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 28
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Order of Council upon the Dispute between the "Virginia planters and lord Baltimore; [VOTES OF THE ASSEMBLY OF PENNSYLVANIA.] At the Star Chamber, third of July, 1633.
Present
: - Lord Keeper,
Lord Privy Seal,
: Lord High Chamberlain, Earl of Dorset, Earl of Bridgewater,
Earl of Danbye,
Lord Viscount Wentworth.
Lord Viscount Falkland.
Lord Cottington,
Mr. Secretary Windebank.
Whereas an humble petition of the planters in Virginia, was presented to his majesty, in which they remonstrate, that some grants have lately Been obtained, of a great proportion of lands and territories within the limits of the colony there, being the places of their traffic, and so near the places of their habitations, as will give a general disheartening to the plant- ers, if they be divided into several governments, and a bar to that trade which they have long since exercised towards their supportation and relief, un- der the confidence of his majesty's royal and gracious intentions towards them, as by the said petition more largely appeareth. Forasmuch, as his majesty was pleased, on the twelfth of May last, to refer to the board the consideration of this petition ; that upon the advice and report of their lordships, such order might he taken as to his majesty's wisdom should seem best; it was there. upon ordered, upon the fourth of June last, that the business should be heard the second Friday in this term, which was the twenty-eighth of the last month, that all parties interested should then attend, which was accordingly performed; and their lordships having heard the cause, did then order that the lord Baltimore, being one of the parties, and the adventurers and planters of Virginia aforesaid, should meet together between that time and this day, and accommodate their controversy in a friendly manner, if it might be; and likewise set down in writing the propositions made by either party, which was likewise accordingly done. Now their lordships having heard and maturely · considered the said propositions, answers and reasons, and whatsoever else was alleged on either part, did think it fit to leave the lord Baltimore to his patent, and the other parties to the course of law, according to their desire; but fos
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the preventing of further questions and differences, their lordships did also think fit and order that things stand as they do; the planters on either side sball have free traffic and commerce each with the other, and that neither part shall receive any fugitive person belonging to the other, nor do any act which may draw a war from the natives upon either of them; and lastly, that they shall sincerely entertain all good correspondence, and assist each other upon all occasions, in such manner as becometh fellow-subjects and members of the same state.
"NOTE (T) p. 313.
In illustration of this early contest between the lord Baltimore and his colo- nists, relative to the right of propounding laws for the assembly to enact, it may be observed, that about the same time, or a few years prior to it, (in 1634,) a dispute, somewhat similar to it, took place between the lord deputy of Ireland, and the Irish house of lords. It will appear, perhaps, a little extraordinary to Americans, (in the present state of their political sentiments,) when they are informed that an Irish statute made in the 10th Hen. 7th (con- monly called Sir Edward Poyning's law, was enacted (as the statute expresses it,) " at the request of the commons of the land of Ireland," and was, during the 16th and 17th centuries, considered by the people of Ireland, as the Irish Magna Charta, by which, " No parliament was to be holden thereafter in the said land, but at such scason as the king's lieutenant and council there first de certify the king under the great seal of that land, the causes and considera- tions and all such acts as (to) them seemeth should pass in the same parlia- ment, and such causes, considerations, and acts, affirmed by the king and his council" (in England,) " and his license thereupon, as well in affirmation of the said causes and acts, as to summon the said parliament had and obtained." The Irish house of peers contended (in 1634,) that being the king's hereditary council, they could originate statutes to be sent to England, for the king's ap- probation, according to the statute; but lord Wentworth (the then lord lieu- tenant of Ireland) protested against the proposition. And indeed, the words of the statute seem clearly to have justified his ideas, as it expressly confines . it to the lieutenant and his council, meaning his privy council. See Leland's Hist. of Ireland, Vol. 2, p. 108, and the appendix thereto, Vol. 3, p. 20; also 4 Ist. 352. Thus lord Baltimore, an Irish peer, might have been led to con- strue his charter, like Poyning's law, vesting him with the prerogative of first propounding to the assembly such law's as were to be enacted : but whether he ever meant to contend for such a prerogative or not, it is certain, that the as- sembly after this session of 1637-8, ever afterwards exerted the right of fra- ming their own laws, to be afterwards approved and assented to by the lord proprietor.
