USA > Maryland > A sketch of the history of Maryland during the three first years after its settlement : to which is prefixed, a copious introduction > Part 20
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" And we do further authorise you, that every Manors of two thousand acres, and every three thousand acres, 3,000
1,2, and and every one thousand acres of land so to be grant- acres, to be cre- ed, unto any adventurer or adventurers, be erected ated. and created into a mannor, to be called by such name as the adventurer or adventurers shall de- sire.
" And we do further authorise you, that you Courts- cause to be granted unto every of the said adventu- rers, within every of their said mannors respectively, and to his or their heirs, a court-baron and court- leet, to be from time to time held within every such mannor respectively. And to the end you may tho better be informed, in what manner to pass every such grant, court and courts as aforesaid, according to our intention, we have sent unto you, under our hand and seal, a draught of a grant of a mannor court-leet and court-baron, and a grant of a free- hold ; which precedents you are to follow, chang- ing only the adventurer's names, the rents and con- ditions of plantation, as the case shall require : for doing whereof, this shall be your sufficient warrant.
leet and courts. baron.
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CHAP. So we bid you heartily farewel. Given at Ports. I. mouth, the eighth of August, 1636.
1636.
" Signed,
",C. BALTIMORE."*
It will readily be perceived, that these instruc- tions, or conditions of plantation, were well calcu- lated to induce men of some property in England, who were able to bear the expense of transporting servants and dependents, to emigrate to this pro- vince. It is true, that it was sketching out aristo- cratic features in the future government of the pro- vince, which, in other times, might have been sup- posed to operate in discouragement of emigration. But, it is to be remembered, that the colonists, for whom Maryland was formed as an asylum, being Catholic refugees, were accustomed to arange them- selves, according to the then politics of England, on the side of the supporters of the monarchy and aristo- cracy of the realm. This feudal mode of parcelling out lands by subinfeudation, was not, therefore, so horrible to them, as may appear to us at this day. t " The age of chivalry," had not then quite past ; and some faint remains of the reciprocal connexion between a lord and his vassals, might still be dis-
* See the Provincial Records, entitled, "Council Proceed- ings from 1636 to 1657," p. 1.
t The feudal tenures then subsisted nearly in the same state as they are described in lord Coke's Institutes, which were written and published but a few years prior to lord Baltimore's charter of Maryland. The reader recollects, that the feudal tenures were not completely abolished, until within a few years after the restoration of Charles II, in 1660.
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cerned in the structure of society, sufficient to in- CHAP. duce the dependents of a chief, to brave with him I. the dangers of the ocean, the wilderness, and the 1636. savage.
One circumstance, however, discernible in this plan of colonisation, must attract approbation. The grants to the adventurers were to be, of an indefea- sible estate of inheritance in fee simple, to them and their heirs, forever. Security in the absolute en-, joyment of property, is the best corner-stone that can be laid in the foundation, which is to support the fabric of a free government. An humble feu- dal tenant, enfossed round with this rampart, might well consider his cottage as his castle ; and might smile with regret at the delusion even of the well- meaning citizen, who delights in the uncertainty of revolutionary liberty.
