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 50
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53 | Part 54 | Part 55 | Part 56 | Part 57 | Part 58 | Part 59 | Part 60 | Part 61 | Part 62 | Part 63 | Part 64 | Part 65 | Part 66 | Part 67 | Part 68 | Part 69 | Part 70 | Part 71 | Part 72 | Part 73 | Part 74 | Part 75 | Part 76 | Part 77 | Part 78 | Part 79 | Part 80 | Part 81 | Part 82 | Part 83 | Part 84 | Part 85 | Part 86 | Part 87 | Part 88 | Part 89 | Part 90 | Part 91 | Part 92 | Part 93 | Part 94 | Part 95 | Part 96 | Part 97 | Part 98 | Part 99 | Part 100 | Part 101 | Part 102 | Part 103 | Part 104 | Part 105 | Part 106 | Part 107 | Part 108 | Part 109 | Part 110 | Part 111 | Part 112 | Part 113 | Part 114 | Part 115 | Part 116 | Part 117 | Part 118 | Part 119 | Part 120 | Part 121
A supplement to this early provincial code of criminal juris- prudence might here in regular order be noticed; but as it con- sists of those offences, which were vested in the cognizance of justices of the peace, whose authority and jurisdiction were spe- cially provided for by another distinct bill, which seems more properly to fall under the arrangement of those provided for the
* Lord Coke explains the word-"enormous"-to mean-"horrible, exorbi- tant, et extra omnem norman."-See 4 Inst. 331.
t See this bill at large in note (XXVI.) at the end of this volume.
127
HISTORY OF MARYLAND.
erection of courts of justice, the consideration of it here, is, for CHAP. II. the present, postponed to its proper place.
1639.
Although, as before observed, no material alteration was made Laws for at this session of 1638-9, in the judiciary department of the erecting courts of government from what it was before, yet it may be proper to take justice ;-
and first, of some notice of certain bills, among those before referred to, a court of whereby a more specific arrangement of the courts of justice admiralty. within the province appears to have been intended.
The first of these, entitled, "an act for erecting a court of admiralty," was in substance, as follows :- "judgment to be given agreeable to the law of this province, or (in default thereof) the judgments, which usually are or ought to be given in the same or the like causes by the custom or law-merchant of Eng- land, or in the admiralty court of England, as near as the said admiral, judge or judges, or commissioner or commissioners shall be able to determine.
"Fines and forfeitures of bonds or recognizances to be to the use of the lord proprietary .- Confiscations, derelicts, pirates, or enemy's goods, goods found in or upon the sea, or within high water mark, (not having any owner challenging the same,) and all other profits and perquisites due or belonging in England to the high admiral of England, shall be to the use and profit of the said admiral, or (in vacancy of an admiral) to the use of the lord proprietary, except when otherwise granted."*
Although it might at first appear, that a court of admiralty would not be necessary under the government of a colony, hav- ing only provincial jurisdiction, and not invested with complete sovereignty, but subordinate as to peace or war to the mother country, yet, situated as the province of Maryland then was, liable to what may be called private wars arising from its own peculiar local situation, such as not only skirmishes with the Indians, but also armed resistance of the laws by Clayborne's party, and having its territories divided into two parts by a large bay, which might properly be deemed an arm of the sea, and not within the body of any county, especially as but one county had been then established, so that offences might frequently be committed on the waters of the province, which would be dis- punishable according to the laws of England, there seems to have been some peculiar necessity at this time for such a tribunal as a court of admiralty. The lord proprietary, by the seventh sec-
* Lib. C. and WH. p. 9.
128
HISTORY OF MARYLAND.
