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 48
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* See the record book in the present court of appeals' office .- "Lib, C&WH." p. 63.
t The sections of this act are not numbered in the record, but are so in Ba- con's Collection of the Laws, whose method, for the sake of perspicuity, is here followed.
# See king John's charter in Rapin's Hist. of Eng. (Tindal's edit.) vol. 2, p. 505, and that of Henry the third, in the statutes at large .- It scarcely needs ob- servation that the "Church of England" was, at the times both of making and confirming magna charta, the same as the church of Rome, to which the appella- tion of "Holy Church," was then commonly applied.
§ Barrington's Observations on the ancient statutes, p. 3.
|| The oldest laws now to be found on record in Virginia are drawn up in dis- tinct articles, (on distinct subjects, ) in the manner of this act of Maryland, of 1638, ch. 2. See Burk's Hist. of Virg. vol. 1, p. 279, 280,
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HISTORY OF MARYLAND.
CHAP. II. the " liberties of the English church," insisted upon in magna
1639. charta, "were chiefly its immunities from the papal jurisdic- tion,"* which, in the reign of king John, about the time of the first making of magna charta, had been carried to an unbound- ed extent, and in the reign of Henry the third, when the confir- mation of it took place at Runymede, still existed in great force. It is some proof of the truth of this supposition, that immedi- ately following this clause in magna charta, as it was granted by king John, an explanatory clause is added, relative "to the free- dom of elections, which is reckoned most necessary for the church of England;" which clause is omitted in that of Henry the third .; But, according to the opinion of Lord Coke, it would appear, that this clause was inserted in the magna charta with a view of protecting the church of England, as well from the en- croachments of the monarch and the power of the barons, as from that of the pope. "That the church of England should be free," he explains to mean, "that all ecclesiastical persons within the realm, their possessions, and goods, shall be freed from all unjust exactions and oppressions, but notwithstanding should yield all lawful duties either to the king or to any of his subjects;" and in further explanation of this clause, as to the "rights and liberties" of the church, he pursues the same idea.
But it is observed on this clause in our act of assembly, by a learned annalist of our country ; §-"What the franchises of the church of Maryland were, do not appear; and probably the wisest of her doctors would have been puzzled to tell."-The contemptuous sneer of this remark is, however, not altogether correct. It is certain, that a majority of the colonists of Mary- land were, at the time of this session of assembly, English Ro- man Catholics. They professed themselves to be of the same church as that alluded to in magna charta, to wit, the Roman Catholic Church, which was, at the time of making magna charta, the church of England, as therein expressed. The ex- pression,-" holy church," used in the act of assembly, occurs
* Barrington's Observations on the ancient statutes, p. 6.
't The "freedom of elections" here relates to the election of the dignitaries of 'the church, as archbishops, bishops, &c .; and the insertion of it was most pro- bably occasioned by the then recent dispute with pope Innocent the third on his arbitrary appointment of cardinal Langton as archbishop of Canterbury .- See king John's charter as it is in Tindal's edition of Rapin's Hist. at the end of vol. 2; also 1 Bl. Com. 379.
$ 2 Inst. 2.
§ Chalmers's Annals, p. 213.
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HISTORY OF MARYLAND.
