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 25
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only, with this express restriction, that it did not reach quite to 36°. A strong inference is to be drawn also, from the agreement of so many respectable historians, besides Oldmixon, before-cited in the text, who speak of Cabot's voyage, as extending southerly only to the 38th de- gree of north latitude. Harris, in his Collection of Voyages, Vol. 2, p. 191, edit. 1748, and Robertson, in his History of Virginia, both limit it to the 38th degree. There must have been some solid ground for this coincidence of opinion. Harris cites Robert Fabian, as ex- pressing himself, that Cabot sailed to the 56th deg. of north lat., " and from thence he ran down to the 38º, along the coast of the continent of America, which, as he (Fabian) says, was afterwards called Flori- da." Fabian lived and wrote in the reign of Henry VII, and must have had some substantial authority for fixing it to the 38°; most probably, from the Journal of the Voyage, then newly published, and fresh in the memory of every literary man. This agrees also, with what is a well known historical fact, that the Spaniards, after Ponce de Leon's discovery of Florida, gave that name indefinitely, to the whole of the coast connected with the land he discovered, as appears from their subsequent claims, in virtue thereof, to both the Carolinas, even as high up as the 37° of latitude. (See Harris's Voyages, Vol. 2, p. 275. Mod. Univ. Hist. Vol. 44, p. 41.) To proceed, however, with the above extract from Peter Martyr, particularly upon that part print- ed in Italics by Holmes, and on which he seems to rely : " ad occi- dentemque profectus tantùm est, ut Cubam insulam à lævo, longitu- dine graduum penè parem, habuerit." Although this passage is obscure, as he observes, yet I think it may be understood without carrying Cabot down to Cape Florida. Having ascertained how far south, or towards the Equinoctial, Cabot went, to wit : not further than the latitude of the Mediterranean, Peter Martyr then proceeds to show how far west he went, and in doing this, he attempts to ascertain the degree of lon- gitude to which he went west ; and it is well known, that the only way of ascertaining the situation of places on the globe, is by ascertaining their latitude and longitude. When he makes use of the expression, " longitudine graduum," longitude of degrees, I understand him to mean longitude as ascertained by the degrees on the equator, in the same manner as longitude is now and was then, calculated from some first meridian, and in contradistinction to the longitude or length of distance, which the ship had run from her place of departure. But the longitude of Cape Maize, the easternmost end of the island of
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Cuba, is 74°, 25', west from London, as appears from the most au- thentic tables and maps of the West Indies. A meridian line drawn through Cape Maize, would intersect the coast of North America a little to the north of Cape May, one of the capes of Delaware bay, in about 39° of north latitude. The coast there trending southwesterly, Cabot might still be said to have proceeded westerly as soon as he reached the 39º of latitude ; and thus proceeding westerly, he might . with perfect propriety, be said to have the island of Cuba on his left hand, as soon as he had passed the meridian of Cape Maize, above- mentioned. Then from Cape May to the 38° of latitude, (the point . of division on the coast, between the states of Maryland and Virginia,) which is contended to be the utmost extent of his voyage towards the south, he was sailing with Cuba on his left, agreeable to the passage in Peter Martyr, and still more so, if it is supposed that he extended his coasting voyage to the 36º of latitude. It ought to be remember- ed, that Peter Martyr and Sebastian Cabot were cotemporaries. When Martyr, therefore, wrote his book De Orbe Novo, from whence the preceding passage was probably extracted, his knowledge of the coast of North America, in a relative situation to that of Cuba, must have been very limited indeed ; and possessed, as most navigators were at that time, with the idea of there being a free passage to the East In- dies by holding a western course, he might with no great impropriety have expressed himself as he did with regard to Cuba, and yet not have meant that Cabot had continued his route as far as Cape Florida. An additional reason for this supposition, might be drawn from the words " pene parem," almost equal ; not quite to the same degree of longitude as Cuba, but almost to it. But if he had sailed to Cape Flo- rida, he would have been not only almost to the same degree of longi- tude, but almost past it, or very near to the western extremity of that island. It would be difficult also, in such case, to reconcile the limi- tation which Martyr had just before given, to what may be called the southing of Cabot's voyage, when he expressly confines it to the north -. ward of the latitude of the Herculean sea, which without doubt, means the mouth of the Mediterranean, and which is, as before-mentioned, in about 36° north latitude.
