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 46
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HISTORY OF MARYLAND.
England, not extending to life or member."* In a little more CHAP. I. than a month afterwards, however, on the 9th of February, 1637, 1638. (1638, N. S.) we perceive the commission to certain gentlemen, as before mentioned, "to be justices of peace within the said island, to hold a court-leet in all civil actions not exceeding 1200 lbs. tobacco, and to hear and determine all offences crimi- nal within the said island, which may be determined by any jus- tice of the peace in England, not extending to the loss of life or member."{ But it appears, that subsequently, towards the latter end of the year 1638, this commission for a court-leet on the isle of Kent was superseded by the following commission, vesting both the civil and criminal jurisdiction of the island in the commander thereof. This last mentioned commission was issued on the 22d of April, 1638, to William Brainth wayte, ap- pointing him "commander of the isle of Kent in all matters of warfare by sea and land necessary to the resistance of the enemy or suppression of mutinies and insolencies ;} and, in all matters civil and criminal to use and exercise all or any jurisdiction and authority for the administration of justice and conservation of our peace within the said island as any justice of peace in En- gland may or ought to use and exercise by virtue of his com- mission for the peace, and further (as there shall be cause,) to hold a court or courts, and in the said courts to award process, hold pleas, and to hear and finally determine all actions and causes whatsoever civil happening and arising between any the inhabitants of the said island not exceeding in damages or de- mands to the value of one thousand weight of tobacco, as also to hear and finally determine all misdemeanors and offences what- soever criminal happening or committed within the said island, and to award execution thereupon, so that the said crimes extend- ed not to the questioning of any one for his life or member, and all matters and causes whatsoever aforesaid to hear and deter- mine in the most summary or equal way that he may§ according
* See this commission stated more at large before, in p. 43, 44.
t See before, p. 39, note .- Immediately following this commission, as it is on our records, there is subjoined the following note :- "Commission of sheriff and coroner of the same island to John Langford, ut supra."
į This commission omits the clause, which was in that to captain Evelyn of the 30th of December, 1637,-" authorising him to elect and choose six of the inhabitants of Kent for his council."-Perhaps for reasons which will appear in the next commission to Mr. Brainthwayte, it was supposed by the governor, that a greater latitude of trust might be reposed in him than in Evelyn.
§ This expression-"summary or equal way," (which is also in the commis- sion to the governor, of the 15th of April, 1637, just before cited,) seems to have VOL. II .- 12
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HISTORY OF MARYLAND.
CHAP. I. to the laws of this province* established or to be established, 1638. (after publication thereof in the said island,) and in default there- of then according to the laws of Englandt as near as he shall be able to judge; and further to elect and appoint all necessary officers for the execution of justice and of the authority hereby committed unto him, with allowance of such reasonable fees as are usually belonging to such officers."
Notwithstanding the establishment of these judiciary tri- bunals on the isle of Kent, yet it evidently appears, from the limitation of their powers, that the court of St. Mary's, compos- ed of the governor and council, by virtue of the before mention- ed ordinance, would be considered as the supreme court of the province, and might properly be called "the provincial court," (as it afterwards was,) retaining original jurisdiction in all civil cases arising even on the isle of Kent, (that island "being of right a member of the province," as the before mentioned com- mission to Evelyn expresses it,) which should exceed 1000 lbs. tobacco, and in all criminal cases arising there also, where the punishment of the crime might extend to life or member ; and, as we may presume, an appellate jurisdiction in all civil cases cognizable in the court of the isle of Kent. But, for some rea- sons not expressed in the records, this appellate jurisdiction seems to have been taken away by a subsequent commission to William Brainthwayte, bearing date the 21st of December, 1638, confirming the powers before granted to him, and further ampli- fying and enlarging them,¿ and moreover giving to him this
authorised summary proceedings, (contrary to the common law, ) to be used in the courts of justice. It is certain, that in some of the county courts, on their first establishment, (particularly in Talbot county court, among its first proceedings between the years 1663 and 1670,) it was the practice for a plaintiff in a civil case for debt to proceed in the first instance by way of petition and subpæna, in- stead of a writ and declaration.
