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 41
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* See this commission at large in Note (VI.) at the end of this volume.
t The commission of April 15, 1637, (just referred to) expresses his lordship's s'disassent to all the laws by them heretofore or at any time made ;" which would have included the laws of any intermediate session, as in 1636, if any assembly had been held in the beginning of that year; but no vestige of any preceding session, except that of February 26th, 1634-5, appears.
¿ That is, men who were liable to pay the tax called a subsidy.
§ These seem to be commissioners mentioned in a "special commission to the lord archbishop of Canterbury and others," issued by the king some time in the
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HISTORY OF MARYLAND.
men, without an attestation or certificate from two justices of the CHAP. I. peace, living next the place where the party lately then before 1637. dwelt, that he hath taken the oaths of supremacy and allegiance, and like testimony from the minister of his conversation and conformity to the orders and discipline of the Church of England; and that such officers should return to his majesty's said com- missioners of plantations every half year a list of the names and qualities of all such persons, as shall from time to time be em- barked in any of the said ports for any of the said plantations .* Although it is evident that this proclamation would affect the emigration of English Catholics to Maryland, if put in execu- tion against them, yet it would seem, from the preamble to it, to have been principally intended to check the emigration of the puritans to New England, referring to the transportation of "many idle and refractory humours, whose only or principal end is to live as much as they can without the reach of authority." The Catholics were generally considered, by the court-party of that day, as peaceable and good subjects, but the Puritans were viewed in a very different light. Hence it is probable, that it never was enforced against the Catholics, or that they at all times could easily obtain a license to depart. But the civil wars now approaching, soon rendered it ineffectual even as to the Puritans.
It would appear also, that towards the latter end of this year The isle of the isle of Kent had been in some measure reduced to the obe- Kent re- duced to dience of the lord Baltimore. Clayborne had failed in his at- lord Balti- tempts to retain his possession of it by force, and had, as before more's go- vernment. observed, been sent by the governor of Virginia to England, to seek what remedy he might have there. Measures seem, there- fore, now to have been taken to put in force the civil authority of the lord proprietor over that island, as a part of the province. Accordingly a commission was granted by governor Calvert to captain George Evelyn, of the following tenor,-"Leonard Cal- vert, governor of Maryland, to my good friend captain George Evelyn, of the isle commonly called Kent, within this province,
year 1634, vesting in them powers of government over all the English colonies already planted or to be planted, not only in political, but in ecclesiastical mat- ters. It seems to have been styled, in common parlance, 'The Board of Lords Commissioners for Foreign Plantations. See it in the original Latin, in Haz- ard's Collections, vol. 1, p. 345, and in English in Hutchinson's Hist. of Massa- chusetts, vol. 1, appendix, No. IV .; but these two copies vary in the names of one or two of the commissioners, and somewhat also in the date of it.
* See the proclamation more at large in Hazard's Collections, vol. 1, p. 421.
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HISTORY OF MARYLAND.
CHAP. I. greeting : Whereas I am willing to provide for the good govern- 1637. ment of the said isle of Kent, being of right a member of this province, therefore reposing especial confidence in the trust, wisdom, and well approved experience of you the said George Evelyn, I do, by these presents, authorise, constitute, and ap- point you to be commander* of the said island and the inhabit- ants thereof, giving and granting hereby unto you full power and authority to elect and choose any six or more able and suf- ficient men, inhabitants of the said island, as you in your discre- tion shall think fit, with whom you shall advise and consult in all matters of importance, and to call a court or courts, as often as there shall be cause, and in the said courts to award all man- ner of process, hold pleas, and to hear and finally to determine all causes and actions whatsoever civil, happening and arising between any the inhabitants of the said island, not exceeding in damages or demands the value of ten pounds sterling; as also to hear and finally determine all matters and offences whatsoever criminal, happening and committed within the said island, which may be heard and determined by any justice of peace in Eng- land in their court of sessions, not extending to life or member; and I do further authorise you to do, use, and execute all and all manner of jurisdiction and authority whatsoever for the con- servation of the peace within the said island, as any justice of peace in England may or ought to do by virtue of his commis- sion for the peace, and further to elect and appoint all necessary officers for the execution of justice and conservation of the peace there, with allowance of such fees as are usually belonging to the same or the like offices in Virginia ; and to do all other things and acts which shall be necessary for the execution of the power and jurisdiction hereby committed unto you. Given at St. Mary's, this 30th day of December, Anno Dom. 1637."}
* The civil government of Maryland was in many instances copied from simi- lar institutions which had been in practice and use in the elder colony of Virgi- nia. It appears, that previous to the division of that province into counties, settlements, distant from James town, were erected into "corporations," as they were called, and officers appointed to preside over each "corporation" under the denomination of a "commander." See one of the laws, (or articles as they are called,) passed at the session of assembly in Virginia, held in 1624; stated in Burk's Hist. of Virg. vol. 1, p. 282.