not only in magna charta, but in most of the other charters CHAP. II. prior to it, and indeed is a well known expression commonly ap- 1639. plied to the Church of Rome .* Although the provincial go- vernment of Maryland did, as we have before seen, permit Pro- testants to reside within the province, yet it does not appear, that they had no intention of making the Roman Catholic Church the established church of the province. When we reflect on the original causes of their emigration, on this legislative provision for the benefit of their church, and on a similar one passed in the succeeding year, 1640, we cannot but suppose, that it was the intention of those, in whose hands the government of the province was, (a majority of whom were, without doubt, Catho- lics, as well as much the greater number of the colonists,) to erect a hierarchy, with an ecclesiastical jurisdiction, similar to the ancient Church of England before the reformation, and to invest it with "all its rights, liberties, and immunities." It is probable, however, that they felt themselves checked in carrying these intentions into execution by the reflection of their being still under the superintending dominion of the Protestant heirar- chy of the mother country, and therefore they permitted heretics to become colonists among them ; though it does not appear that these heretics or Protestants enjoyed any other immunity than a mere toleration of residence and a security in the pro- tection of their persons and property. { If then, as we may fair- ly presume, it was the intention of the lord proprietary, as well as the ruling persons of his colony, to engraft the Roman Catho- lic Church into the constitution of the provincial government, as the established hierarchy of the state, "the rights, liberties, and immunities of holy church would have immediately sprung up in luxuriant abundance; nay, indeed, those of the present re- formed church of England, though far short of what they were prior to the reformation, are not of an inconsiderable number. Lord Coke, in his comments on this clause of magna charta, after the following observation, mentions some of them ;- "And true it is, that ecclesiastical persons have more and greater liber- ties than other of the king's subjects, wherein to set down all
* The words-Sancta Ecclesia, or "holy church," occur in the charters of Henry the first, king Stephen, Henry the second, king John, and Henry the third. See these charters at the end of the second volume of Tindal's edition of Rapin's Hist. of England.
t The proclamation before alluded to, to prevent disputes between Protestants and Papists, most probably went no further than protection.
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HISTORY OF MARYLAND.
CHAP. II. would take up a whole volume of itself, and to set down no ex- 1639. ample agreeth not with the office of an expositor." He then mentions the privileges of clergymen in being exempted from serving in any temporal office,-from serving in militia,-from paying tolls and customs, average, pontage, paviage, and the like, and their goods were privileged from the king's distresses, or from purvey ance-at that time a grievous burthen. It cannot be denied, that, if this religious establishment had taken place, most, if not all, of these "liberties and immunities" would have appertained to the Maryland church. It would probably also have been endowed with large portions of real property, when an observation of lord Coke on this subject would again occur ;- " great were sometimes their rights, for they had the third part of the possessions of the realm .*
An oath of allegiance jesty pre- scribed.
Sect. "(2.) All inhabitants shall take an oath of allegiance
to his ma- to his majesty."
This act, however, did not prescribe the form or terms of the oath so directed to be taken; as may, indeed, be inferred from the expression-"an oath of allegiance,"-leaving the form of such oath to be prescribed by some other act of the legislature. This omission can be accounted for only upon the supposition, that the bills before mentioned, "twice read, and engrossed, but not passed," were nevertheless considered as directory to, if not obligatory upon, the inhabitants of the province; and, therefore, that the bill, entitled "an act for swearing allegiance,''f which prescribed the form and terms of an oath of allegiance, should be the oath to be taken under this clause of the act of assembly. It will be recollected, that the oath of allegiance prescribed by the statute of 3 Jac. 1, ch. 4, was the English oath of allegiance in force at the time of lord Baltimore's visit to Virginia, when it was there tendered to him, and which he refused agreeably to the general resolution entered into by all. the English Roman Catholics, under the positive commands of the pope. As our colonists of Maryland professed to be sub- jects of the king of Great Britain, it was necessary, that some oath of allegiance should be adjusted, so as that conscientious Roman Catholics might take it without hesitation. We find, accordingly, a bill among those passed at the preceding session of assembly, the second held in the province, as before men-
* 2 Inst. 3.
t See the title of this bill, inserted as No. 2, among the thirty-six bills of this session, enumerated in Bacon's Collection of the Laws.
L
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HISTORY OF MARYLAND.