* This expression, wherever it occurs in our records almost invariably means, acts of assembly of this province, in contradistinction to the common and statute laws of England, which, strictly speaking, were [also laws of this province, ex- cept perhaps in criminal cases extending to the loss of life or member.
t This proviso-"in default of the laws of the province, then according to the laws of England,"-pervades most of the early judicial commissions of the pro- vince, introduced most probably in pursuance of the seventh section of the charter, which concludes-"so nevertheless, that the laws aforesaid," (to wit, the acts of assembly,) "be consonant to reason, and be not repugnant or contra- ry, but (so far as conveniently may be,) agreeable to the laws, statutes, customs, and rights of this our kingdom of England."
¿ In this second commission it is expressed, by way of preamble,-"Whereas by our commission, &c. we did appoint our dear kinsman, William Brainthwayte,
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HISTORY OF MARYLAND.'
second commission-"full power and authority by a precept CHAP. I. under his hand to summon or warn any person being within our 1638. said island to answer to any matter or suit, civil or criminal, and to hear and determine all suits of debts of what value or demand soever the same shall be, and if any person shall be convicted of any debt either to ourself* or any other by the confession and acknowledgment of the party himself, or by the verdict of such as shall try the matter, to avoid execution for all such several sums by a precept under the hand of the said William Brainth- wayte, which precept, we do hereby appoint, shall be a sufficient warrant to the sheriff of our island to levy the said several sums contained in the precept of execution either by distress and sale of the goods of the party against whom the execution shall be awarded, or otherwise by imprisonment of his person as the said precept shall direct."}
A few remarks may be here added, in particular reference to the administration of justice in St. Mary's. Although Mr. Lewger was one of the council, as well as secretary of the pro- vince, yet for the further organization of the county of St. Mary's, the governor, early in the year 1638, (January 24th, 1637, old style,) issued a commission, wherein he appointed 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;" and in the same commission ap- pointed him also-"commissioner in causes testamentary to prove the last wills and testaments of persons deceased, and to grant letters of administration." It is probable, that the bill entitled, "a bill for the probate of wills," passed at the session of assembly before mentioned, begun and held on the 25th of January, 1637, (1638, N. S.) the day after the date of the above commission, was intended to make further provision relative to the above mentioned office of commissioner, (or commissary) "in causes testamentary." It would appear, however, that the governor and council, subsequently to the commission, acted as
gentleman, to be commander, &c."-From whence, supposing him to be a near relation of lord Baltimore, we may infer, that the almost unlimited power, about to be vested in him by this commission, was more readily granted, and it will probably account also for the omission of appointing a council for him as was done in that to captain Evelyn, as before mentioned.
* That is, of debts to the lord proprietary, in whose name the commission runs.
t See these two last mentioned commissions to William Brainthwayte, in the "Council Proceedings from 1636 to 1657," pp. 32 and 33.
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HISTORY OF MARYLAND.
CHAP. I. an ecclesiastical court, by granting letters testamentary on last
1638. wills in several cases ;* but it is possible, that Mr. Lewger's commission might be intended to create him only a ministerial officer, as a deputy-commissary was, prior to our revolution, while the judicial cognizance of testamentary causes, in contro- verted cases, might still remain in the highest tribunal, -- the governor and council.
These appear to be the first proceedings, now extant on our records, in the regular arrangement of courts and officers for the administration of justice in those two distinct parts of the pro- vince, which had been as yet settled by Europeans. The pau- city of inhabitants, and consequently of suits or actions at law, will possibly reconcile, what at first appearance strikes us at this day as too large a monopoly or reservation of judicial power in the hands of the chief executive magistrate. But, in justice to the memory of those, in whom the supreme power of the province, both executive and judicial, had been hitherto vested, from the first landing of the colony in March, 1634, to the close of the year 1638, a period of almost five years, it ought to be remarked, that it would be difficult to find on our records a single instance of an arbitrary or wanton exercise of such power on either the persons or property of any one individual.
