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 47
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"Cecilius, lord proprietary, &c. to our trusty Richard Garnett, senior, Richard Lusthead, Anum Benum, Henry Bishop, Joseph Edlo, Lewis Freeman, and any other the freemen inhabiting at Mattapanient, greeting,-Whereas we have appointed to hold a general assembly of the freemen of our province at our fort of St. Mary's, on the five and twentieth day of this instant month of February, these are, therefore, to will and require you, that to- morrow or on Thursday next at the furthest, between one and two of the clock in the afternoon you and every one of you be at our secretary's house at St. John's, there to make such nomi- nation and election of your burgesses for that manor or division of Mattapanient* for the next assembly, as you shall think fit: hereof fail not at your peril. Given at St. Mary's, this 11th of February, 1638."
The like summonses were issued to each of the other hun- dreds, ( singula singulis,) and directed to some of the principal inhabitants thereof in like manner.+
To these several summonses regular returns in writing were
* Although the division or election district of Mattapanient is here spoken of as a manor and not a hundred, yet in the return, as will be presently seen, it is called "the hundred of Mattapanient."
t The only writ of summons, which is recorded at large in the record, is that to Mattapanient, as above .- The rest are shortly noted, as,-" The like summons to all the freemen of St. Michael's hundred to meet the secretary at St. Inigoe's house on Monday the 18th of February.
"The like summons to all the freemen of St. Mary's hundred to be at the secretary's house on Tuesday the 19th of February.
" The like summons to all the freemen of St. George's hundred to meet the secretary at the house where captain Fleete lately dwelt, on Thursday the 21st of February."
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HISTORY OF MARYLAND.
made by the secretary, (Mr. Lewger,) before whom the elections CHAP. II. were to be held, as may be perceived from the tenor of the writs 1639. of summons. The return from Mattapanient hundred is as follows :
"14th February, 1638 .- Mem'd that this day came before me,* Richard Garnett, senior, Richard Lusthead, Anum Benum, Henry Bishop, Joseph Edlo, Lewis Freeman, and Robert Wise- man, and chose for the burgess of the hundred of Mattapanient, Henry Bishop, and have given unto him full and free power for them and for every of them to be present in their names at the next assembly as their burgess or deputy, and in witness thereof have hereunto set their hands."
The like returns, (nearly totidem verbis,) were made for each of the other hundreds, to wit, St. Mary's, St. Michael's, and St. George's ; except, that in the returns for these three last men- tioned hundreds, the delegated power was somewhat more fully expressed, as for instance, after the words-"burgess or deputy," as above, was inserted-"and there to do and conclude in their names as a burgess may or ought to do."
To these returns the names of the several persons therein men- tioned appear to have been subscribed, such returns being some- what in the nature of a warrant or power of attorney. It is re- markable, however, that although the above returns for Matta- panient is signed by seven persons, yet only one, to wit, Robert Wiseman, could write his name, the rest affixing their marks thereto ; and out of fifteen names subscribed to that of St. Mary's, seven of them made their marks. This gross deficiency in literature among our colonists is not, however, to be imputed to their colonial state. These persons, for the most part, were born and bred in England, and had left their country after the common period of acquiring literary attainments. It was the defect of the age in which they lived. Although the art of printing had tended much to diffuse literature among even the lowest classes of people in Europe, yet the fanaticism and super- stition of religion had on all occasions conjointly thrown impedi- ments in the way of the progress of learning.
The return from the isle of Kent was as follows :-
"Know all men by these presents, both present and to come, that we the freemen of the isle of Kent, whose names are here-
* It would appear that the secretary sat as judge of the elections, and there- fore the return states, that the electors came " before him."
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CHAP. II. unto written, have elected and chosen our loving friend Nicholas
1639. Brown, planter, to be our burgess or deputy, during the next general assembly at St. Mary's, summoned to begin on the 25th of February next, in our names to assent to all and only such things as our burgess shall think fit, thereby giving as free and full consent unto all laws and matters whatsoever, which within the said assembly shall be agreed and concluded of, as if we ourselves in person had consented thereunto .- In witness where- of, &c." -- Signed by twenty-four signatures .*
The like return, in the same words, and signed by the same persons, was separately made for Christopher Thomas, as the other burgess for the isle of Kent.
