In the matter of a certain Conveyance from Smith to Beane

About Andrew A. MartinAndrew A. Martin

Andrew Martin’s practice bridges the international corporate and dispute resolution fields and focuses on commercial litigation and arbitration, insolvency and corporate reconstruction.

Andrew A. Martin’s full profile on mjm.bm.

As we celebrate 400 years of the first recorded session of the Supreme Court of Bermuda (formerly known as the Court of General Assize), it seems fitting to reflect on the Island’s long legal history and culture.

This is the first of a series of short reflections on our legal history illustrated by a number of early legal documents pertaining to Bermuda which have been recently acquired. [Note: The documents referred to in this series were acquired from Anthony Pettit, a notable dealer in antique books, maps and documents in Bermuda.]

The Indenture

The first document I will refer to is a private Deed of Sale of one 25 acre “Share of Land” in “Warwick Tribe” sold by one Samuel Smith to one Humphrey Beane Esquire. The document is a “Deed of Indenture”. By ancient legal tradition, formal legal documents were torn along the top edge of the document to prevent (or at least deter) forgery. Hence documents of a formal nature were cut in a wavy line across the top (or indented), hence the term “Indenture”. [The form of labour called ‘indentured servitude’ refers to the system whereby poor people could pay for their passage to the New World by agreeing to work for a number of years on terms set out in an Indenture. Usually these terms were tough, but on the expiration of the term of several years, the immigrant was free to work for him or herself.]

Materials

The Deed is executed on parchment which was an early form of paper like material, and is hardwearing. The present example still retains a patina. The Indenture is handwritten and uses a form of ink which would likely have been iron gall ink (made from a concoction of oak galls, copper, gum Arabic, and often wine). Samuel Smith’s name is signed at the bottom of the Deed next to a loop of parchment which would likely have appended a wax seal (pendant seal) which would have dangled below the bottom of the document when it was spread out. There is no apparent reference to any witnesses to the execution of the Deed. From the reference in the Deed to “my father Mr George Smith” it seems likely that the Deed was prepared on the instructions of Samuel Smith to his own lawyer. [See inset]

AM - Photo 1 for blog

The Share

The land represented by the ‘share’ being transferred is a 25 acre share, apparently one of five 25 acre shares recorded in the Deed as having been purchased by George Smith (Samuel Smith’s father) in 1618 from one Thomas Wale [Mekter]. [ Note : George Smith, Grocer and Thomas Wale are both named on the original list of adventurers recorded in Lefroy’s Memorials of Bermuda vol 1 at page 100. The word Mekter might be a reference to ‘merchant’ (mercator), namely Thomas Wale’s occupation.]

The share being sold (together with another four similar shares) had apparently been left to Samuel by his father in his father’s Will which was dated 24 August 1638. Samuel is selling one of these five shares to Humphrey Beane, apparently a resident “of London”; Samuel Smith is recorded as being “the Parish of Aldgate in London, Clerk”.

The Deed is (tantalizingly) unclear (the text is faint and illegible) and unspecific as to the sum paid by Humphrey Beane to Samuel Smith on the purchase of the share, but receipt “in hand” of that price in lawful money of England and before the execution of the Deed is acknowledged. The price of the share is a subject to which we shall return in a later instalment in this series, and we can hazard a reasonable guess at the likely price or value. [Note: From prices of sales of land in the Civil Records of the Somers Islands Company at about the same period, the price could be somewhere between £70 and £100; then, as now, location was a critical factor.] The date of the sale transaction is 24 September 1667.

The 25 acre share is not described by its geographic location, nor by reference to any boundary or land mark or share number. It is described as being in Warwick Tribe. It is referred to as the share that had (in 1667) been lately in the occupation of John Walton, and it abuts the South Shore. It also abuts a share in the occupation of one John Gibbs on the West, and a share in the occupation of one David Jones on the East.

George Smith

George Smith of London is referred to in the Rich Papers “Letters from Bermuda” as one of the original adventurers and as noted above appears on the original list of “adventurers” in Lefroy’s Memorials of Bermuda Vol I at page 100, and his occupation is recorded as being a Grocer.

Norwood’s Map (compiled in 1622) identifies George Smith as owning 5 shares of the 25 acres each on the South Shore of Warwick Parish, east of what was Warwick Marsh, somewhere roughly between the bottom of Longford Road on Middle Road and Cobbs Hill Road (this is just a rough guess). It also appears from the same map that George Smith was also the owner of several other shares in other Tribes (or Parishes) as follows: Smiths (4 shares); Pembroke (4 shares); and Sandys (2 shares). [Note: See extract inset, Shares numbered 11 – 15 of 25 acres each, of which 11 to 13 are shaded in red.]

