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 103
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bill or act of assembly, to wit, to sick persons and women with child. Again, a similar policy of converting religious prejudices into public benefits was adopt- ed by that wise and excellent princess queen Elizabeth. By the statute of 5 Eliz. ch. 5, entitled, "an act touching politick constitutions for the maintenance of the navy," it was enacted, that, "it shall not be lawful to eat any flesh upon any days now usually observed as fish days, or upon any now newly limited to be observed as fish day." Lest this should be misunderstood by some good pro- testant subjects, it was expressly stated in the 39th section thereof, to be "in- tended and meat politickly for the increase of fishermen and mariners and repair- ing of nort towns and navigation, and not for any superstition to be maintained in the choice of meats. Those, who preach to the contrary shall be punished as spreaders of false news." As these English statutes were in force at the time of this session of assembly in 1639, they, probably formed that "law of England" upon the subject, alluded to in the above mentioned bill, which, how- ever, repealed the observance of Wednesdays as fish days, newly introduced by the statute of Elizabeth.
NOTE (XXXI.) p. 140.
"An act for the government of the isle of Kent." (1638-9, No. 13.)
"The island, commonly called the isle of Kent, shall be erected into a hundred, and shall be within the county of St. Mary's, (until another county shall be erected of the eastern shore, and no longer,) and shall be called by the name of Kent hundred ; and the commander of the said island from time to time appoint- ed by the lord proprietary or his lieutenant general, shall be a justice of peace within the said hundred, during such time as he is commander, with all power and authority to a justice of peace belonging by the laws of this province; and the said commander shall appoint some one to be clerk or register for the recording of all matters pertaining to that office ; and the said commander and register for the time being, shall be a court of record, and shall be called, the hundred court of Kent; And all matters and causes whatsoever civil or criminal, (except wherein the said commander is a partie, ) happening or arising by or between any inhabitants of the said island, or wherein any inhabitant of the said island is defendant, and de- terminable in the county court, shall or may be heard and determined by and be- fore the said commander in the said hundred court, and the said court shall have power to use and exercise all the same and the like powers and jurisdictions, and to issue and award all processe necessary for the bringing of any cause to a trial and executing of judgment therein, as may be used and exercised, issued or awarded by or out of the county court, and the said processe or writs shall issue in the name of the lord proprietary with the teste of the commander, and shall be signed by the said commander or register, and shall or may be directed to the parties themselves or to the high constable of that hundred from time to time to be ap- pointed by the lord proprietary or his lieutenant general or the said commander or otherwise to any other person where the said high constable is a partie ; and the same or the like forms of proceedings shall be used and observed in this court as is or may be used and observed in the county court of St. Marie's by the laws of the province as near as the said commander and register shall be able to judge, and all questions of law shall be decided by the said commander (with advice of the register,) and all issues of fact shall be tried by the commander, (if both parties consent,) or otherwise by any seven or more freemen, inhabitants within the island, to be returned by the said high constable, and such judgments shall be given in all causes in this court, as are most agreeable to the laws of the pro- vince or otherwise to the judgments usually given in the same or the like causes in the county court, as near as the said commander with advice of the register shall be able to determine ; and if any party, afore or after sentence given, shall appeal from the said court, and shall put in caution to pursue his said appeal at
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the next county court or court of admiralty, (after notice thereof given unto him,) and to pay treble damages to the defendant in the said appeal, in case the sentence given in the said hundred court be again affirmed, execution upon the judgment, so appealed from, shall be respited till certificate received from the county or admiralty court, that the said sentence is affirmed ; and forthwith upon such appeal the register of the said hundred court shall deliver unto the defend- ant in the said appeal the record of the trial or judgment in the hundred court, and the same proofs and no more or other than were produced by the appellant in the hundred court shall be produced at the county court, except the court shall think fit to admit of other proofs ; and to this end and for the further ease of the inhabitants of the said island, be it hereby provided, that once at least in every year, yearly in the month of October or November, (and at any other time when it may be with the convenience of the lieutenant general and secretary,) at or upon the desire or demand of the inhabitants of the said island or of the greater part of them credibly signified by letter, message or otherwise to the lieu- tenant general, the said lieutenant general and secretary and such of the council as may be obtained to accompany them shall or may repair to the said island and there hold a county court or court of admiralty, chancery, or pretorial for the full and final dispatching of all matters and causes whatever, wherein any of the in- habitants of the said island shall have use or need of the said courts or any of them ; to which purpose the said lieutenant general and secretary so repairing to the said island afore, and such of the council as shall be present in the said island, and the commander of the said island or otherwise the said lieutenant general, secretary, and commander shall be all or any of the said courts within the said island to all the same intents and purposes and with all the same power and jurisdiction as any of the said courts is, hath or may or ought to be or have by the law of this province ; Provided that, towards the recompencing and de- fraying the necessary pains and charges of such repairing to the said island for holding the said courts, every house-keeper of the said island shall contribute to the expense of the said voyage for every such time as the said lieutenant ge- neral and secretary shall repair to the said island at the request and desire of the inhabitants as aforesaid."
