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 22
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" Then question being moved, what laws the pro-
" See note (T) at the end of the volume.
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CHAP. vince shall be governed by, it was said by some, I. that they might do well to agree upon some laws 1638. till we could hear from England again.
How far " The president denying any such power to be
the laws of England were in the house, captain Cornwaleys propounded the deemed to laws of England, the president acknowledges that bein force. his commission gave him power in civil causes to proceed by the laws of England, and in criminal causes, likewise, not extending to life or member, but in those he was limited to the laws of the pro- vince; there could be no punishment inflicted on any enormous offenders by the refusal of these laws."
" Whereupon the commission was produced and examined, and upon the reading of it, it appeared that there was no power in the province to punish any offence deserving the loss of life or member, for want of laws." *. 1
" To this they answered, such enormous offences would hardly be committed without mutiny, and then it might be punished by martial law."
The house at this period of the business appear to have adjourned for dinner, but met again in the
.The commission here alluded to, was most probably that sent in to the governour, bearing date the 15th of April, 1637, before-mentioned, by which the governour and council were authorised, " where the life, member, or freehold of any per- son should happen to come in question, to inquire and deter- mine according to the laws of our said province, and finally to give sentence and judgment thereupon and to award execu- tion accordingly." The difficulty appeared to be, that accord- ing to the commission they could not proceed against offend- ers, 'in capital criminal cases, by the laws of England, but by their own particular local laws of the province ; from whence * followed, that if there were no laws of the province, there " no proceedings in such cases.
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afternoon of the same day, when it was moved, CHAP. " that the house would consider of some laws to be I. sent to the lord proprietor." 1 1633.
. " And the president advised, that they should choose some committees* to prepare the draught of them, and then the house might meet for confirm. ing them ; and in the mean-time, every one might follow their other occasions." 1
' "So it being put to the vote, how many commit- tees should be appointed for that purpose, they agreed that five should be chosen." .And five were accordingly chosen.
" It was then considered, for how long to adjourn the house, and it was thought fit to adjourn till the eighth of February following."
" And because the court was to be held in the mean-time, that is to say, on the third of February, that therefore, the privilege of parliament should be void until the court were past, and all freemen might be arrested, as if no assembly were. And so the house broke up."
The interval of ten days, for the committee to prepare the draughts of new laws, being clapsed, the assembly met again on the eighth of February, according to their adjournment. The committee, it seems, had, during this interval, prepared a new set of laws to be enacted by the assembly, and to be sent to the lord Baltimore ; but it appears also; that upon consultation during this short recess, it
* It appears from subsequent proceedings of the house, that the word " committees," here meant the members composing a committee. It was a phraseology in use at that time. See Hazard's Collections, Vol. 1, p. 410, 428.
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CHAP. was thought proper to propose again, the laws sent I. in by the lord proprietor.
1638. " The committee reported to the house, that they The laws sent in by the pro- prietor thought fit to read the former draught of laws again, and to put them to the vote the second time, in re- again pro- gard there was found a great deal of misunderstand- posed and rejected. ing of them among the freemen, which made them to refuse them.
" And it being put to the vote of the house, whether they should be read again, or not, was affirmed by forty-eight voices, and denied by twenty - one voices.
. " Then was an order made, by general consent of the house, that all bills propounded to the house . for laws, should be read three times, on three seve- ral days, before they should be put to the vote."
" Then was the draught of laws read through the second time, and twenty bills propounded by the committee, were read the first time .*
" Captain Cornwaleys desired it might be put to the vote of the house, whether these lawst at the third reading, should be voted severally, or the whole body of them together. 7
" And that they should be voted altogether, was affirmed by thirty-two voices, and denied by thirty- seven."
. This last vote seemed preparatory to a total re- jection of them." The house upon this adjourned, 1- 1. *
* The draught of laws to be read the second time, must have been the laws sent in by the proprietor ; and the twenty bills, those prepared by the committee. .
t Viz. those sent in by the lord proprietor. - !! . ,
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(probably for dinner,) and met again in the after- CHAP. noon of the same day. I.
.1638.
