The history of Maryland : from its first settlement, in 1633, to the restoration, in 1660 ; with a copious introduction, and notes and illustrations, Part 28

Author: Bozman, John Leeds, 1757-1823
Publication date: 1837
Publisher: Baltimore : J. Lucas & E.K. Deaver
Number of Pages: 1062

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 28

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* Chalmers's Annals, ch. iv.

t Rapin's Hist. Engl. (Tindal's edit.) vol. 8, p. 281.

į Sir Robert Naunton, having given some offence to Buckingham, was remov- ed from his office on the 14th of January, 1620-1, (O. S.), and Sir Edward Con- way then put in his place. Rapin's Hist. Abridg. vol. 2. p. 206.

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SEC. IX. ed to have been a protestant .* So that Sir George Calvert must have been most probably included in this list, and one of the principal objects of this petition. Although the king was certainly more condescending and gracious to this parliament, than he had ever been to any before, and in his answer to this petition had been induced to play the hypocrite so far as-" to protest before God, that his heart had bled when he had heard of the increase of popery; and that he would command all his judges to put all the laws in execution against recusants ;"-yet it does not appear, that any removals from office on this account, at least with those about the court, took place during the short remainder of his reign. It is stated, however, by some Ameri- can biographers, who mention Sir George Calvert, that " in 1624 he became a Roman Catholic, and having disclosed his new prin- ciples to the king, resigned his office."f That Sir George did not, prior to the year 1624, or perhaps prior to the death of the king, which happened about the end of that year, according to old style, openly avow himself a Roman Catholic, is highly probable, inasmuch as he thereby would have rendered himself obnoxious to the prejudice and animosity of the majority of the nation, in his two great trusts of secretary and member of parlia- ment. But his zeal from the time of his first appointment to the office of secretary, in promoting the marriage of the king's son prince Charles with an infanta of Spain, connected with his sub- sequent avowal of that religion, seems strongly to imply, that he acted in that business willingly, and not merely under the orders of the king. On this subject also, he seems to have fallen in with the views of count Gondemar, the Spanish ambassador at London, in so open a manner, as to induce historians to enrol him in the list of those, who were bribed by that minister .¿ But in justice to Sir George, it is fair to impute his conduct, rela- tive to the Spanish match, rather to the more probable motive of a zeal for the interests of the Catholic religion, connected with

* Rapin's Hist. (Tindal's edit.) vol. 8, p. 159 .- Rapin, however, in a subse- quent part of the same vol. p. 409, states him to have been a Catholic. But it is most probable, that he alludes in the above quotation, to Sir George Calvert.

t Allen's Amer. Biog. Dict. art. Calvert; who seems to have copied the arti- cle from Belknap's Amer. Biog.

# Rapin, in his Hist. of Eng. (Tindal's edit.) vol. 8, p. 167, says, that " count Gondemar had bribed with presents and pensions all those who had the king's ear," and in a note thereto subjoins,-" particularly the earls of Worcester and Arundel, the lord Digby, Sir George Calvert, Sir Richard Weston, and others papishly affected ;"-for which he cites Wilson's life of James I.

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an amiable desire of demonstrating his gratitude to a monarch, SEC. IX. who had rendered him so many favours as king James had done,* than to the dishonourable influence of a bribe. It is not probable, therefore, that the principles of the Catholic reli- gion were newly adopted by him in 1624. He must have been tinctured with a propensity to that religion long before.

As the king's favorite minister-the duke of Buckingham, in order to gratify his revenge against the Spaniards for some af- fronts supposed to have been received by him when at Madrid, is said to have colleagued with the Puritans, or a least with some zealous Protestants, for the more rigid execution of the penal laws against papists, to which the king was induced to yield, it is highly probable, that Sir George Calvert, seeing a more threatening storm than usual, rising against the Catholics, be- gan to prepare his mind for a retirement from the public scenes of life. He had long been interested in the affairs of the colo- nies, having been one of the original associates or members of the Virginia company under the second charter in 1609, and so continued until its dissolution in 1624,į which must have been within a few days after the prorogation of this present parlia- ment on the 20th of May this year. On the dissolution of the Virginia charters, it being necessary to provide some other mode for the government of Virginia, a commission issued, bearing date the 15th of July, 1624, to Henry Viscount Mandeville and others, among whom is mentioned,-" Sir George Calvert, knighte, one of our principal secretaries of state," and who was also to be one of the quorum of a provisional council in England thereby erected for the temporary government of Virginia, until his majesty could "upon advised consideration and deliberation" pass a new charter.§ Thus invested among others with the superintendance of the principal colony in America, his mind must have been frequently called to a more than ordinary atten-