Besides writs of election so issued, and burgesses thereupon so returned elected, writs of summons were also issued to indi- vidual persons to appear and take their seats as members of the assembly in their own personal rights, somewhat in the manner of calling a commoner to the house of lords, (in England,) and promoting him to a peerage. It may be perceived from the pro- ceedings of the last session, that every freeman of the province was considered as being entitled, in his own personal right, to a seat in the assembly. Hence it appeared to have been no ex- traordinary stretch of prerogative in the lord proprietary or his lieutenant general, to call "by special writ" any gentleman "of able judgment and quality"} to be a member of the house of assembly, besides, those elected by the people as their represen- tatives. Although it does not appear from the records, yet it may be inferred, that such persons, so specially summoned by writ, did not give their votes in the election of burgesses or de- puties, but retained ther personal and individual right to a seat and a voice in the house, and might therefore with legal proprie- ty be called to the assembly as members thereof. This appears to have been done in pursuance of a plan already arranged for
* Supposing these signatures to have been the names of all the male heads of families, then on the isle of Kent, as they most probably were, it would afford a tolerable datum, from which might be inferred the aggregate white population of that island at this period of time. Accounting five to a family, the usual com- putation, the population would amount to one hundred and twenty souls.
t The word "quality" here used was a word in common use in these times, as signifying men of the first rank in society under the degree of nobility, and synonimous to gentry. It is particularly so used by lord Clarenden, (in his Hist. of the Rebellion, p. 58, 108, fol. edit. ) when speaking of the long parliament, in 1640, in removing from the house "many gentlemen" (members) "of good quality."
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HISTORY OF MARYLAND.
new modelling the provincial constitution or form of government, CHAP. II. and partially carried into execution during the session now about 1639. to be held, as will presently be seen. The form of the special writ for that purpose was as follows :-
"Cecilius, lord proprietary, &c. to our dear friend and coun- cillor Thomas Cornwaleys, Esq. greeting, whereas we have ap- pointed to hold a general assembly of the freemen of our pro- vince, at our fort of St. Mary's, on the 25th day of February next, we do therefore hereby will and require you, that all ex- cuses and delays set apart, you repair in person to the said as- sembly at the time and place prefixed, there to advise and con- sult with us touching the important affairs of our province .- Given at St. Mary's, the 18th of January, 1638."
The like writs were issued severally to "Mr. Giles Brent, councillor, Mr. Fulk Brent, Mr. Thomas Greene, and Mr. John Boteler, gentlemen."
Accordingly, on the day appointed, (on Monday the 25th of Their pro- February, 1638,-1639, N. S.) the assembly met, at the Fort ceedings. of St. Mary's, when were present,-The lieutenant-general, Capt. Thomas Cornwaleys, Mr. Fulk Brent, Mr. Giles Brent, Mr. Secretary (Lewger,) Mr. Thomas Greene, and the following "delegates," viz. Mr. Gerard and Mr. Gray, for St. Mary's hun- dred, Mr. Wickliff and Mr. Revell for St. George's, Mr. Can- ther and Mr. Price for St. Michael's, Mr. Bishop for Mattapa- nient, and Mr. Thomas and Mr. Browne for the isle of Kent.
It appears, that immediately after their assembling, "they re- moved the assembly to be held at St. John's," which was pro- bably the mansion house of the manor of St. John's, near the town of St. Mary's, reserved for the use of the lord Baltimore or his lieutenant general.
The members being reassembled, and the governor and coun- cil, together with the gentlemen specially summoned, having taken their seats with the burgesses or delegates, the lord pro- prietary's letter, herein before inserted, was read.
The first business, which appears to have been transacted in The con- the house, (after reading the foregoing letter,) even prior to the stitutional formation of rules and orders, was the passing an act entitled, tablishing "an act for establishing the house of assembly, and the laws to of assem- the house be made therein ;"-which was done " by the general consent of bly. all the freemen and of the lieutenant general for the lord proprie- tary."-The substance of this act was, that "the several persons
act for es-
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HISTORY OF MARYLAND.