- " The house being sat, the president declared that he thought it fitting to adjourn the house for a longer time, till the laws, which they would pro- pound to the lord proprietor, were made ready. which some would take care of, and in the mean- time the company might attend their other busi- ness.
.; " Captain Cornwaleys replied, they could not spend their time in any business better than in this for the country's good; and one of the planters de- manded the reason why it should be adjourned, and said they were willing to leave their other business, to attend to it. The president replied, he would be accountable to no man for his adjourning of it.
" Then captain Cornwaleys moved, that at least a committee might be appointed, that should take charge of preparing the laws till the house met again ; and it being put to the house, they agreed that three committees* should be appointed. Then every one nominating severally his three commit- tees, the president had forty-six voices, captain Cornwaleys had fifty-six, captain Evelin forty-four, Mr. Lewger thirty-one, Mr. Snow five, and captain Fleete four.
" Then was it ordered, that privilege of parlia- ment-men for their persons, should not be allowed till the next meeting of the assembly.
" Then the president adjourned the house till the twenty-sixth day of February."
· Three members of a committee, as before.
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CHAP. I. From what fell from captain Cornwaleys, in the foregoing proceedings, in his proposition for adopt. 1638. ing the laws of England, it might be inferred, that the laws of England had never yet been put in practice among the colonists, although full three years had elapsed since their first settlement at St. Mary's. It must be confessed, that this observa- tion of his, cannot at this day be easily accounted for, since it is certain, that the carliest records of the province seem all to indicate, that the whole of their proceedings, both legislative and judicial, were. conducted according to those laws, except, as ob- served in the house of assembly, "where life or member was to be affected." Indeed, the subject that so often occurs on the little journal of the house, before quoted, as to " privilege of parlia- ment," in exempting the members of the house from arrest, presupposes the common law of Eng. land as to this purpose in force ; for, if there were. no local laws of the province, nor any common law, from whence could this privilege arise ? We are, therefore, to construe Mr. Cornwaleys' proposition to this effect : that the laws of England, so far as they were applicable to the local circumstances of the colonists, were to be continued to be used and practised by them ; and that a legislative declaration to. that purpose, should be made.
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Courts of justice meet.
In confirmation of this construction of the fore- going proposition, we are to observe, that in a few days after the assembly rose, courts of justice were held at St. Mary's, in which the proceedings. appear to have been in exact conformity to those laws. A court " for testamentary causes," composed of the
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governour and council, was held on the 12th of CHAP. February ; in which letters of administration were L 1638. . granted on the estates of divers deceased persons, and proceedings had, as in the same kind of courts in England. On the same, or the succeeding day, a court, called in the records, a county-court, was holden before the lieutenant-general, captain Robert Wintour, and Mr. John Lewger; at which a grand jury were impanelled and sworn, and two bills of indictment for piracy and murder, were sent up to them, and found true bills. These indictments ap- Pro- pear to have been drawn according to English pre- cedents, and the technical phraseology used in them against Clay- according to the established practice of the criminal borne's laws of England. As these indictments, which have party. been before alluded to, related to those political in- cidents of the province occasioned by Clayborne's® resistance to the lord proprietor's right and autho- rity over the isle of Kent, some more particular no-' tice of them will be necessary.
-The first of these indictments charges : " Let inquest be made for the lord proprietor, if in the river Pocomoque, on the eastern shore, on the twenty-third day of April, in the year 1635, Tho- mas Cornwaleys, esq. one of the commissioners of this province with divers other persons of the com- pany and servants of the said Thomas Cornwaleys, being in two pinnaces, called the St. Helen and the St. Margaret, in the peace, &c. Ratcliff Warren, commonly known by the name of lieutenant War .. ten, Richard *,* and Robert Lake, with divers
* The surname here in the record is not legible;
ceedings therein
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CHAP. others, to the number of fourteen persons, or there- abouts, &c. in one pinnace belonging to William 1638 .: Clayborne, of the isle of Kent, gentleman, with force and arms, &c. on the day aforesaid, in the place aforesaid, upon the two pinnaces aforesaid, feloni. ously, and as pirates and robbers, an assault did make, and upon the said Thomas Cornwaleys and his company, divers guns charged with powder and bullets, did shoot and discharge, &c. and one Wil- liam Ashmore, of St. Mary's, apprentice in the pin- . - nace aforesaid, the day and year aforesaid, at the place aforesaid, did shoot and wound in the breast, on the left side, near the left papp, of which wound the said William Ashmore instantly died; and if the said William Clayborne did encourage and in- stigate, and abet the said lieutenant Warren, to make and attempt the said assault upon the pinnace aforesaid, or upon any other, the pinnaces, boats, or vessels belonging to St. Mary's; and if the said William Clayborne did, by a special warrant or commission, under his hand, command, warrant, and authorise the said lieutenant Warren, to seize, take, and carry away the pinnaces or other vessels belonging to St. Mary's, contrary to the peace of the sovereign lord the king, his crown and dignity, and contrary to the peace of the said lord proprietor, his domination and dignity."