NOTE (V) p. 330.
As the original scheme of colonising Maryland, was evidently formed upon the plan of the feudal institutions, as they existed in England at the time of
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the first emigration to this province, some few remarks in illustration thereof may not be deemed altogether unnecessary.
Although the feudal system might have been known to the Anglo-Saxons, it does not appear to have been ever introduced into England, in any considera- ble extent, prior to the Norman conquest. There were manors possessed by the Saxon thanes or lords, having their subordinate tenants holding under allodial or free tennres, yielding a certain rent, and parts of those manors reser- ved by those thanes for their own immediate rural use, similar to the demesnes after the conquest. But when that event occurred, William the Conqueror claiming all the lands of the kingdom by right of conquest, or, as some say. only those that accrued to him by right of forfeiture, for treason, in opposing his title to the crown, parcelled them out to his several principal followers or . feudal chieftains, in such distributive shares as best pleased him. To several of them each he gave many hundreds of manors. (Sullivan's Lectures. lect. 17; and see an enumeration of the names of many of these chieftains, and the number of manors given to each of thein. Ilume's Ilist. of England, Vol. 1, appendix II.) These Norman chieftains were called barons, a term (according to the learned Sir Henry Spelman, Gloss. verb. Baro,) which seems to have been first intro- duced into England by the Normans, or at least was not in common use there prior to their conquest of that kingdom; for although, as he observes, the word occurs in the translations of the laws both of the Danes and Saxons, yet the term itself was not known in their language, and consequently was not used by them in the original language of their laws, but was substituted by the Norman writers in their translations of these laws, for some other term in their language synonymous thereto. From the etymology of the term, it seems, according to him, to have originally signified a man. (Baro, nativo sensu, idem esse videtur quod Latinis vir. Gloss. verb. Baro.) By the an -. cient Francks the word vir was pronounced ber; hence this learned antiquarian. conjectures that the word bero was originally synonymous with the Latin word tiro, and thus to have been susceptible of various significations; as, simply -a man-a man of eminence-or a married man, in which last sense, it may be observed, that the word baron is the common term in use at this day in our law books. The term baron sometimes signified also a freeman, or freedman ; (Baro pro homine libero, et libertino .- Gloss. ibid.) It was synonymous also to freeholder ; (Baro pro vassallo seu cliente feodali in genere, et quem nos libere tenentem vocamus .- Gloss. ibid.)
Most of the barons, if not all, in the time of William the Conqueror, held the lands granted to them immediately of the king. They were thence called by ancient feudal writers tenants in cupite, though afterwards, by the common law, those only were considered as tenants in capite who held immediately of . the person of the king, as of his crown, and not of him, by reason of any ho- nour, manor, castle, &c., (Co. Litt. 108, a.) Hence, in lord Baltimore's char- ter, it is expressed, that he was to hold of the king, as of his castle of Wind- sør, and not in capite. Of these barons, in the time of the Conqueror, and.
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shortly after, some held more, some less lands, which differed not only in quantity but in value. This produced the distinction of greater and lesser ba- rons,-barones majores et minores. But every immediate military tenant of the crown, however small his holding, was, by the principles of the more an- cient feudal constitutions, a baron, and obliged to assist the king, not only with his personal and military service, if required, but also with his advice. that is, to attend in parliament. (Sullivan's Lectures, lect. 20, Spelman's Gloss. verb. Bare, p. 66.) But as this attendance was usually by Writ of Sum- mons, for that purpose sent to them in the name of the king, it became a prac. tice, in subsequent reigns, to neglect the lesser barons, and summon only the greater. Two reasons are assigned for this; first, that the number of barons in the kingdom being not less than thirty thousand, no house could hold them, if they were all to attend in parliament, (Spelman's Gloss. verb. Baro, p. 66, 67;) secondly, that attendance in parliament was considered by the lesser ba- rons, who could not afford the expense, rather as a grievous burthen, than an honourable privilege. (Sullivan's Lectures, lect. 20.) Sir Henry Spelman adds an additional reason for this neglect; which was, that the kings of Eng- land had frequent quarrels with their barons, and were therefore glad of dis- peusing with their presence .- Sic antiqua illa baronum dignitas, (he observes.) secessit sensim in titularem et arbitrariam, regioque tandem diplomate (letters patent) idcirco dispensata est.
