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 42
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" Item-The freemen assembled at any time, to any number above ten persons, at the hours aforesaid, or within one hour af- ter, shall be a house to all purposes.
"Item-Every one, propounding any matter to the house, shall digest it at first into writing, and deliver it to the secreta- ry, } to be read unto the house.
"And it was ordered by the house, that these orders should be set up in some public place of the house, to the end all might take notice of them."
The house met again on the next day, the 26th of January, at eight o'clock, according to regulation. Several persons came in, and "claimed their voices as freemen;" of which the follow- ing entries on the journal of the house appear to be the most re- markable :
"Then came Edward Bateman, of St. Mary's hundred, ship carpenter, and claimed a voice as freeman, and made Mr, John Lewger, secretary, his proxy."
Also, "came John Langford, of the isle of Kent, gentleman, high constable of the said island, who had given a voice in the choice of Robert Philpot, gentleman, to be one of the burgesses for the freemen of that island, and desired to revoke his voice, and to be personally put in the assembly, and was admitted,"
The house then proceeded to the most important business of The as, their session, the consideration of the laws transmitted to the sembly colony by the lord proprietor. The draughts of the twelve first considera- take into
* According to lord Clarendon, (Hist. of the Rebellion, folio edit, p. 44,) the parliament hours about this period of time were, " for the house to meet always at eight o'clock, and rise at twelve, that the committees, upon whom the great- est burden of the business lay, might have the afternoons, for their preparation and dispatch."
From this we may infer, that the secretary of the province, Mr. Lewger, acted as clerk of this assembly, notwithstanding he was a councillor, and held moreover several other offices, and besides voted as a member of the house.
¿ This seems consonant to the practice of the house of lords in England, where a proxy must be made in the house in person, as before mentioned.
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HISTORY OF MARYLAND.
CHAP. I. acts of them being read, they "were severally debated by the
1638. house." An adjournment then took place until three o'clock in the afternoon; but nothing further of importance appears on the journal, to have been transacted on that day.
On the meeting of the house on the third day of their session, (the 29th of January,) an extraordinary question seems to have been agitated. It thus appears on the journal : "Upon occasion of some warrants granted out against some freemen that had made proxies, a question was moved in the house, whether free- men having made proxies during the assembly might be arrest- ed before the assembly were dissolved; and captain Cornwaleys and James Baldridge were of opinion that they might, but the rest of the house generally concurred, that after the writs issued for summoning the assembly, no man having right to repair unto the assembly might be arrested until a convenient space of time after the dissolution of the said assembly, for their repair home."
There is considerable difficulty in ascertaining correctly the true import of the word "warrants" -- used in the preceding par- agraph. In its original, technical, and legal sense, at the period of the common law of England when it was used as above, it was confined to criminal cases only. Justices of peace in En- gland, whose precept only was termed a warrant, had not, at that time, jurisdiction in any civil case, even in the recovery of small debts, which were then recoverable only, when under forty shillings, in the ancient county and hundred courts, or courts- baron .* It appears also, from the before mentioned commission to capt. Evelyn,t that he, being made commander of the isle of Kent, was, together with his council, to call a court or courts on the isle of Kent, "and in the said courts to hold pleas in civil cases not exceeding £10 sterling;" which seems to imply, that justices of peace had in the said island no jurisdiction in the re- covery of debts, and warrants therefore were not the proper pro- cess in such cases. In like manner, we may suppose, the county court of St. Mary's, which was at this time held before the go- vernor himself, (occasionally calling his council to his aid, as it would appear, in virtue of the lord Baltimore's commission be- fore mentioned of 1637, was, "to hear and determine all civil causes," whatever their amount might be. If such was then the mode of recovering small debts throughout the province, these several courts, thus held before the governor and commander re-
* 3 Bl. Com. 33, 82.
t Ante, p. 43.
tion the laws sent in by the proprietor.
