife and children to Hardwicks, John
Wynn also said in my hearing that they had bad news a Family
lately cutt off at point look out and they were forced to watch
and ward night and day for fear of Papists and Indians to-
gether and that Capt Fendall intended to stirr in it for he could
have men enough having constant intelligence every week or
fortnight from the Eastern shore and all parts of the Country
or to that effect.
Just. Lowe—Did you hear Capt Fendall say that the Papists
and Indians were joined together to cutt off the Protestants.
Izabel—Yes (may it please yr honr) I did so
Court.—Shee has so declared already
Att: Genll—Mr John Dent Let him be heard
Cl:—John Dent The Evidence that you shall give &c
Dent—May it please yr Honr I have for my own satisfaction
and the ease of my mind collected in a piece of paper the
sufne and substance of what I have to say which I humbly re-
quest I may be admitted to read as my Evidence.
Court.—It is granted you may read it
Dent—About the Spring of the year to the best of my Re-
membrance having been to Mr Hatches house and bound home
in my way upon the road in the Woods neer John Goodies
house I met with Capt Fendall who (after very kind salutations)
asked me how I did he was glad to see me wondered he had
not seen me at his house at the store But at length saies
Capt Fendall what news Mr Dent truly replyed I, I live in the
Forrest where we have little or no news stirring, what saies
Capt Fendall do you hear no news of the Indians of the Papists
joyning with the Sunquo Indians have you not heard of a track
of two Indians lately seen in the snow, whereunto I professed
myself a stranger (as indeed I then was) saies Capt Fendall it
is reported that the Paptists joyn with the Indians and truly I
question what should be the meaning of that track do you not
hear said he what my Lord has done ? No replyed I what is
it ? Why said he you are sensible of the trouble I have had
and been forced to fly my house but since have recd a note
from my Lord to return again or to the like effect pulling a
Note out of his pocket but did not read it and so soon said he
as my Lord knew that I was come to my house he sent a party
of men to apprehend me and further said he if but four or
five of them (naming my Lord the Chancelor the Scry and
Coll: Darnall) saying also I know not what that Talbot is) were
made sure the rest of the Papists signified nothing but said I
you should stay till you have a Comission out of England he
then replyed it would be too late and then we fell again into
discourse of the Indians and I asked him Capt Fendall what is
your Opinion what do you think of it truly said he I know not
what to guess but that the Papists and Indians joyn together
whereupon I broke with him saying Capt Fendall this is plain
Rebellion and so we parted.
Fendall—You were a Justice of the Peace if any such thing
had been It had been yr Duty to have informed his Lp but that
you have not done untill now since I have been apprehended
[Fendall accuses Dent of not previously reporting a so-called
and is therefore guilty himself.]
Dent.—I did acquaint another Justice of the Peace with it.
Att: Gen"—Robert Middleton what can you say let the
Court and the Jury hear you
Midd:—I upon Oath do say that what has been declared by
Boyden and Taylor that I should report that Capt Fendall was
gone to call my Lord to an Accc and that it was high tyme to
do so is altogether thereto untrue
Court.—If you are Evidence for the Lord Propry you are
not then for the prisoner speak to the business what you know
in behalf of his Lp against the prisoner at the Barr.
Midd.—I have nothing to say against him.
Fendall—I humbly desire to have the Evidences delivered
Court.—You are bound to deliver it.
Fendall—Who is the first.
Chanc:—Boyden is the first.
Fendall—I was going up to Waujany to Boyden's house
knowing him to be acquainted in these parts and intended to
get him to shew me some land falling into discourse concern-
ing the times saies [says] Boyden, if
you will but undertake to alter
things as now they are I will undertake to bring you in a daies
tyme forty men all at your service and you need not fear a
great many more Now this man fearing this might come in
against him was resolved to prevent it by crying whore first
and fathering his own Crimes upon others; and this I am ready
to prove. I pray call Richard Beamont.
Fendall—Pray let him be sworne.
Court—We may hear what he can say but he cannot be
sworne against the Lord Propry
[The following comments come close to implicating William Boyden
in possible acts of sedition by his offer to provide manpower to help
Fendall, but Beamont is unable to establish that the offer was
to a rebellion]
Rich: Beamont—I did hear Boyden tell Capt Fendall that
if he had occasion for forty or fifty men he could help him to
them in a daies [day's] tyme to the best of
my Remembrance it is about
3 years since but cannot exactly say.
Court.—For what occasion did Boyden make Capt
Fendall that Tender ?
Bea:—I cannot say.
Chanc:—Have you any other Evidence ?
Fendall—Not as to Boyden.
Chanc:—Have you any other Evidence as to the maine
matter in hand.