* See, in the "Council Proceedings, from 1637 to 1644,"-Letters testamentary on the last will and testament of Mr. John Saunders, granted by the court, (the governor and council, ) to Thomas Cornwaleys, esq. on the 12th February, 1637, (1638, N. S.) and in another instance on William Smith's estate. This appears to be the same court as that before which the bills of indictment were found against William Clayborne and Thomas Smith, and which is there called a county court, held before the lieutenant-general, captain Robert Wintour, and Mr. John Lewger. A Mr. Jerome Hawley appears to have been a man held in high estimation in the province, at its first settlement, having been always the first named of the council; it may be proper here to mention his death, which happened about midsummer in the year 1638. In the same record-book, just mentioned, there is a memorandum made of the granting administration on Mr. Jerome Hawley's estate to captain Cornwaleys, August 2d, 1638. From which book it also appears, that he left a widow, but no children.
CHAPTER II.
Lord Baltimore assents to the right of the assembly to originate laws-An assembly of the province called-Their proceedings-The constitutional act for establishing the house of assembly-The house sit as a court of justice, and ad- judge several cases civil and criminal-The general act, ordaining certain laws for the government, to wit, for securing the rights of holy church-for prescrib- ing an oath of allegiance to his majesty-for securing the rights and prerogatives of the lord proprietary-for securing the rights and liberties of the people-for the better administration of justice and conservation of the peace-Some parti- cular laws for the punishment of crimes-as for treasons, felonies, and enormous offences-Laws for erecting courts of justice-A court of admiralty-County courts-Court of chancery-A pretorial court-The authority and jurisdiction of justices of peace-the particular offences under their cognizance-Inferior executive officers-The administration of justice in the isle of Kent more par- ticularly regulated-Oaths of office prescribed-Officers for the probate of wills and granting administration-Military discipline-Payment of officers' fees and public charges provided for-Derelict property, directions concerning it-A short insolvent law-The planting of tobacco and Indian corn regulated- Weights and measures-Customs or duties on the exportation of tobacco-The constitution of the general assembly more specially provided for-The dura- tion of commissions in case of the death of the lord proprietary-A water mill and a town house the building of them directed-Other bills of this session not recognised in the general act, as-the act for descending of lands-for assuring of titles to land-for enrolling of grants-Also, for peopling of the province, and for limiting the times of servants.
Although it was not expressly prescribed by the charter of CHAP. II. Maryland, that the colonists under it should be entitled after 1639. their emigration to the benefits and protection of the common law of England, or that that system of jurisprudence should be the code by which they were to be governed, yet the clauses at the end of the seventh and eighth sections of that instrument of grant seem to imply strong inferences, that such colonists should be so entitled, or were to be so governed. Indeed, the com- mon law principle, that the English laws were the birth right of every English subject, necessarily drew the inference,-" that such colonists would carry with them so much of the English law, as was applicable to their own situation and the condition of an infant colony."* This seems to have been the practical construction of the charter in the colony of Maryland from the time of its first emigration to the declaration of its independence.
* 1 Bl. Com. 107.
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HISTORY OF MARYLAND.
CHAP. II. Hence, therefore, in the "declaration of rights" prefixed to their 1639. new constitution, after that event, they declared-" That the in- habitants of Maryland are entitled to the "common law of Eng- land, and to the benefit of such of the English statutes as existed at the time of their first emigration."