t "Council proceedings from 1636 to 1657," p. 20. It may be here observed, that Evelyn must have been a man of some note in the province, as it appears from the land records thereof, that he was the owner at this time of "the manor of Evelinton in the baronie of St. Mary's." A manor could not be less than one thousand acres, according to his lordship's instructions of 1636, before mention-
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HISTORY OF MARYLAND.
The colonists, it seems, had now begun to extend their set- CHAP. I. tlements beyond the limits of the town of St. Mary's. In a 1638. commission to Robert Vaughan, of St. George's Hundred, bear- The colo- nists begin ing date the 5th day of January, 1637, (1638, new style,) ap- to extend pointing him constable of the said hundred,* there is the follow- their set- ing preamble to it,-"Whereas the west side of St. George's into the tlements river is now planted by several inhabitants, and is thought fit to country. be erected into a hundred, by the name of St. George's Hun- dred," &c. The commission then specifies his powers as the constable of that hundred, nearly in the same manner as the like commission in England, prescribing their common-law duties; but moreover particularly enjoins him, to make diligent search and inquiry, for persons who furnish the Indians or savages with arms and ammunition.t To this same purpose, and for the illustration of other matters, a commission to Robert Wintour, esq., bearing date but a few months afterwards, may be here stated .-- "Cecilius to our beloved Counciller Robert Wintour, esq. &c .; Whereas the west side of St. George's river is now planted by several inhabitants, and is thought fit to be erected into a hundred by the name of St. George's Hundred, We wil- ling to provide for the better conservation of the peace within the said hundred, &c., do constitute, &c. you to be a justice of our peace within the said hundred, &c. with such powers as belong to a justice of the peace in England, by virtue of his commission for the peace, and to make diligent inquiry after such as shall sell, or (without license) lend or deliver any gun- powder, or shot to any Indian, or that shall lodge or entertain in his house by night any Indian, without leave from us, &c .; and we authorize you to appoint a high constable for your hundred, to whom so appointed by you, we give all such powers, &c., as belong to a high constable of any hundred in England. Given at St. Mary's this last day of March, 1638 .- Leonard Calvert."§
ed. A "barony" is the Irish term for a hundred, (the civil division of a county, ) as will appear hereafter.
* Although the office of constable is now by us, and might be then in Eng- land, considered to be an office below the dignity of a gentleman; yet in the then situation of the province, it might with propriety be estimated an office of honour. That Mr. Vaughan was then considered in the rank of a gentleman, ' we may infer from his subsequent promotions, particularly from his being made commander of the isle of Kent county, under governor Stone about the year 1650. + Council proceedings from 1636 to 1657, p. 29.
# It would appear from this, that Mr. Wintour was at this time also a member of the governor's council; but when or how appointed no where appears on record.
§ Council proceedings from 1636 to 1657, p. 21.
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HISTORY OF MARYLAND.
CHAP. I. These commissions exhibit very early recognitions of the prin-
1638. ciple-that the first colonists of Maryland brought with them so much at least of the English common-law, as was applicable to their own situation and condition, and particularly those parts of that law, which were calculated to afford protection from the personal injuries of each other.
The coun- ty of St. Mary's or- ganized.
