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 21
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from his being made commander of the isle of Kent county, under governour Stone, about the year 1650.
* "Council Proceedings from 1636 to 1657," p. 21.
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CHAP. I. style-" to our trusty counciller John Lewger, se- cretary of our province of Maryland."* He had 1638. been appointed counciller and secretary by the com- mission of the 15th of April, 1637, before-mention- ed ; in virtue of which office of secretary, it seems to have been the intent of that commission, to make him also, both principal clerk of the council and re- . gister of the land-office. It appears from subsequent Mr. John records of the province, that Mr. Lewger had been Lenger. sent into the province from England, by the lord proprietor, as a man well qualified to assist his bro- ther in the administration of the government. He , arrived there on the 28th of November, 1637, with his wife, and a son named John, about nine years old, together with three maid servants, three men servants, and a boy.t It would seem, therefore, that he was a man above the ordinary rank in so- cicty, both as to fortune and mental qualifications.
An assem- bly of the province called.
In pursuance of the lord proprietor's instructions, before-mentioned, of the 15th of April, 1637, for the holding an assembly, on the 25th of January next, the governour proceeded to some preparatory ar- rangements necessary thereto. Accordingly, about the first of January, 1637, (1638, new style,) he
* " Council Proceedings from 1636 to 1657," p. 23.
t See Kilty's Landholder's Assistant, p. 67. Although these are styled servants in the record, yet they might not all have been retained by him as meniul servants, but persons imported or brought in with him at his expense, so as to en- title him to " rights" of land accruing from such importation, by virtue of the lord proprietor's instructions of 1636, before- mentioned. These particulars relative to Mr. Lewger, exhi- bit the early mode of colonising the province.
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issued his warrant to captain Evelin, commander CHAP. of the isle of Kent, as before-mentioned, reciting, that " whereas my dear brother, the lord proprietor of this province, hath, by his commission to me directed, in that behalf, bearing date at London, in the realm of England, the 15th day of April, 1637, appointed a general assembly of all the freemen of this province, to be held at his town of St. Mary's, on the 25th of January next ; these are therefore, in his lordship's name, to will and require you, all ex- cuses set apart, to make your personal repair to the fort of St. Mary's, on the said 25th day of January, then and there to consult and advise of the affairs of this province ; and further, to will and require you at some convenient time, when you shall think fit, within six days after the receipt hereof at the far- thest, to assemble all the freemen inhabiting within any part of your jurisdiction, and then and there to publish and proclaim the said general assembly, and to endeavour to persuade such, and so many of the said freemen as you shall think fit, to repair per- sonally to the said assembly, at the time and place prefixed, and to give free power and liberty to all the rest of the said freemen, either to be present at the said assembly, if they so please, or otherwise to elect and nominate such, and so many persons, as they or the major part of them, so assembled, shall agree upon, to be the deputies or burgesses for the said freemen, in their name and stead, to advise and consult of such things as shall be brought into de- liberation in the said assembly, and to enter all the - several votes and suffrages upon record, and the re- cord thereof, and whatsoever you shall do in any of
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CHAP. the premises, to bring along with you, and exhibit I. it at the day and place prefixed, to the secretary of
1638. the province for the time being; and for so doing, this shall be your warrant."*
· See " Assembly Proceedings from 1637 to 1658," p. 1. As the word " freemen," so often repeated in this warrant or writ, frequently also occurs in the early legislative proceed- ings of the province, and is moreover, an expression used in the charter, of material import in the political constitution of the province, it will be proper, that a correct idea should be annexed to it. In the translation of the charter, inserted in Bacon's edition of the laws, it is used as the true signification of the words " liberorum hominum" of the original Latin. It is true, that in common speech at this day, the word " free- man" means a person who is not a servant or slave. But the words " liberorum hominum," in the charter, must, I appre- hend, have a more technical meaning, and be subject to the signification annexed to it by the rules of the common law. It will be recollected, that the feudal tenures then, at the time of making the charter, subsisted in considerable force ; and