Taken from Liber C & WH, (a record-book in the office of the Court of Ap- peals,) p. 22.
NOTE (XXXII.) p. 141.
The forms of oaths prescribed by the bill, entitled, "an act for the several oaths to be taken by judges and public officers ;"-from Liber C & WH, p. 6; a record-book in the office of the present Court of Appeals.
The oath of the lieutenant general.
"I, A. B. do swear, that, whilst I am a member of this province, I will bear true faith unto the right honorable Cecilius, lord of this province, and his heirs, (saving my allegiance to the crown of England ; ) and the said province, and him and them, and his and their due rights and jurisdictions, and all and every of them, will aid, defend, and maintain to the uttermost of my power ; the peace and welfare of the people I will ever procure as far as I may ; to none will I de- lay or deny right, but equal justice will administer in all things to my best skill according to the laws of this province ; So help me God."
The oath of a Judge.
"I, A. B. do swear, that (whilst I am a member of this province, ) I will bear true faith to the right honorable Cecilius lord of this province, and his heirs (saving my allegiance to the crown of England ;) and his and their due rights and jurisdictions, and every of them, will defend and maintain to my power. To none will I delay or deny right. Reward of none will I take for doing of
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justice : But equal justice will administer in all things to my best skill (without fear, favour, or malice of any person,) according to the laws of this province. So help me God."
The oath of a Councillor.
"I, A. B. do swear, that whilst I am a councillor of this province, I will true faith bear to the right honorable Cecilius lord of this province and his heirs, (saving my allegiance to the crown of England ;) and him and them and his and their due rights and jurisdictions and every of them will defend and maintain to my power; the peace and welfare of the people I will ever procure as far as I may; I will aid and assist the administring and execution of justice in all things to my power ; I will to my best skill give good and faithful counsel to the said Cecilius and his heirs and to his or their lieutenant general of the province for the time being, when thereunto I shall be called ; and I will keep secret all such matters as are delivered me as secrets, as becomes a councillor to do. So help me God."
The oath of the secretary of the province, clerk of the chancery, and the regis- ter of every other court of record, " before he execute any act of his said office."
I, A. B. do swear that (whilst I am a member of this province,) I will true faith bear to the right honourable Cecilius, lord of this province, and his heirs, (saving my allegiance to the crown of England,) and his and their due rights and jurisdictions and every of them will defend and maintain to my power ; to none will I delay or deny right in what belongeth to my office to do by the laws of this province ; true record will I keep of judgments and all other matters to be by me recorded without falsification or corruption for fear, favour, or malice of any person. So help me God."
" To which end and purpose be it further enacted, that the secretary of state of this province, for the time being, shall have full power to administer to the lieu- tenant general the oath above mentioned, to be taken by the said lieutenant gene- ral, and that the lieutenant general, by the authority aforesaid, shall have full power to administer to every councillor of state, judge, and officer aforesaid, the oath above mentioned, to be taken by every of them in manner as aforesaid, according to the true intention of this present act. This act to continue to the end of the next general assembly."