In pursuance of these instructions, and corre- spondent also, with the charter, manors of lands were, in process of time, laid off in different parts of the province ; and some of them appropriated or reserved for the lord proprietor's own particular use, .others again were erected by the special orders of the lord proprietor, for the benefit of his relations or particular friends, with special conditions and privi- leges, and others also so denominated and granted to individuals, according to the terms of these in- structions, or conditions of plantation, as they so came entitled, for the transportation of colonists or settlers into the province. But, although the power and right of holding courts-baron and courts-leet, might have been inserted in some, or all of those grants of manors, yet we are told, from good autho-
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CHAP. I. rity, that no memorial appears on the records of the province, of any practical use of either of these
1636. kinds of courts .*
Grants of small lots in the As it would not have been' safe, at this period of time, to have commenced a scattered population of townofSt. the country, it was very properly directed by his Mary's. lordship, soon after the foregoing instructions, by letter, to his brother and lieutenant-general, bearing date the 29th of August, 1636, that he should " pass in freehold, to every of the first adventurers that shall claim or desire it, and to their heirs, ten
₹ * See the Landholder's Assistant, p. 93; a very judicious work, lately published by Mr. John Kilty, register of the land office for the western shore of the state of Maryland. But, I find in the " Council Proceedings from 1636 to 1657," p. 25, a commission there recorded, for holding a court-leet in the isle of Kent, directed " to Robert Philpot, William Cox, and Thomas Allen, of the isle of Kent, gentlemen, to be justices of the peace within the said island, to hold a court-leet in all civil actions not exceeding 1200 lb. tobacco ; and to hear and determine all offences criminal, within the said islands, which may be determined by any justice of peace in England, not extending to the loss of life or member. Given at St. Mary's, February 9th, 1637. Witness, Leonard Calvert." As pro- ceedings, most probably, took place under this commission, there must, of consequence, have been sonie written memo- rials of those proceedings once existing, though probably now lost. As the business of courts-leet in England, have long ago been gradually absorbed by the courts of quarter sessions for the shire or county, so with us, it is probable, that if any courts-leet or courts-baron were ever held in the province, the county courts at a very early period, swallowed up their jurisdictions. To trace these transfers of judicial power, would at this day be an unnecessary, if it was a possible, task, except it be to throw some light upon the history of those times.
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acres of land within the plots assigned, or to be as- CHAP. signed for the town and fields of St. Mary's, for I. 1636. every person that any of the said adventurers trans- ported or brought into Maryland, according to their conditions first published, and five acres of land to every other adventurer, for every other person which he hath or shall transport thither, since that time of the first plantation, until the thirteenth day of Au- gust, 1638."
Although king Charles I, had, but a few years The na- before he granted the charter of Maryland to lord ture of the first form Baltimore, dissolved his parliament, and had at that of govern. time formed the resolution, as some historians al- the colo- ment of lege, of never calling another, and of governing ny. without them, yet we find very strong provision made in that instrument of grant, for that important : ingredient of a free government,-a representative legislature. In the seventh section of that charter, the king " grants unto the said baron and to his" heirs, for the good and happy government of the said provinces, free, full, and absolute power, to ordain, make, and enact laws, of what kind soever, according to their sound discretions, whether relat- ing to the public state of the said province, or the private utility of individuals, of and with the advice, assent, and approbation of the free-men of the same province, or of the greater part of them, or of their delegates or deputies, whom we will, shall be called together for the framing of laws, when, and as often as need shall require, by the aforesaid baron of Bal- timore, and his heirs, and in the form which shall scem best to him or them, and the same to publish and duly to execute."
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CHAP. 1.
1636.
But, in the eighth, or next section immediately following, a clause is inserted, which by a latitude of construction, might possibly be interpreted to give powers repugnant to the mode of legislation prescribed or granted in the former. A reason for the clause is first given by way of preamble : " and forasmuch as in the government of so great a pro- vince, sudden accidents may frequently happen, to which it will be necessary to apply a remedy before the freeholders of the said province, their delegates, or deputies, can be called together, for the framing of laws ; neither will it be fit, that so great a num- ber of people should immediately on such emergent occasion, be called together, we therefore, for the better government of so great a province, do will and ordain, and by these presents, for us, our heirs and successors, do grant, unto the said now baron of Baltimore, and to his heirs, that he and they, by themselves, or by their magistrates and officers, &c. may, and can make and constitute fit and wholesome ordinances, from time to time, to be kept and ob- served within the province aforesaid, as well for the conservation of the peace, as for the better govern- ment of the people inhabiting therein, and publicly to notify the same to all persons whom the same in any wise do, or may affect. Which ordinances, we will to be inviolably observed within the said pro- vince, under the pains to be expressed in the same, so that the said ordinances be consonant to reason, and be not repugnant nor contrary, but (so far as conveniently may be done), agreeable to the laws, statutes, or rights of our kingdom of England : and so that the same ordinances do not, in any sort, e.r-
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tend to oblige, bind, charge, or take away the right CHAP. or interest of any person or persons, of, or in mem- F.I. ber, life, freehold, goods or chattels."