as the charter was evidently framed upon feudal principles, these words ought properly to be interpreted in a feudal sense. Now the word " freemen," as well as the Latin expression " liberorum hominum," were, according to common law wri- ters, cotemporary, or nearly so, with the date of the charter, understood as being synonimous to the word freeholder. Spelman, in his glossary, verb homo, says that " homo liber" is to be taken " pro libero tenente," for a freeholder. The fol- lowing sentence in Magna Charta, ch. 14 : Liber homo non amercietur pro parvo delicto, nisi secundum modum illius de- : licti, is thus translated in Keble's statutes at large : " a free- r man shall not be amerced for a small fault, but after the man- ner of the fault." : Upon this lord Coke (2 Inst. 27,) has made · the following comment : " a freeman hath here a special un- derstanding, and is taken for him, qui tenet libere, for a free- · holder." : Also in his comment on the statute of Quia Emti- tores, (2 Inst. 501,) he makes the same interpretation of the
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It is not easy to determine, whether the isle of CHAP. Kent was at this time considered as a county by I. 1638. itself, or a distinct territorial government, within
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·words " libero homini." And again, in his 1 Inst. 58, a. he uses the words freemen and freeholders as synonimous terms, when applied to the tenants of a manor. It might possibly be objected, that inasmuch as the word's " liberi tenentes," which literally signify freeholders, are used in the next suc- ceeding section (the eighth,) of the charter of Maryland, and which words are, in the translation in Bacon, rendered free- holders, this variance in the terms used in the same instru- ment bespeaks a different sense of the words "liberorum ho- minum" in the preceding or seventh section. But by com- paring the two sections together, it will be seen, that the words " liberi tenentes" in the eighth section, are used in re- ference to the " liberorum hominum" of the next preceding seventh section ; which clearly implies, that they were consi- dered as synonimous expressions. Hence it is to be inferred, that no inhabitant of the province was, at this period of time considered as a freeman, unless he was an owner of land therein ; that is, a freeholder, and consequently not entitled to a seat in the house of assembly, unless he was such. It ap- pears, indeed, from the 14th clause of the act of 1638, (1639, new style,) ch. 2, and the 26th bill of those ingrossed at the same session, but not passed, that the governour, as lieuten- ant-general of the lord proprietor, claimed the prerogative, probably as a part of the Palatinate Regalia, of summoning by special writ, "gentlemen of able judgment and quality," to the assembly, similar to the royal prerogative of England, of calling by writ to the house of peers ; but it does not appear, that it was not requisite, that these "gentlemen" so summon- · ed, should be freeholders. It is probable, however, that at this time, most of the inhabitants of the province, except such as were imported at the expense of others, were freeholders, or owners of land within the province. Although a right to a seat in the house of assembly, and a right to vote for a bur- gess or delegate, or to constitute a proxy, appear to have been at this time one and the same right, dependent upon the same
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CHAP. "the lord Baltimore's jurisdiction, subordinate to the. 1. general government of the province. From the cir- 1638, cumstance of captain Evelyn's having a council as- signed him of six persons, as mentioned in his com- mission, before stated, of the 30th of December, 1637, it would seem to be of the latter .* However that was, yet it seems, that at this time any freeman thereof had liberty to repair in person to the assem- bly, and to be considered as a member thereof. Al- though the alternative was given them, by the fore- going warrant, of meeting together, and electing representatives to serve in the assembly, as at this day ;t yet it would appear from the proceedings of this assembly, that the practical construction of the foregoing warrant was, that every freeman who did not choose to attend himself, might depute some one, who did attend as a member, to vote for him
qualifications, and attached to every freeman of the province, yet it would seem, that in process of time, when the popula- tion of the province increased, and it became inconvenient for every freeman to have a right to a seat in the house, (an in- convenience felt, and proposed to be remedied by the before- mentioned 26th bill of the session of 1638-9,) other persons besides freeholders, were by law admitted to the right of suf- frage. It accordingly appears, by the act of 1716, ch. 11, that freemen, who were residents, and who had a visible estate of 40/. sterling," (though not freeholders,) were entitled both to vote and to be voted for; though it is probable, that this re- gulation had been adopted prior to the year 1716.