* From the like motive might have originated with him, as it is said to have done, the project of settling the affairs of the elector Palatine, a Protestant and James's son-in-law, by marrying his son-the prince Palatine, James's grand- son, with a daughter of the emperor of Germany, who was a Catholic .- See Rapin's Hist. (Tindal's edit.) vol. 9, p. 180.

+ His name appears, as one of the patentees in that charter, in a large list of the nobility and gentry of England.

¿ The writ of Quo Warranto, against the Virginia charter, issued in Novem- ber 1623, and judgment was given by the court of K. B., against the treasurer and company, in Trinity term, (about the latter end of May, ) 1624 .- Chalmers's Annals, ch. iii. and ix.

§ See this commission at large in Hazard's Collections, vol. 1, p. 183.

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SEC. IX. tion to the business of forming plantations in America. He was now also, as has been before stated, engaged in planting a colony in Newfoundland, and, having received the most flatter- ing, though delusive, information of its prosperous progress, he might probably about this time have formed his intention of re- tiring from the disagreeable scenes of England, to pass a few years of quiet enjoyment of his religion in the woods and forests of America.

Having thus traced Sir George's public life to the middle of the year 1624, when we find him still continuing in his various public offices, it will be proper to observe, that, notwithstanding the preceding allegation of Sir George's "disclosure of his new principles to the king and resignation of his office in that year," it has been on the contrary stated, with apparent authenticity, that he continued to be one of the principal secretaries of state, until the death of king of James,* which occurred on the 27th of March, 1625, only three days after the expiration of the year 1624, according to old style. It is possible, however, that he might have resigned his office of secretary in the latter part of the year 1624, at some short period before the death of James, and at the same time, considering the circumstances of the times and the invet- eracy of the majority of the nation against the Papists, he might have assigned to king James this general national prejudice as his reason for so doing : But it is not probable, that king James had been hitherto a stranger to his religious sentiments.

On the death of James and the accession of Charles to the throne, it seems to be certain, that Sir George ceased to be one of the secretaries.t It is highly probable, that on his retirement from office, whenever that event was, he received his diploma of nobility; being created baron of Baltimore in the kingdom of Ireland. But to this circumstance of his life also different dates are annexed; and we have not, on this side of the Atlantic, the means of correcting such errors. According to some he was created lord Baltimore in the year 1623;} but this seems to

* Chalmers's Annals, ch. ix. who cites a commission in Rymer's Fædera, in opposition to what (he says) "was mistakingly said (to that purpose) in the Mis- cellaneous State Papers (then) lately published."

t Sir Edward Conway, now became lord Conway, and Sir John Cooke are mentioned as secretaries of state in August, 1625, about five months after the death of king James. Rapin's Hist. of Eng. (Tindal's edit.) vol. 8, p. 333.

# In the list of the peers of Ireland from the reign of Henry 2d, to the year 1806, in the order of their creation, in Beatson's Political Index, (vol. 3, p.147;)

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be plainly contradicted by the commission just mentioned, of SEC. IX. July 15th, 1624, in which he is styled by the king himself- "Sir George Calvert, knight," which title would certainly not have been used in such a commission, had he been then a peer. His American biographers seem therefore to be more cor- rect, who state him to have been created baron of Baltimore in the year 1625 ;* when he most probably received this honour from Charles the first, shortly after the death of his father James, and Sir George's resignation of the office of secretary.

Disengaged from the important duties of the office of secre- tary, he had now leisure to attend to his project of establishing a colony in America. More accurately to ascertain the progress of that, which he had planted in Newfoundland, it was probably about this time, in the first or second years of the reign of Charles the first, that he first visited his province of Avalon.t It has been said also, that he removed thither with his family, and dwelt there some time.# But of this the dates are not to be ac- curately ascertained.