This learned writer further distinguishes the barons of England, as they existed at the time when he wrote, which was about the time of the first emi- gration to Maryland, into three different kinds, according to their origin- " Hodiernos itaque nostros barones, e triplici fonte, triplices faciamus : feoda- les seu prescriptitios, qui a priscis feodalabus baronibus oriundi, suam hodie prescriptione, (magis quam tenuro,) tuentur diguitatem. Evocatos seu prescrip- sitios, qui brevi regio evocantur ad parliamentum. Et diplomaticos, qui regio diplomate hoc fastigium ascendunt.
. Feodalium originem inter eos collocavero, quibus Willielmus senior Angliam totam dispertitus est, de se tenendam : quorumque nomina in Domesdei pagi- nis recognovit.
Prescriptitios, ab ævo regum Johannis et Henrici tertii, caput extulisse censeo.
. Diplomaticos initium sumpsisse perhibent sub Ricardo secundo." Spelman's Gloss. verb. Baro.)
' If the " Bill for Baronics," before-mentioned, contemplated the creation of a rank of people in the province invested with the distinction of the honorary title of barons, it must have fallen under the first head of the above arrange - ment of that order of nobility. They would, most probably, have derived their several titles from their several apportionments of territory; and might therefore have been denominated feudal barons, or as some other writers ex. press it, barons by tenure, so called, because the dignity and privileges were annexed to the lands they held. . Sullivan's Lectures, lect. 20,) They could
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385
not be denominated prescriptive, time immemorial being essential to that dis- tinction; but, as præscription in such case, implies a feudal origin, it would amount to the same thing. How far the statute of Quia emptores (18 Edw. 1. c. 1,) would have prohibited the lord proprietary from making these subinfeu- dations by grants of baronies, so as to enable such barons to regrant to others, to hold of themselves, is not for us to determine, with certainty, at this day. That statute was dispensed with by the king, in a clause in his charter to the lord Baltimore, so as to enable his lordship to grant and create tenures of him- self ; for, it seems, that in the time of Henry VIII, and probably at the time of the charter, it was heid, not only that the king, by his royal prerogative, had a general power of dispensing with statutes, but in regard to this statute in par- ticular, he had this power, inasmuch as the statute was made for the advantage of chief lords, and therefore, the chief lord, with his own assent, might thus be enabled to alien and create a tenure, to be holden of himself, agreeably to a maxim of law : Quilibet renunciare potest beneficium juris pro se introductum. (Bro. . Irb. Tenures, pl. 65. Bacon's Abr. tit. Tenure, (B) pl. 11.) Thus the lord proprietor might have been enabled to grant baronies to hold of himself, but it would seem that the statute must have operated on the subinfeudatory grants of those barons, had such barons ever been created. It may be further observed, that under the principles of the feudal system, prior to the statute of Quia emptores, the Barones majores, especially counts palatine, (similar to whom the lord proprietary of Maryland might be considered,) having jura re- galia, might have created barons of their counties palatine. Spelman's Gloss. verb. Barones Comitatum, Sullivan's Lect. lec. 20. But after that statute, which was in force at the time of this first session of assembly, such barons, as cre- ated by his lordship, must have been subject to the operation of the statute, and the words of the dispensation in the charter, seem to confine it to the lord proprietor. This observation applies as well to munors as baronies ; in respect to the former of which, Sir William Blackstone observes, " It is clear, that all manors existing at this day, must have existed as early as king Edward I; for it is essential to a manor, that there be tenants who hold of the lord; and by the operation of these statutes, (viz. 18 Ed. 1. c. 1. 17 Edw. 2. c. 6; and 31 Edw. 3. c. 15,) no tenant in capite since the accession of that prince, and no tenant of a common lord since the statute of Quia emptores, could create any new tenants to hold of himself." 2 B. Com. 92. As these barons, had'they been created by the lord proprietor, as well as the grantees of manors, to whom grants of manors were actually made by him, must have been at the most but common lords, they would have been, according to Sir William Blackstone, un -- der the operation of the statute. This view of the subject, it would seem, ought to have settled those questions, which are said ( Kilty's Landholder's Assistant, p. 28,) to have arose in the province, relative to the rights of the lords of owners of manors, in opposition to those of the proprietary, as chief . lord of the fee.