Agreeably to these principles it will appear from the events detailed in the foregoing chapter, that, notwithstanding the dis- assent of the lord proprietary to the laws enacted by the two preceding provincial assemblies, and the rejection also, by the last assembly, of the laws framed and sent in by the lord pro- prietary himself, and notwithstanding some doubt seems to have been expressed by some of the members of the last assembly with respect to the adoption of the laws of England for their government, yet the whole of their proceedings, both legisla- tive and judicial, were evidently predicated and founded upon the English system of jurisprudence. But it will be obvious, upon the least reflection, that the situation of this infant colony in Maryland necessarily demanded many local regulations, pe- culiarly adapted to their own circumstances, and not provided for by the municipal code of the mother country .- The lord proprietary, it seems, saw this in its proper point of view; and, with a noble generosity, which does lasting honour to his memo- ry, overlooked the indignity offered to him by the rejection of the laws proposed by him, and yielded to the freemen of the province themselves, the right of propounding the laws to be enacted. For this purpose the following letter, (or commission,) was sent by him from England to his brother the governor.
Lord Bal- "DEAR BROTHER,-I do hereby give you full power and au- timore as- thority from time to time in every general assembly summoned sents to the right of by you in the province of Maryland, in my name to give assent unto such laws as you shall think fit and necessary for the good government of the said province of Maryland, and which shall be consented unto and approved of by the freemen of that pro- vince or the major part of them, or their deputies assembled by you there from time to time for the enacting of laws within that province; Provided that the said laws, so to be assented unto, be, as near as conveniently may be, agreeable and not contrary to the laws of England; every which law, so to be assented unto by you in my name, and consented unto and approved of by the freemen aforesaid, I do hereby declare shall be in force within the said province, till I or my heirs shall signify mine or
the assem- bly to ori- ginate laws.
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HISTORY OF MARYLAND.
their disassent thereto, under the great seal of the said province, CHAP. II. and no longer, unless, after the transmission thereof unto us, and 1639. due consideration had thereupon, I or my heirs shall think fit to confirm the same. Given under my hand and seal at London in the realm of England, the 21st of August, 1638.
C. BALTIMORE .*
To my dear brother Mr. LEONARD CALVERT esq. my lieutenant general of the province of Maryland."
Although this letter does not in express words conceded to every member of the assembly a right of propounding any law, which he may deem proper to be passed by the house, yet the expres- sions therein, which authorise the governor "to give assent unto such laws as he should think fit and necessary," strongly imply, that laws might be proposed in the house by other persons than the governor himself. It is probable, indeed, that the practice was, during many of the first sessions of assembly next after the first settlement of the colony, for the secretary of the province, who appears to have been always a member of the house, to make draughts of and bring in, all such bills, as should be thought "fit and necessary," he being, perhaps, the best lawyer and most capable of such a task. It is evident, however, from the practice of the last session before mentioned, where bills had been brought into the house by a committee specially appointed for that purpose, as we have before seen, that the members of the house were fully aware of this their right; and might occa- sionally have exercised it, although it does not appear upon the journal of the next session, that any such committee was during that session appointed.
The constitutional principles, therefore, acceded to by the lord proprietary and established by this letter, seem to have been, that the freemen in assembly met might originate and pass "such laws as they should think fit and necessary for the good govern- ment of the said province," subject to the assent or disassent of the governor in the name of the lord proprietary, and subject also to the constitutional proviso of the charter, " that the said laws be, as near as conveniently may be, agreeable and not con- trary to the laws of England ;" but at the same time if the lord proprietary should subsequently disassent to any such laws, that they should then cease to be considered as laws, and no longer binding on the inhabinants of the province; that is, that laws
¥ See " Assembly Proceedings from 1637 to 1658," p. 36.
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HISTORY OF MARYLAND.
CHAP. II. passed by the house of assembly and receiving the governor's 1639. assent should be deemed and acted under as laws, until the lord proprietary signified his disassent thereto.
However inconvenient it might be, that the lord proprietary, when resident at so great a distance from his province, should reserve to himself a final negative upon the laws proposed to be passed, yet it will be acknowledged, that the right hereby ac- quired by the freemen of the province of originating such laws for themselves, as they should think fit, was a most important corner-stone in the foundation of their provincial liberties. This judicious concession of lord Cecilius might well be considered as an earnest of those repeated acts of generosity, which sub- sequently acquired to him the appellation of-"the father of his province." Fortunate had it been, indeed, for his sovereign, could he have copied from his noble subject so excellent an ex- ample of prudent caution in yielding in time even what he deemed to be his just right and prerogative; and fortunate also, we may say, would it have been, if not for Americans at least for the English nation, had the present monarch of that throne exercised equal wisdom and moderation in retracting in due sea- son measures manifestly obnoxious to his American people.