N. B. Although the preceding bill, as well as all or most of the other bills of this session, was limited to continue only "to the end of the next general assem- bly ;" yet, from the entry, stated in the text, relative to James Neal, this bill or act, prescribing the oaths above stated, was deemed to be in force and was therein acted under, in April, 1643, although two or three sessions of assembly had then intervened.
NOTE (XXXIII.) p. 145.
"An act for military discipline." (1638-9, No. 31.)
" Be it enacted by the lord proprietarie of this province, of and with the advice and assent of the freemen of the same, that every housekeeper or housekeepers within this province shall have ready continually upon all occasions within his, her, or their house, for him and themselves, and for every person within his, her, or their house, able to bear arms, one serviceable fixed gunne of bastard muskett boare, one pair of bandeloors or shott bag, one pound of good powder, foure pound of pistol or muskett shott, and sufficient quantity of match for match- locks, and of flints for fire-lock, and before Christmas next shall also find a sword and belt for every such person as aforesaid.
And it shall be for the captain of St. Marie's band or the commander of the isle of Kent, their or either of their serjeants or marshall once in every month to demand at every dwelling house within their several districts a sight or view of
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the said armes and ammunition, and to certifie the defaults therein to the cap- taine or commander, who shall thereupon amerce such partie or parties so defi- cient, in such paine as the defect shall deserve in his discretion, so it exceed not thirty pound of tobacco for one default, and all amerciaments so imposed shall be paid to the said serjeant or marshall, to his or their own use.
And the said captain or commander shall forthwith furnish and supply the partie or parties deficient, with all such necessary armes and ammunition as afore appointed, and shall impose any price upon the same not extending to above double the value of the said armes and ammunition according to the rate then usual in the country.
And upon any alarm every householder of every hundred, having in his family three men or more able to beare armes, shall send one man completely armed for every such three men, and two men for every five, and so proportionably, to such place as shall be appointed or notified by the commander or high constable or other officer of the hundred, and the householders within St. Marie's hundred shall send their men as afore to the chappell yard neere the fort, except any other place be appointed by the lieutenant generall or the captain for the time being. And every householder delaying to send such man or men, according to the order aforesaid, for longer time than the man or men might conveniently have been sent, shall be fined in the pretoriall court according to the nature of the offence or contempt. This act to continue till the end of the next general assem- bly." Taken from Lib. C. and WH., p. 55.
NOTE (XXXIV.) p. 149. "An act for measures and weights." (1638-9, No. 34.).
"Be it enacted by the lord proprietarie of this province, of and with the advice and approbation of the freemen of the same, that within one month after the end of this assembly there shall be one standard measure throughout the province, as shall be appointed by the lieutenant generall, and after the said month no man shall sell by any other measure than what is sealed by the lieutenant generall or some person appointed by him to that purpose, according to the measures of the said standard. And no more shall be paid than three pounds of tobacco for the sealing of one measure.
And all contracts made for payment in corn shall be understood of corn shelled ; and a barrel of corn tendered in payment at or afore the fifteenth day of October in any year, shall be twice shaked in the barrel, and afterwards heaped as long as it will lie on, and at or before the feast of the nativity, shall be twice shaked and filled to the edge of the barrel, or else not shaked and heaped as before, and after the said feast it shall not be shaken at all, but delivered by strike.
And within three months after this assembly is ended, no man shall sell or receive any tobacco or other goods by any steeleyards or other weight not sealed by the lieutenant general or persons appointed by him as afore (after such per- son with such seal shall be appointed) except it be small, sealed in England. And no more shall be demanded for the sealing of a pair of steeleyards or other grosse weight than the fee afore appointed for the sealing of a measure. This act to continue till the end of the next general assembly." Taken from Lib. C. and WH., p. 58.
(NOTE (XXXV.) p. 157. "An act for the building of the towne house. (1638-9, No. 28.)