[The following is quite interesting in that Izabell Bright
essentially accuses Fendall of cavorting with a whore -
apparently, the wife of Hugh Gardiner??]
Fendall—Yes here is Hugh Gardiner and his Wife
Izabell Bright—Capt Fendall if you call any Witnesses
against me call an honest Woman and not one that have been
Court.—Hugh Gardiner what can you say?
Hugh Gard:—John Bright and his Wife living upon the
same plantation with me and having been over at Notley Hall
with my Lord about some business between them and Capt
Fendall as they returned put into my house I asked them what
they had done Brights Wife fell outragiously railling against
Fendall and said he was a Rogue and they would way lay him
and pistol him, and saies John Bright tis no matter if they did
for my Lord would not care how soon he were dispatched out
of the way Why said I if a man killed a Negro he will be
hanged, Yea saies John Bright My Lord will sooner hang a
man for killing a Negro or an Indian than for killing Captain
Fendall When the report was that the Papists and Indians
were Confederates together to destroy the Protestants my
Wife was very fearfull and at her importunities I requested
Capt Fendall to let us come to his house telling my Wife was
afraid to live where she did for the reasons aforesaid To
which Capt Fendall replied oh never fear any such thing never
think that my Lord being a wise and discreet man and a man
of judgment will ever joyn with the heathen to cutt off the
Christians or words to the same effect.
Gardiner's Wife—John Bright and his Wife when they came
from Notley Hall called in at our house where my husband
having asked them what news Izbelle fell a railing at Capt
Fendall calling him knave and Rogue and Madm Fendall salt
whore and salt Bitch and if ever they could meet conveniently
with the Capt they would way lay him and destroy him both
my husband and I told said Izabelle my Lord would be very
glad Fendall was taken away for he was an ill man and they
should not be called in question if they killed him.
[Izabell Bright was apparently a woman with a wicked tongue!]
Fendall—I was made acquainted with it soon after but took
no notice of it more than to be their passionate expressions
and should not have minded it only now finding these persons
my Accusers I thought fit to make use of it. As for Mr Dent
and his Evidence I can say that himself was the person that
told me the poplar hill people were all afraid of being cut off
every moment by the Papists and Indians and that they them-
selves were in the same condition and were forced to keep
guard night and day and now he has inverted the scene and
to save himself throws it upon me—But I desire Edward Slade
may be called he will inform the Court and the Jury concern-
ing Bright and his Wife.
Slade—Sometimes in the Summer I went to Richard Al-
wood's house where I met with John Bright and his Wife with
whom falling into discourse I asked them where they lived
they said they had lived at Capt Fendall's and fell a railing at
him calling him knave and said he had cheated them out of
their Tobacco and such like scurrilous language and said John
Bright for a hogs head of Tobacco I would hang him if he be
Bright—I said that if he were condemned to dye rather
than he should want a hangman I would hang him myself I
had been so great a sufferer by him.
Chanc:—To the business Capt Fendall have you anything
else to say ?
Fendall—If I could see Mr Dents evidence which himself
could not well remember it contains a great deal and I desire
it may be repeated.
Court—Mr Dent read it again.
Dent—Reads it again
Just. Tailler—Now you remember it Cap Fendall ?
Fendall—Yes Sr I do so, the main matter against me therein
I humbly conceive wherewith he taxes me is for saying that if
my Lord and four or five men were made sure that then &cn
and so stopps I desire to know what may be the penalty of
such words if they had really been spoken.
Chanc:—You shall know in due time, the words being
Fendall—Gentlemen of the Jury I desire you to observe here
is but one Evidence and the time not named.
Att: Genll—The words spoken are sufficiently proved neither
is my Lord obliged to a day.
Fendall—But I conceive the tyme ought to be ascertained for
this Reason possibly at the same tyme when the Evidence al-
leadges the Words were spoken I may then prove myself to
be in another place.
Court—You have here in Court owned yourself that you
Fendall—I deny it not, but that I said those words.
Chanc:—It is sworn by a man of credit and a Protestant,
have you any more to say.
Fendall—I have done.
Chanc:—Capt Fendall you stand indicted for mutinous and
seditious speeches practices and attempts agl the person of the
Lord Propry to the subversion of the State and Government of
Fendall—Nothing of it is proved.
Chanc:—Give me leave to speak Sr
Fendall—I understood you spoke to me
Chanc:—So I did to the Jury pray let me go on.
