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 32
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It may not be improper also, to make a few observations on one of the author- ities cited by Mr. Holmes, (Annals, Vol. 1, p. 18, note 2, sub-anno 1497,) in sup- port or illustration of the extent of Cabot's voyage, to wit : the Mod. Univ. Hist,
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Vol. 40, p. 378. Athough that voluminous historical compilation is a most use- ful work, yet, as Doctor Johnson has somewhere observed, it has been executed in a very unequal manner; which seems indeed to be an unavoidable result, from its being the joint labour of several men of unequal talents, learning, or in- dustry. In that part which relates to America, especially in respect to Florida, it does not appear to have been done with that fidelity to historical truth, which ought ever to be the polar star of an historian. About the time when these vol- umes, which relate to America, were compiled, the British and Spanish nations were at war, and the two Floridas presented to the view of the former, a very con- venient arrondissement to their colonies on the continent of North America. In the 39th Vol. p. 127, they speak of an expedition, which was at that time fitting out by the British for the conquest of Florida, and in the same Vol. p. 123, 129, 234, they manifestly endeavour to impress their readers with the idea, that Great Britain had just pretences to a prior right to that part of America by reason of the prior discovery of it by Sebastian Cabot; though in the same volume, p. 129, they acknowledge that this prior right of discovery, was the only support of their claim. Accordingly, in the 40th Vol. p. 378, (the place cited by Holmes in his Annals,) which appears to have been written just after the acquisition of Florida by Great Britain, by the treaty of peace in 1763, acknowledging in the text, that the question, who were the first discoverers of Florida ? was a common topic, much agitated, but little known, and confessing that the whole dispute was then immaterial on account of the late cession of that country under the treaty ; they nevertheless subjoin thereto a note, and insert the same again in the text, in Vol. 44, p. 2, and 41 : containing proof, as they suggest, from Sebastian's own words in 1496, that Florida was discovered by Sebastian Cabot long before Ponce de Leon's voyage. The passage they cite for that purpose, though they do not say from whence they take it, after describing how far Cabot explored the continent northward, make him to say, " I turned back again, and sailed down by the coast of that land, toward the equinoctial, (ever with an intent to find the said pas- sage to India, ) and came to that part of this firm land which is now called Flo- rida, where my victuals failing, I departed from thence, and returned to England." But whoever attends to what was before observed, that the Spaniards, in virtue of Ponce de Leon's discoveries, claimed all the southern part of the continent of North America to an indefinite extent northward, at least so as to comprehend the Carolinas, and that the name of Florida, was by them so indefinitely ap- plied to all that part of the coast along those states, will at once perceive, that this passage by no means proves what it was cited for. Cabot might have sailed " to that part of the firm land then called Florida," and yet sailed no fur- ther south than the 38th or 36° of north latitude. It clearly then appears, that what the authors of the Mod. Univ. Hist. have said upon the subject, cannot be admitted as very cogent authority.
NOTE (C) p. 19.
History seems to present mankind to our view only in three distinct states or conditions : the hunter, the pastoral, and the agricultural. In the first of these, which is that in which the aborigines of North America were found by Europe- ans, the human race necessarily requires a greater superficies of the earth for its support and existence, than in either of the other two. But as it is manifest, that if all nations resolve to live in this state, there would not be sufficient room on the earth for even the present number of its inhabitants, without any future multi- plication thereof, it seems necessarily to follow, that it is lawful to compel those who live in this manner, either to occupy as small a space of country as possible for them in this state, or to forsake that mode of life and become cultivators of the earth. From hence it is obvious, that our ancestors, the English, were guilty
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of no infringement of natural right, when they attempted to occupy a portion of the continent of North America, whereon a few tribes of savages were scattered in thin population, and whose subsistence principally depended on the prey of the forest. While no wanton cruelties were practised towards them, nor offensive violence was offered to their persons or personal rights, there seems to have been no injustice in compelling them, either to contract their limits, or to cede a por- tion of their territory to those of their fellow-creatures who would cultivate and improve it. It must be observed, however, that this reasoning does not go in justification of the conduct of the Spaniards in the conquest of either Mexico or Peru, for there civilization had carried the population of the earth to nearly as high a pitch as in the most improved countries of Europe.