The natural order of time requires to recur again to the pro- ceedings of parliament relative to the important right of Ameri- can fisheries. The subject was revived as one of the griev- ances of the realm, at the second parliament which Charles con- vened after his accession to the throne, on the 6th of February, 1825-6. The bill for securing the right of fishery, which had engaged so much of the time and the attention of former sessions, was readily adopted by the present, but with a title more ex- pressive of its genuine policy. An act "for maintenance and increase of shipping and navigation, and for the freer liberty of fishing voyages upon the sea-coasts of Newfoundland, Virginia, and New England," was brought in. It was soon passed by the commons, and sent to the lords; from whom, however, it never returned. Although the bill was thus lost, yet the com- mons, ever intent upon this among their several grievances, in their remonstrance to the king at this session, insisted,-"that

a work of some authenticity, Sir Ceorge Calvert is stated to have been created Baron Baltimore in the year 1623.

* Allen's American Biog. Dict. art. Calvert ;- who appears to have copied it from Belknap's Amer. Biog. It is probable, that the similitude of the figures 3 and 5 have occasioned the mistake.

+ Chalmers's Annals, ch. ix. for which he cites Purchas's Pilgrims, 4 v. and the letters of Sir George Calvert in the Strafford papers.

# Oldmixon's Brit. Emp. in America, vol. 1, p. 5 ;- who is followed in this by the authors of the Mod. Univ. Hist. vol. 39, p. 250.

VOL. I .- 32

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SEC. IX. the restraint of the subjects from the liberty of a free fishing, with all the necessary incidents, was a great national grievance."* At the next session of parliament, which assembled on the 17th of March, 1627-8, the same or a similar bill was revived in the house of commons ; and it seems, that Sir George Calvert, now Lord Baltimore, feeling himself, in all probability, particularly interested in it, on account of his colony of Avalon in Newfound- land, thought it proper to apply for a hearing by his counsel against it. Notwithstanding what was urged by his counsel, the bill passed the house of commons; but, it is said "to have met with its accustomed fate," and either failed in the house of lords or was rejected by the king. Although the commons were not so successful in this measure as they were in this same session in that of their famous petition of right, yet their perseverance is said to have produced such a variation in the modification of future grants of territories in America by the crown, as to secure to the people of England a satisfactory reservation of the im- portant right, to them, of a free fishery; which seems to have been understood, not only as the right of fishing on the banks of Newfoundland, (a right reasonable enough in itself,) but on all other parts of the coast of British America, where it was sup- posed to be possible for extensive fisheries to be carried on. The charter of Massachusetts, bearing date the fourth day of March, in the fourth year of Charles I. (A. D. 1628-9, old style,) about a year after the preceding session last mentioned, contains an express proviso, that "these presents shall not in any manner enure, or be taken to abridge, barr, or hinder any of our loving subjects whatsoever, to use and exercise the trade of fishing upon that coast of New England in America by these presents men- tioned to be granted; but that they, and every or any of them, shall have full and free power and liberty to continue and use their said trade of fishing upon the said coast, in any of the seas thereunto adjoining, or any armes of the seas or salt water rivers where they have been wont to fish, and to build and set up upon the lands by these presents granted, such wharfes, stages, and work houses as shall be necessary for the salting, drying, keep- ing, and packing up of their fish, to be taken or gotten upon that coast; and to cut down and take such trees and other mate- rials there growing or being ort shall be needful for the purpose,

* Chalmers's Annals, ch. ix.

t It is so expressed in the copy in Hazard's Collections, (vol. 1, p. 254,) but the context would seem to indicate the word as instead of the word "or."