It may not be improper also, to make a few observations on one of the authorities cited by Mr. Holmes, (Annals, Vol. 1, p. 18, note 2, sub anno 1497,) in support or illustration of the extent of Cabot's voy- age, to wit : the Mod. Univ. Ilist. Vol. 40, p. 378. Although that vo-
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luminous historical compilation is a most useful work, yet, as Doctor Johnson has somewhere observed, it has been executed in a very unequal manner ; which seems indeed to be an unavoidable result, from its being the joint labour of several men of unequal talents, learn- ing, or industry. In that part which relates to America, especially in respect to Florida, it does not appear to have been done with that fide- lity to historical truth, which ought ever to be the polar star of an his- torian. About the time when these volumes, which relate to America, were compiled, the British and Spanish nations were at war, and the two Floridas presented to the view of the former, a very convenient arron- dissement to their colonies on the continent of North America. In the 39th Vol. p. 127, they speak of an expedition, which was at that time fitting out by the British for the conquest of Florida, and in the same Vol. p. 123, 129, 234, they manifestly endeavour to impress their readers with the idea, that Great Britain had just pretences to a prior right to that part of America by reason of the prior discovery of it by Sebastian Cabot ; though in the same volume, p. 129, they acknow. ledge that this prior right of discovery, was the only support of their claim. Accordingly, in the 40th Vol. p. 378, (the place cited by Holmes, in his Annals,) which appears to have been written just after the acquisition of Florida by Great Britain, by the treaty of peace in 1763, acknowledging in the text, that the question, who were the first discoverers of Florida ? was a common topic, much agitated, but little known, and confessing that the whole dispute was then immaterial on account of the late cession of that country under the treaty ; they ne- vertheless subjoin thereto a note, and insert the same again in the text, in Vol. 44, p. 2, and 41 : containing proof, as they suggest, from Sebastian's own words in 1496, that Florida was discovered by Sebas- tian Cabot long before Ponce de Leon's voyage. The passage they cite for that purpose, though they do not say from whence they take it, after describing how far Cabot explored the continent northward, makes him to say, " I turned back again, and sailed down by the coast of that land, toward the equinoctial, (ever with an intent to find the said passage to India,) and came to that part of this firm land which is now called Florida, where my victuals failing, I departed from thence, and returned to England." But whoever attends to what was before ob- served, that the Spaniards, in virtue of Ponce de Leon's discoveries, claimed all the southern part of the continent of North America to an indefinite extent northward, at least so as to comprehend the Caroli-
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nas, and that the name of Florida, was by them so indefinitely applied to all that part of the coast along those states, will at once perceive, that this passage by no means proves what it was cited for. Cabot might have sailed " to that part of the firm land then called Florida,". and yet sailed no further south than the 38th or 36° of north latitudes It clearly then appears, that what the authors of the Mod. Univ. Hist. have said upon the subject, cannot be admitted as very cogent au- thority.
NOTE (C) p. 24.
History seems to present mankind to our view only in three distinct states or conditions : the hunter, the pastoral, and the agricultural. In the first of these, which is that in which the aborigines of North Ame- rica were found by Europeans, the human race necessarily requires a greater superficies of the earth for its support and existence, than in either of the other two. But as it is manifest, that if all nations re- solved to live in this state, there would not be sufficient room on the earth for even the present number of its inhabitants, without any fu- ture multiplication thereof, it seems necessarily to follow, that it is lawful to compel those who live in this manner, either to occupy as small a space of country as possible for them in this state, or to for- sake that mode of life and become cultivators of the earth. From hence it is obvious, that our ancestors, the English, were guilty of no infringement of natural right, when they attempted to occupy a por- tion of the continent of North America, whereon a few tribes of sa- vages were scattered in thin population, and whose subsistence princi- pally depended on the prey of the forest. While no wanton cruelties were practised towards them, nor offensive violence was offered to their persons or personal rights, there seems to have been no injustice " in compelling them, either to contract their limits, or to cede a portion of their territory to those of their fellow-creatures who would culti- vate and improve it. It must be observed, however, that this reason- ing does not go in justification of the conduct of the Spaniards in the conquest of either Mexico or Peru, for there civilization had carried the population of the earth to nearly as high a pitch as in the most improved countries of Europe.
