The history of Maryland : from its first settlement, in 1633, to the restoration, in 1660 ; with a copious introduction, and notes and illustrations, Part 45

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 45

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+ Burk's Hist. of Virg. vol. 1, p. 207.

# Chalmers observes, (Annals, p. 46,) that when the importation of young- girls into Virginia took place, in the year 1620, for wives for the planters .- " the price of a wife to the husband, who purchased her, was one hundred pounds of tobacco, for each of which" (pounds of tobacco,) "there was then allowed, in money, three shillings." From whence it may be inferred, that, as tobacco sold in England for three shillings, and the price of it in Virginia also was rated at three shillings, there was, at this period of time, little or no difference between currency and sterling.

HISTORY OF MARYLAND.

CHAP. I. both king James and his son Charles, relative to the importation of tobacco from Virginia and Bermudas into England, were 1638. now deemed to be applicable and in force as to the importation of that article from Maryland. These proclamations, however exceptionable in some of their regulations, were founded upon a principle long pursued by the mother country, and which is certainly bottomed upon the best colonial policy, that is, of ex- cluding the importation of any particular commodity from any foreign country, when the same commodity can be imported from the colonies. Hence, as Spanish tobacco was in greater de- mand in England than that of Virginia, on account of its suppos- ed superior flavour, and would, when for sale, command a higher price, James, notwithstanding his invincible aversion to that noxious weed in all its shapes, and his ardent endeavours joined to those of the old Virginia company, to persuade the colonists of, Virginia to adopt some other staple, particularly silk, yet, in or- der to favour his colonies, permitted the importation of tobacco from Virginia and Bermudas, and prohibited it altogether from Spain or her colonies, and at the same time prohibited the cul- tivation of it in England. Some regulations, however, relative to the imposition of customs or duties upon the importation of tobacco into England from the colonies, being deemed by the Virginia Company injurious to their interests, and consequently perhaps to the planters, they established warehouses and ap- pointed factors in Holland, and sent all their tobacco there, so that in the year 1621, no tobacco whatever was imported into Eng- land from Virginia. But this being found contrary to another colonial principle, perhaps equally just as the former, that the mother country was entitled to the exclusive benefit of the trade of the colonies, it was soon prohibited. This prohibition was by an order of the king in council, issued in October, 1621, commanding that "no tobacco, or other productions of the colo- nies shall thenceforth be carried into foreign parts, till they are first landed in England, and the custom paid:" assigning these remarkable reasons; "that the king, weighing the great advan- tage, which this crown and estate might receive from a well or- dered plantation in Virginia, granted several immunities to the colonies, as not doubting but that they would apply themselves to such courses as might most firmly incorporate that plantation into his commonwealth; that to suffer, therefore, a foreign trade, is as inconsistent with the view in the planting of Virginia, as

HISTORY OF MARYLAND.

with just policy or the honour of the state."* But this order, CHAP. I. it is said, was disregarded or eluded ; for tobacco continued to 1638. be sent to Holland from both Virginia and the Somers isles; which occasioned the prohibition or order to be renewed in the following March, 1622. By this last order the governor and colonists were required to prevent the like practices in future, and also to procure the return of those ships, which had been lately sent to foreign parts, "upon those penalties that the con- temners of the authority of the board may expect." The colo- nial officers were commanded to publish this order in their several courts, "and to look that it be executed." And it was transmitted to Virginia for the information of the people, that they might know how to comfort themselves therein. It may be inferred, however, from some proceedings of the next Mary- land assembly, that the exportation of tobacco from the colonies to foreign countries was still, secretly perhaps, carried on .- The salutary colonial principle, first above mentioned, of prohibiting the importation of foreign tobacco into England, appears to have been adopted by James at the instance of the house of com- mons, and he deserves no other credit for it, than that of yield- ing, for once, to the wholesome advice of the representatives of his people.t

His son and successor Charles, soon after his accession, re- newed by proclamation the several regulations of his father on this subject ;¿ and subsequently issued several other inconsis- tent proclamations in further regulation thereof.§ One in Au- gust, 1627, deseves notice ; it commanded, "that no tobacco shall be planted in England or Ireland, and that justices of the peace and constables shall pluck it up ; | that all imported from the colonies shall be delivered to the king's commissioners, at a

* Chalmers's Annals, p. 53, who cites Virg. Entr. 1 vol. p. 201, in the Planta- tion office.

