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 43
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Proceed- ings there- in against Clay- borne's party.
The first of these indictments charges :- " Let inquest be made for the lord proprietor, if in the river Pocomoque, on the eastern shore, on the twenty-third day of April, in the year 1635, Tho- mas Cornwaleys, esqr. one of the commissioners of this province with divers other persons of the company and servants of the said Thomas Cornwaleys, being in two pinnaces, called the St. Helen and the St. Margaret, in the peace, &c., Ratcliff Warren, commonly known by the name of lieutenant Warren, Richard
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HISTORY OF MARYLAND.
-,* and Robert Lake, with divers others, to the number of CHAP. I. fourteen persons, or thereabouts, &c., in one pinnace belonging 1638. to William Clayborne, of the isle of Kent, gentleman, with force and arms, &c., on the day aforesaid, in the place aforesaid, upon the two pinnaces aforesaid, feloniously, and as pirates and robbers, an assault did make, and upon the said Thomas Corn- waleys and his company, divers guns charged with powder and bullets, did shoot and discharge, &c., and one William Ashmore, of St. Mary's, apprentice in the pinnace aforesaid, the day and year aforesaid, at the place aforesaid, did shoot and wound in the breast, on the left side, near the left papp, of which wound the said William Ashmore instantly died; and if the said Wil- liam Clayborne did encourage and instigate, and abet the said lieutenant Warren, to make and attempt the said assault upon the pinnace aforesaid, or upon any other the pinnaces, boats, or vessels belonging to St. Mary's; and if the said William Clay- borne did, by a special warrant or commission, under his hand, command, warrant, and authorize the said lieutenant Warren to seize, take, and carry away the pinnaces or other vessels be- longing to St. Mary's, contrary to the peace of the sovereign lord the king, his crown and dignity, and contrary to the peace of the said lord proprietor, his domination and dignity."
The other indictment is against Thomas Smith, gentleman, and three other persons, planters, for the murder of the same William Ashmore, and is in other respects, the same as the for- mer indictment, totidem verbis, except as to time and place, as follows: "Let inquest, &c., if in the harbour of great Wiggo- moco, in the bay of Chesapeake, on the tenth day of May, in the year of our Lord 1635, Thomas Cornwaleys, esq. one of the commissioners of the province, Cuthbert Hemirk, and John Hol- lis, servants of the said Thomas Cornwaleys, being in the good pinnace called the St. Margaret, in the peace, &c., Thomas Smith, of the isle commonly called Kent, gentleman, Philip Tailor, Thomas Duffil, and Richard -,t planters, together with divers others, to the number of fourteen persons, or there- abouts," &c., and so on, the same as the former indictment, charging William Clayborne also, as accessary before the fact, in the manner as before.}
* The surname here in the record is not legible.
The 'surname here in the record is not legible.
# See the record of these indictments, in an old thin leather book, (in the council chamber,) entitled, "Council Proceedings from 1637 to 1644," without pages.
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HISTORY OF MARYLAND.
CHAP. I.
1638.
On account of the deficiency in the laws, and the exception in the lieutenant general's commission, before mentioned, so that no capital punishment could be adjudged by any court of the province then existing, the trials on these indictments were post- poned until the next meeting of the assembly.
The inha- bitants of the isle of Kent re- fuse to submit.
Notwithstanding these proceedings, and although Clayborne had, before this, departed for England, yet it seems, that the in- habitants of the isle of Kent, were far from being at this time quiet and obedient to the lord proprietor's government. The authority of the provincial government was yet so openly con- temned and resisted, by many of the inhabitants of that island, as to render it necessary for the governor to proceed thither with an armed force, to quell and punish the refractory and disobe- dient. We find in the records of the "Council Proceedings" of this period, an entry explanatory of the reasons and causes of this measure of the government.