The question, then, on the rights of prior discovery or prior occu. fancy with respect to America, seenis to have been chiefly confined to the contests between Europeans for their respective portions of that
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extensive continent. The general reasoning, just before used, seems to oppose the idea, that a right resulting to one nation merely from first discovering an island or continent, without some actual occu- fancy thereof following such discovery in a reasonable time, should - forever thereafter preclude another nation from taking possession of the same. The manifest inconvenience to mankind, which would re- sult from this principle, if allowed, appears to demonstrate its absur- dity. The right of prior discovery is then, necessarily dependent on subsequent occupancy ; and as independent nations never have yet agreed to fix any precise limited time, within which the latter shall follow the former, the question, like all others in the law of nations, rests on the reasonable construction of mankind. It is upon this con- struction, and not on the pretended right of prior discovery by Cabot, that the English nation were justifiable in taking possession of that part of the continent afterwards denominated by them South Carolina and Georgia. It had been long abandoned by both the French and Spaniards, was derelict property, and was then unoccupied by either of those nations.
It must be confessed, that considerable difficulty often attends the right of occupancy with respect to the limits or extent of the territory, which shall be said to be so gained by occupancy. Where a colony of a few hundreds of individuals sit down upon so extensive a conti- tinent as America, or as either the northern or southern half of it, it would be absurd to say, that such an occupancy would entitle them to the whole of such a continent. Some limitation to such a right must always be made ; and what this should be, has for the most part coca- sioned the many contests, which have taken place between European powers, in regard to America. The ignorance of the people of Eu- rope, of the great extent of the continent of North America towards the northwest, at the time of their first emigrations thereto, will in some measure apologise for the English monarchs in granting, and for their subjects in requesting patents of colonisation, comprehend- ing such enormous territories as some of them did, extending in pa- rallelograms of the surface of the earth from the Atlantic to the Pacific Oceans. And yet on such a grant, was it seriously contended, at the time of the first colonisation of Maryland, that it was unjust to lop off from Virginia even so small a portion of that extensive dominion, as now composes the former state. This indeed, was only a contest be- tween the subjects of the same sovereign. More serious bickerings,
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producing one or two long and bloody wars, afterwards occurred be- tween the maritime powers of Europe, with respect to America ; and yet, no sure and permanent rule has yet been ascertained. The claims of the French, while they possessed Canada, in virtue of their right to that province, would have hedged in the British colonies, within that narrow slip of the continent which lies between the Allegany moun- tains and the coast; but the right was decided, without recurring to the principle, on the plains of Abraham. The Spaniards, who seem least of all to set any bounds to their claims both of discovery and oc- cupancy, brought the subject into litigation between them and Eng- land, in the year 1771, by pretending, that because the Faulkland or Malouine islands lay within a hundred leagues of the Straits of Ma- gellan, they were to be considered as a part of South America, and therefore their undoubted property, by the rights of both discovery and occupancy. The superiority of the British navy, however, com -- pelled the Spanish court to the mortifying necessity of disavowing the violence, which the Spaniards had been guilty of, in dispossessing the British of those islands, and to give orders, that things should be re- stored precisely to the state in which they were before that outrage, . contenting themselves with gravely declaring at the same time, that this should not affect the question, of the prior right of sovereignty over those islands. The uncertain extent of the claim of occupancy, was again exhibited, in a subsequent contention between the same na- tions, in the year 1790, relative to a small settlement made by the British in a part of the northwest coast of America, called Nootka sound, lying in about 50° of north latitude. In the year 1788, a party of English, with intent to establish a fur-trade on this coast, purchased some land of the Indian chief at this sound, built a house thereon, and erected a fortification for their protection. While they were thus in possession of the country at this place, a squadron of Spanish ships arrived, seized their vessels and stock of furs, and dispossessed them of their settlement. The Spaniards could have had at this time, no actual settlement or occupation of the coast, higher up than a place called San Francisco ; which, according to a journal of a voyage made by an American captain in that trade, in the year 1804, (published in the American Register for 1808,) was even at that time the most northern Presideo or district of the Spaniards on that coast, and which is, as he says, in the latitude of 37°, 47', so that a space of the continent along the coast, of twelve degrees at least, about eight hundred miles, intervened
