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 49
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t "Lib. C and W H," p. 2.
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siasm, which so strongly manifested itself in succeeding times, CHAP. II. whenever the American colonists apprehended only, that these 1639. "rights and liberties," which they claimed as secured to them "by the great charter of England," were in any manner endan- gered. It might justly, therefore, excite surprise that so learned a lawyer as Sir Thomas Trevor, the attorney-general in the reign of William the third, should express doubts, "whether the great charter had ever been extended to Maryland, or whether it was proper to allow the people there the various privileges contained in it."* If it be true, as alleged by lord Coke, that "magna charta was, for the most part, declaratory of the principal grounds of the fundamental laws of England;"f and if the position be correct, that "our colonists brought with them so much of the English law as was applicable to their situation and condition;"} it must necessarily follow, that such parts of magna charta as were applicable to the situation and condition of the colonists of Maryland extended to that province; but, could a doubt possi- bly arise as to its actual extent, revolutionary events must have long since convinced every thinking Englishman, that "it was always proper to allow the people there the various privileges contained in it."
Sect. (5 and 6.) The two next clauses of this act of 1638-9, The admi- ch. 2, seem to have been intended to make further regulation of of justice nistration the judiciary department of the government and of the adminis- regulated. tration of justice. They will, therefore, be considered here in conjoint view.
"(5.) The lieutenant general (within the province) and the commander of the isle of Kent, (within that island,) except ap- peal be made from him, and the council of the province in causes wherein the lieutenant general is plaintiff, shall cause right and justice to be done in all causes civil according to the laws or laudable usages of this province, or otherwise according to the laws or laudable usages of England in the same or the like cases, as near as he or they shall be able to judge. And shall try all such causes, and use, command, &c., all power and means ne- cessary and conducing thereunto. And the said lieutenant-ge- neral and commander shall take an oath to administer equal jus- tice to all persons, without favour or malice of any one.
"(6.) The lieutenant general, or any one of the council (with-
* Chalmers's Annals, p. 214.
+ 2 Inst. proem .- 1 BI. Com. 127.
#1 Bl. Com. 107.
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CHAP. II. in the province,) and commander of Kent (within that island,) 1639. shall use, &c., all power and means necessary to the apprehend- ing of felons, or keeping of the peace. And the lieutenant-gene- ral and council shall and may try and censure all offenders with any punishments as they shall think the offence to deserve; ex- cept that in crimes extending to life or member, the offender shall shall be first indicted, and afterwards tried by twelve free- men at the least. And the commander of Kent (within that island,) shall and may try and censure all offenders within that island, with such corporal shame or correction (not extending to life or member,) as he shall think the offence to deserve. And every councillor shall take oath to defend and maintain the rights and prerogatives of the lord proprietary in all things, and to as- sist the execution of justice without favour or malice of any one, and to do all other things as becomes a councillor to do."
It does not appear, that any material alterations in the mode of distributing justice, were made by these clauses of this act from what had been before adopted under the executive authority of the government through the means of the commissions before stated; but they seem to have been rather intended as a legisla- tive confirmation of those previous arrangements. The question which occurred at the last session of the legislature, relative to the extent of the laws of England within the province, seems to have been here ascertained and settled. In civil cases, "right and justice was to be done according to the laws or laudable usages of this province, or otherwise according to the laws or laudable usages of England in the same or the like cases." The laws or laudable usages of this province must have meant the acts of assembly and the practice of the courts of the province; in de- fault of these the common law of England; which was nothing more, indeed, than confirming by act of assembly the directions in the commissions before stated. The exception in the fifth section, in cases of appeal from the commander of Kent, pre- supposes an appellate jurisdiction in the provincial court at St. Mary's held before the lieutenant general, as we have before mentioned.