* But subsequently, in the year 1650, it was considered as a distinct county, sending one delegate to the assembly. See Bacon's Laws, the N. B. preceding chap. 1.
. t This alternative seems to be authorized also by the seventh section of the charter, before-mentioned.
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as his proxy, in the manner of the house of lords CHAP. in England .* I.
The assembly accordingly met on the 25th day
1638. of January, 1637, (1638, new style.) The lieuten- The first ant-general, (or governour,) appears to have taken of the the chair as speaker thereof, and the three gentle- meet. province men who composed his council, to wit: Jerome Hawley, Thomas Cornwallis, and John Lewger, esquires, sat with the others as individual members only, and not as constituting an upper house, as the council afterwards did, but in the manner of a Scotch parliament before the union. The com- mander of the isle of Kent, (Evelyn,) also took his
* Something like this constituted an article in the first form of government instituted by the New Haven colony, on their first settlement at Quinipiack or New Haven, in 1637-8, be- fore their union with Connecticut. " All freemen, without summons, should mect once a-year, and vote in the election of officers ; and such as cannot attend in fierson, may vote by proxy, or send their votes sealed." . Hutchinson's Hist. of Massachusetts, Vol. 1, p. 82. This practice, adopted as we see in two of the carliest English settlements of North Ame- rica, must have been derived from an usage in the house of lords in England. The principle, upon which the right of making a proxy prevails in the house of lords and not in the house of commons, is said to be, that the lords are supposed to sit in parliament in their own personal rights, and not as delegates or deputies of others, as the commons do. And, therefore, as a commoner in parliament was only a proxy or representative of another, he could not constitute a proxy in his place, according to an ancient maxim of law, delegata hotestas non potest delegari, 4 Inst. 12, 1 Bac. Abr. 582. So allowing every freeman in Maryland to have a seat in the as- sembly, sitting there in his own personal right, he might make a proxy upon the same principle as a lord in England.
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CHAP. seat as a member. In the list of the members, 1. some of whom are styled gentlemen, and some 1638. planters, the hundreds from which they came, are annexed to their respective names. It would ap- pear, that some of the members sat as burgesses or representatives from hundreds ; others claimed and held seats in their own personal rights as freemen, and so far constituting, what is by some required to · constitute, a true and real democracy, or an assem- blage of all the free citizens of the state to make laws for themselves. It is true, that all the freemen of the province did not attend ; but it appears, that such as did not attend, either voted for some per- son in his hundred as a burgess or representative thereof, or authorised some member, as his proxy, to vote for him. Although writs of summons, it seems, had been issued to every freeman, individu- ally, to attend, yet one of the first acts of the pro- ceedings of the assembly, on the first day of their meeting, was to cause proclamation to be made, " that all freemen omitted in the writs of summons, that would claim a voice in the general assembly, should come and make their claim."
" Whereupon claim was made by John Robin- son, carpenter, and was admitted."
A list was made of such freemen as were absent, and of the names of those members who attended, and were proxies for such absentees ; among which members, the three gentlemen who were councillors appear to have had the greatest number .*
* The proceedings do not specify, how such delegated au- thority to a firoxy should be verified ; but we may suppose it
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The house then proceeded to establish rules and CHAP. orders to be observed during their session ; the sub- I. 1638. stance of which was as follows :
" Imprimis-The lieutenant-general, as president of the assembly, shall appoint and direct all things that concern form and decency, to be observed in the same; and shall command the observance thereof, as he shall see cause, upon pain of imprisonment or fine, as the house shall adjudge.
".Item-Every one that is to speak to any mat- ter shall-stand up, and be uncovered, and direct his speech to the lieutenant-general, as president of the assembly ; and if two or more stand up to speak together, the lieutenant-general shall appoint which shall speak.
" Item-No man shall stand up to speak to any matter, until the party that spoke last before, have sat down; nor shall any one speak above once to one bill or matter at one reading, nor shall refute the speech of any other with any contentious terms, nor shall name him but by some circumlocution ; and if any one offend to the contrary, the lieutenant- general shall command him to silence.