tioned, in the year 1637, (1638, N. S.) entitled, "a bill for CHAP. II. swearing allegiance to our sovereign, &c."* But as no records 1639. of these bills are now to be found, we are unable to ascertain its contents. The bill first above mentioned, however, of the next and present session, of which we are now treating, is still upon record, and, as it appears to have been acted under, in virtue of the reference to some oath unascertained by this act of 1638, ch. 2, but ascertained by the bill, and as it exhibits the political state of the colony, in relation to the English crown, it may with propriety be here inserted.t
Many parts of this bill, and much of the form of the oath prescribed by it, seem to have been copied from the statute of 3 Jac. They both prescribe the oath to "any person of the age of eighteen years or above," and the oaths are verbally the same as far as the words-"dominions and countries." The form prescribed by the statute then requires a negation of the power of the pope to depose the king, or to intermeddle in the affairs of the kingdom, which that of the bill omits. A most impor- tant variance; and which seems to have constituted the great stumbling block of the English Roman Catholics of those times. Also, the expression in the bill,-"lawful successors," which is not in the clause analogous to it in the statute, wears the appear- ance, as if our provincial legislature meant here to leave room for future equivocation on the lawful succession to the crown. Possibly they thought, that, if the pope should object to the de- cent of the crown in any future case, as he did to that of Eliza- beth, it would not have been considered by the papists as a lawful succession .- Another material variance appears between the two oaths ;- in the statute, it is expressed,-"against his or their persons, their crown and dignity ;" in the bill, the word "persons"-is omitted. So that if the dictates of their reli- gion prescribed an assassination of the king, the person of the king was not secured by the oath prescribed by our legislature.
To corroborate the suggestion we have made, that this bill, entitled, "an act for swearing allegiance," as well as the rest of the bills of this session, mentioned to have been read twice and engrossed, but never read a third time, were nevertheless consi- dered as laws of the province, and acted under as such, it may be proper to mention, that at a court holden at St. Mary's on
* See the title of this bill among those of that session, enumerated in Bacon's Laws, as No. 21.
t See note (XXII.) at the end of this volume.
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HISTORY OF MARYLAND.
CHAP. II. the 20th of March, 1638-9, which was the next day after this
1639. present assembly rose, the oath of allegiance, as prescribed in the foregoing bill, was taken by the governor and council, and so expressly referred to in the record .*
Sec. " (3.) The lord proprietary shall have all his rights and prerogatives."
The rights and prero- gatives of the lord proprieta- ry secured.
Among the bills before mentioned, "engrossed but not pass- ed," is one, entitled, "an act for maintaining the lord proprieta- ry's title to the lands of this province."-We may suppose, that his "title to these lands" would naturally be included under the denomination of "his rights," secured to him by this act. It will be recollected, that both the right and title of the lord Balti- more to the lands of this province, or to a considerable portion of them, had been disputed by William Clayborne and those who claimed under him ; which claim of his was founded, not only on his royal license to trade with the Indians, but also, as he alleged in his petition, before stated, on his purchase of these lands, at least of the isle of Kent, from the Indian kings. It is possible, that others also were now imitating Clayborne's conduct, and pretended by such purchases to acquire titles to lands within the limits of the province independent of the lord Baltimore. It would appear also, from the tenor of this bill, just above mentioned, that the Maryland government were ap- prehensive or had received information, that purchases of lands, within the limits of the province, had been lately made of the subjects of a "foreign prince or state," most probably either the Swedes or Dutch, whose subjects were now busy in forming set- tlements on the west side of the Delaware river. As lord Bal- timore's grant included, as he contended, (and perhaps justly, ) the whole of the peninsula between the Delaware and the Chesa- peake, from the capes of the former to the mouth of the Schuyl- kill, it was natural for his agents in Maryland to be jealous of these encroachments by the Swedes and Dutch on the lands of his province.
It was, therefore, enacted by this bill, "for maintaining the the lord proprietary's title," &c., that-"No subject of his ma- jesty's the king of England, or of any other foreign prince or
* The following entry is in the book, entitled,-"Council Proceedings from 1636 to 1657," p. 40-" Then the governor authorized the secretary to adminis- ter to him the oath of allegiance as it is recorded in the bill of the last assembly, entitled, "an act for swearing allegiance;" Then the governor administered the same oath to all the council."