CHAP. II. tion of his charter, was authorized "to constitute and ordain
1639. judges, &c., of what kind, for what cause, and with what pow- er soever, within that land" (Maryland,) "and the sea of those parts, and in such form as the said now baron of Baltimore, or his heirs, shall seem most fitting."-In pursuance of this clause we find, that the lord proprietary had, in his instructions or com- mission to his brother Leonard Calvert, of the 15th of April, 1637, before stated, "nominated, constituted, ordained and es- tablished the said Leonard Calvert in the absence of us and our heirs, our lieutenant general, admiral, chief captain and com- mander, as well by sea as land of our said province of Maryland and the islands to the same belonging, and do by these presents give unto him absolute authority to do all such things as do be- long or appertain to the office of a general, admiral, &c., to have, hold and enjoy and administer the same with such power and au- thority as any other lieutenant governor, general, admiral, &c. of any other province may, might, or ought by the law of arms to do." As the jurisdiction of the admiralty court in England appertain- ed at this time to the office of lord high admiral, (for, the practice of putting the office in commission as of late years was not then used,) the governor or lieutentant general by the afore- said commission would have been judge of the court proposed by this bill, and entitled to the perquisites of the office by virtue of the last clause of this bill.
County courts and their juris- diction.
The next of these bills, (as they appear upon the records, ) for the erection of courts of justice, is that entitled, "An act for the erecting of a county court." -- It will be recollected, as before mentioned, that there was at this time but one county in the pro- vince, denominated St. Mary's. Although the isle of Kent, (the only part of the province as yet settled, besides that of St. Mary's,) contained at this time several settlements and inhabit- ants, yet it had not been hitherto erected into a county. But among the bills here referred to, prepared for the regulation of the courts of justice, there was one specially providing on that subject for that island; which bill was entitled, "An act for the government of the isle of Kent," which will be presently noticed in its place. The bill, "for the erecting of a county court," was of the following tenor.
"All causes of appeal from inferior courts; and all causes whatsoever civil, determinable in any court of common law in England; and all causes for recovery of legacies ; and all causes
129
HISTORY OF MARYLAND.
matrimonial, for as much as concerns the trial of covenants and CHAP. II. contracts, and the punishment of faults committed against the same; and all offences of incest; attempting of another's chas- 1639. tity; defamation; temerarious administration; detention of lega- cies; clandestine marriage without banns thrice published, or bond entered in the court ;* and all crimes and offences whatso- ever, (not extending to felony or treason by the laws of this pro- vince,) for which any certain punishment is appointed by the laws of this province or by the common law of England, shall be heard and determined finally by and before the chief justice of the province for the time being, or by and before such other com- missioner or commissioners as the lord proprietary or his lieu- tenant shall authorise.t
"The said court shall be a court of record, and shall be called a county court, and may exercise the same powers, &c., within this province, (in the causes aforesaid,) as any of the king's courts of common law in England, except where it is otherwise provided by any law of this province.
"Such forms of process and proceeding upon bill, plaint, in- formation, presentment, or indictment, shall be used in this court as are most agreeable to the laws of this province, or otherwise to the forms used and observed in the courts of common law in England in the same or the like causes, as near as the judge or register may well know them, or otherwise such forms as the said chief justice shall appoint or approve to be used and ob- served.
"And in all pleas or matters, civil or criminal, (in this or any other court within the province,) the lord proprietary shall be al- lowed all the same and the like prerogatives and royal rights as are usually belonging to a court-palatine .¿ (Saving always the sovereign dominion due to the king of England.)
" And all issues of fact shall be tried by the said chief justice, commissioner or commissioners, and the council sitting in court, or the major part of them, if the defendants shall choose to be
* See note (XXVII.) at the end of this volume.
+ This seems to be the first instance of power, expressly vested in the gover- nor, of appointing by commission other persons to sit with him as judges, besides those of his council; and it appears to exhibit the first indication of the subse- quent arrangement of the supreme court of the province under the denomination of the provincial court.
# It is not easy to determine from the manuscript words in the record, whether the above expression was meant to be, court-palatine, or count-palatine. In either case the meaning would be nearly the same.
VOL. II .- 17
3
130
HISTORY OF MARYLAND.