" Item-The house shall sit every day at eight o'clock in the morning, and at two o'clock in the afternoon.
to have been by the production to the house of some written instrument, in the nature of a warrant of attorney. Although it is said, (Cunningh. Law Dict. verb. proxy,) that a peer of the realm must enter his proxy in fierson, on the journal of the house of lords ; yet, from the case that occurred in 1 Eliz. (as stated by lord Coke, 4 Inst. 12,) it might be done by an instrument of writing for that purpose.
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CHAP. I. " Item-The freemen assembled at any time, to any number above ten persons, at the hours afore- 1638. said, or within one hour after, shall be a house to all purposes.
Item-Every one propounding any matter to the house, shall digest it at first into writing, and deli- ver it to the secretary,* to be read unto the house ..
" And it was ordered by the house, that these orders should be set up in some public place of the house, to the end all might take notice of them."
The house met again on the next day, the 26th of January, at eight o'clock, according to regulation. Several persons came in, and " claimed their voices as freemen ;" of which the following entries on the journal of the house, appear to be the most remark- able :
" Then came Edward Bateman, of Saint Mary's hundred, ship-carpenter, and claimed a voice as freeman, and made Mr. John Lewger, secretary, his proxy."t
Also, " came John Langford, of the isle of Kent, gentleman, high constable of the said island, who had given a voice in the choice of Robert Philpot, gentleman, to be one of the burgesses for the free- men of that island, and desired to revoke his voice,
* From this we may infer, that the secretary of the pro- vince, Mr. Lewger, acted as clerk of this assembly, notwith- standing he was a councillor, and held moreover several other offices, and besides voted as a member of the house.
t This seems consonant to the practice of the house of lords in England, where a proxy must be made in the house in fier- son, as before-mentioned.
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and to be personally put in the assembly, and was CHAP. I.
admitted."
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The house then proceeded to the most important 1638. business of their session, the consideration of the The as- sembly laws transmitted to the colony by the lord proprie- take into tor. The draughts of the twelve first acts of them tion the being read, they " were severally debated by the in by the. laws sent house." An adjournment then took place until Proprie- tor. three o'clock in the afternoon; but nothing further of importance appears on the journal, to have been transacted on that day.
On the meeting of the house on the third day of their session, (the 29th of January,) an extraordinary question seems to have been agitated. It thus ap- pears on the journal : " Upon occasion of some warrants granted out against some freemen that had made proxies, a question was moved in the house, whether freemen having made proxies during the assembly might be arrested before the assembly were dissolved ; and captain Cornwaleys and James Baldridge were of opinion that they might, but the rest of the house generally concurred, that after the writs issued for summoning the assembly, no man having right to repair unto the assembly might be arrested, until a convenient space of time after the dissolution of the said assembly, for their repair home."
It is to be observed, that this privilege from ar- rests, on warrants here mentioned, must have been only in civil cases, as for debt ; for even at this time in England, no privilege of parliament was allowed to exempt even peers of the realm, from arrests for any indictable crime. If the privilege here contend-
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CHAP. .I. _ ed for, was meant to extend to a freeman while he was actually on his way to the assembly, either to 1638. take his seat therein, or even to revoke a proxy be- fore made by him, the decision of the house must be allowed to have been proper enough; for, by the law of parliament, the appearance of a peer in the house of lords, cancels any proxy before made by him ;* but, if he was to be privileged from ar- rests while he was about his ordinary business at home, and at the same time represented by his proxy, whom he had appointed, or burgess for whom he had voted, it does not appear to have been consonant to any principle of sound policy.
It seems somewhat remarkable to us at this day, that our ancestors, in such an early state of their colonisation, should have had occasion to stickle so much for a privilege, generally esteemed odious even under governments where personal liberty is most strongly cherished. As the habit of contract- ing debts without the means of payment, is gene- rally supposed to originate from an excess of luxury in living, it is difficult to account for the frequency of arrests for debts, which must be supposed to have existed at this time among the colonists, so as to make their legislative interference a subject of anxiety among them. Just settled in a wilderness, where few temptations to extravagant expenses could exist, we should have supposed that habits of economy would have become almost unavoid- able.