-
As hundreds were the civil divisions of a county in England, we may infer, that all the parts of the country adjacent to the town of St. Mary's, inhabited by the colonists, were considered as forming a county, to which the name of St. Mary's was giv- en ; but whether any real limits were yet assigned and marked out as the boundaries of that county, does not appear. That a county was now so called, appears from a commission to John Lewger, esq. bearing date the 24th of January, 1637, (1638, new style,) appointing him conservator of the peace, within the county of St. Mary's, with such powers as are usually exercised and executed by any justice of peace in England, &c .* The same commission appoints him also, "commissioner in causes testamentary," to prove the last wills and testaments of persons deceased, and to grant letters of administration, &c. It is ad- dressed to him in the following style,-"To our trusty coun- ciller John Lewger, secretary of our province of Maryland."} He had been appointed counciller and secretary by the commis- sion of the 15th of April, 1637, before mentioned ; in virtue of which office of secretary, it seems to have been the intent of that commission, to make him also, both principal clerk of the coun- cil and register of the land office. The same instrument ap- pointed him also, "collector and receiver of all his lordship's rents, revenues, profits, and customs." It appears from subse- quent records of the province, that Mr. Lewger had been sent into the province from England, by the lord proprietor, as a man well qualified to assist his brother in the administration of the government. He arrived there on the 28th of November, 1637, with his wife and a son named John about nine years old, to- gether with three maid servants, three men servants and a boy.#
Mr. John Lewger.
* Also in the same book page 23, a commission to James Baldridge to be She- riff and coroner " of St. Mary's county," dated January 29, 1637. t Ibid, p. 23.
# Taken from the oldest record book in the land office, viz. Liber, No. 1, p. 17 .- In the same book, p. 19, mention is made of his importing in the same year, (1637,) twelve men and five women, who are not styled therein-servants. These importations of servants as well as others, entitled him to what were called "rights" to land, that is, so many acres for each person imported, as stat- ed and described in the lord proprietor's instructions before mentioned. These
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HISTORY OF MARYLAND.
It would seem, therefore, that he was a man above the ordina- CHAP. I. ry rank in society, both as to fortune and mental qualifications. 1633.
In pursuance of the lord proprietor's instructions, before men- An assem- tioned, of the 15th of April, 1637, for the holding an assembly, bly of the province on the 25th of January next, the governor proceeded to some called. preparatory arrangements necessary thereto. Accordingly, about the first of January, 1637, (1638, new style,) he issued his war- rant to captain Evelyn, commander of the isle of Kent, of the following tenor .- " Whereas my dear brother, the lord proprie- tor of this province, hath, by his commission to me directed, in that behalf, bearing date at London, in the realm of England, the 15th day of April, 1637, appointed a general assembly of all the freemen of this province, to be held at his town of St. Mary's, on the 25th of January next; these are therefore, in his lordship's name, to will and require you, all excuses set apart, to make your personal repair to the fort of St. Mary's, on the said 25th day of January, then and there to consult and advise of the affairs of this province; and further, to will and require you at some convenient time, when you shall think fit, within six days after the receipt hereof at the farthest, to assemble all the freemen inhabiting within any part of your jurisdiction, and then and there to publish and proclaim the said general assembly, and to endeavour to persuade such and so many of the said free- men as you shall think fit, to repair personally to the said as- sembly, at the time and place prefixed, and to give free power and liberty to all the rest of the said freemen, either to be pre- sent at the said assembly, if they so please, or otherwise to elect and nominate such and so many persons, as they or the major part of them, so assembled, shall agree upon, to be the depu- ties or burgesses for the said freemen, in their name and stead, to advise and consult of such things as shall be brought into deliberation in the said assembly; and to enter all the several votes and suffrages upon record, and the record thereof, and whatsoever you shall do in any of the premises, to bring along with you, and exhibit it at the day and place prefixed, to the se- cretary of the province for the time being; and for so doing, this shall be your warrant."*
particulars, relative to Mr. Lewger, exhibit the early mode of colonising the province.
* See " Assembly Proceedings from 1637 to 1658," p. 1 .- In this part of this history, heretofore published, the author had here subjoined a note, in which he thought himself warranted, from legal authorities as well as from the obvious
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HISTORY OF MARYLAND.
