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 51
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t These two clauses, relative to swearing and drunkenness, seem to have been partly copied from the English statutes of 4 Jac. 1, ch. 5, and 21 Jac. 1, ch. 7, and ch. 20, in force at that time in England. The punishment of drunkenness prescribed by our act, in one respect, exceeded that of the English statute, which directed only, that they should be put in the stocks, but not to be whipped as in our act, upon non-payment of the fine .- The quotation of the above clauses, however, is principally of use to shew the relative value of tobacco and money at this time in the colony. If, as we may suppose, the legislature intended, that the fine, whether in tobacco or money should be nearly the same, thirty pounds. of tobacco at five shillings would be about two pence per pound, a price nearly at which it continued in England to the time of our revolution.
# Although it seems to be laid down by Mr. Justice Blackstone, (4 Bl. Com.) that neither of these offences-fornication or adultery were, either by the com- mon or statute law of England, punishable as temporal offences, unless in case of the former, bastardy ensued ; yet it is probable, that our provincial legislature, at this time, thought otherwise ; and the cotemporary construction of the 18 Eliz. c. 3, to which he refers, authorising corporal punishment, in case of bastar- dy, without its being expressly so directed by the statute, seems to corroborate the opinion of our provincial legislature. The true construction, however, of our act as above, would appear to be, that the punishment of whipping was to be inflicted only in case of non-payment of the fine ; agreeably to an old maxim,- Qui non habet in ære, luet in corpore. Subsequent acts of assembly, upon this, subject, seem to warrant this construction.
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HISTORY OF MARYLAND.
CHAP. II. " Masters or mistresses refusing to give their servants neces- 1639. sary or convenient food, lodging, or clothing, or to perform such covenants for wages or otherwise, as they are bound to do by their indentures or the law of the province ; and the offender shall be imprisoned till he or she find sureties to perform the or- der of the judge therein ; and the party offending or convicted the second time shall lose his or her right and benefit of the in- dentures, and of the law or custome of the country, and the ser- vant shall be set free, except the master do appeal to the county court.
"Servants refusing to perform the lawful commands of their masters or mistresses, or of their assigns or overseer, or neglect- ing to do the labour which they ought to do, or unjustly com- plaining against their master or mistress, or offending any other- wise against their duty or indenture, and the servant so offend- ing shall be publickly whipped or otherwise corrected at the dis- cretion of the judge.
" Working in servile labour upon the Lord's day, or other holy days published aforesaid in the church to be kept as holy, without case of necessity to be allowed by the judge; and the master or mistress, or other freemen, offending therein, shall for- feit 30 lb. of tobacco, or 5s. sterling, for his own default, and 30 lb. of tobacco or 5s. sterling more for the fault of every his servants offending by his command or consent .*
* Although the number of Saint's day, which had been prescribed by the Ca- tholic church to be kept as "holy-days," had increased so as to become a politi- cal evil to the community, yet the Church of England, at the reformation, did not entirely extinguish them. By the statute of 5 and 6 Edw. 6, ch. 3, entitled, "an act for the keeping holy-days and fasting-days," after a disavowal of the observance of holy-days, "for any of the saint's sakes, whose memories are had on those days," the particular days, besides Sundays, which were to be kept as holy-days, and on which bodily labour was to be abstained from, were specifi- ed, as also the particular days to be kept as fasting-days, confirming what had been before enacted on that subject by the statute of 2 and 3 Edw. 6, ch. 19, which the reader will find commented upon in the next note .- Also, by the 13th canon of the Church of England it was prescribed, that "all manner of persons, within the Church of England, shall from henceforth," (the time of making these canons was in the reign of James the first, in the year 1603,) "celebrate and keep the Lord's day, commonly called Sunday, and other holy-days, accord- ing to God's holy will and pleasure, and the orders of the Church of England, prescribed in that behalf." The holy-days enumerated in this statute of 5 and 6 Edw. 6, were probably the holy-days referred to in both the canon here cited and the above mentioned bill. The statute of 3 Car. I, ch. 2, also provided "for the further reformation of sundry abuses committed on the Lord's day, commonly called Sunday."
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HISTORY OF MARYLAND.
"Eating flesh in time of lent or on other days, (Wednesdays CHAP. II. excepted,) wherein it is prohibited by the law of England, with- out case of infirmity to be allowed by the judge ; and the offen- 1639. der shall forfeit to the lord proprietary five pound of tobacco or one shilling sterling for every such offence .*
"Shooting off three pieces in the whole within half a quar- ter of an hour one of another, (either by a single person or in answer to another,) without cause of alarm, or not answering an alarm by three pieces ;- offender to forfeit to the lord proprieta- ry 10 lb. tobacco for every piece so unlawfully shot off, and 20 lb. of tobacco for not answering an alarm.
"Fishing at the creek in St. George's hundred, commonly called the Herring creek, with sceyne or other unlawful net; and the offender shall forfeit his net or sceyne to the partie complain- ing thereof.+
"Provided, that if any offender be questioned for any of these offences in the admiraltrie court, or county court, or before a justice of peace, that then such offender shall not otherwise be questioned or punished for the same, than in such court, which first questions the offender .- This act to continue till the end of the next general assembly."}
Supplementary to the foregoing bills relative to the judiciary Inferior department of the government there was another providing for executive the executive branch of the administration of justice, entitled, officers. "an act for the appointment of certain officers;"-viz: a tithing- man in each manor, a constable in each hundred, a sheriff and coroner in the county, and a public executioner for inflicting all corporal correction and punishment.
