USA > Maryland > The history of Maryland : from its first settlement, in 1633, to the restoration, in 1660 ; with a copious introduction, and notes and illustrations > Part 102
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NOTE (XXIII.) p. 114.
The warrant or commission to John Harrington, for stopping the contraband trade with the Indians.
"Cecilius, lord proprietary, &c., to John Harrington, greeting; We do hereby authorize and command you to arrest any persons, vessels, or goods, trading or attempting to trade, or traded or attempted to be traded, with any Indians of these parts in or upon any the rivers, waters, or shores of the precincts of our province, without licence from us or our lieutenant, and the same persons, ves-
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sels, and goods to have afore us or our lieutenant general at Saint Mary's, as soon as conveniently you may, there to answer for the contempt committed against our ordinance or proclamation published in that behalf, and for so doing this shall be your warrant or commission. Given at St. Mary's, this 6th of March, 1638.
Witness, LEONARD CALVERT."
See "Council Proceedings from 1636 to 1657," p. 37.
NOTE (XXIV.) p. 115.
"An act for trade with the Indians," (1638, No. 5.)
[Taken from "Lib. C, and WH," p. 3. The same is also in the book in the council chamber, entitled, "Assembly Proceedings from 1637 to 1658."]
"Whereas the crown of England, (by right of first discovery,) became lord and possessor of this province and other countries thereunto adjoining, so that no subject of his majesty, or any other foreign prince or state whatsoever, might or could lawfully come into these parts to trade with the Indians thereof, without leave or license from or under the said crown of England, according as his ma- jesty's said right is practised, allowed, and acknowledged in all other parts so accruing to the said crown by right of discovery.
And whereas his majesty being so possessed, by his letters patent to the right honourable Cecilius Lord Baltimore, granted and confirmed unto the said Ceci- lius all this province, with all rights thereunto belonging, saving only the sove- reign allegiance due to the crown of England, and him the said Cecilius created absolute lord thereof, who, by virtue of his said lordship, after possession taken of this province, did by public proclamation prohibit all persons whatsoever from trading with any Indians of this province, without leave or license from or under his said lordship first had and obtained ; and certain inhabitants thereof offending against the said proclamation, presuming upon former grants and commissions from his majesty, have been punished and proceeded against for unlawful trading without or before such leave or license obtained, and thereof complaining to the king's majesty, were by him referred to the lords of his majesty's most honour- able privy council for determining the right and justice of the said complaints, which said lords, after full hearing and debating of the cause, have ordered and confirmed the said lord proprietary's said right of sole trading with the Indians of this province, declaring that no trade with the said Indians ought to be within the precincts of his lordship's patent, without license from his lordship, (as by the said order, bearing date at Whitehall, the 4th of April, 1638, may appear.)* We the freemen of this province, taking into our tender care the right and pri- vilege of his said lordship so granted and declared, and that the presumption of such right and privilege was the main and chief encouragement of the said lord proprietary to undertake the great charge and hazard of planting this province, and to induce the gentlemen and other the first adventurers to come therein with his lordship, by propounding a portion and share thereof unto such as should adventure their persons and estates for the beginning of a plantation here, and being willing and ready to our powers to assist his said lordship in all his rights and privileges by inflicting penalties on all such as shall attempt to violate and infringe the same, in expectance of the like protection and assistance from his lordship, of and for the maintaining and defending of all our rights and liber- ties.
* See this order at large in note (XI.) preceding. The recital of it in this bill of the assembly is a further confirmation of the authenticity of the order, though its existence has been denied, as before mentioned. This session of assembly occurred within somewhat less time than a year after the date of the order. If no such order had taken placc, and it had been "a mere fiction," as alleged, it is not probable, that it would have been here openly stated in this house of assembly. It demonstrates also, that the date affixed to it by Mr. Chalmers, (to wit, April 4th, 1639,) is errone- ous, as that date is subsequent to this session.