CHAP. I.
1638.
It is not easy to determine, whether the isle of Kent was at this time considered as a county by itself, or a distinct territorial government, within the lord Baltimore's jurisdiction, subordi- nate to the general government of the province. From the cir- cumstance of captain Evelyn's having a council assigned him of six persons, as mentioned in his commission, before stated, of the 30th of December, 1637, it would seem to be of the latter .* However that was, yet it seems, that at this time any freeman thereof had liberty to repair in person to the assembly, and to be considered as a member thereof. Although the alternative was given to them, by the foregoing warrant, of meeting to- gether and electing representatives to serve in the assembly, as at this day,t yet it would appear from the proceedings of this assembly, that the practical construction of the foregoing war- rant was, that every freeman, who did not chose to attend him- self, might depute some one, who did attend as a member, to vote for him as his proxy, in the manner of the house of lords in England.#
construction of the seventh and eighth sections of the charter of Maryland, to advance an opinion, that the word-" Freemen," so often used in the early le- gislative proceedings of the province, as well as in the charter, was therein meant as being synonymous to the word-freeholder. He has since, however, met with a case, which occurred in the proceedings of an assembly of the pro- vince held in September, 1642, in which the question seems to have been other- wise decided by the assembly. It is thus stated on the journal .- "Mr. Thomas Weston being called, pleaded he was no freeman, because he had no land nor certain dwelling house, here, &c,; but, being put to the question, it was voted, that he was a freeman, and as such bound to his appearance by himself or proxie ; whereupon he took place in the house."-(This legislative proceeding will be further noticed in its proper place.) A passage in Beverly's Hist. of Virg. p. 233, (published in 1722,) seems also to indicate a different construction, espe- cially as the usages of Virginia were much adopted by her younger sister colo- ny .- " Every freeman," says he, (by which denomination they call all but in- dented or bought servants,) from sixteen to sixty years of age, is listed in the militia."-Yet the same historian, in the same work, (p. 206,) where he treats of the election of burgesses, states that,-"the freeholders are the only electors ;" as they are well known to be even to this day. The subject, therefore, seems to be involved in some doubt and obscurity, and the reader is to exercise his own judgment.
* But, by one of the bills of this session of 1638-9, (No. 13, Bacon's Laws,) it was to be erected into a hundred, and called Kent-Hundred, which hundred was to be considered as being within the county of St. Mary's, until another county should be erected on the eastern shore.
t This alternative seems to be authorised also by the seventh section of the charter of Maryland.
# The principle upon which the right of making a proxy prevails in the house of lords and not in the house of commons is said to be, that the lords are sup- posed to sit in parliament in their own personal rights, and not as delegates or
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HISTORY OF MARYLAND.
The assembly accordingly met on the 25th day of January, CHAP. I. 1637, (1638, new style.) The lieutenant general, (or govern- 1638. or,) appears to have taken the chair as speaker thereof, and the The se- cond as- three gentlemen who composed his council, to wit, Jerome Haw- sembly of ley, Thomas Cornwaleys, and John Lewger, esqrs. set with the the pro- others as individual members only, and not as constituting an meet. vince upper house, as the council afterwards did, but in the manner in which it is said the parliament in Scotland usually sat prior to the union, lords and commons in one room or chamber .* The commander of the isle of Kent, (Evelyn,) also took his seat as a member. In the list of the members some of whom are styl- ed gentlemen and some planters, the hundreds from which they came, are annexed to their respective names. It would appear, that some of the members sat as burgesses or representatives from hundreds ; others claimed and held seats in their own per- sonal rights as freemen, and so far constituting, what is by some required to constitute, a true and real democracy, or an assem- blage of all the free citizens of the State to make laws for them- selves. It is true, that all the freemen of the province did not on this occasion attend ; but it appears, that such as did not at- tend, either voted for some person in his hundred as a burgess or representative thereof, or authorized some member, as his proxy, to vote for him.t Although writs of summons, it seems,
deputies of others, as the commons do. And therefore, as a commoner in par- liament was only a proxy or representative of another, he could not constitute a proxy in his place, according to an ancient maxim of law, delegata potestas non potest delegari, 4 Inst. 12, 1 Bac. Abr. 582 .- So allowing every freeman in Maryland to have a seat in the assembly, sitting there in his own personal right, he might make a proxy upon the same principle as a lord in England.