The question, then, on the rights of prior discovery or prior occupancy with re- spect to America, seems to have been chiefly confined to the contests between Eu- ropeans for their respective portions of that extensive continent. The general reasoning, just before used, seems to oppose the idea, that a right resulting to one nation merely from first discovering an island or continent, without some ac- tual occupancy thereof following such discovery in a reasonable time, should forever thereafter preclude another nation from taking possession of the same. The manifest inconvenience to mankind, which would result from this principle, if allowed, appears to demonstrate its absurdity. The right of prior discovery is then, necessarily dependent on subsequent occupancy; and as independent nations never have yet agreed to fix any precise limited time, within which the latter shall follow the former, the question, like all others in the law of nations, rests on the reasonable construction of mankind. It is upon this construction, and not on the pretended right of prior discovery by Cabot, that the English nation were justifiable in ta- king possession of that part of the continent afterwards denominated by them South Carolina and Georgia. It had been long abandoned by both the French and Spaniards, was derelict property, and was then unoccupied by either of those nations.
It must be confessed, that considerable difficulty often attends the right of oc- cupancy with respect to the limits or extent of the territory, which shall be said to be so gained by occupancy. Where a colony of a few hundreds of individuals sit down upon so extensive a continent as America, or as either the northern or southern half of it, it would be absurd to say, that such an occupancy would enti- tle them to the whole of such a continent. Some limitation to such a right must always be made; and what this should be, has for the most part occasioned the many contests, which have taken place between European powers in regard to America. The ignorance of the people of Europe, of the great extent of the continent of North America towards the northwest, at the time of their first emi- grations thereto, will in some measure apologise for the English monarchs in grant ing, and for their subjects in requesting patents of colonization, comprehending such enormous territories as some of them did, extending in parallelograms of the surface of the earth from the Atlantic to the Pacific Oceans. And yet on such a grant, was it seriously contended, at the time of the first colonization of Mary- land, that it was unjust to lop off from Virginia even so small a portion of that extensive dominion, as now composes the former state. This indeed, was only a contest between the subjects of the same sovereign. More serious bickerings, producing one or two long and bloody wars, afterwards occurred between the maritime powers of Europe, with respect to America ; and yet, no sure and per- manent rule has yet been ascertained. The claims of the French, while they possessed Canada, in virtue of their right to that province, would have hedged in the British colonies, within that narrow slip of the continent which liesbetween the Alleghany mountains and the coast; but the right was decided, without recur- ring to the principle, on the plains of Abraham. The Spaniards, who seem
VOL. I .- 36
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least of all to set any bounds to their claims both of discovery, and occupancy, brought the subject into litigation between them and England, in the year 1771, by pretending, that because the Faulkland or Malouine islands lie within a hun- dred leagues of the Straits of Magellan, they were to be considered as a part of South America, and therefore their undoubted property, by the rights of both dis- covery and occupacy. The superiority of the British navy, however, compelled the Spanish court to the mortifying necessity of disavowing the violence, which the Spaniards had been guilty of, in dispossessing the British of those islands, and to give orders, that things should be restored precisely to the same state in which they were before that outrage, contenting themselves with gravely declar- ing at the same time, that this should not affect the question, of the prior right of sovereignty over those islands. The uncertain extent of the claim of occupan- cy, was again exhibited, in a subsequent contention between the same nations, in the year 1790, relative to a small settlement made by the British in a part of the northwest coast of America, called Nootka sound, lying in about 50° of north lat- itude. In the year 1788, a party of English, with intent to establish a fur trade on this coast, purchased some land of the Indian chief at this sound, built a house thereon, and erected a fortification for their protection. While they were thus in possession of the country at