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HISTORY OF MARYLAND.
spectively, most probably proceeded by common law process in CHAP. I. civil cases, to wit, by the writ or precept to the sheriff called a 1638. capias. From this it might be inferred, that the arrests by war- rant, alluded to in the journal, must have been in virtue of crim- inal process issued by some person acting as a justice of the peace. But, in answer to this, it is to be observed, that, even at this time in England, no privilege of parliament was allowed to exempt even peers of the realm, and certainly not members of the house of commons, from arrests by criminal process or warrant, in either treason, felony, or breach of the peace, or where surety of the peace was required .* Perhaps, indeed, pri- vilege might have been claimed at this time in the province against arrests upon warrants for petty misdemeanors, or in cases for the recovery of forfeitures on penal laws, cognizable before a single justice. As no copies of any laws now exist, prior to this present session, nor even of this session, except their titles, this part of our subject must for ever remain in doubt. But the gene- rality of the expressions in the preceding paragraph of the jour- nal, relative to privilege, seems to imply, that they spoke of pri- vilege where it was clearly allowable according to parliamen- tary usage; and therefore most probably intended it in relation to civil cases only. The usage of Virginia, the parent colony of Maryland, comes strongly in aid of this construction. Among the first laws now upon record in Virginia, and which were pas- sed at a session of assembly in the year 1624, (it being the third assembly or session ever held in Virginia,) it was enacted,- "That no burgess of the general assembly should be arrested during the sitting of the assembly, and a week before and a week after, upon pain of the creditor's forfeiting his debt, and such punishment upon the officer as the court should award."f
* The law of parliament is thus stated by lord Coke, (4 Inst. 25,) who wrote but a few years prior to the emigration of the first Maryland colonists .- " Gene- rally the privilege of parliament holds, unlesse it be three cases, viz : treason, felo- ny and the peace." The words-"the peace," were construed by chief justice Pratt, (afterwards lord Camden,) in the remarkable case of Wilkes, in the year 1763, to mean cases amounting to a breach of the peace, or where surety of the peace might be required. (See 2 Wils. Rep. 159.) But Mr. Justice Blakstone was of opinion, (in his Commentaries, vol. 1, p. 166,) that the exception from privilege extended to all indictable crimes ; and in support of it cites several re- solutions of the house of commons, particularly the same case just mentioned of Wilkes, with the lords' protest thereon. (For which see the Ann. Reg. for 1764, p. 172.) However, the exception to the general privilege of parliament seems clearly to have prevailed, at the time of the first emigration of our colonists, as far as stated in the text above.
+ Burk's Hist. of Virg. vol. 1, p. 282.
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HISTORY OF MARYLAND.
CHAP. I.
1638.
This declaration of their privilege by the Virginia assembly clearly alludes to civil cases only; and, notwithstanding the in- ference to be drawn from the jurisdiction of the Maryland courts, as before stated, we must suppose, that either the Mary- land justices of peace had cognizance of some cases, where a warrant was the proper process, or that the process of the be- fore mentioned courts in civil cases was, through some slight error, so termed.
If the privilege, here contended for by our Maryland assembly, was meantto extend to a freeman while he was acutually on his way to the assembly, either to take his seat therein, or even to revoke a proxy before made by him, the decision of the house must be al- lowed to have been proper enough: for, by the law of parlia- ment, the appearance of a peer in the house of lords, cancels any proxy before made by him ;* but, if he was to be privileged from arrests even in civil cases, while he was about his ordinary business at home, and at the same time represented by his proxy, whom he had appointed, or burgess for whom he had voted, it does not appear to have been consonant to any principle of sound policy.
It seems somewhat remarkable to us at this day, that our an- cestors, in such an early state of their colonization, should have had occasion to stickle so much for a privilege, generally es- teemed odious even under governments where personal liberty is most strongly cherished. As the habit of contracting debts without the means of payment, is generally supposed to origi- nate from an excess of luxury in living, it is difficult to account for the frequency of arrests for debts, which must be supposed to have existed at this time among the colonists, so as to make their legislative interference a subject of anxiety among them. Just settled in a wilderness, where few temptations to extrava- gant expenses could exist, we should have supposed that habits of economy would have become almost unavoidable.