A variance appears in the powers of the lieutenant general in civil and criminal cases. In the former, he seems to be consti- tuted sole judge of the supreme provincial court. But, as by his last commission from the lord proprietary, of the 15th of April, 1637, before mentioned, he was directed "to advise from
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time to time" with his council, "as he shall see cause upon all CHAP. II. occasions," some of the members of the council seem generally 1639. to have sat as associates with him, constituting, as we have be- fore mentioned, what subsequently obtained the name of the "provincial court." In criminal cases, however, it seems to have been very properly considered, that, to vest in the hands of any one man a power and jurisdiction over the persons of the inhabitants of the province, would be too dangerous for the peace and happiness of the community. It was, therefore, spe- cially and expressly provided by this act of assembly, that "the lieutenant general and council were to have jurisdiction over "all offenders ;" in which respect, there seems to be some variance between the commission of the 15th of April, 1637, and this act; for, the commission seemed to authorize the lieutenant general solely to take cognizance, of all criminal cases, except where the life or member of a person was involved in the pun- ishment ; but this act seems to be express in requiring the coun- cil to be a part of the court in every criminal case, whether it extend to life or member, or not. It is true, that the commis- sion authorized the governor to call in the assistance of his coun- cil " upon all occasions, as he should see cause," and it is pro- bable, he so did, even in minor criminal cases, where he was not expressly so directed by his commission. It was more proper, however, that an express legislative provision should be made for the purpose. But it is observable, that the commander of the isle of Kent, having no council, was invested with a sole jurisdiction over all offences, short of a punishment affecting life or member.
It may be remarked, that the expressions,-"with any punish- ments as they shall think the offence to deserve,"-gave, per- haps, too great a latitude to be vested in any tribunal. But this, we may suppose to mean that legal discretion spoken of by lawyers, under the maxim,-discernere per legem quod sit jus- tum; and would then amount only to that discretion, which the common law reposes in the judges of all its criminal courts, in respect to fines and corporal punishments. A stronger objection seems to arise to that part of the act, where it appears to au- thorize a summary mode of trial in inferior cases of criminal jurisdiction, without the intervention of either a grand or petit jury, by providing specially, by way of exception, that such pro- ceedings shall be had "in crimes extending to life or member."",
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CHAP II. On the principle, that exceptio probat regulam, we are to infer 1639. that the trial by jury was not deemed a matter of right in minor criminal cases.
Another defect appears in this act of legislature, with regard to the subject matter upon which this criminal jurisdiction thus erected was to act. In crimes not extending to life or member, the common law was without doubt to be their guide; but by the commission of the 15th of April, 1637, where the life or member of any person came in question, they were to determine "according to the laws of the province," which expression, as before observed, meant-acts of assembly. But the legislature had provided no acts of assembly in cases of crimes punishable with the loss of life or member, and, if such crimes should be committed, recourse could not be had to the common law of England, for such, it seems, had been their construction of his lordship's commission, that it prohibited them from the punish- ment of crimes affecting life or member without the authority of "laws of the province." From this a strong inference arises that the number of bills brought forward at this session, for the punishment of capital as well as other offences, were supposed and intended as the "laws ordained" by force of the general act, to supply the silence of that act relative to crimes generally, and particularly as to those affecting life or member. We shall, therefore, proceed to a consideration of some of the most promi- nent and important of these bills.
According to the gradation in the scale of crimes, the first that attracts our notice is the bill, entitled, "an act for treasons;" by which the following offences were to be adjudged treasons within this province. "To compass or conspire the death of his majestie the king of England, or the queen his wife, or of his son and heir; or to levy war against his majesty, or to counter- feit the king's great or privy seal, or his coin; or to join or adhere to any foreign prince or state, being a professed enemy of his majesty, in any practice or attempt against his said majes- ty: or, to compass, conspire, or cause the death of the lord pro- prietary within this province, or of his lieutenant general for the time being, (in absence of his lordship,) or to join, adhere, or confederate with any Indians, or any foreign prince or governor to the invading of this province, or disheriting the lord proprie- tary of his seigniory and dominion therein. All offences of trea- son to be punished by drawing, hanging, and quartering of a
Some par- ticular laws for the pun- ishment of crimes .- First, for that of treason.