The house now proceeded to take into conside-
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mation again, the laws sent by the lord proprietor, as CHAP. before-mentioned. Three questions on the subject appear to have been proposed in the house : first, 1638. whether the laws should be now read again in the house ; or, secondly, whether they should be put to the vote immediately, without further reading ; or, thirdly, whether the subject should not be post- poned to a future day, when a greater number of members might attend.
" Captain Cornwaleys gave his opinion, that they should expect a more frequent house;" that is, that the business should be postponed until a greater number of members attended. .
" Captain Fleete* gave his opinion, that they should be read again ;" but seemed to coincide with the opinion of captain Cornwaleys, of postpon- ing the subject to a future day.
The previous question, however, was put; whe- ther the laws " should be now put to the vote im- mediately," or not. It was carried in the affirma- tive by thirty-three voices to eighteen, both sides including proxies.
" Then were the laws put to the question, whe- ther they should be received as laws, or not."
" Affirmed by the president and Mr. Lewger, who counted by proxies fourteen voices."
" Denied by all the rest of the assembly, being The laws sent re- thirty-seven voices," including, as we may suppose, jected. their proxies.
* It is probable, that this was the same captain Henry Fleete before-mentioned, (p. 271,) who was found by governour Calvert, living at Piscataway among the Indians, where he bad been for some years before the arrival of the colony.
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CHAP. I. Thus it would seem, that governour Calvert and Mr. Lewger, the secretary, were the only two 1638. members of the assembly who were for receiving the laws sent in by the lord proprietor; for although they counted twelve other votes besides their own, on the same side, that is, fourteen voices, yet as those freemen for whom they voted as proxies might not have voted in the same way, had they been pre- sent, the fourteen voices cannot fairly be counted, in forming an estimate of the real opinions of the free- men of the province. Neither can all the thirty-se- ven voices in the negative be taken in for the same reason; but, we may suppose, that a much less pro- portion of those thirty-seven voices were proxies, than on the other side; since by the rules and orders of the house before-mentioned, ten members at least were necessary to constitute a house, and in that case there must have been eight members at least in the negative, who voted in their own rights, to two in the affirmative. The grounds and reasons of their objections to these laws do not appear on the journal; but certain it is, that a very warm opposition, among a large majority of the freemen, was made to their reception, at the head of which opposition cap- tain Cornwaleys may, from all appearances, be consi- dered as having taken his stand. Neither are we able at this day to judge of the merit or demerit of those laws sent in by the proprietor, by a perusal of them, as no copies of them are to be found on our records. Did the duty of a historian allow him to mention his conjectures, a plausible supposition might be made,
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Bacon's Laws of Maryland, anno 1637.
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that the dispute about the reception of these laws CHAP. was dictated more by a political contest for the right I. 1638. of propounding laws to be enacted by the assem- bly than any other cause. From the good charac- ter which Cecilius, lord Baltimore, always bore, we cannot suppose that he had framed or proposed any laws for the colonists, but such as he deemed the best in his own opinion, for the promotion of their welfare, with which his own interest at this early period of the province must have been necessarily involved, and for the prosperity of which he must have felt the sincerest solicitude. It is observable, also, that no specific objections to any particular law ór laws of those sent in by the lord proprietor, were made, but the opposition to their reception seems to have been founded solely on his assumption of the right of propounding them. We may suppose, on the other hand, also, that his rejection of the laws said to have been made by the colonists in 1635, before-mentioned, was founded on this dis- putable right .* So that in the very infancy of the settlement, the contest for the right of propounding laws was likely to result in placing the colonists in that most dangerous situation of society, of living under a government without any known laws. The house of assembly, convened at this time, seemed to be sensible of this. We accordingly find, there- fore, on the journal of the house the following en- tries, immediately succeeding those of the rejection of the laws as just mentioned.
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