In pursuance of the foregoing authority from the lord pro- prietary, and under the influence of the urgent necessity of the measure, the governor immediately formed the resolution of call- ing an assembly of the province. As the isle of Kent was the most distant part of the province then inhabited, it became ne- cessary to give a more early intimation thereof to the inhabit- ants there settled. The governor accordingly issued his writ to the commander of that island for the purpose of causing "deputies or burgesses" to be chosen to represent that district. But, as the proceedings in relation to and during the holding of this assembly about to be convened, exhibit the establishment of constitutional principles, which pervaded the provincial form of government during its existence, it is deemed to be proper to insert them here more in detail than would otherwise be neces- sary or admissible. The documents appertaining thereto could not be condensed by abridgment into much less space, than they originally occupy. The writ of election to the isle of Kent is as follows :
" After my hearty commendations, &c., Whereas I have ap- pointed to hold a general assembly at St. Mary's, on the 12th
An assem- bly of the province called.
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day of February next, there to advise and consult upon the CHAP. II. enacting of laws and other serious affairs of the province, These are therefore to will and require you, at some convenient time, 1639. when you shall think fit, after the receipt of these letters, to as- semble at Kent-fort* all the freemen inhabiting within the isle of Kent, and then and there to propose to the said freemen to choose from amongst themselves two or more discreet honest men to be their deputies or burgesses during the next assembly according to the form of an instrument which I herewith send unto you, to which instrument all the said freemen are to set their hands, and if they agree not in the election, then you are to return upon the instrument the names of such two or more persons upon whom the major part of the freemen so assembled shall consent, and you shall require the freemen so assembled to agree upon a certain contribution for the defraying of the charges which such burgesses shall sustain by the repairing to the as- sembly, and together with them you shall return hither the in- strument of their election, signed as is appointed aforesaid; for so doing this shall be your warrant .- Given at St. Mary's, this. 21st December, 1638.
To my loving kinsman, WILLIAM BRAINTHWAYTE."
Although the rules of the common law of England were evi- dently adopted as the principles which were to direct the pro- ceedings of the provincial government, whether legislative or judicial, and by that law the writs of summons to parliament ought properly to be directed to the sheriffs of the shires or counties, who, in case of a city or borough within his county, delivers his precept for that purpose to the proper officer of such city or borough, yet inasmuch as the province was not yet divided into counties, although the district encircling the city of St. Mary's was so denominated, and consisted of several hun- dreds, as legal divisions thereof, it was deemed by the executive proper, that the elections for members of the assembly should be held in and for the several and respective hundreds, as well as
* From the description of the manor of Kent-fort, granted to Giles Brent, Sep- tember 7th, 1640, this fort must have been situated on that part of Kent island which borders on what is called the Eastern bay, and, as the manor was located so as to comprehend the neck of land commonly called Kent point, and to con- tain a thousand acres, the fort, being parcel thereof, was most probably situated on the first navigable creek lying on the left hand in ascending the Eastern bay after passing Kent point ; and most of the first settlements on that island, were probably made adjacent or near to that fort.
VOL. II .- 13
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CHAP. II. in the anomalous district of the isle of Kent. This measure was 1639. probably suggested, partly by the paucity of the population of the country, and partly by the ease and convenience of the in- habitants. As the isle of Kent differed from any other part of the province then inhabited, in having a deputy of the governor, under the denomination of a commander, to preside over it, the writ of election for that district was necessarily directed to him. But the writs of election, which issued to the several and respec- tive hundreds of the province, which were adjacent to the city of St. Mary's, were directed to some of the principal inhabitants, therein named, of each hundred. That for the hundred of Mat- tapanient is here inserted at large by way of exemplification of the others.
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