USA > Maryland > Studies in the civil, social and ecclesiastical history of early Maryland; lectures delivered to the young men of the Agricultural College of Maryland > Part 2
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" Given at Rome, 7th of May, 1493. From our mo- tion, not moved thereto by your petition or that of any other in your behalf, but of our own mere liberality and certain knowledge. and the plenitude of Apostolic authority, we grant to you and your successors, Kings of Castile and Leon, all islands and continents, found and to be found, discovered and to be discovered, towards the west and south (drawing a line from one pole to the other at a hundred leagues west of the Azores) by the authority granted us in the blessed Peter, and by the vicarship of Jesus Christ which we discharge on earth, with all the dominion, states, etc., to the same belonging. And we constitute, ordain and appoint you, your heirs and successors, as aforesaid, lords of the same, with full, free and all manner of power, authority and jurisdiction."
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COLONIZATION IN THE SIXTEENTH CENTURY.
You see the nature of the authority claimed: as the successor of St. Peter and as the vicar of Jesus Christ, to whom the earth belongs. This was what was meant then by the temporal power of the Pope. Everything discovered or to be discovered; it was a most magnifi- cent gift. All to the east was given to the Portuguese, but the American continent and islands were to belong to Spain. This most bountiful Pope was the celebrated Borgia, Alexandria VI, who is described as "the most infamous Pope that ever lived, and the most vicious prince of his age."
This line of one hundred leagues, however, did not satisfy Portugal, and consequently a commission was appointed, of three members from each country, with plenipotentiary power, who carried the line two hundred and seventy leagues farther west, a most fortunate cir- cumstance for Portugal, as by accidental discovery in :499 Brazil fell to her lot, lying, as it did, within the lines given.
How greatly have the laws of political economy changed since that day. Europe was just then emerging from feudalism, during the long prevalence of which "human rights, and grace, mercy, gentleness, were almost unknown. Now, there are laws of nations and interna- tional amenities. Now, there is a public opinion among nations, and nations seek to justify themselves to the minds of other nations. "A decent respect for the opinions of mankind" enters into all great movements. Then men were in many instances only half-civilized. even in Christian lands, and some power like the Papal was very beneficial for ameliorating international rela- tions. The whole seems out of place now, because men
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HISTORY OF EARLY MARYLAND.
are no longer half-civilized; but nations, resting upon more elevated notions of conduct, are frequently able to determine questions peaceably that in other days would have precipitated gigantic war. The Papal assumptions, however regarded at this day, were the growth and out- come of the circumstances of those earlier times. The misfortune was that the circumstances that gave occasion for the assumptions proved also the ruin of the papacy. Her achievement of good diminished as her opportunity for good increased.
When the charter for the province of Maryland was given, attention had for some years been bestowed on the settlement of the Atlantic coast of North America. The French had secured foothold in Canada and established . what was to all appearance a permanent settlement; for they were able to maintain their position until the close of the French war, which began in the year 1754. Other attempts had been made by them, but without success. Along with their settlement in Canada will be re- membered their immense claims in the valley of the Mississippi which were extinguished by purchase by the United States in 1803. Also they had attempted a settle- ment in Carolina and another in Florida after the middle of the sixteenth century, but both of these came to nothing,-that in Florida having been exterminated by the Spaniards, as they avowed, because of religious hatred. The Spaniards also settled St. Augustine in the year 1565, though almost all their, activity was confined to the region about the Gulf of Mexico and on the Pacific coast. Spain was exceedingly jealous of any nations making settlements in America, all of which she called her own by right of prior discovery and the gift of the Pope;
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COLONIZATION IN THE SIXTEENTH CENTURY.
but by the treaty of Madrid in the year 1670 between England and Spain the territories of each were finally determined.