this place, a squadron of Spanish ships arrived, seized their vessels and stock of furs, and dispossessed them of their settlement. The Spaniards could have had at this time, no actual settlement or occupation of the coast, higher up than a place called San Francisco ; which, according to a journal of a voyage made by an American captain in that trade, in the year 1804, (published in the American Register for 1808,) was even at that time the most northern Presideo or district of the Spaniards on that coast, and which is, as he says, in the latitude of 37° 47', so that a space of the continent along the coast, of twelve degrees at least, about eight hundred miles, intervened between that Presideo and the place where the English attempted a settlement. It ought to be observed, that this same journalist explains a Presideo to consist only of a mis- sionary or priest, for the conversion of the Indians, with a guard for him of five Spanish soldiers, under the command of a serjeant or corporal ; which could scarcely be called a colony or settlement for the occupation of the country. But the Spanish claim did not stop at Nootka sound, but extended as high as the Rus- sian settlement or colony at Prince William's sound or Cook's river, which is in about sixty degrees of north latitude ; so that they would claim a coast of fourteen hundred miles in extent, without a single Spaniard settled thereon. It might be presumed that so haughty a nation as the English, would not yield to this. Atonement and compensation were demanded. The result was a convention be- tween the two nations, signed by their respective ministers, on the 28th of Oc- tober, 1790, in which, after the stipulation for a restoration of the settlement, and compensation for the injury to the British subjects, a principle seems to be re- cognised, whereby each nation was at liberty " to carry on commerce, or make settlements on the coasts of the Pacific Ocean or South Seas, in places not already occupied ; subject nevertheless to the restriction, that the British should not navigate or carry on their fishery in the said seas, within the space of ten leagues from any part of the coast already occupied by Spain." The Spaniards appear to have here surrendered their claim under a right of prior discovery of the conti- nent; and it would seem, that although the limits of ten leagues is here applied to the fisheries on the coast, yet it would probably operate also as a limitation to the right of occupancy. But from these circumstances we may infer, that neither of these three nations will be disposed to pay much regard to the claim of our young American states to their share of this coast, as a part of Louisiana. How- ever, a sufficiency of our purchase from the emperor Napoleon, will probably still remain on the western side of the Mississippi, for the formation of many sister states. We have only to wish, that our union may live to see it.
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NOTE (D) p. 43.
The statutes here alluded to were the 5 Rich. 2, c. 2; 13 Eliz. c. 3; and 14 Eliz. c. 6. By the first of these, (viz. 5 Rich. 2,) " all manner of people, as well clerks" (clergymen) " as others, (except only the lords and other great men of the realm, and true and notable merchants, and the king's soldiers,) were prohi- bited from passing out of the realm without the king's special license, upon pain of forfeiture of all their goods ; and the master of any vessel, who carried such persons out of the realm, should forfeit such vessel." By the statute of 13 Eliz. " If any native or denizen of the realm should depart the realm without the queen's license, and should not return again within six months either after warn- ing by proclamation, or after the expiration of his license, he shall forfeit to the queen the profits of all his lands during his life, and also all his goods and chat- tels. Fraudulent assurances made by fugitives of their lands and goods, to de- ceive the queen, should be void ; but the offender should have restitution upon submission." The statute of 14 Eliz. only regulated the mode in which the queen should take the profits of the lands of fugitives. The two last of these statutes, (viz. those in the reign of Eliz.) being temporary, expired at the queen's death. Dyer, 176, b. note (30.). That of 5 Rich. 2, was repealed in the next reign after Elizabeth, by the statute of 4 Jac. 1, c. 1. Notwithstanding this, a clause of dispensation of " the statute of fugitives," is inserted in the ninth sec- tion of the charter of Maryland, granted to lord Baltimore, in 1632. (8 Car. 1.) The repeal of the statute of 5 Rich. 2, by that of 4 Jac. 1, might possibly have been construed to extend only to Scotland, to which the whole of the statute of 4 Jac. 1, seems to relate, and appears to have been made solely to remedy inconve- niences, which would otherwise have accrued from the recent union of the two kingdoms. All of these three first mentioned statutes, however, were in force at the time when Sir Humphrey Gilbert obtained his patent, and a special dispen- sation was therefore essentially necessary, (inasmuch as dispensations were then held to be legal,) for such persons as should go out of the realm, even with the laudable intention of settling a colony. In those times there seems to have been some doubt also, whether the common law, without any statute for that purpose, did not prohibit any subject from going out of the realm, without special license previously obtained. Dyer, 165, b. 3 Inst. 178. Lane 43 .