VOL. II .- 76
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And further considering how inconvenient it may and is likely to prove to the state of this province, and the peace and plenty thereof, if a promiscuous liberty of trading with the said Indians should be permitted and left open to all persons indifferently, in regard that thereby the price of Indian corn may easily be en- hanced, and the store thereof carried out of the province by foreigners in time of our greatest need, and that jealousies, rumours, and false news may be spread amongst the Indians by ill affected persons, to the disturbance of the peace and safety of the inhabitants, and that vessels weakly manned and provided may be and are usually set forth amongst Indians disaffected to this colony, whereby both the men have been and may be destroyed, and the vessels, arms, and ammu- nition therein taken, converted, and employed to arm the said Indians against us, and have therefore thought it necessary, and do desire that it may be enacted :
And be it enacted, that no foreigner* whatsoever, from and after the end of this present assembly, come into or through any the limits or precincts of this province, to the end to trade with any Indians of these parts, nor unlade or lade any goods or commodities traded or to be traded with or from any such Indians out of or upon any vessel riding or lying in or upon any the waters or shores within the limits and precincts aforesaid without grant or license from the lord proprietary or his lieutenant general, &c., upon pain of confiscation of all vessels and goods trading or attempting to trade, or traded or attempted to be traded, contrary to the intention of this act .- Provided, that it shall be lawful for any inhabitant of this province to trade with any Indians resorting to his plantation for two or three skins or such like small quantity of beaver, (so they inhance not the usual price thereof, ) or for any commodities for his use, or provision, without incurring any penalty of this present act .- And further provided, that any inha- bitant of this province, putting in security for preventing the disorders and in- conveniences above mentioned, (as enhancing the price and carrying out the store of corn, spreading of false news, and going forth weakly provided,) shall have a license (of course) from the lieutenant general or the secretary of the province to trade with any Indians for any corn or other commodities to be used or expended within the province, or to export any corn bought of any Indians through and out of the province at any time when the ordinary price of corn in the province doth not exceed thirty pounds of tobacco for a barrel of corn, any thing in this act to the contrary notwithstanding."
NOTE (XXV.) p. 121.
Polygamy has been erroneously denominated in the English law books- biga- my ; which, strictly speaking, has a very different meaning .- (See 4 Bl. Com. 163.) Our earliest legislators, in this bill "for felonies," have used the correct term. Polygamy was made felony by the statute of 1 Jac. 1, ch. ii., which, according to sir Edward Coke, (3 Inst. 88,) was the first act of parliament made against the offence ; but, although the statute declares, that the offender "shall suffer death as in cases of felony," yet, agreeably to the known rules of con- struction in such cases, as the statute did not expressly take away the benefit of clergy, the offence was held to be within that privilege. This statute has been expressly extended to this province by the act of 1706, ch. 8, and is now the law of this state on the subject. If we are correct in supposing, as before mention- ed, that this bill "for felonies" was intended to take away clergy from the offences therein enumerated; though the irresistible inference arising from the
* From that part of the preamble to this bill, which seems particularly to relate to Clayborne's claim, it would appear, that the word "foreigner" here was meant to apply to all persons, who were not inhabitants of the province of Maryland, as Virginians, &c., though, strictly speaking, the word "foreigner" could apply only to those who were not British subjects, as the Dutch or Swedes settled on the Delaware.
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next bill, entitled, "an act allowing book to certain felonies," among which polygamy is not mentioned, we may then conjecture, that our first colonists, being Catholics, were induced to make the offence of polygamy punishable with death, in Maryland, while it was not so in England, from the severity with which the canonists of the church of Rome had treated bigamy, which was nothing more than what is commonly called second marriages; that is, the mar- rying either a widow and a virgin, or two widows, or two virgins successively, one after the death of the other. By a canon made at the council of Lyons, in the year 1274, such bigamists, (from the proof they thereby gave of their most incontinent dispositions, see Barrington's Observat. on the Anc. Stat. p. 166,) were declared, in all cases of crimes committed by them, not to be entitled to the privileges of clergy, and, in confirmation of this canon, the English statute of 4 Edw. 1, ch. 5, was made. But at the dawn of the reformation this statute of 4 Edw. 1, was repealed by that of 1 Edw. 6, ch. 12, sect. 16. Although all the statutes against the authority of the pope or see of Rome, were said to have been repealed by the statute of 1 & 2 Ph. & Mar. ch. 8, yet, as the statute of 1 Eliz. ch. 1, repealed that repealing statute of Ph. & Mar., the statute of 1 Edw. 6, is said to have been thereby revived. See 2 Hale's Hist. 372. Thus laws vacillate with the change of religious as well as political parties.