England herself, however, made various efforts at colonization before she finally succeeded. One attempt was made in 1583 by Sir Humphrey Gilbert on the island of Newfoundland, but failed, and the effort to colonize was for the time abandoned. Another was made, under the patronage of Queen Elizabeth, by Sir Walter Raleigh in 1584 on Roanoke Island, but this also failed. Other attempts were made, but with no permanent results, till the charter granted by James the First to Sir Thomas Gates and others in the year 1606. It is interesting to note how generous the king was, as the lands bestowed by this charter extended from 'the thirty-fourth to the forty-fifth degrees of latitude, which cover the whole territory between Cape Fear and the southern border of North Carolina on the south and the northern boundary of Vermont. This was the origi- nal grant, though the king and his successors afterwards assumed the prerogative of giving lands and taking them back again to bestow on other favorites; and so this territory came to be divided up at last between various individuals.
The Dutch, however, did not by any means feel dis- posed to accept the claims the English crown made of exclusive right to this part of North America, and so in 1609 they sent out an expedition, which, entering the Hudson river, took possession of the country and estab- lished a colony. They also made settlements on the Delaware. Afterwards, during the war in the reign of Charles the Second their settlements fell into the hands
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HISTORY OF EARLY MARYLAND.
of the English. The Dutch again for a while recovered the territory, but finally in 1673 the whole became an English possession. Charles granted it to his brother James the Duke of York, from whom the name of the colony on the Hudson was derived.
A part of the New York of that time was New Jersey. This James sold off as private property to various pri- vate gentlemen, who again, in their turn, sold it to others. I make this point because I want to emphasize what we would now regard as a very peculiar thing. The whole territory of the province of Maryland, say, was the private property of a private English gentleman, given to him, his heirs and assigns, an entailed estate, descending like any other from father to son. The people under the charter had certain privileges, and they had certain rights in the soil, theirs either by purchase or by gift of the proprietary. But by the charter all the land was given to the proprietor, and he might alienate it in whole or in parcels. The jurisdiction also, the power to propose and to veto laws, the power to appoint the chief executive and other officers, also belonged to him, and descended from father to son. In the case of the Jerseys, even jurisdiction was alienated, that is, the proprietors sold out the right of governing, an analogous case to which was found in Maryland, where, in the failure of legal heirs, . the province was conveyed by will to Henry Harford, the natural son of the former proprictor. As it was, the emoluments of the province of Maryland were so exten- sive that, while there was a legal heir, there was no desire to sell. Such a state of things, however natural they appeared in that day when feudal notions still lingered in the popular mind, seems strange and very unnatural to us.
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COLONIZATION IN THE SIXTEENTH CENTURY.
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There is no country probably, even of Europe (except possibly Russia, whose condition is to us an anachronism), where the alienable proprietary government of a province would be now accepted as legitimate; yet in the colonial period of America, scarcely more than one hundred years ago, the thing seemed normal.
. According to the accepted principles of that day, all such foreign territory as was obtained by conquest belonged ·to the crown, and of his own free and independent will and pleasure the king bestowed it on whom he would. It was a figment of the law, and went back to the time when the strongest among a body of fendal lords would lead his followers into some new country, and having con- quered it, would parcel out the domain, either as a reward or to secure a following, to such of his knights and barons as he felt could be relied on. There had been no raising of an army, no leading of mailed legions in respect of America. At most there had been a few dollars spent on the equipment of a ship or two, and small ones at that, and that out of moneys obtained from the people; but all that was seen or imagined of the new country was declared to be the king's by conquest. And then he would give it to whom he would, with the right of jurisdiction to nominate or even to make laws, to appoint officers or to rule by oneself, to derive taxes and duties, as well as to sell the land to whom he would, and even, as we have seen, to transfer these prerogatives of sovereignty to some one else for a consideration, however unworthy that one might be, however unfitted for his office and duties, how- ever personally offensive to the people over whom he purchased the right to rule.
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HISTORY OF EARLY MARYLAND.