- The common law on this subject, as well as the before mentioned statutes, evidently originated from the intolerable interference practised by the popes of Rome, during the reigns of Edward III. and Richard II. in the political transactions not only of England, but of every nation in Europe. Subjects were invited to Rome to concert schemes, ostensibly for the good of the church, but in reality to carry on opera- tions against their own government, and though committing the most atrocious acts of treason, were assured of the powerful protection of the Roman pontiff. But the common law seems to be now settled, that every man may go out of the realm, for whatever cause he pleaseth, without any license for that purpose ; though it seems to be settled also, that the king by his prerogative, and without any help of an act of parliament, may prohibit his subjects from so doing ; but this must be done by some express prohibition, as by laying on an embargo, or by writ of Ne exeat regno, which writ is never granted universally, but only to restrain a particular person, upon oath made, that he intends to go out of the realm. This writ appertains more particularly to a court of chancery, and is adopted as a common process of that court, to prevent debtors from absconding out of the jurisdiction of that court, with the intent to evade the payment of debts, or to eloin property. 4 Bac. Abr. 168-9. 1 Bl. Com. 265. 3 Brown's Ch. Rep. 218. This we may suppose to be still the law in Maryland, since the writ of Ne exeat provinciam, in similar cases, seems to have been adopted as unquestionable prac- tice in the Maryland court of chancery, prior to the revolution. See the case of
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Somerville vs. Johnson, (Feb. 1770,) 1 Harris & M'Henry's Rep. 348, where it issued to prevent a person from removing and carrying with him, negroes from Maryland to Virginia, to which negroes the complainant had an equitable claim.
It is said also, that by the common law of England, the king may restrain his subjects from going abroad by proclamation. 4 Bac. Abr. 168. 4 Bl. Com. 122. This may be understood, as lawful in such cases as are spoken of by the writers on the Law of Nature and Nations, (particularly by Grotius and Burlamaqui, ) where subjects leave the territories of the state in large companies.
The general right of expatriation, would involve a discussion of too much length, to be here introduced. It may, however, perhaps be excusable to suggest a doubt, whether the time is not now arrived, when true policy dictates, that the importation of foreigners into the United States, and their easy access to citizen- ship among us, should no longer be encouraged. It is very questionable indeed, whether the nature of our republican institutions would admit of a population of our extensive territories equal to that of an European state. That foreigners should be permitted to reside among us under the protection of our laws, without the political right of office or right of election ; but that their children born here, should acquire citizenship by their birth, in its fullest extent, seems to present to them no unreasonable hardship, and it is beleived, would not operate much against the importation of them. The admission of foreign seamen also, to the protection of citizenship, must, in the nature of things, forever embroil us in quarrels with the most powerful maritime nation in Europe. Our situation in this respect, presents a new case in the Law of Nature and Nations. For one whole race of people, speaking the same language,-using the same habits and customs,-living under the same laws,-and connected by the ties of blood and family, to be suddenly disjoined, and placed under two distinct governments, is a political incident, the exact parallel of which is not to be found in the records of history. It is a case, which the writers upon National Law, have never con- templated, and their general reasoning, therefore, vague and inconclusive as it is, on the right of expatriation, can, in relation to Britain, have no application to us.
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NOTE (E) p. 48.
Letter from Sir Humphrey Gilbert to Sir George Peckham, taken from Hazard's Collections, vol. 1, p. 32.