The other indictment is against Thomas Smith, gentleman, and three other persons, planters, for the murder of the same William Ashmore, and is in other respects, the same as the former indictment, totidem verbis, except as to time and place, as fol- lows : " Let inquest, &c. if in the harbour of great
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CHAP. I. 1638.
bitants of the isle of Kent re-
HISTORY OF MARYLAND.
Wiggomoco, in the bay of Chesapeak, on the tenth day of May, in the year of our Lord 1635, Thomas Cornwaleys, esq. one of the commissioners of the province, Cuthbert Hemirk, and John Hollis, ser- vants of the said Thomas Cornwaleys, being in the good pinnace called the St. Margaret, in the peace, &c. Thomas Smith, of the isle commonly called Kent, gentleman, Philip Tailor, Thomas Duffil, and Richard -,* planters, together with divers others, to the number of fourteen persons, or thereabouts," &c. and so on, the same as the former indictment, charging William Clayborne also, as accessary be- fore the fact, in the manner as before.
.. On account of the deficiency in the laws, and the exception in the lieutenant-general's commission, before-mentioned, so that no capital punishment could be adjudged by any court of the province then existing, the trials on these indictments were postponed until the next meeting of the assembly.
Notwithstanding these proceedings, and although The inha- Clayborne had, before this, departed for England, yet it seems, that the inhabitants of the isle of Kent fuse to were far from being at this time quiet and obedient submit. to the lord proprietor's government. The authority of the provincial government, was yet so openly contemned and resisted, by many of the inhabitants of that island, as to render it necessary for the go- vernour to proceed thither with an armed force, to quell and punish the refractory and disobedient. We find in the records of the " Council Proceed- ings" of this period, an entry explanatory of the
* The surname here in the record is not legible.
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CHAP. reasons and causes of this measure of the govern- I. ment.
+.1638 .:
Cover- nour Cal-
Fert pro- ceeds with a military force against them.
" By the governour and council, this 12th of Fe- bruary, 1637," (1638, new style.) 4
".The governour and council, taking into consi- deration the many piracies, insclencies, mutinies, and contempts of the government of this province, formerly committed by divers of the inhabitants of the isle of Kent, and that the warrants sent lately into the said island, under the great seal of the pro- vince, for apprehending some malefactors, and to compel others to answer their creditors in their law- ful suits of debt or accompt, were disobeyed and con- temned, and the prisoners rescued out of the officer's hands, by open force and arms; and being now newly informed, that divers of them do maintain and pro- tect themselves in their said unlawful and rebellious acts, did practice and conspire with the Susquiha- noughs and other Indians, against the inhabitants of this colony, have thought it fit, that the governour should sail, in person, to the said isle of Kent, and take along with him a sufficient number of freemen, well armed, and there, by martial law, (if it shall be necessary,) reduce the inhabitants of the said island to their due obedience to the lord proprietor, and by death, (if need be,) correct mutinous and seditious offenders, who shall not, (after proclamation made,} submit themselves to a due course of justice; and for his better assistance herein, it was thought fit, and so ordered, that captain Thomas Cornwaleys, esquire, and one of the council of this province, should go along with the governour, and be aiding and assisting to him, to the uttermost of his power,
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for the command of the forces, according to such CHAP. 1. .
directions as he shall receive from the governour during the expedition.
