The history of Maryland : from its first settlement, in 1633, to the restoration, in 1660 ; with a copious introduction, and notes and illustrations, Part 40

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 40

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VOL. II .- 5

1635.

HISTORY OF MARYLAND.

CHAP. I. a legislative assembly of the province was, for the first time,

1635. called and held at St. Mary's. In consequence, most probably, of the loss or destruction of the records, by capt. Ingle, as be- fore mentioned, a very small remnant only of the proceedings of this assembly is left to us. It seems, however, sufficient to es- tablish the fact, that an assembly of the freemen of the province sat at this time; and, as we are assured by a learned annalist of the British American provinces, who had recourse to authentic documents in the English plantation office, it is certain, that "among other wholesome laws," it was then enacted, "that of- fenders, in all murders and felonies, shall suffer the same pains and forfeitures as for the same crimes in England."* But these acts being dissented to by the lord proprietory; principally, as we have grounds to suppose, on account of his claiming a right, by the charter, of propounding or initiating all laws to be en- acted by the provincial legislature, the above mentioned act, for the punishment of capital crimes, did not become a law, and the want of it seems to have thrown the subsequent house of as- sembly, 1637-8, into some confusion, as will be seen in its place.

Clayborne resorts to open mili- Clayborne, however, was not content with his secret mode of annoying the colony. He resorted to open military force in his tary force. opposition to lord Baltimore's government. Early in the year 1635, he granted his special warrant or commission under his hand, to a certain Ratcliffe Warren, then commonly known as lieutenant Warren, to seize and capture any of the pinnaces or other vessels belonging to the government or colonists of St. Mary's; and in pursuance thereof an armed pinnace or boat be- longing to Clayborne, was fitted out for that purpose, manned with about fourteen men, among whom was a certain Thomas Smith, "gentleman," who appears to have been second in com- mand, next to Warren, on this expedition. The government at St. Mary's, probably apprised of these measures of Clayborne, immediately equipped also two armed pinnaces or boats, which sailed under the command of Thomas Cornwallis,-esqr., one of the assistants or commissioners before mentioned. These two

* See Chalmers's Annals, ch. ix. p. 210 and 232, note 20; where he states that "among the Virg. Pap. [75 B. p. 126,] there is a copy of the act of attainder of Clayborne, the title only of which Mr. Bacon had seen, which recites the pro- ceedings of an assembly held at St. Mary's the 26th of February, 1634-5."-In the list of "bills" agreed to at the assembly of 1637-8, published in Bacon's Col- lections of the Laws of Maryland, is "A bill for the attainder of William Clay- borne ;" but no copy of that or any other of the bills of that session, are now to be found on the records of the State.

The first assembly held.

HISTORY OF MARYLAND.

armaments met, it seems, some time in April or May of this CHAP. I. year, 1635, in either the Pocomoke or Wighcomoco rivers on - 1635. the eastern shore of the province,* where a battle commenced between them, by Clayborne's men firing first on Cornwallis's boats, as alleged in the proceedings of the assembly in this case.+ Cornwallis immediately returned the fire; and the result was, that lieutenant Warren and two of his men were killed, and one of Cornwallis's men. Clayborne's boat and men, it would seem, were taken; and as Thomas Smith, "gentleman," was probably the next in command, or principal person, after the death of Warren, he was afterwards tried for the offence by the assembly, as will presently be further noticed. Clayborne before this had fled for refuge to Virginia, and commissioners were sent by the governor of Maryland to the governor of Virginia, (Har- vey,) to reclaim him as a criminal against the laws of Maryland ; but Harvey thought it proper to send Clayborne, with the wit- nesses to England.}

In this situation of constant danger from the savages, and The lord actual warfare with their own countrymen, it could not be ex- proprie- pected that the colonists had as yet, in a little more than a year structions tor's in- from their first landing, extended their settlements beyond their relative to small town at St. Mary's. The lord proprietor, however, had lands. grants of not forgotten to make arrangements for a more dispersed occu- 1636. pation of the country. There is strong evidence to presume, that written propositions or "conditions," upon which the colo- nists were to emigrate, had been propounded to them before their departure from England; but, as these are not now to be found