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and for all other necessary easements, helps, and advantage, con- SEC. IX. cerning their said trade of fishing there, in such manner and form as they have been heretofore at any time accustomed to do, without making any wilful waste or spoil." A clause, to the same purpose, was inserted in the charter of Maryland to lord Balti- more in the year 1632. As this clause has been supposed by some to form a foundation of certain rights alleged to exist with the citizens of Maryland to this day, and the construction of it has occasioned some litigation in the courts of justice of this state, even since its independence, it may not be improper to in- sert it here .- "Saving always to us, our heirs and successors, and to all the subjects of our kingdoms of England and Ireland, of us, our heirs and successors, the liberty of fishing for sea-fish, as well in the sea, bays, straits, and navigable rivers, as in the harbours, bays, and creeks of the province aforesaid; and the privilege of salting and drying fish on the shores of the same province; and, for that cause, to cut down and take hedging- wood and twigs there growing, and to build huts and cabbins, necessary in this behalf, in the same manner as heretofore they reasonably might, or have used to do. Which liberties and pri- vileges, the said subjects of us, our heirs and successors, shall enjoy, without notable damage or injury in any wise to be done to the aforesaid now baron of Baltimore, his heirs or assigns, or to the residents and inhabitants of the same province in the ports, creeks, and shores aforesaid, and especially in the woods and trees there growing. And if any person shall do damage or in- jury of this kind, he shall incur the peril and pain of the heavy displeasure of us, our heirs and successors, and of the due chas- tisement of the laws, besides making satisfaction." A consid- erable variance is perceptible between these clauses of these two charters. That of Massachusetts reserves the right of fishery to ' all the king's subjects ; but that of Maryland to those only "of England and Ireland." The "saving" in the latter, therefore, seems to exclude the rights of all the king's subjects in Ameri- ca, and thereby to refer only to the rights of public fisheries on the American coast carried on by English or Irish subjects. Why the subjects of other parts of the British dominions were excluded, does not clearly appear. It is probable, that lord Bal- timore admitted it in the limited manner, as it is in his charter, only to prevent any clamours against his grant, arising on the popular topic of the day-the right of fishery; especially in En-

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SEC. IX. gland and Ireland; of the former of which he was a native, and of the latter a peer; and he probably did not apprehend any ob- jections on that account in either Scotland or America. Clauses almost literally similar to that of Massachusetts were inserted also in the charter of Connecticut in 1662, and in that of Rhode Island in 1663 .*

Notwithstanding all must acknowledge, that the right of fish- ing on the banks of Newfoundland was a great national right, intimately connected with the maritime power of the English nation, and, as Sir Josiah Child very justly observed, ought to have occasioned a prohibition of any settlements or colonies on that island, and that the coast thereof should be reserved solely for the promiscuous use of fishermen ; yet as to those coasts of the American continent more favorably fitted for colonization, where the right of fishery, if exercised in the mode contended for, would nearly effect the destruction of a right quite as impor- tant in every government or state,-the right of property in the soil, a mind accustomed to justice will hesitate much before it can be induced to assent to the proposition, that the latter right should yield to the former. In Massachusetts, it appears, that a law or laws confirming the rights of fishery with its incidents, was passed ; but no act of assembly confirming this clause in the charter of Maryland, appears among the laws of that pro- vince or state. Its repugnance to some of the first principles of the common law of Englishmen and their colonists, in relation to the rights of property, begat frequent contests, we are told, in the province of Maryland ; and even since its independence, de- fences to actions of trespass have been set up, grounded upon this supposed right of fishery saved to English and Irish sub- jects by this clause of the Maryland charter.} To suits of this

* See these charters in Hazard's Collections, vol. 2, p. 603 and 612. Chal- mers, in his Annals, (ch. v. note 9,) has stated, that a similar clause was in the charter of Pennsylvania of 1621, but that is a mistake, no such clause is in it. William Penn was too crafty and cunning to allow it; and moreover, arbitrary power, in the sunshine of which he much basked, was too prevalent at the time of his charter for any omissions of such minor rights to occasion much clamour.

t Some time in the year - an action of trespess quare clausum fregit, was tried in Talbot county court, for trespassing on the shores of the plaintiff, in hauling a seine for fish in Thirdhaven creek. The court very properly adjudged, that if the defendant, or those employed by him, landed on the shore and soil of the plaintiff, after notice forbidding him to do so, it was a trespass for which an action might be sustained. Butsome doubt arising on the evidence, whether the defendant actually himself landed on the shore, he having remained in his canoe or boat on the water, the jury were divided and could not agree. To relieve

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nature, Mr. Chalmers, in his Annals, alludes in the following SEC. IX. remarks .- "The history of this clause in the charter of Mary- land decides a long contested point in the jurisprudence of that province. Whether the reservation of the right of fishing re- lated to the subjects of England and Ireland only, according to the express words of it, or to the inhabitants of Maryland also, has been long and sometimes forcibly debated. The latter, ad- judging the dispute in their own favour, have at all times exer- cised the privilege, though not always without opposition. By the common law they may assuredly fish in all navigable creeks and rivers : But, a freedom to tread the soil of the freehold, or to appropriate any of the productions of it, requires some spe- cial authority. Such is the law of Virginia. All may fish in its numerous bays and rivers ; but none can land on their banks without the consent of the owners. The ancient law of Massa- chusetts, though contradictory to the express reservation of the charter, gave the fishermen a right to use any harbour, to occu- py the adjoining shores for curing their fish, to take timber and fire- wood ; paying the town or persons, who are the proprietors, for the same."*