CHAP. II. be tried by the court, or otherwise by a jury of seven or more 1639. freeholders of the county to be returned by the sheriff, if the de- fendant shall choose to be tried by his country. And the regis- ter of the said court may at any time take a writ out of the chan- cery returnable into this court, directed to the sheriff to return any five or more freemen, (named upon the writ,) for a grand inquest, and after the impaneling the said inquest or any five of them, the court shall or may charge them with an oath, truly to inquire of and true presentment to make of all offences and misdemeanors whatsoever committed to their or any of their knowledge, or by vehement suspicion, public fame, or by infor- mation of any party upon oath, said or affirmed to be committed against the laws of this province, which presentment delivered into the court by the said inquest shall be an indictment of any party in any crime of felony or treason, (provided that such pre- sentment or indictment be made or formed by a grand inquest of twelve jurors at the least,*) upon which such party presented or indicted may be put upon his trial in the pretorial court,t and likewise it shall be a conviction of the party presented of any other crime whereof he is presented, (the said crimes of felony or treason excepted,) upon which such party may be censured # for the said crime unless the party presented purge him or herself thereof by such means as the court shall appoint the party for his or her purgation."§
"And such judgment shall be given in all causes of this court as is most agreeable to the laws of this province, or (in default of such laws,) to the judgments usually given in the same or the like causes in the civil court or courts of common law in England, as near as the judge shall be able to determine.
"And yearly on the first Monday in October, and afterwards monthly, till March, (inclusively,) shall be held a county court at St. Maries by the chief justice, or (in his absence ) by any commis- sioner by the said chief justice appointed, or in default of a com-
* There seems to be a repugnance here between this and the former part of this clause, where the grand inquest might consist of five freemen. By the common law it is necessary, that twelve jurors atleast, on the grand inquest, shall agree to a bill before it can be found. A bare majority of those present is not sufficient, unless such majority amount to twelve.
t This alludes to a supreme criminal court so denominated, and intended to be erected by another bill, the next but one to this for the county court, and which will be noticed in its place as we proceed.
This, as before observed on another occasion, was a word then used as sy- nonymons to judgment in a criminal case.
§ See note (XXVIII.) at the end of this volume.
131
HISTORY OF MARYLAND.
missioner by the chief chancellor* of state at that time present CHAP. II. at St. Maries."}
1639.
Although the court here intended to have been created by this last bill, was denominated a county court, yet it may be inferred from the circumstance of its having an appellate jurisdiction in "all causes of appeal from inferior courts," as also an unlimited jurisdiction over "all causes whatsoever civil determinable in any court of common law in England," together with the jurisdic- tion properly appertaining to the ecclesiastical courts in England; that it was intended to have been the supreme court of the pro- vince, at least in civil cases. This is further confirmed by the last clause in the bill, which provides that the court shall be held "by the chief justice;" which office, by the commission of the 15th of April, 1637, as before mentioned, was vested in the lieu- tenant general or governor of the province.
The next of these bills, that provided for the judiciary depart- Court of ment of the government was one entitled, "An act for the erect- ing of a court of chancery." By this bill it was enacted, "that all matters and causes whatsoever determinable in the high court of chancery in England, and all matters and causes whatsoever civil, not provided for by any law of this province, and all causes what- soever civil, (otherwise of right belonging to any other court within the province,) wherein the judge of such other court is a party, (except such other judge be lieutenant general of the province,) shall or may be finally heard and determined within the province by and before the chancellor of this province and council of state for the time being. This court of chancery hereby erected, to have the same form of proceedings as the court of chancery in England."}
By the commission of the 15th of April, 1637, the lieutenant general was at this time, (1639,) the chancellor of the province, with authority to call in the assistance of the council for their advice "upon all occasions as he shall see cause." It appears to have been the usage throughout all the English colonies in America, in the West Indies as well as on the continent, that every English governor of every province or island was, by virtue of his commission, chancellor of the province of which he was governor, and personally discharged the duties of that office, sometimes solely, and sometimes with the assist-
* This word "Chancellor" is so in the record; but it would rather appear to have been intended as chief councillor of state.
t Lib. C & W H. p. 11.
# Ibid. p. 14.
Chancery.
132
HISTORY OF MARYLAND.
CHAP. II. ance and presence of his council, according to the directions of 1639. his commission or some special act of the province for that pur- pose .* In Barbadoes, Antigua, Montserrat, and South Caroli- na, the council sat as judges with the governor in the court of chancery.t In Jamaica the governor sits alone as chancellor.} In Maryland also, prior to the revolution, the governor sat alone as chancellor, from whose decision an appeal lay to the governor and council, (by act of assembly,) setting as a court of appeals.
A Pretori- al court.