Manors (it seems. ) were formerly called baronies, as they still are lord bips
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(2 BI. Com. 90;) though it is probable, that they never were known under that denomination until after the conquest, when they were distributed by William to his Norman barons, as before observed. From whence it is, that the domes- tic court, called a court-baron, which each lord or baron was empowered to hold within his manor, evidently took its title. These common lords, or owners of manors, seem (according to Sir Henry Spelman, Gloss. verb. Bara.) to have been included under the ancient feudal denomination of Barones minores, in contra- distinction. to the Barones mejores, who were mostly Tenants in Cupite. They were not considered as peers of the realm, and had no right to a seat in parlia- ment. The inferior court just mentioned, is, however, by the English common law, an inseparable ingredient in every manor, (2 Bl. Com. ibid.) Notwith- standing this, and although the lord proprietary of Maryland made numerous grants of manors in his province, yet we are informed from good authority, as before observed, that no memorial upon record is to be found, of any practi- cal use within the province, of either a court-lect or a court-baron. It is not · impossible, but the before-mentioned legal objections, resulting from the sta- tute of Quia emptores, might have prevented these inferior lords, the owners of manors within the province, from laying claim to all the baronial privileges annexed by the common law, to their manors, though their grants thervof might enable them to hold them as lands under socage-tenure.
We will close our remarks here, on this subject, with hazarding a conjec- ture on the probable intention of the before-mentioned " bill for baronies." The reader will recollect, that the colonisation of Ireland, in the reigns of Eli- zabeth and James, (which was a favourite pursuit of the latter monarch, as giving him an opportunity of displaying his talents for legislation, as well as literary composition,) had preceded that of Maryland but a few years. Sir George Calvert entered much into the schemes of king James, being his favou- rite secretary. There is, therefore, some ground to suppose, that his son Ce- cilius, created lord Baltimore, and having become an Irish peer, would promote institutions in his province, similar to those which had been, most probably, planned by his father and his patron, James, with regard to Ireland. Now, we are told from good authority, (Sullivan's Lectures, lect 26,) that even at this day, those divisions of a country, which in England are called hundreds, are in Ireland called baronies. We have authority also, for supposing, that this deno- mination of the divisions of a county in Ireland, took place either in the latter end of the reign of Elizabeth or first of James, while attempts were making at that time, to plant English colonists there. In Spelman's Glossary, (verb. Bu- ronia,) is the following passage : " Baronia pro parte Comitatus quam Hundre- dim dicimus. Sic frequens in Hibernia, ubi Connacia Provincia sub nostru memoria in Comitatus dispartita est : Comitatusque deinceps in Baronias dis- secti, ut nuper etiam in Uitonia factum intelligo." This part of his Glossary was first published in 1626, and we may suppose it to have been compiled uot long before its publication. He died in 1641, at the age of eighty; so that the first division of Connaught into counties, which took place in the year 1790,
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( Lelund's Hist. of Ireland, Vol. 2, p. 247,) might have been within his memory. The first division of Ulster into counties, was also in the reign of Elizabeth, not many years afterwards, about 1585 ; but as the turbulence of the native Irish, which prevailed most in the northern parts of Ireland, prevented any effects from those divisions of that province, until king James's reign, at the time of his instituting the hereditary order of baronets, (about 1611,) it is pro- bable, that Sir Henry Spelman, here, in the words " nuper etiam," alludes to the plantations which that monarch was then endeavouring to settle in Ulster. From hence results a strong probability, that the before-mentioned " bill for baronies," contemplated a division of counties in Maryland, similar to that adopted in Ireland, which it seems was analagous to those of hundreds in Eng- land; and not, perhaps, intended to create an order of nobility in the province, as might at this day be supposed. Although Leland, the Irish historian, has mentioned this scheme for colonising Ulster, in a very cursory manner, yet we may from thence collect some further incidents, analagous to lord Baltimore's plan for that of Maryland. " The lands to be planted, were divided in three different proportions ; the greatest to consist of two thousand English acres, the least of one thousand, and the middle of fifteen hundred." " Estates were assigned to all, to be held by them and their heirs : the undertakers of two thousand acres, were to hold of the king in capite; those of fifteen hun- dred, by knight's service ; those of a thousand, in common socage." " They had power to erect manors, to hold courts-baron, and to create tenures." We may here discern a considerable resemblance to the scheme directed in lord Baltimore's first instructions, to his lieutenant-general, of the 8th of August, 1636; which instructions appear to have been authorised, in this respect, by the 19th section of his charter.