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as tra
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HISTORY OF MARYLAND.
state shall obtain, procure, or accept of any land within this CHAP. II. province from any foreign prince or state, or from any person" 1639. whatsoever, (the natives owners of the land excepted,) other than from the lord proprietary or his heirs or some person claim- ing under him or them .- Neither shall he obtain, procure, or accept of any land within this province from any Indian to his own or the use of any other than of "the lord proprietary or his heirs, nor shall hold or possess any land within this pro- vince by virtue of such grant, upon pain that every person of- fending to the contrary hereof shall forfeit and lose to the lord proprietary and his heirs all such lands so accepted or held with- out grant of the lord proprietary or under him."*
Under this branch of this act of 1638-9, also may be noticed another of the bills of this session, entitled, "an act for trade with the Indians;" inasmuch as it seems to have particular rela- tion to the "rights and prerogatives" of the lord proprietary. It would seem, that those who claimed under Clayborne, per- haps Virginians as well as some of the inhabitants of the isle of Kent, had never relinquished the practice of carrying on an illicit trade with the Indians resident within the limits of the province of Maryland. The waters of the Chesapeake, naviga- ble in so many branches of rivers and creeks intersecting the province in every direction, formed, without doubt, from its great convenience for the purpose, a considerable temptation to this. illegal traffic with the natives. It appears to have been a source of uneasiness to lord Baltimore's government from the first set- tlement of the province to the period of time of which we are now treating. The governor and council had accordingly at various times endeavoured to check this illicit trade by ordinan- ces and proclamations for the purpose. But it was, probably, now thought, that it would be more consonant to the liberties of the freemen of the province, to interpose the less exceptionable power of the legislature in prescribing some check to the pro- ceedings. A bill was, therefore, introduced into the house of assembly on the third day of its session, (March 1st,) "for trade with the Indians;" but, according to the journal, it was "rejected upon reading the first clause, by all except the cap- tain, the president, and the secretary."t For what reason this
* Lib. C. and WH. p. 3.
t It has been before observed, that whenever the words,-"the captain" oc- cur on our first records, they were meant to designate captain Cornwaleys.
VOL. II .- 15
1
.
1
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HISTORY OF MARYLAND.
CHAP. II. bill was now rejected, it does not appear. However, notwith- 1639. standing the rejection of the bill, the governor, probably incens- ed at some present existing abuses and insolencies to the go- vernment of that nature, thought it proper to exert his preroga- tive, without the aid of the assembly, in suppressing this illegal traffic, and accordingly in a few days after the rejection of the bill, during the session, issued his warrant or commission for arresting all persons with their vessels and goods, trading with- out license with any Indians within the province .* Also, on the next day after issuing this warrant, to wit, on the seventh of March, another bill with the same title was introduced in the house; but as the bill was about to be read, a member objected against it, as being a bill before rejected .- "The secretary re- plied, that it was a new bill, though with the former title, and that the house could not judge, whether it were to be read again, or no, before they heard it read. The gentleman objected, that it was against form and order. The secretary replied, that the order spoke of "utterly rejecting a bill,"t but this was not "utterly rejected" by the house, in regard divers assented to it, and therefore it could not be put to the house to vote the pass- ing of it till the third reading; and accordingly, with the con- sent of the house, the secretary proceeded to read it as the first time of reading. The gentleman interrupted, and desired first to read some propositions to the house touching the bill ; but it was adjudged, that the bill should first be read, and then he might object what he pleased. So the bill was read."}
It must be confessed, that the secretary's reasoning here does not appear quite satisfactory. It can hardly be supposed, that the words-"utterly rejected,"-were meant as being synony- mous to "unanimously rejected;" for, according to parliamenta- ry usage, then as well as at this day, a majority of voices always decided at any reading of a bill; and, as it seems, if the oppo- sition succeeds at either of the readings, the bill must be drop- ped for that session.§ The first reason assigned by the secreta- ry seems, however, to have more weight in it than his construc-
"The president" was governor Leonard Calvert, and "the secretary" Mr. John Lewger.
* See this warrant or commission in note (XXIII.) at the end of this volume. t See this rule of the house stated before, p. 104.
# See the journal of this session in the record book in the council chamber, entitled, "Assembly Proceedings from 1637 to 1658," from p. 35 to p. 53. § See 1 Bl. Com. 182.
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HISTORY OF MARYLAND.
tion of the rule. If the second proposed bill differed in sub- CHAP. II. stance from the former rejected bill, though having the same ti- 1639. tle, it could not be the same bill as the one before rejected, and therefore not within the rule of rejection. This seems to be im- plied from a parliamentary rule in England, which has been adopted in America .- "A bill once rejected, another of the same substance cannot be brought in again the same session."* But if the second bill is not of the same substance, the inference is, that it may be brought in again the same session, although it have the same title. Also, if the law be, that the title of a statute is no part of the statute,t it would be immaterial, whether the title of the second bill was the same as that of the former, or not, provided the body of the bill differed in substance from that of the former.