The next of these judiciary bills was entitled, "An act for the erecting of a pretoriall;"§ the tenor of which was as follows :- "That all capital crimes of treason and felony, (by the laws of this province,) and all enormous offences|| whatsoever by the laws of this province, shall be finally heard and determined by or before the lord proprietary or his lieutenant general and the council of state for the time being ;- and the secretary of the province for the time being or other register appointed by the lieutenant general shall record all matters and proceedings in this. court, and the said lord proprietary or his lieutenant general and the said council, secretary, or register, or any three of them, (whereof the said lord proprietary or his lieutenant general and secretary or register to be always two,) shall be a court of re- cord, and shall be called the pretoriall, or the pretorial court. T
"And such forms of proceedings and trial upon information, indictment, or appeal, shall be used and observed in this court as are most agreeable to the laws of the province, or otherwise to the forms used and observed in England in the same or the
* See Stokes's View of the Constitutions of the British Colonies, p. 185.
t Ibid. p. 191, 196.
į Edwards's Hist. West Indies, B. 6, ch. 1.
! § See note (XXIX.) at the end of this volume.
|| This must allude to that class of offences specified in the bill before stated, entitled, "An act determining enormous offences."
T I do not find any subsequent mention in the records, of any court, within the province, after this bill or act of assembly, ("for the erecting of a pretoriall,") under the same denomination. It would seem, as if our colonists considered the word pretorial as synonymous to the word provincial; and although the pretorial court hereby erected was intended to be entirely a criminal court, yet, as the lieutenant general and council were constituted the judges of it, and as they were also, by the commission of the 15th of April, 1637, before mentioned, judges also of the supreme civil court under the denomination of the county court, as before stated, the two several jurisdictions, exercised by the same judges, be- came in, process of time identified, under the denomination of the provincial court; for the establishment of which, under that denomination, no act of as- sembly. was ever expressly made. This may be fairly inferred from the subse- quent act of assembly of 1642, ch. 3, entitled, "An act for judges ;" which will be remarked upon in its proper place.
133
HISTORY OF MARYLAND.
like causes as near as the said court shall be able to judge, or CHAP. II. otherwise such forms as the said court shall appoint or approve 1639. to be used and observed, in cases not provided by the laws of the province.
"And all enormous offences aforesaid shall be tried by the said court, and all capital crimes of treason or felony shall (upon an indictment by a grand inquest) be tried by a jury of twelve free- men to be returned by the sheriff .*
"And any lord of a manor indicted of any capital offence shall be tried by the said lieutenant general and by twelve or more lords of manors, (if there be so many within the county capable of such a charge,) or in default of so many lords of ma- nors, then by so many lords of manors and freeholders of the county, (to be returned by the sheriff,) as shall make up the number of twelve at the least, And the said lords of manors and freeholders empannelled shall be called and judged his peers ; and conviction shall be by the said lieutenant general and the said peers, or the major part of them, agreeing in their verdict.t
"And such judgment shall be given in all crimes and offences
* It would appear from this clause, that the trial by jury was not to prevail in criminal cases, except in those for treason and felony ; and that persons indicted for those offences before enumerated, in the bill against "enormous offences, were to be tried by the court, without the intervention of a petit jury, the court being judges of both the law and the fact. Something like this has been lately insti- tuted in the State of Maryland by an act of assembly, which authorises the court in minor offences, such as assaults and batteries, to determine with the consent of the defendant, the fact as well as the law .- Thus the leaders in a democracy, as well as the rulers in a monarchy, can sometimes slyly take power out of the hands of the people.
+ This is a strong proof, among many other instances in our early records, that it was the intention of the first lord proprietary, and those first concerned with him in the government of the province, to have instituted therein an order of nobility, as he was expressly authorised to do by the fourteenth section of his charter. Although many manors were laid out and granted within the province by the lord proprietary, yet it no where appears on our records, that any peculiar privileges, such as appertain to peers of the realm in England, were ever claim- ed or at least enjoyed by the grantees of such manors. It may be conjectured, that the unlucky insertion of the clause,-" So that they" (to wit, the titles and dignities to be conferred) be not such as are now used in England,"-in the same section, spoiled the appetites of our first planters in Maryland for hereditary titles. That they always possessed a desire for hereditary honors and distinc- tions is evident from the excessive anxiety often manifested by them, as well as their fellow colonists of Virginia, to transmit the title of colonel of militia from father to son ; and a governor of Maryland has been known to grant a commis- sion of colonel to a wealthy planter merely because his father and grand father had enjoyed the same title, although there was not at that time any militia organ- ized in the province. The revolution, alas ! has not quite extinguished all our fondness for these things.