... This was entirely consonant to those unfortunate maxims which Charles had adopted about this time, for the rules of his regal conduct. That his orders in council, and proclamations thereupon, should be deemed the legal and constitutional substitutes of laws, which ought to have been enacted by the three estates of the realm in parliament assembled, was a principle, on which, as a dangerous rock, his subsequent fortunes split .* But it must be ac- · knowledged, that qualified as this principle is, by the limitations at the end of the clause in this eighth section of the charter, it is difficult to conceive, wherein a case could occur, in which an ordinance of the lord proprietor or his governour, could possi- bly be made so as not " to oblige, bind, charge, or take away the right or interest of some person or persons, of, or in member, life, freehold, goods, or chattels."
This leads us, however, to the notice of an in-
1637. strument of writing, called in the body of it, " an An ordi- ordinance," made by the lord Baltimore, in Eng- that pur- land, in the early part of the year 1637, bearing date pose. the 15th of April, 1637, containing instructions to his brother Leonard Calvert, esq. for the regulation, government, and settlement of the province. But, as he therein constitutes and appoints him to fill se- veral offices in the province, it would seem more properly to fall under the denomination of a com-
* Hume's Hist. of England, chap. 41.
nance for
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CHAP. mission ; in which, after constituting him gover- I. nour, lieutenant-general, chief captain and com- 1637. mander, as well by sea as by land, of his province, and the islands to the same belonging, and appoint- ing him also, chancellor, chief justice, and chief magistrate within the said province, until officers and ministers of justice should be appointed, he proceeds (to what seems to be the most important part of the commission,) to grant to him power and authority also, " to assemble the freemen of our said province, or their deputies, at St. Mary's, upon the twenty-fifth day of January next ensuing the date hereof, and then and there to signify to them, that we do disassent to all the laws, by them heretofore, or at any time made within our said province, and do hereby declare them to be void ; and further, to show unto them the draught or copy of all such laws and ordinances for the good government of our said province, as we shall before that time trans- mit to you, with our assent for enacting the same ; and likewise, if the said freemen, or their deputies, so assembled, shall approve and consent unto all the said draughts or copies of the said laws and ordi- nances, in manner as we send them over, to pub- lish the same as laws, under the great scal of our said province, that the people of our said province may take the better notice thereof."
He also therein, grants power to the said gover- nour, " after dissolving the present assembly, to call another, and to propound and propose other laws, to be assented to and confirmed, if approved by his lordship himself."
Also, general power " to call and dissolve assem-
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blies, and also to make ordinances, edicts, and CHAP. proclamations, with reasonable pains and penalties I. therein, not extending to the taking the right or in. 1637. terest of any person or persons, of, or in their life, member, or freeholds, goods, or chattels."
Also, power to appoint places for public ports for shipping, &c. and places for fairs and markets, on certain days.
Also power to grant pardons, &c. not extending to high treason ;-
Also, to grant commissions for the execution of . justice, and for the dividing and bounding of lands, and also to make grants of lands being thereby also made keeper of the great seal.
Also, by the same commission, three persons, to wit, Jerome Hawley, esq., Thomas Cornwalleys, esq., and John Lewger, gentleman, were appointed " to be of our council of and within our said pro- vince, with whom our said lieutenant shall from time to time advise," &c.
Also power given to the said lieutenant " to in- quire and determine, and finally to judge of and upon all causes criminal whatsoever, to give sen- tence or judgment in or upon the same, (excepting only where the life or member of any person shall or may be inquired of or determined,) and to award execution on such sentence or judgment; and also to hear and determine all civil causes, both in law and equity, concerning any goods, chattels, con- tracts, debts, or other personal or mixt action or actions, suit or suits whatsoever, in the most sum- mary and equal way that he may according to the orders, laws, and statutes of that our said province,
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CHAP. I. already made and established or hereafter to be made," &c. and in default of such laws, &c. then 1637. according to the laws and statutes of the realm of England as near as he may or can."