CHAP II. elected and returned, (pursuant to the writs issued,) shall be 1639. called burgesses, and supply the place of all the freemen con- senting to such election, in the same manner and to all the same intents and purposes, as the burgesses in any borough in Eng- land, in the parliament of England, use to supply the place of the inhabitants of their respective boroughs. And that the gentlemen summoned by his lordship's special writ, to each of them direct- ed, the said burgesses, and such other freemen who have not con- sented to any of the elections as aforesaid, as shall be at any time assembled, or any twelve or more of them, (whereof the lieuten- ant general and secretary to be always two) shall be called the house of assembly. And all acts, &c. assented unto and approv- ed by the said house, or major part thereof, and afterwards assent- ed unto by the lieutenant general, in the name of the lord pro- prietary, shall be adjudged and established for laws, to the same force, &c. as if his lordship and all the freemen of this province were personally present and did assent, &c."*
This act was manifestly framed prior to the meeting of the assembly, and, as its utility was evident to all, so it passed by unanimous consent. Although the intention of it was, to give some permanent form to the mode of exercising the legislative powers of the government, yet from the circumstance of its be- ing the very first business of the house on assembling, as well as from its general tenor, it seems to have been intended also to act upon the proceedings of the present session, and not merely as a rule in futuro for succeeding legislatures. In confirmation of this supposition we find more explicit regulations on this sub- ject in the next act, and in several bills, of this session. The charter had given to the lord proprietary "free, full and absolute power to ordain, make and enact laws, of and with the advice, assent, and approbation of the freemen of the province, or of the greater part of them, or of their delegates or deputies, whom we will shall be called together for the framing of laws, when, and as often as need shall require, by the aforesaid now baron of Baltimore and his heirs, and in the form which shall seem best to him or them."-From which it appears, that, although the form
* See the title of this act and the substance thereof stated in Bacon's laws, under 1638, ch. 1. From a minute in the journals, sec "Assembly Proceedings from 1637 to 1658," p. 129,) it appears that this act received the governor's assent on the 25th of February, (the first day of the session, ) and "was published under the great seal the 12th of March, 1638,"-1639, N. S .- See the act at large, as it is in the records, in note (XXI.) at the end of this volume.
,
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or mode of calling or convening the assembly was left discretion- CHAP. II. ary with the lord proprietary, yet the laws to be enacted must 1639. have the assent of a majority of all the freemen collected indi- vidually together, or of their delegates. But it is probable, that the population of the province had now increased so as to ren- der it inconvenient for all the freemen to be present at an assem- bly. Hence, therefore, the act provided that delegates or depu- ties should supply the place of such freemen as could not attend, and that such delegates should be called burgesses, to the same intents and purposes as burgesses in the parliament of England," intending thereby, that the legislative branch of their govern- ment should be in close analogy to that of the parent country .* But notwithstanding this intention of moulding the legislative branch of the government into the representative form, yet the assembly appear to have proceeded in a cautious manner in de- priving each individual freeman of what might be called his na- tural right, (though derivative also under the charter,) of assent- ing in person to all the laws, which were to be obligatory on him. They, therefore, provided, that "gentlemen summoned by his lordship's special writ, and such other freemen, who have not consented to any of the elections," should retain their right to a seat in the house. According to this provision, the first entry on the journal, next succeeding the passage of this law, is the fol- lowing :- " Cuthbert Fenwick claimed a voice, as not assenting to the election of St. Mary's burgesses, and was admitted. Ro- bert Clarke, similiter," --- in like manner. It seems to have been intended also by the last clause in this act to give some stability to the claim of the freemen of the province, in assembly met, of originating such laws as they should think fit,-a claim hereto- fore disputed by the lord proprietary, as before stated, but now apparently surrendered according to the terms of his letter just read to the house; and the expressions of the act moreover seem to imply, that the assent of the lieutenant general should bind the lord proprietary so as to take away the final negative of the latter to any laws, which might be passed in the assembly.
* As the Maryland colony borrowed many of its institutions, both civil and political, from her elder sister Virginia, the term burgesses might have been adopted in Maryland, in imitation of the like term in Virginia. At the time of the first assembly ever held in Virginia, [1619,] "the colony had been divided only into seven hundreds, or distinct settlements, which seem to have enjoyed some of the privileges of boroughs : And from this circumstance the democratic branch of the assembly has been called to this day, the house of burgesses." Chalmers's Annals, p. 43.
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HISTORY OF MARYLAND.