AM- Photo 2 for blog

Accordingly, he owned a total of 15 shares of 25 acres each (as at 1622) and this accords with the list of supporters named in the Rich Papers, where George Smith is recorded as owning 15 shares of land.

As is widely known, shares in the Somers Isles Company were allocated by lot, so that the investors did not themselves choose the location of the land which represented their investment (to avoid corruption or collusion). This accounts for the spread of the allocation of property across the Island owned by George Smith.

It is interesting that the lot being sold is identified by reference to the occupation of those people who were (presumably) the tenants or under tenants who were farming the land, and not the actual owners of the land (or shares representing the land). It appears from Norwood’s map annotated in the Rich Papers that Sir Nathaniel Rich acquired the shares numbered 9 to 13 in the 1620s, so if that is correct, it looks like a reasonable guess that the subject of this transaction in 1667 was one of the remaining two shares on the western side, either number 14 or 15. (But, this appears to be inconsistent with the terms appearing in the Will described below).

George Smith is recorded in the Deed of Sale as having purchased these lots in Warwick from Thomas Wale in 1618, thereby increasing his original investment which was made in 1615. He may have sold some of these lots to Sir Nathaniel Rich (also a resident of London) sometime in the 1620s. This particular George Smith , the London Grocer, is referred to several times in different entries of the Civil Records of the Somers Islands Company at the relevant time, granting leases of these lots of land to David Jones in 1639. [Note: There are other George Smith’s referred to in the Civil Records of the Somers Islands Company but they are clearly not the same man, based on the time and context of those entries. See also pages 81-2 of Vol III, and his widow granting a power of attorney to collect the rents from his lands at pages 211-2. He is also recorded as having signed a number of the early letters from the Somers Islands Company to the settlers and tenants giving instructions on the growing of crops and proper cultivation of the land. Apparently he also lent money to or was owed money by David Jones, recorded in the execution of a Bond in George Smith’s favour at page 389 of Vol III.]

His son Samuel Smith, (of Bottolph, Aldgate, Clerk) is also referred to in the Civil Records of Somers Islands Company as granting a power of attorney in favour of Hugh Wentworth to collect rents from his properties in Bermuda in 1663. Since Samuel Smith of Aldgate Parish in London selling one of these shares in 1667, it seems fair to assume that neither George nor Samuel Smith visited Bermuda personally. [Note: A Reverend Samuell Smith of Emanuell College of Cambridge is mentioned in Lefroy’s Memorials of Bermuda Vol I at page 693 but it seems unlikely, that they are one and the same person.]

Humprey Beane was another member of the Somers Islands Company. [Note: The relationship between these men will be discussed in more detail in the next installment of the series.]

Will

George Smith left those 5 shares in Warwick Parish (we are not told about any of George Smith’s other property in Bermuda in this Deed) to his son Samuel by his Will which was dated in August 1638 (we do not know when George Smith actually died). This, however, seems inconsistent with the reference in the Rich Papers that the shares numbered 11 to 13 (shown to be in George Smith’s ownership on the Norwood Map) were acquired in the 1620s by Sir Nathaniel Rich; if so, surely George Smith would not have mistakenly bequeathed some of those very same shares to his son by his Will dated in 1638? Nor did Samuel Smith record in the Deed of Sale to Humphrey Beane in 1667 the sale of 3 of the 5 lots he describes as having been purchased by his father in 1618.

AM - Photo 3 for blog

Observations

Not much has changed since then (at least as far legal instruments are concerned).

    • Deeds are today often formally referred to as “Indentures”.
    • Deeds are executed on formal legal paper and stylised seals are affixed to mark the authentication of the execution of the instrument next to the signature of the party concerned.
    • Property descriptions are written out by reference to the measured boundaries of adjoining lands, and survey reports, although this one might not pass muster by today’s standards.
    • Property is still routinely left by Will – although today it would be customary to have a vesting deed as well. This might have resolved the inconsistency in the records of ownership it indeed some of the shares owned by George Smith were sold to Sir Nathaniel Rich in the 1620s.
    • The early investors bought and sold the land in Bermuda, never having visited the Islands personally, and appointed agents or factors to manage the investments. [This is a subject to which we will return in the next installment in the series.]
    • Today, it is still necessary to trace the root of title of real property for 20 years against ordinary claims to title by private citizens, and for 60 years against the Crown. Although this Deed of Sale is dated September 1667, it traces the root of the title to the land right back to the very first owner in 1615!
  • PrintEmailLinkedInTwitterFacebookShare