+ For the several regulations of tobacco by proclamation and otherwise, in the reign of James ; see Hazard's Collections, vol. 1, p. 49, 89, 93, 198, 224 ; and Chalmers's Annals, p. 47, 50, 53, 64, 67, 70.

Į See Hazard's Collections, vol. 1, p. 202.

§ See the substance of them stated in Chalmers's Annals, p. 129.

|| King James had, by proclamation dated December 30th, 1619, made the like prohibition nearly in the same words ; which induced Sir Edward Coke, in a de- bate on public grievances in the session of parliament of 1621, to observe, "that never, till within these forty years, was there any restraint made, other than by act of parliament, that a subject, being a freeholder, shall not plant what he list in his own ground." Chalmers's Annals, p. 49. See this proclamation of 1619 stated in that of 1620, in Hazard's Collections, vol. 1, p. 93.

VOL. II .- 11

HISTORY OF MARYLAND.

CHAP. I. price to be agreed on, of whom every one shall buy it ; and that

1638. for the prevention of frauds, no foreign tobacco shall be import- ed from the colonies."* Although Virginia and Bermuda only are particularly mentioned in most of these proclamations, yet, as the regulations prescribed by them seem to have been intended to operate on the importation of tobacco from all the British colo- nies, which then grew that article, it may be inferred, that so soon as Maryland began to cultivate and export that article, it would then become subject to the same regulations in that branch of commerce as the other colonies. However, we find one other regulation relative to this subject, which took place after the set- tlement of the Maryland colony, and in which there are some expressions appearing to have been intentionally inserted there- in, in order to include that colony. The commission to Sir William Russell and others, bearing date, June 19, 1635, after stating the hardships and oppression, which the colonists resi- ding "upon our English plantations suffered by the secret and indirect trade of particular merchants and shopkeepers, who make a prey of them and their labours, by supplying their necessities with commodities at unreasonable rates ; which unconscienable course of the said merchants and shopkeepers had been so griev- ous to the planters, that they had been forced, not only to peti- tion for an abatement of the customs and imports, but to send the most part of their tobacco to foreign parts ;" and after sta- ting the royal resolution, " to have hereafter the sole preemption of the said tobacco upon the said plantations, and that at such rates and prices as should be found fit ;" authorises the com- missioners therein named, "to call before them all persons hav- ing any interest in the plantations of Virginia, Bermudas, the Caribe Islands, or any other of our English colonies, and require them to declare their several interests,t-what quantities of to- bacco they have upon their several plantations, what they ex- pect upon their returns, and when they shall have the same ;

* Chalmers's Annals, p. 118 ; who cites Rymer's Fæd. vol. 18, p. 920 .- The king had in the preceding February, (1627, N. S.) issued a proclamation, allow- ing the importation of 50,000lb. of foreign tobacco, observing therein, as his mo- tives thereto, that the desire of taking tobacco still increased, notwithstanding every opposition,-that his subjects preferred the Spanish tobacco, and that he was willing to give way to the infirmities of his people. Ibid. p. 129.

+ It would seem, from the tenor of this commission, that "the persons having interests," &c. were such persons as resided in England, and had property or debts in the above mentioned colonies ; and the words-"any other English co- lonies," would include Maryland, though not specially named.