Governor Calvert proceeds "By the governor and council, this 12th of February, 1637," (1638, N. S.) "the governor and council, taking into conside- with a mi- ration the many piracies, insolencies, mutinies, and contempts of the government of this province, formerly committed by di- vers of the inhabitants of the isle of Kent, and that the warrants sent lately into the said island, under the great seal of the pro- vince, for apprehending some malefactors, and to compel others to answer their creditors in their lawful suits of debt or accompt, were disobeyed and contemned, and the prisoners rescued out of the officers' hands, by open force and arms; and being now newly informed, that divers of them do maintain and protect themselves in their said unlawful and rebellious acts, did prac- tice and conspire with the Susquihanoughs and other Indians, against the inhabitants of this colony, have thought it fit, that the governor should sail, in person, to the said isle of Kent, and take along with him a sufficient number of freemen, well arm- ed, and there, by martial law, (if it shall be necessary,) reduce the inhabitants of the said island to their due obedience to the lord proprietor, and by death, (if need be,) correct mutinous and seditious offenders, who shall not, (after proclamation made, ) submit themselves to a due course of justice; and for his better assistance herein, it was thought fit, and so ordered, that cap- tain Thomas Cornwaleys, esquire, and one of the council of this province, should go along with the governor, and be aid- ing and assisting to him, to the uttermost of his power, for the
litary force against them.
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HISTORY OF MARYLAND.
command of the forces, according to such directions as he shall CHAP. I. receive from the governor during the expedition. 1638.
Signed,-Leonard Calvert,-Jerome Hawley,-John Lew- ger."*
Preparatory also, to this expedition, the governor issued his Secretary proclamation, reciting, that " Whereas this present general as- authorised Lewger sembly, begun on the 25th day of January, last past, and by to hold the several adjournments, continued until the 8th of this instant assembly. month of February, was then adjourned until the 26th of this instant month, now designing, at this present, to make an expe- dition in person, unto the isle of Kent, and doubting, lest some accident might hinder my return to St. Mary's, afore the said day, whereby the assembly would of itself be dissolved, for want of power to assemble : know ye, therefore, that in case of such my absence, I have authorized and deputed Mr. John Lew- ger, secretary, in my name and place, to hold and convene the said assembly, at the day appointed, and to give voice for me to all such things as he shall think fit, also to adjonrn or dissolve the said assembly, and to do all things in my stead, &c.
LEONARD CALVERT."+
During the governor's absence from St. Mary's, the assembly met on the 26th of February, 1637, (1638, N. S.) according to adjournment. But after ordering " that privilege of parliament be suspended till the next meeting," the house was adjourned till the 5th of March next.
The house met on the 5th of March, according to their last adjournment; but, the governor being still absent, " Mr. Secre- tary adjourned the house till the 12th of March following."
" And the house ordered, that privilege of parliament should be suspended till the next meeting."
The house met on the 12th of March, according to their ad- journment; and the governor, being now returned} was present, and presided as speaker.
"Privilege of parliament was affirmed;" and the twenty bills draughted by the committee, which were formerly read, at the session on the eighth of February, were now read a second time.
* See the Provincial records, entitled " Council Proceedings, from 1636 to 1657," p. 26, 27.
t Ibid. p. 28.
# The few reliques of records, relative to our history at this period, afford no trace of any of the proceedings of the governor and his suite on the isle of Kent during this his visit thereto.
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HISTORY OF MARYLAND.
CHAP. I.
1638.
The house meeting again on the next day, (the 13th of March, ) fourteen other bills were then read for the first time.
Act of at- tainder against William
Which bills were again read on the succeeding day, (the 14th of March,) together with three other bills for the first time ; one of which last was "for the attainder of William Clayborne, gen- Clayborne. tleman."*
The reader will observe, that Clayborne was charged as an accessary before the fact, to the murder and piracy, stated in the bills of indictment, before mentioned, found by the grand jury. On account of the deficiency of the laws, as before stated, the intervention of the legislature was deemed necessary, against both Clayborne and Smith. The former not being taken, the proceeding against him was by a bill of attainder ; by which, his property within the province, became forfeited to the lord pro- prietor.t The latter being still held as a prisoner, he was, in the afternoon of this day, (the 14th of March,) arraigned and tried before the house, sitting as a court of justice. As the proceedings of a legislature, (under the degree of a house of lords,) acting in a judicial capacity, were even at this time un- common, it is thought that an insertion of them here, as they appear on the records, will not be deemed improper.
Trial of Thomas Smith, one of Clay- borne's men.
"Then was Thomas Smith called to the bar, being indicted of piracy, and Mr. Secretary made himself attorney for the lord proprietor, and read his lordship's warrant in that behalf. Then did the attorney put in the indictment, and demanded that the prisoner might be arraigned upon his indictment; and the in- dictment being read, he pleaded not guilty.