NOTE (XXVI.) p. 114. "An act determining enormous offences." (1638-9, No. 25.)
Be it enacted by the lord proprietary of this province, of and with the advice and approbation of the freemen of the same, that these offences following in this act, and no other, shall be adjudged enormous offences within this province, that is to say :- Perjury, which is false answere or witness given upon oath in a court of record, not to the endangering of another's life ;- Subornation of per- jury, which is the hireing or persuading of another to commit such perjury ; Conspiracie, which is unlawful combination for two or more persons against another's life, fame, or goods ;- Scandalous or contemptuous words or writings to the dishonour of the lord proprietarie or his lieutenant generall for the time being, or of any of the council ;- Exercising within the province any jurisdic- tions or authority which ought to be derived from the lord proprietarie, without lawful power or commission from or under him ;- Contempts and misdemeanors against, lawful ordinances or proclamations ;- Abuses of public judges or officers ;- Unlawful assembly, which is the disorderly meeting of three or more persons in a company to commit with force an unlawful act ;- Forgery, which is the counterfeiting of deeds ;- Or, to acknowledge any fine, deed, recognizance, or bill in the name of another not privy or consenting to the same ;- Deceit or cosenage, which is the damageing of another by some undue slight ;- False news, which is the spreading of false reports, to the disturbance of the peace or duty of the people ;- Bribery, which is the accepting of or contracting for a re- ward for doing of justice ;- Extortion, which is the taking or demanding greater fees than are limited by the law in such things as are by law provided for ;- Op- pression, which is the undue use of power and authority to the unjust grievance of another ;- Using false weights or measures ;- Tendering in payment unsound tobacco, and such unsound tobacco shall be burned ;- All injuries done to an Indian in person or goods ;- Servants marrying without giving satisfaction to the master or mistress ;- Harbouring by night, or clokeing of another's servant with- out the knowledge and consent of the master or mistress ;- Transporting out of the province, or over the bay of Chesapeake, or among the Indians, (without pass from the lieutenant generall or the secretary for the time being, or the com- mander of the isle of Kent,) any servant, or any person indebted or obnoxious any way to the justice of the province, knowing or having reason to know or
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suspect him to be so engaged or obnoxious, or having notice given that he is so, Provided that no passe shall be given till after publique notice given aforehand of the person desiring such passe, and of his intent to depart out of the place, or till after security given for the payment of all debts within the province, or till after pardon of any fault whereof he is chargeable, nor shall be given by the lieutenant generall or secretary till after the said conditions performed at St. Maries ;- forestalling, ingrossing ;- This act to continue till the end of the next general assembly." Lib. C & WH. p. 48.
NOTE (XXVII.) p. 129.
The following form of licensing marriages, (of which there appear many others in the book in the land office, entitled, Liber No 1,) exhibits the mode of contracting marriages in the early settlement of the province, and illustrates the clause of this bill stated in the text.
"November 2d, 1638. This day came William Lewis, planter, and made oath, that he is not precontracted to any other woman than Ursula Gifford, and that there is no impediment of consanguinity, affinity, or any other lawful im- pediment to his knowledge, why he should not be married to the said Ursula Gifford ; and further he acknowledgeth himself to owe unto the lord proprietary 1000 lb. tobacco in case there be any precontract or other lawful impediment whatsoever as aforesaid, either on the part of the said William Lewis or the said Ursula Gifford.
WILLIAM LEWIS.
"Whereupon a license was granted him to marry with the said Ursula."