HISTORY OF MARYI.AND.

and, in the name of the king, to treat and contract with them CHAP. I. for their several quantities ; and to assure the planters and own- 1638. ers themselves upon the said plantations, that a commission will be sent into every of the said plantations to treat and conclude with them a contract for their tobacco." *- It must be confessed, that however inconsistent such a commission was with even the then known principles of both the laws and constitution of England, yet, had it been executed with fidelity, and liberal prices allowed to the planters for their tobacco, it would have operated as well for their benefit as for that of the monarch. If any thing could justify such an arbitrary proceeding as this roy- al monopoly, a slight recollection of the gross frauds and abuses which have been since long practised by many of the British merchants, to whom Virginia and Maryland planters had con- signed their tobacco for sale, would tend much to reconcile the adoption of any measure, however tyrannical, which could bring such men to a sense of justice. Whoever has seen an "account of sales" of tobacco, sent by a London merchant to an humble planter in Maryland prior to the revolution, and perhaps indeed since, has very probably seen a commentary strongly illustrative and explanatory of the oppressions rehearsed in the foregoing commission. What operation the execution of this commission had in the colonies, whether pernicious or beneficial, we are not informed. As Charles's prerogative was now far in the wain, it is not improbable, but that the commission died a natural death, and shortly became a dead letter.

An incident occurred this year among the colonists, which The state deserves some attention, inasmuch as it exhibits the state of of religion religion as it then existed among them ; from which it appears, colonists. among the that although the greater number of the colonists are said to have been of the catholic religion, yet some few protestants, most of them probably of the inferior class, had also either first emigrated with the catholics, or had crept in among them from Virginia or some of the other colonies. A proclamation had been issued by the governor of Maryland, (but when, we are not informed, nor does such proclamation appear at large upon re- cord,) to prohibit "all unseasonable disputations in point of re- ligion, tending to the disturbance of the public peace and quiet of the colony, and to the opening of faction in religion."-Capt. Cornwaleys, it seems, had some servants, who were of the pro-

* See this commission at large in note (XIX.) at the end of this volume.

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CHAP. I. testant religion. They lived or lodged in the same house with 1638. a certain William Lewis, who appears to have been a zealous papist, and under whose charge and government these servants were. It happened, that Francis Gray and Robert Sedgrave, two of these protestant servants of Capt. Cornwaleys, were read- ing "Mr. Smith's Sermons," a protestant work. While they were reading the book aloud, William Lewis came into the room, and supposing that they read it aloud for him to hear, particularly some offensive passages in it, as-"that the pope was anti-christ, and the jesuits anti-christian ministers," &c. he told them, "that it was a falsehood, and came from the devil, as all lies did, and that he that writ it was an instrument of the devil, and he would prove it; and that all protestant ministers were the ministers of the devil," and forbade them from reading that book any more. Whether these servants obeyed him on this occasion, or not, does not appear ; but the conduct of Lewis, it seems, excited in them so much discontent, as to induce them to prepare a petition, intended, as afterwards alleged by William Lewis, to be presented by them to Sir John Harvey, governor of Virginia, as soon as they had procured the signatures to it of all the protestants in Maryland, the governor of Virginia being a protestant, and the church of England the prevailing religion there. The servants denied this intention, but acknowledged that the petition was to have been presented to the governor and council of Maryland. The purport of the petition was, to com- plain against William Lewis for his abuse of protestant minis- ters, and his refusal to permit them either to keep or read, in his house, any book which appertained to their religion. But be- fore they had an opportunity of either procuring the signatures of the protestants or presenting the petition, William Lewis (on the first of July, 1638,) gave information thereof to Capt. Corn- waleys, who, immediately calling in Mr. Secretary Lewger to his assistance, ordered the several parties, together with the wit- nesses, to be brought before them, The petition was delivered up to the captain, and after an examination of the parties, they were bound in a recognizance with two sureties to answer the matter at the next court. The court, (composed, as it appears, of the governor, capt. Cornwaleys, and Mr. Secretary Lewger,) meeting on the third of July, the sheriff was commanded by warrant from the governor, to bring William Lewis, Robert Sedgrave, Francis Gray, Christopher Carnoll, and Ellis Beach,

HISTORY OF MARYLAND.

before the court. After an examination of the parties and one CHAP. I. witness, (a protestant,) the governor thought it proper, on ac- 1638. count of the absence of another material witness to defer the trial and "censure" of the servants, till the witness could be pro- duced in court ; but desired the secretary to deliver his "cen- sure"* touching the complaint against William Lewis.