CHAP. II. But, as the final negative is expressly reserved in his lordship's 1639. letter just read, and one of the bills of this session, "engrossed but not passed," entitled, "an act, what persons shall be called to every general assembly," has a special provision, in which his lordship's disassent is expressly reserved to him, this construc- tion of the act could not be made .*
The house of assembly, having thus digested, as it were, a form of government for the province, proceeded next to frame rules and orders for the regulation of the house in their legisla- tive proceedings. These rules were nearly the same as those adopted at the last session and before recited, except in one regulation relative to the mode of passing laws, which is as fol- lows :
"After any bill hath been once read in the house, the bill shall be read [again two several times, and then]t engrossed, or ut- terly rejected ; and upon any day or days appointed for a ses- sion, all bills engrossed shall be put to the question, and such as are assented to by the greater part of the house, (and if the votes be equal, that shall be judged the greater part, which hath the consent of the lieutenant general,) shall be undersigned by the secretary in these words,-the freemen have assented; and after that, the president shall be demanded his assent in the name of
* It is not improbable, that this prerogative of the lord proprietary, of his final assent or disassent to such laws as might be enacted by the assembly, even with the assent of his lieutenant general, was retained by him in imitation of the like principle in the form of government prescribed to Virginia in the year 1619, un- der an instrument for that purpose granted and sent to that colony from the trea- surer and company in England, who were the proprietaries at that time of that colony. By that instrument, (under which sat the first general assembly ever held in that province,) it was provided,-" That no law or ordinance, though approved of by all the three members of the legislature, was to be in force, un- til it was ratified in England by a general court of the company, and returned under its seal ; and on the contrary, that no order of the general court should bind the colony till assented to by the assembly." Chalmers's Annals, p. 54, who cites the Appendix to Stith's Hist. of Virg. See also Robertson's Hist. of Amer. vol. 4, p. 211; and Burk's Hist. of Virg. vol. 1, p. 204. The lord Baltimore might rationally suppose, that he had as much right to a final assent or disassent to the laws of his colony, as the Virginia company had to theirs. This duplicate negative, first in the liuetenant governor, and secondly in the king, has always existed in most of the British colonial governments immediately un- der the crown ; and in a palatinate government, as that of Maryland, the lord proprietary would succeed to the prerogative of the king .- See Edwards's Hist. of the West Ind. B. vi. ch. 2.
t The space occupied by the words included within the brackets as above, is blank in the record ; but I have ventured to fill it up to complete the sense of it, as I have supposed it to be,
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the lord proprietary, and if his assent be to the bill, the bill shall CHAP. II. be undersigned by the said secretary in these words,-the lord 1639. proprietary willeth, that this be a law."*
Another slight variance between the rules of the present ses- sion and the last was in the exercise of their compulsory power in obliging their members to a more punctual attendance; the principle of which might, perhaps, with propriety be adopted by modern legislative bodies .- "If any gentleman or burgess doth not appear upon call, at such time as the president is set at or · after either of the said hours," (before appointed,) "he shall be amerced 20 lb. of tobacco, to be forthwith paid to the use of the house."t
The remainder of this first day of the session appears to have been principally occupied in reading for the first time several bills apparently calculated for the better regulation of the affairs of the province. The house then adjourned until Thursday the 28th of February, thereby leaving an intervention of two days, probably with a view of giving time for the preparation of other bills.
On the day appointed, (Thursday, 28th of February,) the house met, and, after several other bills were read, they proceed- ed to the exercise of their judicial powers, in hearing two several causes, one a civil case for debt, and the other a criminal one. The following entry on the journal relates to the first. "Then was heard a cause between Richard Loe and Reinold Fleete, and was adjudged by the major part, that the defendant should pay the plaintiff 30 lb. of beaver for his whole demand."} The other, a criminal case, seems to be of such importance as to demand some notice; inasmuch as it has been said to have been acted on by the house on the same principle of necessity as in the case of
* Thus in England the royal assent is given in these words,-"Le Roy le veut, the king wills it."
t Agreeably to this rule two entries appear on the journal, thus,-"The cap- tain," (Cornwaleys,) "amerced 20lb. tobacco for tardie." Mr. Giles Brent and Mr. Greene also .- Although a statute was made in the reign of Richard the se- cond, [5 Rich. 2, ch. 4,] to compel the attendance of members of parliament, yet it is plain, from the expressions of the statute, that it was declaratory of the common law. " If any person summoned to parliament, do absent himself, he shall be amerced, and otherwise punished according as of old times hath been used to be done within the said realm in the said case."-4 Inst. 43.