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man, and burning of a woman; the offender's blood to be cor- CHAP. II. rupted, and to forfeit all his lands, tenements, goods, &c., to his 1639. lordship. But punishment of death to be inflicted on a lord of a manor by beheading."*
The only new treasons, different from the statute of 25 Edw. 3, introduced by this bill were, that which consisted in compas- sing the death of the lord proprietary during his residence with- in the province, and those enumerated in the subsequent part of the bill. It must be acknowledged, that to confederate with or ad- here to Indians or any foreign prince or governor for the purpose of invading the province, as well merited the punishment of treason, as an invasion of the mother country. The punishment of death by beheading, prescribed by this bill also, in favour of lords of manors, seems to be some proof among several other circumstances, which appear on the records, that the institution of an order of nobility was contemplated by the lord proprietary for many years after the first emigration of the colony ; to the creation of which he was authorised by the fourteenth section of his charter.
Another bill also, entitled, "an act for felonies," was proposed For felo -. at this session ; by which the following offences were to be ad- nies. judged felonies, punishable with death.t "Homicide ;- blood- shed, committed by assault upon the person of the lieutenant general ;- to shed the blood of any judge sitting in court ;- burglary, robbery, polygamy,¿ sacrilege, sorcery, petit treason, sodomy, and rape."-It was also made "felony within this pro- vince to commit idolatry, which is" (as defined by the bill, ) "the worshipping of a false God;"-or to commit "blasphemy, which is a cursed or wicked speaking of God ;"-or to commit "perjury, which is false witness against another's life ; - or "to sell, give, or deliver to any Indian, or to any other declared or professed enemy of the province, any gun, pistol, powder, or shot without the knowledge or license of the lieutenant general, or to
* Lib. C. and WH. p. 45.
t As the next bill, immediately following this, entitled, "an act allowing book to certain felonies," was evidently framed for the purpose of ascertaining what felonies or crimes should be entitled to the benefit of clergy, and therefore not capital or punishable with death, it is clear, that this first mentioned bill, enti- tled, "an act for felonies," was made to take away clergy from the crimes there- in specified, and make them capital, that is punishable with death without the benefit of clergy, or "allowing book" to them.
# See note (XXV.) at the end of this volume.
VOL. II .- 16
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CHAP. II. teach any Indian or other declared enemy of the province the 1639. use of the said arms or the making thereof.
"The offender in any of these felonies to suffer pains of death by hanging, forfeit to the lord proprietary all the land in the pro- vince whereof he was seized at the time of the offence commit- ted, (saving to the widow her dower, and to the heir his or her inheritance, if claims be made thereof within three years after judgment given,) and all his goods and chattels whereof he was possessed at the time of his conviction.
"Provided, that in petit treason the punishment of death shall be inflicted by drawing and hanging of a man, and by burning of a woman ;- and in sorcery, blasphemy, and idolatry by burn- ing."'
"Accessaries before the fact to be punished as the principals."*
It must be acknowledged, that this part of the penal code here prepared for our infant colony was a bloody and severe one indeed. The punishments annexed to some of the offences therein described seem to have been exaggerated beyond what they even then were in England. Sorcery or witchcraft was then punishable in England under the statute of 1 Jac. 1, ch. 12, by which the offender was "to suffer the pains of death as a fe- lon without benefit of clergy," that is, by hanging. It is to be observed, that prior to the reformation in England, sorcery was considered as synonimous to a species of heresy ; and therefore came under the conusance of ecclesiastical judges, upon whose sentence the writ de heretico comburendo issued ;} so that the punishment of this offence under the catholic government, prior to the reformation, was burning. But, at the commencement of the reformation, in the reign of Henry the eighth, when it was in many instances thought proper to transfer judicial power from the ecclesiastical to the lay judges, this offence was (by the statute of 33 Hen. 8, ch. 8,) made felony without benefit of cler- gy, and consequently cognizable in the temporal courts, and pun- ishable by hanging. The fluctuating state of the reformed re- ligion, at its first commencement in England, caused this statute, together with others relative to new made felonies and treasons to be repealed by several successive statutes in the subsequent reigns ; and the subject thus rested, until that propensity to met- aphysical disquisitions, blended with religious weakness, so cha-
* Lib. C. and WH. p. 46.
+ 3 Inst. 44.