The house now proceeded to take into consideration again, the laws sent by the lord proprietor as before mentioned. Three questions on the subject appear to have been proposed in the house: first, whether the laws should be now read again in the house; or, secondly, whether they should be put to the vote im- mediately, without further reading; or, thirdly, whether they should not be postponed to a future day, when a greater number of members might attend.
* 4 Inst. 13.
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HISTORY OF MARYLAND.
"Captain Cornwaleys gave his opinion, that they should ex- CHAP. I. pect a more frequent house;" that is, that the business should 1638. be postponed until a greater number of members attended.
"Captain Fleete* gave his opinion, that they should be read again;" but seemed to coincide with the opinion of captain Cornwaleys, of postponing the subject to a future day.
The previous question, however, was put; whether the laws "should be now put to vote immediately," or not. It was car- ried in the affirmative by thirty-three voices to eighteen, both sides including proxies.
"Then were the laws put to the question, whether they should be received as laws, or not."
" Affirmed by the president and Mr. Lewger, who counted by proxies fourteen voices."
"Denied by all the rest of the assembly, being thirty-seven The laws voices," including as we may suppose, their proxies.
sent re- jected.
Thus it would seem, that governor Calvert and Mr. Lewger, the secretary, were the only two members of the assembly who were for receiving the laws sent in by the lord proprietary; for although they counted twelve other votes besides their own, on the same side, that is, fourteen voices, yet as those freemen for whom they voted as proxies might not have voted in the same way, had they been present, the fourteen voices cannot fairly be counted, in forming an estimate of the real opinions of the free- men of the province. Neither can all the thirty-seven voices in the negative be taken in for the same reason; but, we may sup- pose, that a much less proportion of those thirty-seven voices were proxies, than on the other side; since by the rules and or- ders of the house before mentioned, ten members at least were necessary to constitute a house, and in that case there must have been eight members at least in the negative, who voted in their own rights, to two in the affirmative.t The grounds and rea- sons of their objections to these laws do not appear on the jour-
* It is probable, that this was the same captain Henry Fleete before mentioned, (p. 28,) who was found by governor Calvert, living at Piscataway among the In- dians, where he had been for some years before the arrival of the colony.
t The improper effect, of an unlimited right in a member to receive proxies, is here perceptible ; and seems to justify an order of the English house of lords, not long before this, (in the year 1626,) that, "for the future no lord should be capable of receiving above two proxies."-This order was occasioned by an ex- cessive number of proxies obtained in the house at that time by the notorious duke of Buckingham .- See Rapin's Hist. (Tindal's edit.) vol. 8, p. 368, and Hume's Hist. ch. 50.
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HISTORY OF MARYLAND.
CHAP. I. nal; but certain it is, that a very warm opposition, among a large 1638. majority of the freemen, was made to their reception ; at the. head of which opposition captain Cornwaleys may, from all ap- pearances, be considered as having taken his stand. Neither are we able at this day to judge of the merit or demerit of those laws sent in by the proprietary, by a perusal of them, as no co- pies of them are to be found on our records .* Did the duty of an historian allow him to mention his conjectures, a plausible supposition might be made, that the dispute about the reception of these laws was dictated more by a political contest for the right of propounding laws to be enacted by the assembly than any other cause. From the good character which Cecilius, lord Baltimore always bore, we cannot suppose that he had framed or proposed any laws for the colonists, but such as he deemed the best in his own opinion, for the promotion of their welfare, with which his own interest at this early period of the province must have been necessarily involved, and for the prosperity of which he must have felt the sincerest solicitude. It is observable, also, that no specific objections to any particular law or laws of those sent in by the lord proprietor, were made, but the opposition to their reception seems to have been founded solely on his assump- tion of the right of propounding them. We may suppose on the other hand, also, that his rejection of the laws, said to have been made by the colonists in 1635, before mentioned, was founded on this disputable right .; So that in the very infancy of the settlement, the contest for the right of propounding laws was likely to result in placing the colonists in that most dangerous situation of so- ciety, of living under a government without any known laws. The house of assembly, convened at this time, seemed to be sensible of this. We accordingly find, therefore, on the journal of the house the following entries, immediately succeeding those of the rejection of the laws, just mentioned.