* There were two indictments found before a county court held at St. Mary's on the 12th of February, 1637, (old style,) upon which Thomas Smith, and oth- ers of Clayborne's men, appear to have been arraigned and tried by the assembly. In one of which indictments the offence is stated to have been committed, "in the river Pocomoque, on the eastern shore, on the 23d of April, in the year 1635." In the other indictment, the offence is laid or stated to have been committed "in the harbour of great Wiggomoco, in the bay of Chesapeake, on the 10th day of May, in the year of our Lord 1635." Whether there were two distinct engage- ments between the two parties does not appear certain. The murder of Wil- liam Ashmore, one of Cornwallis's men, seems to be the gist of the offence in both indictments. From which it might be inferred, that there was only one battle ; and Clayborne, in his subsequent petition to his majesty, mentions but one engagement.

t It is proper to mention here, that Clayborne, in his petition, alleged that Cornwallis and his men fired first on his boat; and that they had taken his pin- naces and boats, and still detained them .- See his petition hereafter stated.

Burk's Hist. of Virg. vol. 2, p. 41 .- As an appendix to the preceding events of 1635, see note (V.) at the end of this volume.

HISTORY OF MARYLAND.

CHAP. I. among the records of the province, it is probable, that the in- 1636. strument of writing, containing them, was either among those lost or embezzled by Ingle or Clayborne, as before mentioned, or it was never placed on any record on this side of the Atlantic. Be that as it may, his lordship, in the year 1636, considered it pro- per to send to his brother, the governor, or as he is therein styled, -"his lieutenant-general of the province of Maryland,"-"in- structions, relative to grants of land, to be made to the several colonists or "adventurers" as they are therein termed, "for the planting of his province of Maryland." As this instrument of writing* contains the outlines of his lordship's plan for parcelling out the lands of this province, in pursuance of his charter, and therein developes the mode of colonization subsequently pursued by him, it will be proper here to exhibit a copy of it to the reader.

"To our dear brother Leonard Calvert, esqr., and our lieuten- ant-generall of the province of Maryland, or to any other our lieutenant-generall there for the time being.

" Whereas the adventurers to plant that our province of Mary- land have made suit unto us, that we would be pleased to grant unto them under our great seal of our said province such propor- tions and quantities of land there upon such considerations and agreements as we have heretofore propounded and promised to grant the same unto all such adventurers;} forasmuch as we are bound in honour really to perform the same in all points, these are, therefore, to will and authorize you, that presently upon receipt hereof you make or cause to be made under our great seal of that our said province unto every first adventurer for every five men aged between sixteen and fifty years, which such ad- How lands venturer did bring into our said province to inhabitt and plant were to be granted to

there in the year of our Lord 1633, and unto his heirs for ever, the first ad- a grant of two thousand acres of land of English measure, for venturers in 1633. the yearly rent of 400lb. of good wheat, and to every adventurer which in that year did bring a less number than five men into that our said province of the ages aforesaid to inhabitt and plant

^ * It is by some called "conditions of plantation ;" and similar documents, to be found among the records, issued from time to time, have been generally so de- nominated ; but "instructions" -- is the appellation given them on this occasion in the provincial records ; see "Council proceedings from 1636 to 1657," p. 1.

t This seems to raise a strong presumption, that "conditions of plantation" or terms of emigration, either oral or written, most probably the latter, had been "propounded" by the lord proprietor to the adventurers in 1633, before their em- barkation, when the first colonists left England.

HISTORY OF MARYLAND.

there and unto his heirs for ever a grant of one hundred acres of CHAP. I. land of like measure for himself, and one hundred acres more 1636. for his wife, (if he brought any,) and for and in respect to every servant, and fifty acres for every child under the age of sixteen years, for the rent of 10lb. of wheat yearly for every fifty acres.