# Another civil cause was heard and determined by the assembly on a subse- quent day, between captain Cornwaleys and Thomas Morris on a contract for rent.
VOL. II .- 14
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HISTORY OF MARYLAND.
CHAP. II. Thomas Smith in the last session .* It is thus mentioned in the 1639. journal. "The sheriff was warned," (in the morning,) "to bring into the court in the afternoon the body of John Richard- son, and to warn William Brough to give in evidence. In the afternoon ;- then was called John Richardson, and charged with flight and carrying away of goods unlawfully from his master, and found guilty by the whole house, and adjudged by the house to be whipped three several times." This sentence, however, did not pass unanimously. Mr. Greene voted for him "to be hanged." Mr. Giles Brent and Mr. Fulk Brent-" to be whip- ped very severely." "The captain," (by whom was meant cap- tain Cornwaleys, and who is often distinguished in the early part of the records of the province by that appellation, ) voted for him "to be whipped, provided that he was sorrowful for his fault." "The President," (governor Calvert,) "to be laid in irons, and whip- ped three several times severely." Which last opinion seems to have prevailed, according to the terms of the sentence as above.
Although many bills were brought forward at this session with an intention of providing in a distinct and separate manner for the various exigencies of the province; yet it appears, that these bills did not receive the final assent of the house, and were never completely enacted into laws.t What causes operated to prevent the final passage of these bills, we are no where informn- ed, nor is it easy to substitute any conjecture of them. On the last day of the session, however, a law was finally passed, which seems to have been intended to comprehend the substance of most of these bills, which had been thus introduced into the house, but not finally passed. The title of the act was suffi- ciently comprehensive for that purpose, being entitled, "An act ordaining certain laws for the government of this province," which act, by a comparison with these bills, evidently appears to have been intended as an abridgment of them. The title of this act also, indicates that the "laws" to be "ordained" were these bills, most of which are but amplifications of the several different sections of the act.
* See the "Memorandum" in Bacon's laws at the end of his list of the bills of this session ; 1638, ch. 2.
t The following entry, relative to these bills, appears on the journal of the house ;- "Memorandum, That these bills were ingrossed to be read the third time, but were never read nor passed the house. John Lewger."-After which, in the same record book, follow all the thirty-six bills at large.
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HISTORY OF MARYLAND.
The caption of the act, 1638, ch. ii., passed 19th of March, CHAP. II. 1638, (O. S.) according to the record of it,* is as follows: 1639.
"At a session of general assembly at St. Maries, on the 19th The gene- ral act "for of March, 1638, to the honour of God and the welfare of this province was enacted as followeth :
ordaining certain laws for
"An act ordaining certain laws for the government of this pro- the go- vince.
vernment of the pro-
"For the better government of this province, be it enacted and vince," ordained by the lord proprietarie of the same, of and with the stated, advice, assent and approbation of all the freemen and burgesses ments assembled in this present assembly in manner and form following:
with com-
thereon.
"Sect. (1.)} Holy church within this province shall have all First, for her rights and liberties."
securing the rights
church.
Among the bills just mentioned, introduced into the house at of the this session, was a very short one, entitled, "An act for church liberties," and was expressed nearly in the following words,- "Holy church within this province shall have all her rights, lib- erties and immunities, safe, whole and inviolable in all things." The foregoing clause or first section of this act seems, therefore, evidently to have been intended only as an abridgment or rather an enactment of the bill. They were both, most probably, in- tended also as copies of the first clause in the statute of magna charta, to wit,-" That the Church of England shall be free, and enjoy her whole rights and liberties inviolable." Indeed, the whole of this act of assembly, (1638-9, ch. 2,) as to its form, bears considerable resemblance to magna charta, the former con- sisting of distinct sections or paragraphs, as the latter of distinct chapters, relative to distinct and unconnected subjects. Magna charta has been denominated a "collection of statutes;"§ in like manner this act of assembly may be said to be a collection of most of the bills before mentioned. || It has been supposed, that
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