England were deemed to be in force,
How far "Then question being moved, what laws the province shall the laws of be governed by, it was said by some, that they might do well to agree upon some laws till we could hear from England again. "The president denying any such power to be in the house, captain Cornwaleys propounded the laws of England, the pre- sident acknowledges that his commission gave him power in civil causes to proceed by the laws of England, and in criminal causes, likewise, not extending to life or member, but in those
* Bacon's Laws of Maryland, anno 1637.
t See note (VII.) at the end of this volume.
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HISTORY OF MARYLAND.
he was limited to the laws of the province; there could be no CHAP. I. punishment inflicted on any enormous offenders by the refusal of 1638 .. these laws."
" Whereupon the commission was produced and examined, and upon the reading of it, it appeared that there was no power in the province to punish any offence deserving the loss of life. of member, for want of laws."*
"To this they answered, such enormous offences would hardly be committed without mutiny, and then it might be punished by martial law."
The house at this period of the business appear to have ad- journed for dinner, but met again in the afternoon of the same day, when it was moved, "that the house would consider of some laws to be sent to the lord proprietor."
"And the president advised, that they should choose some committeest to prepare the draught of them, and then the house might meet for confirming them; and in the mean time, every one might follow their other occasions."
"So it being put to the vote, how many committees should be appointed for that purpose, they agreed that five should be- chosen." And five were accordingly chosen.
"It was then considered, for how long to adjourn the house,, and it was thought fit to adjourn till the eighth of February fol- lowing."
" And because the court was to be held in the mean time, that is to say, on the third of February, that therefore the privilege of parliament should be void until the court were past, and all freemen might be arrested, as if no assembly were. And so the house broke up."
The interval of ten days, for the committee to prepare the draughts of new laws, being elapsed, the assembly met again on
* The commission here alluded to, was most probably that sent in to the go- vernor, bearing date the 15th of April, 1637, before mentioned, by which the go- vernor and council were authorised, "where the life, member, or freehold of any person should happen to come in question, to inquire and determine according to the laws of our said province, and finally to give sentence and judgment there- upon, and to award execution accordingly." The difficulty appeared to be, that according to the commission they could not proceed against offenders, in capital criminal cases, by the laws of England, but by their own particular local laws of the province; from whence it followed, that if there were no laws of the province, there could be no proceedings in such cases.
¡ It appears from subsequent proceedings of the house, that the word "com- mittees," here meant the members composing a committee. It was a phraseolo- gy in use at that time. See Hazard's Collections, vol. 1, p. 410, 428,
VOL. II .- 8
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HISTORY OF MARYLAND.
CHAP. I. the eighth of February, according to their adjournment. The
1638. committee, it seems, had, during this interval, prepared a new set of laws to be enacted by the assembly, and to be sent to the lord proprietary; but it appears also, that upon consultation dur- ing this short recess, it was thought proper to propose again the laws sent in by the lord proprietary.
"The committee reported to the house that they thought fit to read the former draught of laws again, and to put them to the vote the second time, in regard there was found a great deal of misunderstanding of them among the freemen, which made them to refuse them.
"And it being put to the vote of the house, whether they should be read again, or not, was affirmed by forty-eight voices, and denied by twenty-one voices.
" Then was an order made, by general consent of the house, that all bills propounded to the house for laws, should be read three times, on three several days, before they should be put to the vote."
" Then was the draught of laws read through the second time, and twenty bills propounded by the committee, were read the first time .*
"Captain Cornwaleys desired it might be put to the vote of the house, whether these lawst at the third reading, should be voted severally, or the whole body of them together.
"And that they should be voted altogether, was affirmed by thirty-two voices, and denied by thirty-seven."