Sir George, I departed from Plymouth on the eleventh of June with five saile, and on the thirteenth the Barke Rawley ran from me in faire and cleere weather, having a large winde. I pray you solicit my brother Rawley to make them an Example of all Knaves. On the third of August wee arrived at a port called Saint John's, and will put to the Seas from thence (God willing) so soon as our ships will be ready. Of the Newfoundland I will say nothing, until my next Letter. Be of good cheere, for if there were no better Expectation, it were a very rich demaynes, the country being very good, and full of sorts of victuall, as fish, both of the fresh water and Sea-fish, Deere, Pheasants, Partridges, Swannes, and divers Fowles. I am in haste, you shall by every Messenger heare more at large. On the fifth of August, I entered here in the right of the crown of England, and have engraven the armes of England ; divers Spaniards, Portugals, and other Strangers, witnessingthe same. I can stay no longer ; fare you well with my good Lady ; and be of good cheere, for I have comforted my selfe, an- swerable to all my hopes.
From Saint John's, in the Newfoundland, the 8th of August, 1583.
Your's wholly to command, No Man more,
HUM. GILBERT.
1
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NOTE (F) p. 53.
As a supplement to the complimentary contest between the queen and Sir Walter, noticed in the text, may be read a letter which he wrote to Sir Robert Cecil, (with a view, without doubt, of having it shown to the queen,) during his short imprisonment, for having incurred her displeasure on an interesting occa- sion many years after his first introduction at court : "My heart was never broke till this day, that I hear the queen goes away so far off, whom I have followed so many years, with so great love and desire, in so many journeys, and am now left behind her in a dark prison all alone. I, that was wont to behold her riding like Alexander, hunting like Diana, walking like Venus, the gentle wind blowing her fair hair about her pure cheeks like a nymph, sometimes sitting in the shade like a goddess, sometimes singing like an angel, sometimes playing like Orpheus; behold the sorrow of this world ! once amiss hath bereaved me of all. All these times past, the loves, the sighs, the sorrows, the desires, cannot they weigh down one frail misfortune ? Cannot one drop of gall be hid in so great heaps of sweet- ness ? I may then conclude, Spes et fortuna, valete." It is to be remarked, (adds Hume, Hist. of Eng. ch. 44, note (S), that this nymph, Venus, goddess, angel, was then about sixty.
The imprisonment, alluded to in the above letter, seems to be explained by an anecdote, mentioned by Sir Walter's biographer, in his life prefixed to his Histo- ry of the World, (3d edition, 1687,) as occurring about the year 1595: "Sir Wal- ter having now deserted his naval employ, and become again a courtier, it was not long before he was seized with the idle court disease of love, the unfortunate occasion of the worst action of his whole life. For in the year 1595, I find him under a cloud, banished the court, and his mistress's favour withdrawn, for de- virginating a maid of honour. But why for this one action he should lie under the imputation of an atheist, and from a single crime get the denomination of a de- bauch, is the logic of none but the vulgar. But, to stop the mouth of fame, which is always open on such occasions, and to wipe out the infamy of the fact, he was shortly after married to the object of his love, the deflowered lady. Hav- ing, therefore, obtained his liberty, (for, for this action he was imprisoned some months,) and finding all things with an unpleasant aspect, he followed his genius of discovering new places and tracing nature in her more retired and hidden parts, thinking that absence, and a fortunate voyage, might reinvest him in his mistress's thoughts, and merit a new esteem." He set out, in the same year, it seems, on a voyage to Guiana, (for, by this time, he had assigned away all his right to the territories of Virginia,) and on his return, as he had conjectured, ap- pears to have been somewhat reinstated in the queen's favour, being again em- ployed in her service.
NOTE (G) p. 55.
The disagreement and confusion among all the writers on this voyage, as to the topography of the places referred to, render it almost impossible to ascertain with precision, where this island called Wokoken, was situated, or what river, or rather inlet, it was, which they first entered. These difficulties seem to be, in some measure, accounted for in the remarks of Williamson, in his Hist. of North Carolina, (a modern work, vol. 1, p. 40.)-" The discoveries of that offi- cer, (says he, referring to governor Lane,) "cannot be understood by their original names; for every thing is changed, except the name of a small island. (Meaning, most probably, Roanoke island.) Rivers and sounds have lost their Indian names ; inlets have changed their position; and the Indian tribes are exterminated. Haterash was the name of a small inlet, a little to the westward of Cape Hatteras."-(By which we may suppose him to mean,-to the south- westward of that cape. This inlet, called Haterash inlet, is laid down, nearly as
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