"And to every other adventurer which hath adventured to trans- How to the port men into our said province of the age aforesaid in the years adventur- ers of 1634 of our Lord 1634 and 1635, for every ten men which such ad- and 1635 .. venturer did bring into our said province in either of the said years, and to his heirs for ever a grant of two thousand acres of land of the like measure for the yearly rent of 600lb. weight of good wheat, and to every other adventurer which in either of the said years did bring a less number than ten men as aforesaid, and to his heirs forever, a grant of one hundred acres of land (of like measure) for himself, and one hundred acres for his wife, (if he brought any,) and for and in respect of every such ser- vant one hundred acres, and for every child under the age of sixteen years fifty acres, for the yearly rent of 70lb. weight of wheat for every fifty acres.

"And to every other adventurer which hath adventured to plant How to all and transport any men into our said province, since the year of others after our Lord 1635, or which at any time hereafter shall transport 1635. I the year any men of the age aforesaid, to inhabit and plant there until some other or further conditions of plantation shall by us be pro- pounded and published to adventurers, and an authentic copy of such conditions by us signed and transmitted into our said province for every five men which he or they shall so transport thither, and to his or her heirs for ever, a grant of one thousand acres of English measure for the yearly rent of twenty shillings to be paid in the commodities of the country, for every such thousand acres, and to every other adventurer which within the time next aforementioned, hath or shall transport any number of persons less than five a grant of one hundred acres of land for him or herself, and one hundred more for and in respect of his wife, (if he brought any,) and as much for and in respect of every man servant, and fifty acres more for and in respect of every child under the age of sixteen years, and for in respect of every maid under the age of fourty years which he or she hath or shall so transport thither, and to his or her heires for ever, for the yearly rent of twelve pence for every fifty acres.

"And we do further will and authorize you, that every two

HISTORY OF MARYLAND.

CHAP. I. thousand acres, and every three thousand acres, and every one

1636. thousand acres of land so to be passed or granted as aforesaid Manors of unto any adventurer or adventurers, be erected, and created into 1, 2, and a manor to be called by such name as the adventurer or adven- 3,000 acres to be erect- turers shall desire.

ed.

Courts- Leet and Courts-

Baron.

" And we do hereby further authorize you, that you cause to be granted unto every of the said adventurers within every of their said manors respectively, and to his or their heirs a court-baron and court-leet, to be from time to time held within every such manor respectively. And to the end you may the better be in- formed in what manner to pass every such grant, court and courts as aforesaid, according to our intention, We have sent unto you under our hand and seal a draught of a grant of a man- or court-leet and court-baron, and a grant of a freehold, which precedents you are to follow, changing only the adventurers' names, the rents and conditions of plantation as the case shall require ; for doing whereof this shall be your sufficient warrant. So we bid you heartily farewell. Given at Portsmouth, the eighth of August, 1636. Signed C. BALTIMORE."*

It will readily be perceived, that these instructions, or condi- tions of plantation, were well calculated to induce men of some property in England, who were able to bear the expense of trans- porting servants and dependents, to emigrate to this province. It is true, that it was sketching out aristocratic features in the future government of the province, which in other times, might have been supposed to operate in discouragement of emigration. But, it is to be remembered, that the colonists, for whom Mary- land was formed as an asylum, being Catholic refugees, were accustomed to arrange themselves, according to the then politics of England, on the side of the supporters of the monarchy and aristocracy of the realm. This feudal mode of parcelling out lands by subinfeudation was not, therefore, so horrible to them, as may appear to us at this day.t "The age of chivalry" had not then quite past; and some faint remains of the reciprocal connexion between a lord and his vassals might still be discern-

* See the Provincial Records, entitled " Council Proceedings from 1636 to 1659," p. 1.

t The feudal tenures then subsisted nearly in the same state as they are de- scribed in lord Coke's Institutes, which were written and published but a few years prior to lord Baltimore's charter of Maryland. The reader recollects, that the feudal tenures were not completely abolished, until within a few years after the restoration of Charles II. in 1660.

HISTORY OF MARYLAND.

ed in the structure of society, sufficient to induce the dependents CHAP. I. of a chief to brave with him the dangers of the ocean, the wil- derness, and the savage. 1636.