" Also, when the life, member, or frechold of any person shall happen to come in question, full power to the said lieutenant or to such persons as we shall from time to time appoint to be of our council with- in the said province, or to any three of them, where- of our said lieutenant always to be one, to inquire and determine according to the laws of our said province, and finally to give sentence and judgment thereupon, and to award execution accordingly."
By the same instrument John Lewger, gentleman, was appointed " secretary and keeper of the acts and proceedings of our lieutenant and council for the time being, and for the doing and recording of all grants of land, or of officers within the pro- vince."
Also power was given to the governour to ap- point a deputy in his absence, or to the council, on the failure of the governour to do so .*
The most remarkable part of the foregoing com- mission seems to be, that which relates to the calling an assembly on the twenty-fifth of January next, for the purpose of signifying to them his lordship's dis- assent to some laws which had been before that time enacted by them. Although no memorial. of any proceedings of any assembly remains upon the records of the province, prior to that which was
* See the Provincial Records, entitled " Council Proceed- ings from 1636 to 1657," p. 11. .
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called and held on the 25th of January, 1638, (1637 CHAP. old style), according to the directions contained in I. 1637. the foregoing commission, yet it seems that an as- sembly had been held at St. Mary's in 1635,* and, as is to be inferred from the foregoing commission, had enacted divers laws, to which, it seems, the lord proprietor thought proper to refuse his assent, and to declare them void. What those laws were, or what were his lordship's reasons for refusing his assent to them, we are not informed. It would seem at first, as if his lordship meant to contend for such a construction of the seventh section of the chapter, as if it exclusively invested in him the right and power of first propounding the laws to the assembly, for their advice, assent, and approbation," and that the assembly had no right or privilege of originating or framing laws. Something like this seems to have been hinted, at divers times during the reigns of king James and king Charles I, by the advocates for extending the royal prerogative, and that the only use of a house of commons was to grant money to the crown. This subject, howe- . ver, will be further explained, when we come to notice the proceedings of the assembly, which was directed to be called on the twenty-fifth of January.
In the mean-time, it will be necessary to men- Proclama- tion some intervening incidents of the present year; England tion in among which a proclamation issued by king Charles, emigra- against bearing date " the last day of April," 1637, " against tion. the disorderly transporting his majesty's subjects to
* * Holmes's Annals, Vol. 1, p. 306, who cites Chalmers's Annals, Vol. 1, p. 232.
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CHAP. I .- the plantations within the ports of America," seems to claim some notice. By this proclamation the offi- 1637. cers of the several ports in England, Wales, and Berwick, were commanded not to permit any per- sons, being subsidy-men, or of the value of sub- sidy-men,* to embark for any of the plantations. without leave from his majesty's commissioners for plantations, t first had and obtained, nor any persons under the degree or value of subsidy-men, without an attestation or certificate from two justices of the peace, living next the place where the party lately then before dwelt, that he hath taken the baths of su- premacy and allegiance, and like testimony from the minister of his conversation and conformity to the orders and discipline of the Church of England; and that such officers should return to his majesty's said commissioners of plantations every half-year a list of the names and qualities of all such persons, as shall from time to time be embarked in any of the said ports for any of the said plantations .; Al- though it is evident that this proclamation would af- fect the emigration of English Catholics to Mary- land, if put in execution against them, yet it would seem, from the preamble to it, to have been princi- pally intended to check the emigration of the Pu- ritans to New England, referring to the transporta-
* That is, men, who were liable to pay the tax called & subsidy.
t These seem to be the commissioners before-mentioned p. 235, viz. archbishop Laud and others.
# See the proclamation more at large in Hazard's Colles- tions, Vol. 1, p. 421.
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tion of " many idle and refractory humours, whose CHAP. only or principal end is to live as much as they can I. without the reach of authority." It is probable 1637. that it was never enforced as to Catholics, or that they at all times could casily obtain a license to de- part. Besides, the civil wars now approaching, soon rendered it ineffectual even as to the Puritans.