The secretary gave it as his opinion, that for his (Lewis's) "offensive speeches and unseasonable disputations in point of religion, contrary to a public proclamation to prohibit all such disputes," he (William Lewis,) should be fined 5001b. tobacco, and remain in the sheriff's custody until he found sufficient sure- ties for his good behaviour in time to come. Capt. Cornwaleys was for the fine, but not for binding him to his good behaviour. But the governor concurred wholly in the sentence of the secre- tary. And so the court broke up, and William Lewis was com- mitted to the custody of the sheriff; but he afterwards found security for the peace. What was the event of the accusation against the servants, our records do not inform us. If the charge was true, that they intended to prefer their petition to the go- vernor of Virginia, it is certain, that such conduct wore very much the aspect of the political crime, called sedition.t

As these proceedings took place before the highest tribunal of the province, composed of the three first officers in the go- vernment, they amply develope the course of conduct, with re- spect to religion, which those, in whose hands the government of the province was placed, had resolved to pursue. Whatever

* The word "censure" means here,-the speech of the judge in giving his judgment in any criminal case. It was a word used in that sense about this time, as will be seen in the laws of the next session of the assembly.

It occurs frequently in Shakspeare's Plays ; as for instance in Measure for Mea- sure, (Act 1, scene v.)

" Joab. Doth he so seek his life ? Lucio. Has censur'd him Already ; and, as I hear, the provost hath A warrant for his execution."-

So, in Othello :

to you, lord governor "Remains the censure of this hellish villain."

So in the Winter's Tale,

" How blest am I, In my just censure ! in my true opinion !"

Mr. Malone, in his annotation on this last passage remarks,-"Censure, in the time of our author, was generally used (as in this instance,) for judgment, opi- nion."

t See a full copy of the record of the proceedings in this case, in note (XX.) at the end of this volume.

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CHAP. I. opinion the reader may entertain of the equity and justice of the foregoing decision, (which, considering all the circumstances at- 1638. tending the settlement of the colony, seems to bear rather hard upon the catholics,) he will readily acknowledge an impartiality of conduct therein, (perhaps, a sacrifice of personal feeling,) which reflects much honour on the governor and his associates on this occasion. When we compare such proceedings with those of the times of queen Mary, we can scarcely believe, that our colonists were of the same sect of christians as those who ruled in England. The oppressions, however, which their sect had since experienced in that country, had probably by this time taught them a lesson of toleration, which they were now anx- ious, as soon as occasion offered, to exhibit as an example to others. As the puritans, their most inveterate enemy, were now gaining in a rapid manner the ascendancy of power in the coun- cils of the mother country, our colonists, with a prudent policy, cautiously checked even the least sentiment, that might be thought to indicate a wish to revive in this remote wilderness of America the ancient severities of their church.

The nature This judicial exercise of power by the governor and council of the ad- leads us to a short inquiry into the nature of the administration ministra- tion of jus- of justice, as it existed at this early period of time in our infant province. tice in the colony, prior to those legislative arrangements in that respect, which will next in order claim our attention. It will be recol- lected, that by the ordinance, (or commission,) of the lord pro- prietary, bearing date the 15th of April, 1637, before mentioned,* he constituted his brother Leonard Calvert, not only "lieuten- ant-general, admiral, chief captain and commander as well by sea as land of his province of Maryland," but also, "his chan- cellor, chief justice, and chief magistrate within his said pro- vince, until he or his heirs should signify the contrary under his hand and seal; and gave him power also, "to appoint and con- stitute from time to time officers and ministers for the preserva- tion of the peace, administration and execution of justice;" and granted him also "full power and authority to inquire and deter- mine and finally to judge of and upon all causes criminal whatso- ever, (excepting only where the life or member of any person shall or may be inquired of or determined,) and to award execution up- on every such sentence or judgement ; and also to hear and de- termine all civil causes whatsoever, concerning any goods, chat-

* See note (VI.) before refered to, at the end of this volume.