THE END.
1
Thomas T. Stiles, Printer, Philadelphia
ERRATA.
In line 11, of the summary of contents of Sect. I, for ". Castier's," read "C:"- tier's"-1. 4, p. 10, dele " Maryland" and insert " America"-1. 8, note in p. 12, insert " by" between the words " made" and " them"- 1. 2d, note in p. 13, d.l. " is" between the words " certainly" and " without" and insert "being" -- 1. 4, 2d note in p. 16, instead of " tenure" alter it to " tenor"-1. 4, note in p. 21, dele " domination" and insert " denization"-1. 14, p. 34, instead of " admiral Cabot" read "admiral Chabot"-1. 10, p. 36, for "Cuodriers" read "Coudriers" -1. 12, p. 40, alter the word " thing" to "king"; and in the next I. the word " erected" into " created"; and in the last I. of the note in the same p. dele the figures " 24" and insert " 113"-l. 1, 1st note in p. 47, for " Barkhurst" read " Parkhurst"-1. 4, note in p. 89, instead of " consisting" read " counting"- 1. 1, p. 122, for " Pontgrave" read " Pontrincourt"; and in the 2d 1. of the same p. for " Pontrincourt" read " Pongrave"-1. 1, of Sect. VI, dele they da the word " eighty" ; that is, for "one hundred and eighty years" read "one hundred and eight"-1. 26. p. 159, instead of "There" read "This"- 2d, note in page 181, instead of " Boyle" read " Bayle"-1. 26, same p. (181,) instead of. " fantastic" read " fanatic"-1. 9, p. 184, for " not" read " now"-1. 5, p. 157. insert the word " as" between " with" and "ardent"-1. 5, p. 189, instead of " restraints" read " vestments"-1. 15, p. 192, instead of " blow" read " law" -1. 3, p. 202, instead of " for" read "far"-1. 4, of the contents of Set. IN. instead of " successes" read "excesses" -- 1. 24, p. 941, for " probably" read " probable"-1. 17, p. 255, for " 1682" read " 1632"-last 1. of p. 264, strike out the words, " the consideration of"-1. 11, p. 269, for "on" read "at" -1. 11, p. 282, instead of the words " to begin" read "beyond"-1. 10, no; . in p. 288, instead of " islands" read " island"-1. 15, p. 295, instead of " chers- ter" read " charter"-1. 7, p. 338, instead of," Meantys" read " Meau'y,": and the same again in the last 1 of p. 21, and in the 2d 1. of p. 342-last 1. c: p. 351, instead of "on" read " as".
POSTSCRIPT .... As the distance between the press and the residence of tl :. author, precluded him from any opportunity of revising the proof-sheets as this came from the press, it is hoped that the reader will excuse the foregoing l'. of errata, which have taken place in the printing of this volume ; and he ri ... licited to make the alterations with his pen, in the places therein referred to
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