1638.
Signed, LEONARD CALVERT, JEROME HAWLEY, JOHN LEWGER."*
Preparatory also, to this expedition, the governour Secretary issued his proclamation, reciting, that " whereas this authori-
Lewger present general assembly, begun on the 25th day of sed to January, last past, and by several adjournments, con- assembly. . hold the tinued until the 8th of this instant month of Februa. ry, was then adjourned until the 26th of this instant month, now designing at this present, to make an expedition in person, unto the isle of Kent, and doubting, lest some accident might hinder my re- turn to St. Mary's, afore the said day, whereby the assembly would of itself be dissolved, for want of power to assemble; know ye, therefore, that in case · of such my absence, I have authorised and deputed Mr. John Lewger secretary, in my name and place, to hold and convene the said assembly, at the day appointed, and to give voice for me, to all such things as he shall think fit, also to adjourn or dis- solve the said assembly, and to do all things in my stead, &c.
LEONARD CALVERT."
- During the governour's absence from St. Mary's, the assembly met on the 26th of February, 1637, (1638, new style,) according to adjournment. But, .
* See the Provincial Records, entitled " Council Proceed- ings, from 1636 to 1657,". p. 26, 27.
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CHÁP. after ordering " that privilege of parliament be sus- I. pended till the next meeting," the house was ad-
1638. journed till the 5th of March next.
- The house met on the 5th of March, according to their last adjournment ; but, the governour being : still absent, "Mr. Secretary adjourned the house till the 12th of March following."
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" And the house ordered that privilege of parlia- ment should be suspended till the next meeting." .
The house met on the 12th of March, according to their adjournment; and the governour, being now returned, was present, and presided as speaker.
" Privilege of parliament was affirmed ;" and the twenty bills draughted by the committee, which were formerly read, at the session on the eighth. of : February, were now read a second time.
The house meeting again on the next day, (the " 13th of March,) fourteen other bills were then read " for the first time.
/ Act of at. tainder against William Clay- borne . . .
Which bills were again read on the succeeding day, (the 14th of March,) together with three other bills for the first time ; one of which last was " for the attainder of William Clayborne, gentleman."
The reader will observe, that Clayborne was -""' charged as an accessary before the fact, to the mur- i der and piracy, as stated in the bills of indictment, before-mentioned, found by the grand jury. .. On ."account of the deficiency of the laws, as before stat- ed, the intervention of the legislature was deemed .... necessary, against both Clayborne and Smith., The - former not being taken, the proceeding against him was by a bill of attainder ; by which, his property within the province, became forfeited to the lord
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proprietor. The latter being still held as a prisoner, CHAP. I. .1633.
he was, in the afternoon of this day, (the 14th of March,) arraigned and tried before the house, sitting as a court of justice. As the proceedings of a le: ; gislature, (under the degree of a house of lords,) acting in a judicial capacity, were at this time un- common, it is thought that an insertion of them here, as they appear on the records, will not be deemed improper.
" Then was Thomas Smith called to the bar, be- Trial o: ing indicted of piracy, and Mr. Secretary made Smith, Thomas himself attorney for the lord proprietor, and read one of Ciay- - his lordship's warrant in that behalf. Then did the borne'a attorney put in the indictment, and demanded that men.
: the prisoner might be arraigned upon his indict- ment; and the indictment being read, he pleaded Not guilty.
SC:" Then did the attorney inform the house upon the indictment, and produced the depositions , of : - John Tarbison and Arthur Brooks; and the prisoner :: pleaded all he had to say in his defence, and the at- : torney replied to it : and when the prisoner had no more to allege for himself, he was demanded whe- ther he would challenge any in the house that were to pass upon him, and he challenged none; then . they gave their votes, and he was found guilty by all the members except one .*
" Then was sentence pronounced by the presi-
· The name of this dissentient member, as it is in the re- cord, is not easily legible ; but it appears to be John Halfe- Aide.
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CHAP. I.
dent, in the name of all the freemen, in these words :
1638.