To our minds it was a strange state of things, but for some time the strangeness was not recognized. All the time, also, the provincials were called English subjects, entitled to all the privileges and rights of Englishmen. From time immemorial an English subject had been pro- tected from the arbitrary rule of the sovereign by the Parliament, whose voice was necessary for the making of laws and for the imposition of taxes. But according to the royal notions in respect of parceling out the exten- sive foreign territory, Parliament had no voice at all. Everything was in the hands and power of the king. By his charters he prescribed what prerogatives should belong to the proprietary and what should be extended to the people, and in some instances, in royal colonies, an inde- pendent monarchical power was exercised by the gov- ernors, as in Virginia in 1618, when the deputy governor published a number of edicts as of his own supreme will. The fullness of his supremacy, as he understood it, is indi- cated by the character of the edicts, which were such as these: That merchandise should be sold at an advance of twenty-five in the hundred; that tobacco should be taken in payment of debts at three shillings a pound, under penalty of three years' servitude; that no one should privately traffic with the Indians, or teach them to use firearms, under pain of death to teacher and scholar; that no one should hunt deer or hogs without the governor's leave; that no one should shoot (except in necessary self-defense) till a new supply of ammunition should arrive, on pain of a year's personal service; that no one should go on board the ships at Jamestown with- out the governor's leave; that every one should go to. church Sundays and holy days, on pain of penal service
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COLONIZATION IN THE SIXTEENTH CENTURY.
during the following week; for second offense the pen- alty was the same penal service for a month, and for the third for a year and a day.
This was prerogative of the direst kind, and of course such extreme presumption could last but a short time. The first James and the first Charles, however, had very extreme notions of prerogative; and in bestowing, of their free grace and bounty, immense territories on their favorites they had but little thought of the rights of the people. As late as 1638, Governor Harvey, of Virginia, exercised even tyrannical jurisdiction.
Prerogative, however, was the rule of the day where- ever it could be exercised, and it will be seen how that, though Lord Baltimore's charter required the calling of assemblies of the people, yet the people themselves had to contend, in the beginning, against the assumption under the charter that the initiative of all laws should pro- ceed from the proprietary. They insisted that when a law was felt to be necessary they should have the power of passing it subject to the veto, and that they should not have to wait till the law was submitted by the pro- prietary for their consideration. You will all doubtless recollect that it was this very question of prerogative and the attempted exercise of it, that brought on in Eng- land the civil war that ended with the death of the king and the overthrow of the monarchy.
As regards the colonies, the parliament at last came to assert its right and to question and restrict the royal claims to exclusive jurisdiction. Parliamentary control was asserted over the colonies, laws of trade and shipping acts were passed, and later, in the times immediately pre- ceding the American Revolution, and leading to it, the
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HISTORY OF EARLY MARYLAND.
stamp act and taxes on various articles were imposed, for the purpose of raising a revenue for the weighty burdens of the home government. A charter was a law bestow- ing certain privileges and rights upon an English subject, and parliament came at last to deny to royal authority alone the power of enacting such a law. It would, doubt-
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- less, never have been allowed had the value of the colonies been from the beginning understood; but the land lay so far away, the idea of revenue was so very remote, and so very few persons had any definite notions of what the colonies were capable of becoming, that while prerogative in English affairs was reprobated, as applied to America it was a matter of indifference; and if the king chose to sport the kingly gift he could be left to his amusement. It was this to James the First, who among all the many occasions of showing his vanity, embraced this, and strove to prove himself an excellent statesman and lawmaker for the new communities he was fostering into life.
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SECOND LECTURE.
COMPARISON OF CHARTERS.
To-day we will consider the various colonial charters, comparing them with each other and with that of Mary- land. This will show out various fundamental character- istics of the times when these were given, and will also indicate a certain progress in thought and in the apprehension of civil and religious liberty; for the period from the first Virginia charter to that for Georgia extends over a good deal more than a hundred years, during which great questions were agitated, and the human mind was advancing towards a clearer sense of what consti- tuted human rights and liberty.