Chanc:—Here is Boyden proves Capt Fendall called my
Lord Traytor and said he could prove it that people were
Fools if they paid Taxes and he would bear them out if they did
not that now was the time for people to speak their minds and
say anything it was no Treason words I think sufficiently mu-
tinous and seditious and what the words bearing out can make
but force I leave to any Judgmt There is Bright another Evi-
dence that swears that Capt Fendall said he believed in his
Conscience the Papists and Indians did confederate together
when the people were cut off at Point Lookout and this in his
comon discourse, that my Lord did uphold the Indians In whett
they did, what tends this to but Mutiny and Sedition, But he
need not go to the Southward for land The King and Parlia-
ment in England were at Warrs and here would be land
enough shortly for them all which words cannot well be con-
strued without force intended to be used; Here is likewise Mr
Dent swears to the words spoken of the papists and Indians
joyning together and that if my Lord and four or five more
were secured then—what can this mean but force, here are
severall overt acts to make good to make good the Indictmt If
only one be proved by one Witness and another by another
though there be not two Witnesses to one and the same part
yet if there be more than one to prove the several parts or
overt acts it is sufficient
Chanc:—You Gentlemen of the Jury you have heard the
charge against the Prisoner as also the severall Evidences and
the Prisoner's defence to prove the mutinous and seditious
words spoken by the prisoner you have heard Boyden say &ca
as also Taylor Bright and his Wife and Mr Dent who all swear
to the words, particularly Boyden that the people were fools if
they paid Taxes and he the said Fendall would bear them out
if they did not what bearing out could mean without force
pray consider and Mr Dent likewise swears that if but my
Lord and four or five more were secured—which way could
that be done but with force, here are severall overt acts and
five Evidences to prove them though not all of them to one
particular part I think sufficient to make good the Indictmt
P. Lynes Foreman—We desire to have the Act of Assembly
with us to see what it directs.
Court.—You have not to do with that you have only to find
whether or no the words have been spoken accordingly as the
Prisoner is charged, you are not to muse yourselves with mat-
ter of Law but you are to enquire into matter of fact.
Fendall—That is a charge for a grand jury
Chanc:—It is properly before this Jury they have nothing
more to do then to enquire into matter of fact whither such
and such things have been done or not the rest lyes before
the Court the Grand Jury having only found such an In-
formation fit to be prosecuted and left it to the petit Jury to
Fendall—This had not been known.
Cl:—Sheriff, an Officer here to attend the Jury.
Chanc: as the Jury are going out—I am to tell you that if
you cannot find the Indictmt as it is laid you may if you think
fitt find specially—
Jury go out
Cl:—Philip Lynes &ca are you agreed of your Verdict, who
shall say for you
Cl:—Josias Fendall hold up thy hand at the barr— Look
upon the prisoner you shall be sworne what say you is he
guilty of that whereof he stands indicted or not guilty
Jur: give in their Verdict
Cl: reads—We find Josias Fendall guilty of speaking severall
seditious words without force or practice and if the honble Court
think him guilty of the breach of the Act of Assembly we do
or else not. And so you say all.
Cl:—Take away the Prisoner Sheriff the Court will consider
November the 16th 1681.
The Court being sate Capt Fendall was called to the Barr.
Chanc:—Capt Fendall you were yesterday arraigned at this
Barr for mutinous and seditious speeches practices and attempts
agt the person of the Rt Honble the Lord Propry and to the sub-
version of the state and Govermt of this Province upon your
arraignmt you pleaded not guilty and for your tryall put your-
self upon your Country which Country have found you guilty
of seditious words by you spoken and if this Court thought
you guilty of the breach of the Act of Assembly they thought
so. We have duly weighed and considered it by ourselves
and do find as great a breach of the Act as possible can be
without force to make it good I am therefore to pronounce
to you your sentence thus to be That you pay unto the Rl
Honble the Lord Propry the sum of Forty thousand pounds of
Tobacco for a Fine Be kept in safe custody at your own
proper costes and charges untill you shall have paid the same
and after the same is paid to be for ever banished out of this
Just. Tailler—The offence has been so great that unless we
should (on purpose to encourage offenders of the like nature
to pursue such evill consequences) wholly remit and take no
notice of a crime of so high a nature as this We could not have
done more in favour of the Prisoner than now is and I think
the sentence mitigated with all the Moderation possible.
Scry—Capt Fendall your best way is to endeavour the speedy
payment of the Fine or giving Security for the same so soon
as possible you can that you may be remitted from the other
part of your sentence of lying in prison at your own proper
costs and charges till that be done. The sentence is as favour-
able as could be expected The Law of our Province would
have allowed boaring of the Tongue cropping one or both
Ears and other corporall punishments but wee have forbourne
that and taken this moderate and less shamefull way of
Chanc:—Sheriff take away the Prisoner and take care of him.
Summary: The Chancellor sentenced Fendall with a
fine and banished him from the state. It was quite shocking to read
what the law allowed in the form of punishment - boaring of the tongue and
cropping one or both ears!
Capt. Fendall must have paid his fine. He died about
two years later in North Carolina.