* Hume's Hist. ch. LV .- It appears that the parliaments of England, in the time of Edward the first, were also composed of one house only, the lords and commons sitting together .- See 2 Inst. 267.
t As the customs of Virginia were closely copied by the colonists of Mary .. land, a reference to the usages of the former colony is sometimes necessary to illustrate those of the latter .- According to Burk's statement, (see his Hist. of Virg. vol. 1, p. 203,) which he professes to take from the "Instructions" sent from the Virginia Company in England to Sir F. Wyat, (governor of Virginia, in 1621,) the first representative body, which ever sat in Virginia, (according to Stith in the year 1619, but according to Beverly in 1620,) consisted of " two burgesses, chosen for every town, hundred, and plantation," (the word plantation here must mean a cluster of families seated in separate houses near to each other,) "by the inhabitants, to decide conjointly with the governor and council, by the greatest majority of voices on all matters of concern relating to the colo- ny."-On the subject of this first introduction of a provincial legislature into Virginia, Chalmers, (in his Annals, ch. III.) who states it to have been in June, 1619, further remarks :- " The colony had been divided only into seven hun-
VOL. II .- 7
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HISTORY OF MARYLAND.
CHAP. I. had been issued to every freeman, individually, to attend, yet 1638. one of the first acts of the proceedings of the assembly, on the first day of their meeting, was to cause proclamation to be made, " that all freemen omitted in the writs of summons, that would claim a voice in the general assembly, should come and make their claim."
" Whereupon claim was made by John Robinson, carpenter, and was admitted."
A list was made of such freemen as were absent, and of the names of those members who attended and were proxies for such absentees ; among which members, the three gentlemen who were councillors appear to have had the greatest number of de- legations .*
The house then proceeded to establish rules and orders to be observed during their session; the substance of which was as follows :
"Imprimis-The lieutenant general, as president of the as- sembly, shall appoint and direct all things that concern form and decency, to be observed in the same; and shall command the observance thereof, as he shall see cause, upon pain of impri- sonment or fine, as the house shall adjudge.
"Item-Every one that is to speak to any matter shall stand up, and be uncovered, and direct his speech to the lieutenant general, as president of the assembly; and if two or more stand up to speak together, the lieutenant general shall appoint which shall speak.
" Item-No man shall stand up to speak to any matter, until
dreds or distinct settlements, which seem to have enjoyed some of the privileges of boroughs : and from this circumstance the democratic branch of the assem- bly has been called, to this day, the house of burgesses, though composed al- most entirely of the representatives, of counties. To these Yeardley, the go- vernor, in pursuance of his instructions from the company, issued writs for the election of delegates. The assembly, formed of the governor, the council, the deputies, then met together, in one apartment, and transacted affairs like the parliament of Scotland of old, which mode continued unchanged till a period subsequent to the restoration. The laws, which were then enacted, and which do not now exist, were transmitted to England for the approbation of the trea- surer and company, without whose confirmation they were of no validity."
* The journal does not specify how such delegated authority to a proxy should be verified, but we may suppose it to have been by the production to the house of some written instrument, in the nature of a warrant of attorney. Although it is said, (Cunningh. Law Dict. verb. proxy,) that a peer of the realm must en- ter his proxy in person, on the journal of the house of lords ; yet from the case that occurred in 1 Eliz. (as stated by lord Coke, 4 Inst. 12,) it might be done by an instrument of writing for that purpose.
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HISTORY OF MARYLAND.
the party that spoke last before, have sat down; nor shall any CHAP. I. one speak above once to one bill or matter at one reading, nor 1638. shall refute the speech of any other with any reviling or con- tentious terms, nor shall name him but by some circumlocution; and if any one offend to the contrary, the lieutenant general shall command him to silence.
" Item-The house shall sit every day at eight o'clock in the morning and at two o'clock in the afternoon .*
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