The secretary, however, succeeded; for, on the next day, the eighth of March, the same bill was read a second time and en- grossed for a third reading. As this bill throws considerable light on the contested title of the lord proprietary to his province, and moreover is illustrative of some historical facts of this period of time, the reader will find it among the documents at the end of this volume .¿
It was probably in furtherance of this bill, that a new com- mission, nearly similar to the preceding one to John Harrington, was made out on the eleventh of March, (two days after this bill was ordered to be engrossed,) to two persons, (to wit, "Cuthbert Fenwick, gent. and John Hollis, mariner,") authorising them to search and seize all vessels, &c., so illicitly trading with the In- dians of the province.§
Sect. "(4.) The inhabitants shall have all their rights and The rights liberties according to the great charter of England."
and liber- ties of the
Among the bills agreed to at the former session of 1637, (O. S.) people se- was one entitled, "A bill for the liberties of the people." It is cured. probable that the bill at this present session, among the thirty- six bills before mentioned,) entitled, "An act for the liberties of the people," was a copy of that bill introduced at the preceding session. As the latter bill is still extant upon record, the sub- stance of it may be here stated as explanatory of the fourth sec- tion of the act just above recited.
* Jefferson's Manual, sect. 43; who cites Hakeor, 158. 6 Grey, 392.
+ 2 Bac. Abr. tit. Statute, (I.) pl. 10.
# See note (XXIV. ) at the end of this volume.
§ "Council Proceedings from 1636 to 1657," p. 38.
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HISTORY OF MARYLAND.
CHAP. II. " Be it enacted by the lord proprietarie of this province, of 1639. and with the advice and approbation of the freemen of the same, that all the inhabitants of this province being christians, (slaves excepted,)* shall have and enjoy all such rights, liberties, immu- nities, privileges and free customs, within this province, as any natural born subject of England hath, or ought to have or enjoy in the realm of England, by force or virtue of the common law or statute law of England, saving in such cases as the same are or may be altered or changed by the laws and ordinances of this province; and shall not be imprisoned or disseized or dispos- sessed of their freehold, goods or chattels, or be outlawed, exiled, or otherwise destroyed, forejudged, or punished, than ac- cording to the laws of this province: saving to the lord proprie- tary and his heirs all his rights and prerogatives by reason of his domination and seigniory over this province, and the people of the same."t
This bill appears to have been intended, not only as a recog- nition of the extent of the common and statute law of England to this province, but also as a specification of those particular clauses of magna charta by which the "rights and liberties" of the inhabitants were to be secured to them. But the act, more properly perhaps, by a general clause, recognizes the whole of such parts of magna charta as relate to the "rights and liberties" of the people.
It must be observed, that these legislative proceedings throw great light on the political relations, which, in the estimation of our earliest colonists, subsisted between the province and the mother country. We may here trace the sources of that enthu-
+ * Chalmers, in his annals, (p. 214,) thus remarks on this bill .- "Slavery seems to have rooted in Maryland with the original emigration : because an act of this assembly describes "the people," to consist of all christian inhabitants, "slaves only excepted." A probable reason for this may be added; that, as Maryland borrowed most of its provincial institutions from Virginia, slavery was amongst the first of those introduced from thence, where it had without doubt existed from the time of the first importation of negroes into that colony in the year 1620, or 1619, as we have before stated. If the slaves, alluded to in the above bill, were negroes, as they most probably were, the above exception seems to countenance the idea, subsequently taken up, that making a negro a christian, by baptizing him, was emancipating him; against which idea an act of assembly, (1715, ch. 44) in force at this day, very gravely provides. The illiberality also of this bill, in confining the enjoyment of "English rights and liberties" to christians only, ought not to pass unnoticed. Neither a Jew nor an infidel of any kind were con- sidered as being entitled to any "rights or liberties." But, strange to tell ! this marrow-minded policy subsists in the free State of Maryland to this day.
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