It seems to have been adopted as a proper policy Traffic to be observed in the infant state of the Maryland Indians te. with the colony, borrowed perhaps from the same or a simi- gulated, lar regulation in Virginia, that no person should be- allowed to carry on any traffic with the Indians, without a formal, written license for that purpose. The late alarm created by the behaviour of the In- dians towards the colonists at St. Mary's, before- mentioned, might have, perhaps, dictated this regu- lation. We find, therefore, among the records of this year, that of a written license to Thomas Corn- wallis, esq., bcaring date the 30th of December, 1637, " to trade with the Indians for corn."*
It would appear also, that towards the latter end The isle of of this year the isle of Kent had been in some mea- ced to lord Kentredu- sure reduced to the obedience of the lord Baltimore. more's go- Balti- Clayborne had failed in his attempts to retain his vernment. possession of it by force, and had, as before-obser- ved, been sent by the governour of Virginia to England, to seek what remedy he might have there. Measures seem, therefore, now to have been taken to put in force the civil authority of the lord pro- prietor over that island, as a part of his province. Accordingly a commission was granted by gover-
* " Council Proceedings," from 1636 to 1657," p. 20.
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CHAP. nour Calvert, to captain George Evelyn, bearing I. date the 30th of December, 1637, to be governour 1637. of the isle of Kent,* authorising him to choose six of the inhabitants thereof for his council, and giving him power to call a court or courts, and in the said courts, to hold pleas in civil cases not exceeding 10/. sterling ; and jurisdiction in criminal cases over all offences which may be heard by justices of the peace in their sessions in England, not extending to life or member, and to appoint officers for the exe- cution of justice and conservation of the peace there, with allowance of such fees as are usually belonging to the same or the like offices in Vir- ginia.+
1638. The colo- nists be- 4 tend their settle- ments into the country.
The colonists, it seems, had now begun to extend their settlements beyond the limits of the town of gin to ex. St. Mary's. In a commission to Robert Vaughan, of St. George's hundred, bearing date the 5th day of January, 1637, (1638, new style,) appointing him constable of the said hundred,t there is the follow-
* Evelin must have been a man of some note at this time in the province, as it appears from the land records of the province, that he was the owner at this time of " the manor of Evelinton, in the baronie of St. Mary's ;" (see Kilty's Land- holder's Assistant, p. 68.) A manor could not be less than one thousand acres, according to his lordship's instructions of 1636, before-mentioned.
t " Council Proceedings from 1636 to 1657," p. 20.
# Although the office of constable is now by us, and might be then in England, thought to be an office below the dignity of a gentleman ; yet in the then situation of the province, it might with propriety be estimated an office of honour. That Mr. Vaughan was then considered in the rank of a gentleman, we may infer from his subsequent promotions, particularly
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CHAP. I. 1638.
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ing preamble to it : " whereas the west side of St. George's river is now planted by several inhabitants, and is thought fit to be erected into a hundred, by the name of St. George's hundred," &c. The com- mission specifies his powers as the constable of that. hundred, nearly in the same manner as the like com- mission in England, prescribing their common law. duties ; but moreover particularly enjoins him, to make diligent search and inquiry, for persons who furnish the Indians or savages, with arms and am- munition .*
As hundreds were the civil divisions of a county The coun- in England, we may infer, that all the parts of the ty of St. country adjacent to the town of St. Mary's, inhabit- ganized. Mary's or- , ed by the colonists, were considered as forming a . county, to which the name of St. Mary's was given; but whether any real limits were yet assigned and marked out as the boundaries of that county, does not appear. That a county was now so called, ap- pears from a commission to John Lewger, esq., bearing date the 24th of January, 1637, (1638, new style,) appointing him conservator of the peace within the county of St. Mary's, with such powers as are usually exercised and executed by any jus- tice of peace in England, &c. The same commis- sion appoints him also, " commissioner in causes testamentary," to prove the last wills and testaments of persons deceased, and to grant letters of adminis- ' tration, &c. : it is addressed to him in the following
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