One circumstance, however, discernible in this plan of coloni- zation, must attract approbation. The grants to the adventurers were to be, of an indefeasible estate of inheritance in fee simple to them and their heirs for ever. Security, in the absolute en- joyment of property, is the best corner-stone that can be laid in the foundation, which is to support the fabric of a free govern- ment. An humble feudal tenant, enfossed round with this ram- part, might well consider his cottage as his castle; and might smile with regret at the delusion of even the well-meaning citizen, who delights in the uncertainty of revolutionary liberty.

In pursuance of these instructions, and correspondent also, with the charter, manors of lands were, in process of time, laid off in different parts of the province ; and some of them appro- priated or reserved for the lord proprietor's own particular use ; others again were erected by the special orders of the lord pro- prietor, for the benefit of his relations or particular friends, with special conditions and privileges; and others also so denominat- ed and granted to individuals, according to the terms of those instructions or conditions of plantation, as they so became en- titled, for the transportation of colonists or settlers into the pro- vince. But, although the power and right of holding courts- baron and courts-leet, might have been inserted in some, or all of those grants of manors, yet we are told, from good authority, that no memorial appears on the records of the province, of any practical use of either of those kinds of courts .*

* So stated in Kilty's Landholder's Assistant, p. 93 .- But I find in the "Coun- cil Proceedings from 1636 to 1657," p. 23, a commission there recorded, for holding a court-leet in the isle of Kent, directed " to Robert Philpot, William Cox, Thomas Allen, of the isle of Kent, gentlemen, to be justices of the peace within the said island, to hold a court-leet in all civil actions not exceeding 1200 Ibs. tobacco ; and to hear and determine all offences criminal, within the said is- land, which may be determined by any justice of the peace in England, not ex- tending to the loss of life or member. Given at St. Mary's, February 9th, 1637. Witness, Leonard Calvert."-As proceedings, most probably, took place under this commission, there must, of consequence, have been some written memo- rials of those proceedings once existing, though probably now lost. As the business of courts-leet in England has long ago been gradually absorbed by the. courts of quarter-sessions for the shire or county, so with us, it is probable, that if any courts-leet or courts-baron were ever held in the province, the county- courts, at a very early period, swallowed up their jurisdictions. To trace these transfers of judicial power, would at this day be unnecessary, if it was a possi- ble task, except it be to throw some light upon the history of those times.

HISTORY OF MARYLAND.

CHAP. I. As it would not have been safe, at this period of time, to have 1636. Grants of small lots of St. Ma- ry's. commenced a scattered population of the country, it was very properly directed by his lordship, soon after the foregoing in- in the town structions, by letter, to his brother and lieutenant general, that he should "pass in freehold, to every of the first adventurers that shall claim or desire it, and to their heirs, ten acres of land with- in the plots assigned or to be assigned for the town and fields of St. Mary's, for every person that any of the said adventurers transported or brought into Maryland, according to their condi- tions first published, and five acres of land to every other ad- venturer for every other person which he hath or shall transport thither since that time of the first plantation until the thirteenth day of August which shall be in the year of our Lord 1638 .-- And for so doing this shall be your warrant. Given under my hand and seal at Warden Castle in the realm of England, the 29th of August, 1636."*

The nature of the first form of go- vernment of the co- lony.

Although king Charles the first had, but a few years before he granted the charter of Maryland to lord Baltimore, dissolved his parliament, and had at that time formed the resolution, as some historians allege, of never calling another, and of governing without them, yet we find very strong provision made in that instrument of grant, for that important ingredient of a free go- vernment-a representative legislature. In the seventh section of that charter, the king " grants unto the said baron and to his heirs, for the good and happy government of the said provinces, free, full, and absolute power, to ordain, make, and enact laws, of what kind soever, according to their sound discretions, whe- ther relating to the public state of the said province, or the pri- vate utility of individuals, of and with the advice, assent, and approbation of the freemen of the same province, or of the great- er part of them, or of their delegates or deputies, whom we will, shall be called together for the framing of laws, when, and as often as need shall require, by the aforesaid baron of Baltimore, and his heirs, and in the form which shall seem best to him or them, and the same to publish and duly to execute."