"Then did the attorney inform the house upon the indict- ment, and produced the depositions of John Tarbison and Ar- thur Brooks; and the prisoner pleaded all he had to say in his defence, and the attorney replied to it: and when the prisoner had no more to allege for himself, he was demanded whether he would challenge any in the house that were to pass upon him, and he challenged none; then they gave their votes, and he was found guilty by all the members except one.}
* Although no copies of any of the bills or laws, passed at this session, are now to be found on our records, as before mentioned, yet, according to Chalmers's Annals, (ch. ix. note 20,) a copy of this act of attainder still remains in the Plantation office, England, "among the Virg. pap. 75 B. p. 126."
t See note (VIII.) at the end of this vol.
# The name of this dissentient member, as on the record, is not easily legible, but it appears to be John Halfshide or Halfeheade.
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HISTORY OF MARYLAND.
"Then was sentence pronounced by the president, in the name CHAP. I. of all the freemen in these words:
"Thomas Smith, you have been indicted for felony and pira- cy; to your indictment you have pleaded not guilty; and you have been tried by the freemen in this general assembly, who have found you guilty, and pronounce this sentence upon you : that you shall be carried from hence to the place from whence you came, and thence to the place of execution, and shall be there hanged by the neck until you be dead, and that all your lands, goods, and chattels, shall be forfeited to the lord proprietor, saving that your wife shall have her dower, and God have mercy upon your soul.
" Judgment affirmed and approved by special consent, by word of mouth, by captain Cornwaleys" and others (named in the re- cord,) sixteen in number .*
"Then did the prisoner demand his clergy; but it was an- swered by the president, that clergy could not be allowed in his crime, and if it might, yet now it was demanded too late after judgment."}
It will be recollected, that in the rencounter between captain Inquiry by Cornwaleys and his company with Clayborne's men before men- the assem- tioned, several persons of the latter party were said to have been conduct of bly into the killed by the fire of Cornwaleys's men in resisting the attack captain Cornwa- upon them first made by Clayborne's party, as alleged by those of leys. Cornwaleys. It was, therefore, deemed necessary by the house, that inquiry should be made by them of these facts, and their proceedings thereon, appear upon the records to have been as follows :
"Then departed out of the house, captain Cornwaleys, Cuth- bert Fennick, William Lewis, John Nevill, Anthony Cotton, Ed- ward Fleete, and Cyprian Thoroughgood.
" Then was the house moved by the attorney to inquire of the. death of William Ashmore, Ratcliff Warren, John Bellson, and William Dawson, and the house having heard the evidence of Cyprian Thoroughgood, John Nevill, Cuthbert Fennick, and Edward Fleete did find that the said Ratcliff Warren, John Bell- son, and William Dawson, with divers others, did assault the.
* By this the whole house of assembly must at this time have consisted of se- venteen members, including John Halfeheade the dissentient.
+ No subsequent mention of Thomas Smith appears on the records, nor is it certain what was his final fate. It is probable, that he was executed in pursu -. ance of his sentence.
VOL. II .- 9
1638.
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HISTORY OF MARYLAND.
CHAP. I. vessel of captain Cornwaleys and his company, feloniously and 1638. as pirates and robbers to take the said vessel, and did discharge divers pieces charged with bullett and shott against the said Thomas Cornwaleys and his company, whereupon and after such assault made, the said Thomas Cornwaleys and his company in defence of themselves and safeguard of their lives, not being able to fly further from them, after warning given to the assailants to desist from assaulting them at their own peril, did discharge some guns upon the said Ratcliff and his company, of which shots the said Ratcliff Warren, John Bellson, and William Dawson died, and so they find that the said Thomas Cornwaleys and his company did lawfully, and in their own ne- cessary defence kill the said Ratcliff Warren, John Bellson, and William Dawson, and do acquit the said Thomas Cornwaleys and his company of the death of the said Ratcliff Warren, John Bellson, and William Dawson.
"And they further find, that the said Ratcliff Warren and his company did discharge their guns against the said Thomas Corn- waleys and his company, and did kill the said William Ashmore, being one of the company of the said Thomas Cornwaleys, as felons, pirates and murderers."