The house upon this adjourned, (probably for dinner,) and met again in the afternoon of the same day. It is proper here to observe, that the inference to be drawn from this last vote of the house is, that the " misunderstanding," before mentioned, "among the freemen," relative to the laws proposed by the pro- prietor, was, that although they had previously rejected them altogether in a body by one vote, yet they did so, to manifest their displeasure at that mode of legislation; but were willing to affirm or admit any of them "severally," when brought be- fore the house in a constitutional way, as they apprehended, by a committee appointed for that purpose. This inference is strengthened by two circumstances; one of which is, that no
* "The draught of laws read through the second time," must have been the laws sent in by the proprietor ; and the "twenty bills," those proposed by the committee.
+ Viz. those sent in by the lord proprietor.
The laws sent in by the lord proprietor again pro- posed.
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HISTORY OF MARYLAND.
further proposition or vote, relative to the laws sent in by the CHAP. I. lord proprietor, appears on the journal, and the other, that in the . 1638. course of their meeting in the afternoon they appointed a com- mittee for "preparing laws" against the next meeting of the house ; some of which laws might possibly be the same as those sent in by the lord proprietor.
"The house being sat, the president declared that he thought it fitting to adjourn the house for a longer time, till the laws, which they would propound to the lord proprietor, were made ready, which some would take care of, and in the meantime the company might attend their other business.
"Captain Cornwaleys replied, they could not spend their time in any business better than in this for the country's good; and one of the planters demanded the reason why it should be ad- journed, and said they were willing to leave their other business, to attend to it. The president replied, he would be accounta- ble to no man for his adjourning of it.
"Then captain Cornwaleys moved, that at least a committee might be appointed, that should take charge of preparing the laws till the house met again; and it being put to the house, they agreed that three committees* should be appointed. Then every one nominating severally his three committees, the presi- dent had forty-six voices, captain Cornwaleys had fifty-six, cap- tain Evelyn forty-four, Mr. Lewger thirty-one, Mr. Snow five, and captain Fleete four.
" Then it was ordered, that privilege of parliament-men for their persons, should not be allowed till the next meeting of the assembly.
"Then the president adjourned the house till the twenty-sixth day of February."
From what fell from captain Cornwaleys, in the foregoing proceedings, in his proposition for adopting the laws of Eng- land, it might be inferred, that the laws of England had never yet been put in practice among the colonists, although full three years had elapsed since their first settlement at St. Mary's. It must be confessed, that this observation of his, cannot at this day be easily accounted for, since it is certain, that the earliest records of the province seem all to indicate, that the whole of their proceedings, both legislative and judicial, were conducted according to those laws, except, as observed in the house of
* Three members of a committee, as before.
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HISTORY OF MARYLAND.
CHAP. I. assembly, "where life or member was to be affected." Indeed, 1633. the subject that so often occurs on the little journal of the house, before quoted, as to "privilege of parliament," in exempting the members of the house from arrest, presupposes the common law of England as to this purpose in force; for, if there were no local laws of the province, nor any common law, from whence could this privilege arise? We are, therefore, to construe Mr. Corn waleys' proposition to this effect: that the laws of England, so far as they were applicable to the local circumstances of the colonists, were to be continued to be used and practised by them; and that a legislative declaration to that purpose should be made.
Courts of justice held.
In confirmation of this construction of the foregoing proposi- tion, we are to observe, that in a few days after the assembly rose, courts of justice were held at St. Mary's, in which the proceedings appear to have been in exact conformity to those laws. A court "for testamentary causes," composed of the go- vernor and council, was held on the 12th of February ; in which letters of administration were granted on the estates of divers deceased persons, and proceedings had, as in the same kind of courts in England. On the same, or succeeding day, a court, called in the records, a county court, was holden before the lieu- tenant general, captain Robert Winton, and Mr. John Lewger ; at which a grand jury was impanelled and sworn, and two bills of indictment for piracy and murder were sent up to them, and found true bills. These indictments appear to have been drawn according to English precedents, and the technical phraseology used in them according to the established practice of the crimi- nal laws of England. As these indictments, which have been before alluded to, related to those political incidents of the pro- vince occasioned by Clayborne's resistance to the lord proprie- tor's right and authority over the isle of Kent, some more particular notice of them will be necessary.
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