As Mr. Chalmers resided in Maryland, within a few years prior to the American Revolution, it is probable, that the "long contested point in the jurisprudence of that province," which he mentions, occasioned Daniel Dulany, Esq. a lawyer of con- siderable eminence in that province, to give his written opinion on this subject, which bears date, "July, 1768 ;" the substance of which appears to be :- "That, as the right to the soil of the province was vested in the crown, prior to lord Baltimore's charter, that right was, by that instrument of grant, transferred to his lordship, and from him to his several grantees, the occu- piers and owners of such soil : That the saving clause, relative to the right of fishery, in the sixteenth section of that charter, only qualified the precedent general grant, by reserving to all the subjects of the kingdoms of England and Ireland, the liberty of fishing in the sea, bays, rivers, and creeks of the province ; that the people of Maryland were not the subjects of the king of England of or in the realm or kingdom of England, but in the dominions belonging to it ; and he was, therefore, of opinion,

them, a compromise of the suit took place. It was thought at the time, that the unpopularity of the ground of the action had some influence upon the jury.

* Chalmers's Annals ch. v. note 9.

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SEC. IX. that the inhabitants or residents of Maryland are not comprehend- ed in the saving above mentioned, for the purpose aforesaid."*

We are now to attend to the progress of lord Baltimore in es- tablishing his colony in Newfoundland. Having resided here a few years, he soon discovered, that it was not a country fit, or at least eligible, for colonization. As he had, without doubt, receiv- ed full information of the flourishing situation of the colony of Vir- ginia, and favourable accounts of the climate and soil of the country bordering on the Chesapeake, he was induced, in the 1628. Lord Bal- timore vis- year 1628, to visit that colony, in search of some more desirable situation for his Catholic dependents.| Whether a jealousy of its Virgi- his colonial views, or those general prejudices against the pa- pists, which were now more prevalent than ever, even in the mother country, operated with the Virginians, his visit was re- ceived by them most ungraciously indeed. What renders this reception of him somewhat more surprising, is, that the colonists of Virginia had not emigrated from England to evade religious persecution, as those of New England are supposed to have done, but seem to have been allured to it originally by the pros- pect of a sudden accumulation of wealth, by means of the dis- covery of mines as the Spaniards had done, or a shorter route to the Indies. The church of England was then the established religion in Virginia, and Puritanism had not been hitherto en- couraged among them. It is true, that those in England who were denominated high churchmen, as archbishop Laud and others, were accused by the Puritans of being inclined to pope- ry ; but it is to be remembered, that king Charles constantly pro- fessed, and apparently with sincerity, to be alike opposed to popery and Puritanism .¿ He was evidently less inclined to fa- vour the papists than his father had been. It is clearly percepti- ble throughout the early part of his reign, that the churchmen considered themselves as standing upon a ground quite distinct

* See this opinion at large in Harris and MacHenry's Maryland Reports, vol. 1, p. 564.

+ Some writers make his visit to Virginia to have been in 1631 ; (See Holmes's Annals, vol. 1, p. 261; but Burk in his late history of Virginia, vol. 2, p. 25,) places this event in 1628; for which he seems to rely on a MS. copy of "An- cient Records" of Virginia, in his possession, preserved from destruction in the time of the American revolution, by colonel Byrd.

# Even Rapin acknowledges, that he did not believe that either the king or archbishop Laud ever formed the design of restoring the Romish religion, and mentions the circumstance of the archbishop being offered a cardinal's cap, if he would help to do it. Rapin's Hist. (Tindal's edit.) vol. 8, p. 526-7,

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The history of Maryland : from its first settlement, in 1633, to the restoration, in 1660 ; with a copious introduction, and notes and illustrations, Part 28

Author: Bozman, John Leeds, 1757-1823 Publication date: 1837 Publisher: Baltimore : J. Lucas & E.K. Deaver Number of Pages: 1062

Author: Bozman, John Leeds, 1757-1823
Publication date: 1837
Publisher: Baltimore : J. Lucas & E.K. Deaver
Number of Pages: 1062