That the assumption of judicial power by the house of as- sembly at this time, was not confined to Smith's case, appears from the journal of the house for the succeding day, (the 15th of March,) where an entry appears of the following purport : "Then was fined to the lord proprietor Thomas Baldrige, 40lb. tobacco for striking John Edwards." It is true, that this might have arisen from the fact being perpetrated in the presence of the house, on which occasion, by the law of parliament, they would have had power to impose the punishment of imprisonment as for a con- tempt; but the journal does not authorise this supposition of the circumstances of the case.
Another entry on the journals of the house, of the 17th of March, may perhaps be deemed worthy of notice, as tracing a feature of the early habits, manners, and customs of our ances- tors :- " Then upon a question moved touching the resting of servants on Saturday in the afternoon, it was declared by the house that no such custom was to be allowed." It may be re- marked, that notwithstanding this declaration of the legislature, the custom has in some measure, even with slaves, prevailed throughout the province.
On the last day of the session, (March 24th,) which, according
Resolution of the as- sembly re- lative to servants.
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HISTORY OF MARYLAND.
to old style, was the last day of the year 1637, the several bills CHAP. I. which had been prepared to be passed by the house were now 1638. " fairly ingrossed and read, and after the reading of them the The as- governor signed them, and so did the rest of the house. And so
sembly dissolved.
the house dissolved."
refuses his
enacted by
However beneficial and necessary for the province those laws The lord now enacted by the assembly, and assented to by the governor, proprietor might have been, yet it seems when they were sent to England assent to and propounded to the lord proprietor for his assent, he thought the laws it proper to reject them. Of his reasons for so doing, we are the assem- no where positively informed ; but the same conjecture we have , bly. before ventured, may be again hazarded ;-- that he had resolved to retain the right of first propounding the laws to be enacted by any assembly of his province. Although a complete list of the titles of these laws remains upon our records, yet the laws them- selves at large are not extant,* no copies of them appearing upon our records. Many of those laws were, probably, after- terwards re-enacted under the same or similar titles. The con- tents of some of them, however, to which we do not find sub- sequently any with titles similar, would interest our curiosity even at this day, particularly the first on the list, entitled, "A bill for dividing. of the province." From the titles of several bills im- mediately following, relative to manors, and one entitled, "A bill for Baronies," we are induced to suppose, that besides the division of the provinces into counties, a further division of the same was contemplated into baronies and manors, with their feudal appendages of courts-baron and courts-leet. This may, probably, have been the cause of its being stated by some wri- ters, that the province was originally divided into baronies and manors. Although many manors were subsequently laid out and granted to individuals, yet it does not appear, that in the division of the province into baronies, (at least in the feudal sense of the word,) was ever carried into effect; for we are told, that "no grant of a barony is to be found on record."# Another title of the bills of this session, to wit, "A bill for settling of the
* Except that for the attainder of William Clayborne, a copy of which, ac- cording to Chalmers, as before mentioned, is still extant in the Plantation office, England.
t See a complete list of them published in Bacon's edition of the Laws of Ma- ryland, 1637, where it is said, "They were never enacted into laws ;" meaning, without doubt for want of the lord proprietor's assent to them ; "nor are any co- pies of them, or of those sent in by his lordship, to be found in our records."
# See note (IX.) at the end of this volume.
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HISTORY OF MARYLAND.
CHAP. I. Glebe," attracts notice. As the word glebe is synonymous to
1638. church-lands, it implies, that a church establishment was con- templated by the first settlers of the province, who being, as may be presumed, principally Roman Catholics, intended that sect of the christian religion to be the established church of the province.
In a few days after the dissolution of the assembly, the go- vernor, it seems, formed an intention of visiting the colony of Vir- ginia. This appears from an instrument of writing, bearing date, April 1st, 1638, in which he states, that "being to be absent for a while, out of this province, in Virginia, he assigns, deputes, con- stitutes, and appoints his respected friend Mr. John Lewger, se- cretary of this province, to be in his place and stead lieutenant- general of this province during his absence and no further or
longer."* Whether he put in execution this intention or not, or what business of importance called him there, we are not in- formed. A similar instrument of writing, or commission, was afterwards, on the 27th of May, 1638, executed by him to cap- tain Thomas Cornwaleys, esqr. in nearly the same words and with a similar intention of being "absent for a while out of this province in Virginia."} On the same day last mentioned, and probably with a like view, he issued a commission to John Bo- teler, appointing him "captain of the militia band of the isle of Kent, and giving him full power to muster and train all sorts of men able to bear arms within the said isle, (the commander of the said island only excepted,) and in case of any sudden inva- sion of savages or pirates to make war, as likewise to execute martial law against any mutinous or disorderly persons, and to make and publish any orders which he should think fit for the defence and safety of the island, enjoining all persons what- soever within the said island to subserve the said orders and commands of him the said John Boteler in all matters concern- ing martial discipline."}
* "Council Proceedings from 1636 to 1657," p. 29.