" Be it enacted by the lord proprietarie of this province, by and with the ad- vice and approbation of the freemen of the same, that at such time and place as the lieutenant generall and councell shall think fit there shall be a towne house built in such manner as the said lieutenant generall and councell shall think fit.
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And every housekeeper inhabiting within the province shall be contributary to the said building either in stuff, workmanship, labour, or tobaccos, in such man- ner and after such rates proportionally to each man's personal estate, (to be valued by the said lieutenant general and councell,) as the said lieutenant gene- ral and councell shall assess or impose. Provided, that the whole charge thereof amount not to above six thousand weight of tobacco in the whole province, and that no man (artificers excepted) be pressed to labour at the said building before November or after February in any yeare ; And provided, that artificers and labourers have such rates for their work as are reasonably used within the colony." Taken from Lib. C. and WH., p. 53.
NOTE (XXXVI.) p. 158. "An act for the descending of land." (1638-9, No. 16.)
" Be it enacted by the lord proprietarie of this province, of and with the ad .. vice and approbation of the freemen of the same, That a widow immediately after the death of her husband, (if she have no jointure,) shall be admitted tenant during her life to one-third part of all the land whereof her husband was seised any time during the coverture, (except in cases where she hath acknow- ledged a fine or joined with her husband in making of leases ;) And she shall tarry in the chief house of her husband during her widowhood. And where any person dieth seised of any land, the guardian of the heir appointed upon the will, (if the heir be within the age of eighteen years,) may enter upon the land and shall be accountable for the reasonable profits thereof to the heir when he comes of age.
And where any person dieth seised of any land without disposing thereof by will, the next heir of such person, to whom the land ought to descend by the most general custom or common law of England, shall or may enter upon all the land whereof his ancestor died seised, and if such next heir be not living or residing within the province the nearest heir living within the province and claiming the same may enter upon the land, and held it without waste or im- peachment, until such next heir or nearer heir make claime.
And if such next or nearer heir make not clayme within ten years after the death of the ancestor, such nearest heir living within the province shall be ad- mitted tenant.
And if there be no guardian or heir living within the province to hold the land as aforesaid the lord proprietarie shall or may enter upon the land, (if it be im- mediately held from the lord proprietarie,) or otherwise the lord of whom the Jand is holden, and hold the same until some heir to the partie deceased make clayme and then he shall be accomptable to the heir as a guardian ought to be, and if no claim be made within three years then he shall hold it without account to his own use, and if no clayme be made within ten years from such death of the ancestor, the land shall escheat to the lord of the fee. And where any next heir or nearest heir living within the province is within the age of eighteen years, and no will of the ancestor hath appointed him a guardian, the judge of the county court wherein the land lieth shall appoint a guardian or curator to the heir's person and land, either the mother of the heir, (if she be a widow and living within the province,) or otherwise the nearest of kinne to the heir living within the province to whom the land is not immediately to descend, or if there be no such mother or kindred residing within the province, then such per- son or persons as the said judge shall think fit, who shall hold the land without waste or impeachment,* and shall be accomptable to the heir when he cometh to
* This expression, as the reader will have observed, has occurred in a few lines back in this same bill. It is, in both instances, so in the record, and most probably was so in the original draught of it ; a small technical error in the draughtsman of the bill. It should have been, "without impeach- ment of waste,"-absque impetitione vasti.
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live within the province, or to the age of eighteen years for the reasonable pro- fits thereof with such allowance for his pains as the judge receiving the accompt shall think fit,-Provided, That no escheat of any land by virtue of this act be to the lord proprietarie, until all lawful demands upon the land be satisfied to cre- ditors recovering ; and any creditors of the deceased making such proof in court of his demand as shall satisfie the court of the truth and justness thereof; and alledging that there is not sufficient distress of goods, may be admitted to enter upon the land, until the debt be satisfied according to the value of the land held as it shall be appraised before the sheriff by two indifferent neighbours upon oath. This act to continue till the end of the next general assembly." Taken from Lib. C. and WH., p. 29.