But in the eighth, or next section immediately following, a clause is inserted, which, by a latitude of construction, might possibly be interpreted to give powers repugnant to the mode of legislation prescribed or granted in the former. A reason for the clause is first given by way of preamble :- "and forasmuch

* Land Office Record Book, No. 1, folio 30.

HISTORY OF MARYLAND.

as in the government of so great a province sudden accidents may CHAP. I. frequently happen, to which it will be necessary to apply a re- medy before the freeholders of the said province, their delegates, 1636. or deputies, can be called together, for the framing of laws; neither will it be fit, that so great a number of people should immediately on such emergent occasion, be called together ; we therefore, for the better government of so great a province, do will and ordain, and by these presents, for us, our heirs and suc- cessors, do grant, unto the said now baron of Baltimore, and to his heirs, that he and they, by themselves or by their magistrates and officers, &c. may and can make and constitute fit and whole- some ordinances, from time to time, to be kept and observed within the province aforesaid, as well for the conservation of the peace, as for the better government of the people inhabiting therein, and publicly to notify the same to all persons whom the same in any wise do, or may affect. Which ordinances, we will to be inviolably observed within the said province, under the pains to be expressed in the same, so that the said ordinances be consonant to reason, and be not repugnant nor contrary, but (so far as conveniently may be done) agreeable to the laws, sta- tutes, or rights of our kingdom of England: and so that the same ordinances do not, in any sort, extend to oblige, bind, charge, or take away the right or interest of any person or per- sons, of, or in member, life, freehold, goods or chattels."

This was entirely consonant to those unfortunate maxims, which Charles had adopted about this time, for the rules of his regal conduct. The indefensible principle, that his orders in council, and proclamations thereupon, should be deemed the legal and constitutional substitutes of laws, which ought to have been enacted by the three estates of the realm in parliament as- sembled, was the prominent rock on which his subsequent for- tunes split. But it must be acknowledged, that qualified as this principle is, by the limitations at the end of the clause in this eighth section of the charter, it is difficult to conceive wherein a case could occur, in which an ordinance of the lord proprietor or his governor could possibly be made, so as not "to oblige, bind, charge, or take away the right or interest of some person or persons, of or in member, life, freehold, goods or chattels."

This leads us, however, to the notice of an instrument of An ordi- writing, called in the body of it, "an ordinance," made by the nance for that pur- lord Baltimore in England, in the early part of the year 1637, pose.

VOL. II .- 6

HISTORY OF MARYLAND.

CHAP. I. (bearing date the 15th of April, 1637,) containing instructions 1637. to his brother Leonard Calvert, esq. for the regulation, govern- ment, and settlement of the province. But, as he therein con- stitutes and appoints him to fill several offices in the province, it would seem more properly to fall under the denomination of a commission ;* of which, the most remarkable part seems to be that which relates to the calling an assembly, to meet on the twenty-fifth day of January next ensuing, after the date of the said ordinance ; for the purpose of signifying to them his lord- ship's disassent to some laws, which had been before that time enacted by them. These laws, thus to be rejected by him, were, most probably, those made at the assembly before men- tioned, held on the 26th of February, 1634-5.t What these laws were, or what were his lordship's reasons for refusing his assent to them, we are not informed. It would seem at first, as if his lordship meant to contend for such a construction of the seventh section of the charter, as if it exclusively invested in him the right and power of first propounding the laws to the assembly, "for their advice, assent, and approbation," and that the assembly had no right or privilege of originating or framing laws. This subject, however, will be further explained, when we come to notice the proceedings of the assembly, which was directed to be called on the twenty-fifth of January.

Proclama- tion in England against emigra- tion.

In the mean time, it will be necessary to mention some inter- vening incidents of the present year ; among which a proclama- tion issued by king Charles, bearing date "the last day of April, 1637, against the disorderly transporting his majesty's subjects to the plantations within the parts of America," seems to claim some notice. By this proclamation, the officers of the several ports in England, Wales, and Berwick, were commanded not to permit any persons, being subsidy men, or of the value of subsi- dy men,¿ to embark for any of the plantations, without leave, from his majesty's commissioners for plantations, § first had and obtained, nor any persons under the degree or value of subsidy

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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 40

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