t This commission to captain Cornwaleys is in an old thin book, entitled " Council Proceedings from 1637 to 1644," most of the contents of which, this commission and some other important documents excepted, are transcribed in- to a larger parchment book, entitled "Council Proceedings from 1636 to 1657." Mention is here made of this circumstance to point out a small variance in the references here used. These commissions, in case of the absence of the gover- nor out of the province, are authorised by the before mentioned Ordinance of the lord proprietary, bearing date April 15th, 1637.
# "Council Proceedings from 1636 to 1657," p. 31.
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HISTORY OF MARYLAND.
Clayborne having been sent to England by the governor of CHAP. I. Virginia, or having voluntarily himself returned thither, after the 1633. military outrage committed by his men, through his orders, William on the Maryland colonists, as before mentioned, he preferred a borne's pe-
Clay- petition to the king, in order to obtain redress of the "wrongs tition to and injuries," which he had sustained, as he alleged. The in council, the king imperfect copy of this petition now remaining on our records, and order has no date; but from the proceedings of the privy council there- thereupon. on, it would appear to have been presented on or about the 26th of February, 1637, O. S. (1638, N. S.) This petition in sub- stance states, that he (William Clayborne,) and his partners, (who, from a subsequent document, appear to have been a cer- tain William Cloberry, and David Morehead, merchants of Lon- don, in England,) by virtue of a commission under his majesty's hand, divers years past,* discovered and planted the isle of Kent in the bay of Chesapeake, which island they bought of the kings of that country; that great hopes for trade of beavers and other commodities were like to ensue by the petitioners' discoveries; and that lord Baltimore, observing this, had since obtained a patent; within the limits of which he comprehended the said island; that on complaint thereof his majesty had signified his royal pleasure by letter, intimating therein, that it was contrary to justice and the true intent of his majesty's grant to lord Bal- timore, and also that his majesty in the said letter directed, that notwithstanding the said patent to lord Baltimore, the petitioners should have freedom of trade, and required the governors and all others in Virginia to be aiding and assisting to them, and forbade the lord Baltimore or any pretenders under him, to offer them any violence, or disturb or molest them in their plantations, "as by the said letter annexed to this petition appeareth."t The petition proceeds to state, that although his majesty's pleasure had been made known to the governor of Virginia,} (who slighted the same,) as also to the lord Baltimore's agents in his province, yet they had, in a most wilful and contemptuous manner diso- beyed the same, and violently set upon the petitioners' pinnaces
* This must refer to the instructions of the king, under which several com- missions or licenses were granted by the governors of Virginia, during the years 1627-28-29, to William Clayborne to discover the source of the bay of Chesa- peake, as before stated in the introduction to this volume.
t I do not find any such letter extant upon the records of the province, or elsewhere. It is not to be doubted, however, but that a letter of that import was signed by his majesty.
# This must have been Sir John Harvey; for Sir William Berkeley, his succes- sor, was not appointed governor of Virginia until the year 1639.
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HISTORY OF MARYLAND.
CHAP. I. and boats, &c. The petition then rehearses the transaction of 1638. the petty battle before mentioned, between captain Cornwaleys and Ratcliff Warren.
It is further stated in the petition, that the petitioners had dis- covered and settled a plantation and factory upon a small island,* in the mouth of a river, at the bottom of the said bay, in the Sus- quehanock's country, at the Indians' desire, and purchased the same of them; by means whereof, they were in great hopes to draw thither the trade of beavers and furs, which the French then wholly enjoyed "in the grand lake of Canada ;" but lord Baltimore had interrupted them and seized their possessions.
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