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between that Presideo and the place where the English attempted a settlement. It ought to be observed, that this same journalist explains a Presideo to consist only of a missionary or priest, for the conversion of the Indians, with a guard for him of five Spanish soldiers, under the command of a serjeant or corporal ; which could scarcely be called a, colony or settlement for the occupation of the country. But the Spanish claim did not stop at Nootka sound, but extended as high as the Russian settlement or colony at Prince William's sound or Cook's river, which is in about sixty degrees of north latitude ; so that they would claim a coast of fourteen hundred miles in extent, without a single Spaniard settled thereon. It might be presumed that so haughty a nation as the English, would not yield to this. Atonement and com- pensation were demanded. The result was a convention between the two nations, signed by their respective ministers, on the 28th of Octo- ber, 1790, in which, after the stipulation for a restoration of the settle- ment, and compensation for the injury to the British subjects, a prin- ciple seems to be recognised, whereby each nation was at liberty " to carry on commerce, or make settlements on the coasts of the Pacific Ocean or South Seas, in filaces not already occupied ; subject never- theless to the restriction, that the British should not navigate or carry on their fishery in the said seas, within the space of ten leagues from any part of the coast olready occupied by Spain." The Spaniards ap- pear to have here surrendered their claim under a right of frior dis- covery of the continent ; and it would seem, that although the limits of ten leagues is here applied to the fisheries on the coast, yet it would probably operate also as a limitation to the right of occupancy. But, from these circumstances we may infer, that neither of these three nations will be disposed to pay much regard to the claim of our young American states to their share of this coast, as a part of Louisiana. However, a sufficiency of our purchase from the emperor Napoleon, will probably still remain on the western side of the Mississippi, for the formation of many sister states. We have only to wish, that our union may live to see it.
NOTE (D) p. 49.
'The statutes here alluded to were the 5 Rich. 2, c. 2; 13 Eliz. c. 3; and 14 Eliz. c. 6. By the first of these, (viz 5 Rich. 2,) " all manner of people. as well clerks" (clergymen) " as others, (except only the lords and other great men of the realm, and true and notable mer-
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chants, and the king's soldiers,) were prohibited from passing out of the realm without the king's special license, upon pain of forfeiture . of all their goods; and the master of any vessel, who carried such persons out of the realm, should forfeit such vessel." By the statute of 13 Eliz. " If any native or denizen of the realm should depart the realm without the queen's license, and should not return again within six months either after warning by proclamation, or after the expira- tion of his license, he should forfeit to the queen the profits of all his lands during his life, and also all his goods and chattels. Fraudulent assurances made by fugitives of their lands and goods, to deceive the queen, should be void; but the offender should have restitution upon submission." The statute of 14 Eliz. only regulated the mode in which the queen should take the profits of the lands of fugitives. The two last of these statutes, (viz. those in the reign of Eliz.) being temporary, expired at the queen's death. Dyer, 176, b. note (30.) That of 5 Rich. 2, was repealed in the next reign after Elizabeth, by the statute of 4 Jac. 1, c. 1. Notwithstanding this, a clause of dis- pensation of " the statute of fugitives," is inserted in the ninth section of the charter of Maryland, granted to lord Baltimore, in 1632 (8 Car. 1.) The repeal of the statute of 5 Rich. 2, by that of 4 Jac. 1, might possibly have been construed to extend only to Scotland, to which the whole of the statute of 4 Jac. 1, seems to relate, and ap- pears to have been made solely to remedy inconveniencies, which would otherwise have accrued from the recent union of the two king- doms. All of these three first-mentioned statutes, however, were in force at the time when Sir Humphrey Gilbert obtained his patent, and a special dispensation was therefore essentially necessary, (inasmuch as dispensations were then held to be legal.) for such persons as should go out of the realm, even with the laudable intention of settling a co- lony. In those times there seems to have been some doubt also, whe- ther the common law, without any statute for that purpose, did not prohibit any subject from going out of the realm, without special license previously obtained. Dyer, 165, b. 3 Inst. 178. Lane 43 .