NOTE (XXXVII.) p. 158. "An act for assuring of titles to lands." (1638-9, No. 17.)
" Be it enacted by the lord proprietarie of this province, of and with the advice and approbation of the freemen of the same, that the register of every court shall keep a book of record, in which he shall enter all grants, conveyances, titles, and successions to land whatsoever, at the request of any one desiring the same to be entered; And the commander of any hundred may likewise keep a book of record, in which he shall or may enter all grants, titles, and successions to any freehold within the hundred, at the request of any one desiring it. And the partie or parties making such request shall set forth the special matter or title by which he claimes ; and if the partie claim by law only, as the widow for her dower, the heire for his inheritance, the lord of the fee for his escheat, or the tenant by courtesy of Maryland for his wife's inheritance, the partie claiming shall averre or make such proofe as the court shall think fit, that he or she is the widow, husband, or heir of the last tenant upon record, or that he or she is lord of the fee, and that the last tenant upon record died without heir. And if the partie clayme by matter of record, grant, deed, or legacie, the partie clayming shall alledge the matter of record, or exhibit the grant, deed, or testament by which he claims, upon which clayme so entered the partie clayming may enter upon the land so claymed, if no other be possessed thereof.
And at the next county court, or otherwise at the next hundred court, (if the land claymed be a freehold only,) the register of the said county or hundred court shall proclaime and publish the said claime of the partie, and such procla- mation shall be continued and renewed in open court once at least in every year for three years together, and if within that space no matter be alledged by any person to the contrary, the partie clayming shall be entered tenant upon record to the land so claimed, and such entry upon record shall be a barre for ever to all other persons whatsoever from claiming the said land, other than such as shall claime by from or under the partie so admitted upon record. Provided, that the nearest heir living within the province and claiming or entring upon any land shall not be admitted tenant upon record till after ten years, according to the statute in that behalf provided, entitled, an act for the descending of land, and that the lord proprietary nor lord of the fee shall not be admitted by escheat for want of heirs living within the province until after ten years, likewise according to the statute aforesaid, any thing in this act to the contrary notwithstanding. This act to continue to the end of the next general assembly." Taken from Lib. C. and WH., p. 32.
NOTE (XXXVIII.) p. 160.
"An act for limiting the time of servants." (1638-9, No. 35.)
" Be it enacted by the Jord proprietarie of this province, of and with the advice and approbation of the freemen of the same, That all persons being christians,
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(slaves excepted,) of the age of eighteen years or above, and brought into this province at tlie charge and adventure of some other person, shall serve such per- son at whose charge and adventure they were so transported for the full term of four years only, to commence from his or their arrival in the province, (except any other time were contracted for by covenant.) And the charge shall be accompted and adjudged [to] that person by whom or whose order the passage money was paid to the master or merchant.
And all persons under the age of eighteen years transported into this province at the charge and adventure of some other person, shall serve such person at whose charge he or they were so transported, until such person or persons so transported shall be of the full age of four and twenty years, (except likewise any other time were contracted for by covenant. )
And every maid servant being christian, (except as before excepted,) of the age of twelve years old or under, shall be bound to serve the partie or parties, transporting her or them, for seven years; and if she be above the age of twelve years, she shall serve for four years only, (except it were otherwise conditioned by covenant, ) and at the end of any of the said termes of service expired, the master or mistress of such servant, (at the time when the said term is expired, ) shall give unto such man or maid servant such conditions as were covenanted by the indentures or first covenants, or (in default of such covenant,) shall give unto them three barrels of corn, a hilling hoe, and a weeding hoe, and a felling axe; and to a man servant one new cloth suite, one new shirt, one pair of new shoes, one pair of new stockings, and a new Monmouth capp ; and to a maid servant, one new pettycoat and waistcoat, one new smock, one pair of new shoes, one pair of new stockings, and the cloaths formerly belonging. to the servant. This act to continue till the end of the next general assembly." Taken from Liber C. and WH., p. 59.
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