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racteristic of the mind of king James, as also perhaps of the age CHAP. II. in which he reigned, permitted the imaginary offence of witch- 1639. craft to be again cognizable by the temporal tribunals, and made felony without benefit of clergy by the statute of 1 Jac. before mentioned. It might have been supposed, that the colonists of Maryland would have considered this statute as extending to them, it being certainly as applicable to their local situation on this side of the Atlantic as on the other, as the bloody records of the Massachusetts colony too horribly attest. We are to infer therefore, that the colonists of Maryland, in thus changing the punishment of the offence of sorcery from hanging to burning, meant to preserve the ancient mode of punishing this offence heretofore pursued by "holy church." Filled with this senti- ment the minds of our first catholic colonial legislators would naturally be induced to consider blasphemy and idolatry also in a similar point of view. The "worshiping of a false God," or "a cursed or wicked speaking of him," would in their under- standing of those offences merit the same fate. It is somewhat singular, however, that the accusations of their reformed fellow- subjects in England did not make our catholic colonists more delicate on the subject of idolatry. The protestant iconoclasts had long been in the habit of considering even the genuflexions of the catholics before the images and pictures of the son and the virgin, as gross idolatry .- The definition of blasphemy also left too much latitude to the malicious or prejudiced minds of the judge or the jury. The protestants of Maryland, however, when they subsequently came to legislate upon this last mention- ed offence do not appear to have been much improved in their ideas of humanity. 'The boring of the tongue and the branding of the forehead is a punishment but a little less horrible to a mind of sensibility than the terrors of death .*
The next bill, entitled, "an act allowing book to certain felo- nies," seems to have been intended as a third chapter of their penal code. By this bill the following offences were to be adjudged felonies, but within the benefit of clergy.
* See the act of 1723, ch. 16; which never was expressly repealed. The 33d section of the declaration of rights, prefixed to the constitution of Maryland is supposed to have repealed it. But if it has, it is by a very obscure and remote implication, and to aid such a construction it requires, that the judge be a man of liberal ideas on religious subjects. There are abundant grounds in it for a bigot or a fanatic to hesitate in such a construction.
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CHAP. II.
1639.
"Manslaughter ;*- malicious trespasses, as to burn or destroy wilfully a house, or stack of corn, or tobacco,-or to cut out another's tongue, and the like mischief done to another out of pure malice ;- forgery, which is the wilful embezling or corrupting of a record ;- mere contempts with force, as to assault or beat the lieutenant general of the province, or to assault or beat any judge sitting in court,f or witness or juror in presence of the court ;- accessaries to felony after the felony committed, which is the receiving, hiding, or rescuing of a felon, knowing him to be one, (except it be the felon's wife ;) or the receiving stolen goods, knowing them to be stolen ;} stealth of one's self, which is the unlawful departure of a servant out of service or out of the co- lony without the privity or consent of the master or mistress. §
" Offender to suffer pains of death by hanging, except the offender can read clerk-like, and then he shall lose his hand, or be burned in the hand or forehead with a hot iron, and forfeit his lands at the time of the offence committed; (saving to the widow her dower, and to the heirs his or her inheritance, if claims be made thereof within three years after judgment given,) and all his goods and chattles whereof he was possessed at the time of his conviction."-The second offence made capital. |
The reader will feel considerable indignation in recollecting, that such had been the abominable influence of the Romish clergy over most of the nations of Europe, that they had arro- gated and maintained to themselves an exemption from any punishment annexed to the commission of crimes, but such as
* We perceive here considerable inaccuracy in the mode of legislation in these times. Manslaughter was undoubtedly included under the offence of homicide mentioned in the former bill. It may be supposed, therefore, that by the term homicide in the former bill murder was meant.
t This seems to explain and limit the description of the offence mentioned in the preceding bill,-" in sheding the blood of the lieutenant general or any judge sitting in court," so as that the former bill should have relation only to attempts to murder.
# This did not, at the common law, make a man an accessary after the fact, unless he also received the thief; nor does it appear clearly from the words of the bill, as above, that it intended to make the receiver of stolen goods an acces- sary, but liable only to the same punishment subsequently prescribed.