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tels, contracts, debts, demands, or other personal or mixt actions CHAP. I. both in law and equity, in the most summary and equal way that 1638. he may, according to the orders, laws, and statutes of that our said province already made and established or hereafter to be made or established, and in default of such laws established or to be established within our said province, then according to the laws and statutes of the realm of England or as near as he may or can determine thereof; and where the life, member, or free- hold of any person or persons shall happen to come into ques- tion within our said province, we do hereby give and grant to him our said lieutenant and to such persons as we shall from time to time by our letters or any other warrant under our hand and seal nominate and appoint to be of our council within the said province, or to any three of them, whereof our said lieutenant al- ways to be one, full power and authority to inquire and determine thereof according to the laws of our said province established or to be established, and finally to give sentence and judgment thereupon, and to award execution accordingly." By a clause in this ordinance also, immediately preceding the grant of the before mentioned judicial powers to the lieutenant-general, the appointment of a council was thus expressed :- "And for the bet- ter assistance of him our lieutenant in the execution of the pre- mises and of the charge by us committed to him, we have appointed and ordained, and by these presents do appoint and ordain our well beloved Jerome Hawley, esqr., Thomas Cornwaleys, esqr., and John Lewger, gent., to be of our council of and within our said province, with whom our said lieutenant shall from time to time advise, as he shall see cause, upon all occasions concerning the good of our said province, and of the people there."

From this part of the governor's commission, it appears, that he was created sole judge of the supreme court of justice of the province in most cases, either criminal or civil, that could arise within the province; with this exception in civil cases, that where the freehold of any person came in question, he was to call in to his assistance any two at least of his council; and so in like manner in criminal cases where the life or member of any person should come in question. It is probable, however, that the governor, as he was directed by the preceding clause,-"to advise with his council from time to time, as he should see cause, upon all occasions concerning the good of the province," usually called in to his assistance, when holding his court, some of his

HISTORY OF MARYLAND.

CHAP. I. councillors, on other occasions than where he was expressly so 1638. required to do; of which the proceedings in Lewis's case, just before stated, seem to afford an example. As the whole pro- vince, exclusive of the isle of Kent, consisted, at this period of time, only of one county, called St. Mary's county, which, (al- though no actual limits were as yet assigned to it,) had been or- ganized for the purposes of the preservation of the peace by the appointment of justices of the peace and constables of hun- dreds therein, it appears, that the governor and council retained within their jurisdiction, whilst sitting as judges of the supreme court of the province, all the powers and duties which were sub- sequently vested in any one county court. The small number of suits or actions, which could possibly arise in a population of about three hundred persons at the most, seems to justify this reser- vation of power by the governor .* It may here be observed also, that as we do not discover in our records, any commission or act of assembly, made expressly for the erection of the supreme court of the province, subsequently, and perhaps at this time, called "the provincial court," this supreme court, composed of the governor and council, acquired by common usage the appel- lation of "the provincial court,"-possessing original jurisdic- tion in all cases arising within the province, except where the special jurisdiction given to the court on the isle of Kent pre- cluded but an appellate jurisdiction even from that court.

As a small population of Virginians had taken place on the isle of Kent, prior to the arrival of the Maryland colony, who were in time reduced by force to the lord Baltimore's jurisdic- tion, and that territory being at some distance from the seat of government at St. Mary's, it became necessary to make a dis- tinct provision for the administration of justice in that portion of the province. This was done, as we have before seen, by a commission to captain George Evelyn, bearing date the 30th of December, 1637, "giving him power to call a court or courts, and in the said courts to hold pleas in civil cases not exceeding £10 sterling, and jurisdiction in criminal cases over all offences, which may be heard by justices of peace in their sessions in

* In analogy to this it appears, that until the year 1622, the governor and coun- cil in Virginia formed the only court of justice in that province, and all cases and suits were heard and determined by them as judges. Inferior courts in the nature of quarter sessions of England, were first instituted in that province by their assembly of that year, and called county courts. See Beverley's Hist. of Virg. B. I. sect. 45. Keith's Hist. of Virg. p. 136, and Burk's Hist of Virg. vol. 1, p. 223, 231.

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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 45

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