- The common law on this subject, as well as the before-mentioned statutes, evidently originated from the intolerable interference prac- tised by the popes of Rome, during the reigns of Edward III, and Richard II, in the political transactions not only of England, but of every nation in Europe. Subjects were invited to Rome to concert schemes, ostensibly for the good of the church, but in reality to carry
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on operations against their own government, and though committing . the most atrocious acts of treason, were assured of the powerful pro- tection of the Roman pontiff. But the common law seems to be now settled, that every man may go out of the realm, for whatever cause he pleaseth, without any license for that purpose; though it seems to be settled also, that the king by his prerogative, and without any help of an act of parliament, may prohibit his subjects from so doing ; but this must be done by some express prohibition, as by laying on an embargo, or by writ of Ne exeat regno, which writ is never granted · universally, but only to restrain a particular person, upon oath made, that he intends to go out of the realm. This writ appertains more particularly to a court of chancery, and is adopted as a common pro- cess of that court, to prevent debtors from absconding out of the juris- diction of that court, with intent to evade the payment of debts, or to eloin property, 4 Eac. Abr. 168-9. 1 Bl. Com. 265. 3 Brown's Ch. Ret !. 218. This we may suppose to be still the law in Maryland, since the writ of Ne exeat provinciam, in similar cases, seems to have been adopted as unquestionable practice in the Maryland court of chancery, prior to the revolution. See the case of Somerville v. Johnson, (Feb. 1770,) 1 Harris & M'Henry's Rep. 348, where it issued to prevent a person from removing and carrying with him, negroes from Maryland to Virginia, to which negroes the complainant had an equitable claim.
It is said also, that by the common law of England, the king may restrain his subjects from going abroad by proclamation, 4 Bac. Abr. 168. 4 Bl. Com. 122. This may be understood, as lawful in such cases as are spoken of by the writers on the Law of Nature and Nations, (particularly by Grotius and Burlamaqui,) where subjects leave the territories of the state in large companies.
The general right of expatriation, would involve a discussion of too much length, to be here introduced. It may, however, perhaps be excusable to suggest a doubt, whether the time is not now arrived, when true policy dictates, that the importation of foreigners into the United States, and their easy access to citizenship among us, should no longer be encouraged. It is very questionable indeed, whether the nature of our republican institutions would adinit of a population of our extensive territories equal to that of an European state. That foreigners should be permitted to reside among us under the protection of our laws, without the political right of office or right of election ; but that their children born here, should acquire citizenship by their birth,
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in its fullest extent, seems to present to them no unreasonable hardship, and it is believed, would not operate much against the importation of them. The admission of foreign seamen also, to the protection of citizenship, must, in the nature of things, forever embroil us in quar- rels with the most powerful maritime nation in Europe. Our situation in this respect, presents a new case in the Law of Nature and Nations. For one whole race of people, speaking the same language,-using the same habits and customs,-living under the same laws,-and con- nected by the ties of blood and family, to be suddenly disjoined, and placed under two distinct governments, is a political incident, the exact parallel of which is not to be found in the records of history. It is a case, which the writers upon National Law, have never contemplated, and their general reasoning, therefore, vague and inconclusive as it is, on the right of expatriation, can, in relation to Britain, have no appli- cation to us.
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