These, as we have seen, were by royal grant, and all ran in the name of the king, on the ground that all such ter- ritories as were held by right of discovery, belonged to the king. Those to whom the charters were granted, how- ever, were compelled to be at their own charges in secur- ing their settlements, and as in the beginning the majority of those who were willing to leave their homes and the security of English life for the insecurity and exposure of the wilderness, as well as for the long and doubtful sea voyage, as it was then, were poor men, the expense to those sending them out was necessarily very great. For besides the charges of the outward voyage. cost of vessels, etc., provision had necessarily to be made for the support of the colony until crops could be planted
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HISTORY OF EARLY MARYLAND.
and matured, as well as for all the other incidental costs of building, clearing up lands, placating the natives. The expenses were very great, and the failure to meet them, and to make provision for the many necessary demands that must arise, was the cause of various failures among the early adventurers.
Lord Baltimore, who had learned experience by his father's attempts in Newfoundland, and by his association with the Virginia Company, spent, we are told, forty thousand pounds sterling in getting his colony firmly and definitely started; a venture that very few would have felt themselves justified in making even if they had the ability. Colonization by the English was a new thing, and for its success required boldness as well as large resources. Besides, Lord Baltimore, being the sole grantee of the charter, was not hampered by a multitude of counsellors, among whom there will always be some doubtful and timid spirits, and some who, if not doubtful and timid, can always find some reason for questioning every proposition. Doubless one great cause why Mary- land and Pennsylvania succeeded so well, was that in each case one man was at the head of affairs, and so all rivalry and jealousy in the source of administration, were avoided.
Again, the charters differed very greatly one from the other, not only in respect of whether they were granted to one person or many, but also radically as to character, and as to the prerogatives, greater or less, which were bestowed by them. There were charters creating royal colonies, for instance, in which the great power of over- sight was retained by the king. And even here, also, there was great difference; for while in some instances,
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COMPARISON OF CHARTERS.
as later in Virginia, and when Maryland was for a while withdrawn from the jurisdiction of the Lords Baltimore, the governor was appointed by the king and held only of the king; in other cases, as in the first charters of Vir- ginia, the council (to which the regulation of affairs in the colony was entrusted, and which could itself be ap- pointed and removed by the king) had the power of appointing the governor and other officers. Of these councils for Virginia there were two,-one in England and the other in the colony; and according to the charter, " the laws, ordinances and instructions" that were to guide them, were to be such as shall in that behalf be . given and signed by the king's hand and sign-manual, and pass under the privy seal of the realm of England.
Again, also, in a royal colony all laws passed by the colonial assembly (for such a body came soon to be recognized as essential in every colony) were transmitted to the king for his approval; while in other cases, as in the proprietary government of Maryland, the king was not known, but the right to confirm or veto was in the proprietor. In the year 1620 a new charter was granted for New England, as it came now to be called, . which was conferred upon "the council established at Plymouth for the planting, ruling, ordering, and govern- ing of New England; according to which the council was to make and revoke governors, officers and ministers, also to make, ordain, establish all manner of orders, laws, directions, instructions, forms, ceremonies of government of said colony, only that the same be not contrary to the laws and statutes of this our realm of England." The governor was also empowered to exercise martial law upon emergency.
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HISTORY OF EARLY MARYLAND.
When, however, the Brownists, coming from Hol- land, settled at New Plymouth in 1620, they did so with- out a charter,-squatters, as they would be defined in these days,-and consequently were able to enjoy in a very high degree self-government, electing their officers, passing their own laws, regulating their own affairs. Later on, when they had grown to power, and were often disposed to show towards the government at home the independence that made up so large a part of their character, their power was restricted, governors were sent from England, and they were watched with a jealous eye. Such royal control was also exercised over the other New England colonies. This was, however, only in the reigns of Charles the Second and James the Second; for during the civil war and the commonwealth, which covered so large a part of the earlier period of the colonies, the New England colonies were too much in sympathy with the parliamentary cause to apprehend any restriction of privileges.