134
HISTORY OF MARYLAND.
CHAP. II. whatsoever capital within this province, as is most agreeable to 1639. the laws of this province ; and such judgment shall be given in all enormous offences as the said lord proprietary or his lieutenant general and council, or the major part of them sitting in court shall think the misdemeanor, offence, or contempt, to deserve, for the correction of the delinquent, or the recompense of the party grieved, so that it extend not to the taking away of life, or member, and so that no fine, to the use of the lord proprieta- ry, shall be levied upon judgment given in the court to above the fourth part of the clear personal estate of the party censured, or of the value thereof, according to a true and perfect inventory thereof to be made and appraised upon oath by two freemen of the county indifferently chosen by the sheriff, and entered in the record of the said court."*
The autho- rity of jus- tices of In further provision for the administration of justice, the legis- lature proceeded to regulate the inferior branches thereof by a peace, and bill entitled, "an act for the authority of justice of the peace ;" their juris- diction over cer- tain speci- fied of- fences. which appears to have been intended not only to confirm to them the common law duties of a justice of the peace as in England, but also to create certain specific offences not known in the com- mon law, or to vary the punishments annexed to such offences as that law prohibits, and to vest in every single justice of the peace a summary jurisdiction over every such offence. The bill also appears to have considered the governor and each of the council, as justices of the peace, in virtue of their commissions ; for it enacts,-"That these offences following in this act may be heard and determined by the lieutenant general for the time being or by any one of the councell or by any one having commission for the peace under the great seal of this province."
The uncommon offences, created by this bill, or in which the punishments annexed thereto by the common law, were varied, were :- " Withdrawing of one's self out of an English planta- tion to inhabit or reside among any Indians not christened, with- out consent of the lord proprietary or his lieutenant general, and the offender shall be imprisoned until he shall find security to perform the order of the judge therein.
" Swearing, which is the prophane adjuration by God or some holy creature, and the offender shall be fined five pound of to- bacco or one shilling sterling to the lord proprietary.
* Liber C. and WH. p. 15.
t Our cotemporary colonists in New England, about this time, always so in- genious in their notions, invented a more uncommon punishment for swearers
135
HISTORY OF MARYLAND.
" Drunkenness, which is drinking with excess to the notable CHAP. II. perturbation of any organ of sense or motion,* and the offender 1639. shall forfeit to the lord proprietary 30lb. of tobacco, or five shil- lings sterling, or otherwise shall be whipped, or by some other corporal shame or punishment corrected for every such excess at the discretion of the judge.t
"Fornication, which is unlawful copulation between parties not married, and the offender or offenders shall be publickly whipped, or otherwise pay such fine to some publique use as the lieutenant generall and councell shall impose.
"Adultery, which is unlawful copulation where one partie is married, and it shall be punished as fornication, but with a more painful whipping or grievous fine .¿
than that prescribed above .- " Robert Shorthose, for swearing by the blood of God, was sentenced to have his tongue put into a cleft stick, and to stand so for the space of half an hour." Hutchinson's Hist. of Massachusetts, vol. 1, ch. 5.
* This definition or rather description of drunkenness would comprehend a greater number of gentlemen grog drinkers in Maryland of the present day, than the diagnostics of the disease or offence laid down by writers on the common law. Dalton, in his Justice of the Peace, (a book of considerable authority, and first published but a few years prior to the first emigration of the Maryland colo- nists,) after stating the statutes of James relative to this offence, thus gives the rule for their construction .- " Now, for to know a drunken man the better, the scripture describeth them to stagger and reel to and fro,-Job, 12, 25. Isaiah, 24, 20. And so where the same legs, which carry a man into the house, cannot bring him out again, it is a sufficient sign of drunkenness."
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.