§ It must be acknowledged, that this is a singular description of the offence of a runaway servant. A servant here meant must have been those commonly call- ed indented servants, imported at the expense of the master by payment of his passage, &c. on condition of serving him so many years. A passage in the Di- gest, of the Roman civil law, relative to fugitive slaves, seems however to war- rant this mode of expression .- Servus fugitivus sui furtum facere intelligitur .- See Puffendorf Law of Nat. B. vi. ch. 3d, sect. 7.
|| Lib. C. and WH. p. 47,
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their own ecclesiastical tribunals thought fit to impose. This CHAP. II. privilege, originally annexed to their order by the ancient church, 1639. was not abrogated in England by the reformation. It had so interwoven itself with the common law of the realm, that a total abolition of even so odious an exemption became almost impos- sible. Hence, therefore, the extraordinary test, of a title of such privilege,-legit .aut non legit? Can he read or not ?- which illiterate christians, in the middle ages of their era, had deemed a sure criterion of such title, -- was still used and practised at the time of the first settlement of Maryland, and, strange indeed to tell, continued to the commencement of the eighteenth century. It was no slight slur upon the aristocracy of the English realm, at the commencement of the reformation, that they, however, had sufficient influence to procure to themselves an exemption from this absurd test, by causing it to be inserted in the statute of 1 Edw. 6, ch. 12, that any peer of the realm should be enti- tled to the benefit of the clergy, "without any burning in the hand, though he cannot read;" thus confessing a shameful destitution of literary qualifications and at the same time evading the pun- ishment of burning in the hand, which the temporal courts had contrived to exact from laymen, in order to designate such as should be guilty a second time of the same offence, to which a higher punishment was sometimes annexed. It was not till about the year 1707, that the statute of 5 Ann. ch. 6, was enact- ed, which finally abolished altogether this ridiculous test of a right to claim what was called, the benefit of clergy.
It may be further observable on the penal clause of this bill, that the alternative punishment on granting the benefit of clergy, in causing the offender, either "to lose his hand or be burned in the hand or forehead with a hot iron," was intended to be so construed, as that "the loss of the hand" shall be annexed to those offences before enumerated in the body of the bill, to which by the common law or former English statutes such pun- ishment was before annexed, as for instance, in the case of "assaulting or beating any judge, sitting in court ;"* and the "burning in the hand or forehead," to be applied to such other offences therein enumerated, to which such punishment had been
* By the common law at this day the assaulting a judge sitting in one of the courts of Westminster Hall, even by drawing a weapon, without any blow struck, is punishable with the loss of the right hand. 3 Inst. 140 .- 4 Bl. Com. 125 .- It is questionable, however, whether the humanity of the age would not now re- quire a royal pardon of this part of the punishment.
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CHAP. II. usually applied in England .- The rule of construction,-red- 1639. dendo singula singulis, a rule of grammar as well as law, seems to authorise it in this case.
The next bill, entitled, "an act determining enormous* of- fences," seems to have been intended as a completion of their criminal code, cognizable in their courts of justice, by an enu- meration of such offences, as those which either the common law did not provide against, or which the legislature desired more particularly to designate as objects of the common law ju- risdiction, under the rank of offences denominated-misdemean- ors. It is remarkable, however, that no punishment whatever is specified in the bill to any offence therein described. It was, most probably, intended by such omission to leave the punish- ment of the offences therein enumerated, to the legal discretion of the court, as misdemeanors commonly are in England. A peculiarity, which pervades the criminal code of our provincial legislature at this session, will have occurred, without doubt, to the reader, in observing a short definition annexed to every of- fence after its specific denomination. Such definitions in some instances, however, appear to have been intended rather as a limitation to the extent of the offence denominated, than as a general definition of it, as in the crimes of perjury and forgery mentioned in the two preceding bills, as well as in this against "enormous offences."t-It will be observed also, that conside- rable anxiety is manifested in this bill, to bolster up the lord proprietary's authority against any usurpation or assumption of power not derived from him, within his province; and the mak- ing the disobedience of his ordinances and proclamations pun- ishable in his courts of justice, as a misdemeanor, would go far to establish them as of equal validity and obligation to legisla- tive acts .- The interposition of the legislature, in holding out protection to the Indians from injuries to their persons or goods, deserves approbation.
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