Although precontract was held to be a ground of divorce even by the reformed Church of England at the time of making this bill, (1639,) yet, it may be re- marked in illustration of the above, that this was one of the first complaints at the commencement of the reformation against the Church of Rome, and dictat- ed the statute of 32 Hen. 8, ch. 38; entitled, "for marriages to stand notwith- standing precontracts ;" in which act, (to please Henry, without doubt, who was sorely vexed with the court of Rome upon the subject of marriages,) copious invectives are thrown out against "the bishop of Rome," for "the enor- mity of avoiding marriages by precontract." It seems, however, that in the next reign, though the reformed church still ruled, "divers inconveniences, in- tolerable in manner to christian ears and eyes," are stated to have "followed thereupon," that is from the statute of 32 Hen. 8, as appears in the preamble to the statute of 2 & 3 Edw. 6, ch. 23, which was made to repeal the said act of 32 Hen. 8, as to precontract only ; and again, in the Catholic reign of queen Mary, the act of 32 Hen. 8, was expressly and totally repealed by the statute of 1 & 2 Ph. & Ma. ch. 8, entitled, "an act repealing all articles and provisions made against the See Apostolick of Rome." The act of 32 Hen. 8, was, how- ever, on the restoration of the reformed religion, revived by that of 1 Eliz. ch. 1, except as to precontracts ; as to which, it was to stand repealed by the before mentioned statute of Edw. 6. It was somewhat extraordinary, that this ground of divorce was not taken away until the year 1753, by the statute of 26 Geo. 2, ch. 33, commonly called the marriage act.
The mode of regulating marriages, prescribed by this bill of our provincial assembly, seems to have been in pursuance of the canons of the Church of Eng- land ; though, perhaps in this respect, those of the Church of Rome were not materially variant therefrom. By the CI. canon, (see the canons of the Church of England, constituted in the year 1603,) "no faculty, or license, shall be henceforth granted for solemnization of matrimony betwixt any parties without thrice open publication of the banns by any person exercising ecclesiastical ju- risdiction ; but the same shall be granted" (without banns) "only by such as have episcopal authority, &c., and unto such persons only as be of good state
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and quality, and that upon good caution and security taken." By the CII. canon, "the security mentioned to be taken shall contain these conditions : First, that at the time of the granting every such license, there is not any impediment of precontract, consanguinity, affinity, or other lawful cause to hinder the said marriage." By the CIII. canon, "For the avoiding of all fraud and collusion in the obtaining of such licenses and dispensations, we farther constitute and appoint, that before any license for the celebration of matrimony without publi- cation of banns be had or granted, one of the parties shall personally swear, that he believeth there is no let or impediment of precontract, kindred, or alliance, or of any other lawful cause whatsoever, to bar or hinder the proceed- ing of the said matrimony, according to the tenor of the foresaid license."
NOTE (XXVIII.) p. 130.
There were two kinds of purgation in use. in England,-the vulgar and the canonical. The vulgar purgation was an appeal to what was called the judicium die ; such as the trial per ordeal of either fire or water,-the corsned, and the trial per battaile. As these modes of trial were long before this period (1639) antiquated and disused in England, it is most probable, that the canonical pur- gation was here alluded to. This species of purgation was borrowed from the Roman civil law by the Canonists, and introduced into England by the Papal hierarchy. This mode of trial was, by putting the party, accused of a crime, to his own oath, as to his guilt or innocence, together with that of a certain number of compurgators attesting, in case of his denial of the accusation, their belief in the truth of what he swears. Persons accused before the temporal tri- bunals of crimes, wherein the benefit of clergy was allowed, upon prayer thereof, were delivered to the ordinary, before whom he was to be tried according to the ecclesiastical law, that is, by canonical purgation as above mentioned. But, it being perceived, that this opened a door to innumerable perjuries, it was in such cases, (that is, where benefit of clergy was claimed,) taken away by the stat- ute of 18 Eliz. ch. 7, sect. 2. It would appear, however, that this statute did not take away this mode of tryal in the ecclesiastical courts altogether, for, in crimes that were of spiritual cognizance only, such as heresy, they were still at liberty to tender what was called the oath ex officio, whereby the party was com- pelled to confess, accuse, or purge himself of the crime with which he was charged. This mode of proceeding was exercised in a most arbitrary manner by the high commission court, before mentioned, during the reign of James the first, and in many cases in the early part of the reign of Charles to the present period of which we are now treating; when the parliament, held in the year 1640, having in a great measure humbled the monarch, as well as the high church party, abolished the high commission court by the statute of 16 Car. 1, ch. 11, and prohibited any ecclesiastical court from proceeding by the oath ex officio ; which court and proceedings had contributed greatly to bring on the dis- astrous events which ensued. On the restoration of Charles the second, when it was thought proper to revive some of the powers of the ecclesiastical courts by the statute of 13 Car. 2, ch. 12, this mode of proceeding, by administering the oath ex officio, was further and finally prohibited. See Clarke's Praxis in Curris Ecclesiasticis, titul. 324, and 3 Bl. Com. 106. It seems at first, therefore, to be matter of surprise, that our colonists should wish to adopt, especially in temporal offences, so odious a mode of trial as that of purgation. But, when we reflect, that they were Catholics, and that it was a mode of trial to which the Romish church in English had been much attached, their wish to adopt it be- comes easy to be accounted for.