" Thomas Smith, you have been indicted for fe- lony and piracy ; to your indictment, you have pleaded not guilty, and you have been tried by the freemen in this general assembly, who have found you guilty, and pronounce this sentence upon you, that you shall be carried from hence to the place whence you came, and thence to the place of exe- cution, and shall there be hanged by the neck till you be dead, and that all your lands, goods, and chattels shall be forfeited to the lord proprietor, sa- ving that your wife shall have her dower, and God have mercy upon your soul.
" Judgment affirmed and approved by special con- sent, by word of mouth, by captain Cornwaleys," and others(named in the record) sixteen in number .* ::: " Then did the prisoner demand his clergy; but it was answered by the president that clergy could not be allowed in his crime, and if it might, yet now it was demanded too late after judgment."
Inquiry by the assem- blv into the con- duct of captain Cornwa- Jeys.
It will be recollected, that in the rencounter be- tween captain Cornwaleys and his company with Clayborne's men before-mentioned, several persons of the latter party were said to have been killed by the fire of Cornwaleys's men in resisting the attack upon them first made by Clayborne's party, as alleged by those of Cornwaleys. It was, therefore, deemed necessary by the house, that inquiry should
By this the whole house of assembly must at this time have consisted of seventeen members, including John Halfe- hide the dissentient.
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be made by them of these facts; and their proceed. CHAP. ings thereon, appear upon the records to have been L. 1638. as follows ;
" Then departed out of the house, captain Corn- waleys, Cuthbert Fennick, William Lewis, John Nevill, Anthony Cotton, Edward Fleete, and Cy- prian Thoroughgood.
" Then was the house moved by the attorney to. inquire of the death of William Ashmore, Ratcliff, Warren, John Bellson, and William Dawson, and the house having heard the evidence of Cyprian Thoroughgood, John Nevill, Cuthbert Fennick, and. Edward Fleete did find that the said Ratcliffe War -? ren, John Bellson, and William Dawson, with di -; vers others, did assault the vessel of captain Corn- waleys and his company, feloniously and as pirates and robbers to take the said vessel, and did discharge divers pieces charged with bullett and shott against the said Thomas Cornwaleys and his company, whereupon and after such assault made, the said Thomas Cornwaleys and his company in defence of themselves and safeguard of their lives, not be- ing able to fly further from them, after warning given to the assailants to desist from assaulting- them at their own peril, did discharge some guns. upon the said Ratcliff and his company, of which shots the said Ratcliff Warren, John Bellson, and William Dawson died, and so they find that the . said Thomas Cornwaleys and his company did law- fully, and in their own necessary defence kill the said Ratcliff Warren, John Bellson, and William Dawson, and do acquit the said Thomas Corn- waley's and his company of the death of the said .
Pmmier
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Ratcliff Warren, John Bellson, and William Daw.
CHAP: L son1. :
1638. " And they further find, that the said Ratcliff Warren and his company did discharge their guns against the said Thomas Cornwaleys and his com- pany, and did kill the said William Ashmore, being one of the company of the said Thomas Cornwa: !: 5 , 'T leys, as felons, pirates, and murderers."
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That the assumption of judicial power by the house of assembly at this time, was not confined to Smith's case, appears from the journal of the house for the succeeding day, (the 15th of March,) where an entry appears of the following purport: " Then was fined to the lord proprietor Thomas Baldridge, 40 lb tobo. for striking John Edwards." It is true that this might have arisen from the fact being per: petrated in the presence of the house, on which oc- casion, by the law of parliament, they would have had power to impose the punishment of imprison- ment as for a contempt; but the journal does not au- thorise this supposition of the circumstances of the fact. 1
Resolu- Tion of
bly rela- live to ser- FAnts.
Another entry on the journals of the house, of the assem- the 17th of March, may perhaps be deemed wor- thy of notice, as tracing a feature of the early ha- bits, manners, and customs of our ancestors -- " Then upon a question moved touching the rest- ing of servants on Saturdays in the afternoon, it was declared by the house that no such custom was to be allowed." It may be remarked, that notwith- standing this declaration of the legislature, the cus- tom has in some measure, even with slaves, pre- vailed throughout the province.
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