The proprietary colonies differed from the royal in this, that the whole territory was passed over by the king to one or more individuals, the only recognition of the royal right reserved being a nominal rent; as, for instance, in the case of Avalon, a white horse, whenever the king should demand it in person within the prov- ince; which was in every sense nominal,-a king of England visiting the cold shores of Newfoundland being hardly conceivable as a possibility. In the charter of Maryland the recognition of the king's right was the presentation of two arrow-hcads, to be delivered at Windsor annually. In the beginning, at any rate, Lord Baltimore was careful to make this delivery, as the
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COMPARISON OF CHARTERS.
receipts among his papers show. A notable case of this kind of colony was that of the Carolinas, given by Charles the Second ja the year 1663 to various courtiers. This territory was made a province by the fifth clause of the charter, and the consideration was the more sub- stantial but insignificant payment of twenty marks lawful money. In Georgia, however, whose charter was be- stowed in 1732, the king required that four shillings be paid him and his successors for every hundred acres settled, the payment to commence ten years after the establishment of the colony. According to all the char- ters, however, the king reserved to himself a certain portion, one-fourth or one-fifth, of the gold and silver ore found in the colony, This was also the case, as you will recollect, in the Spanish colonies; for the planting of colonies always filled the mind of the royal giver with expectations of filling his empty coffers, for kingly coffers were as apt to get empty as those of other people. In the case of the Spaniards, as we know, that hope was attained in a marvelous degree. The same cannot be said of the English colonies, though they did something infinitely better: they developed, both in themselves and in England, a commercial activity and enterprise that stimulated the best energies of human nature, by which they became able to reap rich harvests of gold from all the earth.
These proprietary charters were very much alike, though when the time came to make some of the later ones the grants were not so generous as they had been before their value was fully understood. When we reach Lord Baltimore's charter we can analyze, and in that way understand more fully, the meaning of the name
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HISTORY OF EARLY MARYLAND.
given them. All that need be dwelt upon at this point is the distinction between the royal and proprietary colo- nies; in the former, as we have seen, the king retaining within his prerogative a large amount of direction and jurisdiction, while in the latter the proprietary is the highest officer. King James, for instance, when he granted the charter to the two Virginia companies, him- self prepared a whole body of laws and transmitted them, while the proprietaries could either submit laws to the Assembly of the people for their approval, or could establish a law when it had passed the Assembly. In the case of Pennsylvania, in 1681, this proprietary pre- rogative was farther limited by the requirement that all laws should be submitted within four years to the Eng- lish Privy Council.
The charters also provided for emergencies by giving to the proprietaries, by themselves or their executive officers, from time to time to make and ordain fit and wholesome orders and ordinances, which ordinances "we do by these presents straightly charge and command to be inviolably observed within the province, under the penalties therein expressed, so that such ordinances be reasonable and not repugnant to the laws and statutes of the Kingdom of England." It is to be observed here that the writ of Habeas Corpus, by which personal safety is secured to every one against arbitrary arrest, was not extended to the colonies till the reign of Queen Anne. Possibly the constitutional principle had been recognized all the way along, as it had been in England since the day of Magna Charta. The act, however, of the thirty-first year of Charles the Second, which gave the principle definite form and substance, was not ex-
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COMPARISON OF CHARTERS.
tended to the colonies till the time given. No better protection has ever been devised for the citizen than the law extending this right of investigation; for under it any one could demand to know the reasons of his arrest, with such an amount of preliminary investigation as to show reasonable ground for suspicion and indictment.
The reason why Charles the Second, in granting the charter to William Penn, limited his prerogative by re- serving to the Privy Council the right of reviewing all laws passed in the colony, was that after his restoration in 1660 New England had indicated an independent spirit, and the claim of a right to control her own affairs, which could not but gall one who felt that all the domain of America belonged to him, and was held only by his grace and that of his fathers. In fact, there was always present in the colonies a certain conflict between two great and powerful principles, the one being the absolute power of the king, the other the freedom of the subject. This was a conflict that had begun definitely in England during the reign of Elizabeth, or rather was definitely renewed in her day. For it had begun and been to some degree settled in the fourteenth century; only the long and terrible wars between the houses of York and Lancaster, that desolated the land and reduced the strength of the nobles and the people, had prepared the way for the absolute power that was exercised during the reigns of Henry the Seventh and his immediate suc- cessors.
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