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NOTE (XXIX.) p. 132.
In another part of the records I find this act mentioned, as entitled, "an act for the erecting of a pretorium ;" which is certainly the more classical term, and agreeable to that used in the latin copy of the charter ; as appears from the fol- lowing clause in the section of that grant, wherein lord Baltimore was empow- ered to institute courts of justice :- "Ceteraque omnia alia et singula ad justitia complementum, curiasque, prætoria, et Tribunalia, judiciorum formas et proce- dendi modos, pertinentia, etiam si deillis expressa in presentibus non fiat mentio, ac in Curris, prætoriis, et tribunalibus illis, in actionibus, sectis, causis et negotiis quibuscunque, tam criminalibus quam personalibus, realibus et mixtis ac præto- ris procedendi placita tenendi et terminandi per judices per ipsos delegatos libe- ram plenam et omnimodam tenore presentium concedimus potestatam." The words,-"curias, prætoria, et tribunalia,"-are expressed in the translation of the charter in Bacon's laws by the words,-"courts, pretorian Judicalories, and tribunals." The office of pretor, among the ancient Romans, is well known to have been that of a judge. There were two for the city of Rome. After they had extended their conquests over foreign countries, and reduced them to pro- vinces, an additional number of pretors were created, and one appointed to each province. Each pretor of a province acted, not only as judge, but as a governor of that province. Hence, Cicero, in one of his orations against Verres, after a fine strain of invective against this corrupt pretor of Sicily observes,-"Ejus- demmodi totum jus pretorium, ejusdemmodi omnis res judiciaria fuit in Sicilia per triennium, Verre pretore." The word pretorium is sometimes also used substantively for the palace or hall of the pretor, where he held his court and heard causes. We thus discern the prototype, as it were, of that ambiguous character, with which the governors of the English provinces were mostly in- vested,-of acting as the chief judiciary as well as executive officer of the pro- vince, of being chief judge as well as governor.
NOTE (XXX.) p. 137.
Lent was a portion of time set apart for mortification by fasting, introduced in the early periods of christianity by the ancient Catholic church. But most of the reformed sects consider it as a superstitious institution, and reject it. The Church of England, however, not so furiously bent on beating down at once all the old institutions of the primitive christians, among other customs and usages of the ancient church, thought it proper, at the commencement of the reforma- tion, to preserve that of fasting, or abstinence from flesh at prescribed periods of time. Accordingly, the statute of 2 & 3 Edw. 6, ch. 19, was made, entitled, "an act touching abstinence from flesh in Lent, and other usual times." From the preamble to this statute, as well as that of some subsequent statutes on the same subject, it would appear, that motives of political policy, as well as the principle-that "godly abstinence was a mean to virtue," prompted to the pre- servation of this religious usage. The preamble states, that "considering also that fishers, and men using the trade of living by fishing in the sea, may thereby the rather be set on work, and that by eating of fish much flesh shall be saved and increased." After repealing all former statutes, constitutions, and usages con- cerning fasting or abstinence from meats heretofore made or used, it enacts, "that no person shall eat any manner of flesh upon any Friday or Saturday, or the Embring days, or in any day in the time commonly called Lent, nor at any such other day as is or shall be at any time hereafter commonly accepted and re- puted as a fish day, within this realm of England, under the penalty of forfeit- ing 10 s. and also to suffer imprisonment for ten days, during which time he is to eat no manner of flesh." The fifth section provides for granting licenses to eat flesh in the times prohibited, in such "cases of infirmity" as are alluded to in our
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