The mode of appointing a tithing-man, prescribed by this bill, deserves some notice, inasmuch as it tends to corroborate
*See note (XXX.) at the end of this volume.
tThis clause in the above act clearly demonstrates, what was the sense or opinion of those at the head of the government of Maryland at the time of its first colonization, relative to the saving clause of the sixteenth section of the charter, which has been supposed to reserve to every inhabitant of the province, and consequently to every citizen of the state, a free right, not only of fishing in all the navigable waters of the Chesapeake and its tributary streams, but also of landing on the shores and soil of any private individual, for the purpose of hauling his seine and securing his fish. Had this right been thus reserved by the charter, the provincial legislature could have had no power to make any law contrary thereto, and the above clause would consequently have been null and void .- See this subject before touched upon in the corrections and additions" to the introductory part of this work, vol. 1. p. 251.
# Liber. C. and WH. p. 18.
VOL. II .- 18
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HISTORY OF MARYLAND.
CHAP. II. the supposition, that it was the original intention of the proprie- 1639. tary to vest in the lords of manors, to be erected in the province, privileges and powers analogous to the lords of manors in Eng- land .- "That the lord of every manor within this province, (after any manor shall be erected,) shall yearly at the first court baron held after Michaelmas in any year nominate and appoint some inhabitant of the manor, (not being of the council,) to be tithing-man of that manor, to have the same power as a tith- ing-man in England."-The duties of a tithing-man in Eng- land were, at this time, nearly the same as those of a petty constable. They were usually chosen by the jury at the court leet,-a criminal court appertaining to a manor.
The appointments of constables of hundreds were thus provided for .- "And the commander of every hundred,* or otherwise (if there be no commander,) the lieutenant general of the province for the time being, shall, yearly at the first hundred courtt in every hundred held after Michaelmas in any year, nominate and appoint some inhabitant of the hundred, (not being of the coun- cil,) to be high constable of that hundred, who shall execute all precepts and warrants to him directed, and shall in all things have the like power and authority within the said hundred, as a high constable of any hundred in England hath or ought to have within his hundred by the law or custom of England."-A re- fusal to serve incurs a forfeiture of 500 lb. of tobacco.
"The chief judge of the county court shall nominate and appoint any inhabitant, &c. (not being of the council,) to be sheriff and coroner of the county, to have in all things the like power and authority within the county as a sheriff or coroner of any shire in England usually hath or ought to have by the law or custom of England .- Penalty on refusing to serve 2000 lb. tobacco.}
* These commanders of small districts in Maryland were officers unknown to the common law of England, and borrowed from the same denomination of office used in Virginia. See it explained before in a note in p. 44.
t In the legislative arrangement of the courts of the province, prior to this period, I do not find any explanation of or provision made for the court here called a "hundred court ;" except on the isle of Kent ; nor is it easy at this day, to ascertain either its origin or jurisdiction. From the above bill the commander, who seems always to have been intended to act as a deputy of the lieutenant ge- neral, was the judge or one of the judges thereof. He was expressly so desig- nated in the bill next mentioned "for the government of the isle of Kent."
# These clauses serve to illustrate the manner in which the laws of England, both common law and statute, were first introduced into the province.
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HISTORY OF MARYLAND.
"And the said sheriff shall choose one of his servants, (and in CHAP. II. case he hath no servant to accept thereof the lieutenant general 1639. and council shall appoint some person,) for the execution of all corporal correction, shame, or other punishment to be inflicted on the body or person of any one; and if the person so chosen and appointed by the lieutenant general and council shall refuse to execute the said office, the lieutenant general upon complaint. thereof made unto him shall or may censure the person so refus- ing by corporal shame or correction as he shall think fit."*
Having thus provided for the administration of justice in that The admi- part of the province where the seat of government was fixed, of justice nistration the legislature proceeded to make provision for the like purpose in the isle in the isle of Kent, the only part of the province where any in- gulated. of Kent re- habitants appear to have been settled at this time, detached from the colonists in St. Mary's .¡ Accordingly there appears among these bills of this session one entitled, "an act for the. government of the isle of Kent."-Although a general provision was made in the fifth and sixth sections of the act of 1638, ch. 2, for the administration of justice in the isle of Kent, as before stated, yet as those sections treat the subject in a very loose and indefinite manner, there appears to have been an absolute neces- sity for some more specific and minute arrangement thereof. This seems to afford some additional proof of the truth of the supposition herein before made, that this act of 1638, ch. 2, was intended as an abridgment of those bills, which, although not finally passed, yet were to be considered as explanatory or directory to more general expressions in the act. By this bill the isle of Kent was to be erected into a hundred, and called Kent hundred; which hundred was to be considered as being
* The above bill is recorded at large in Liber C. & WH. p. 21 .- The last clause of this bill, as above, is without doubt justly exceptionable, and the power of compelling a man of credit and character to perform the office of hangman or public executioner, ought not to have been placed in the hands of even the governor of the province. The act, however, would appear to admit of the construction, that none but persons of the degree of "a servant," were to be appointed to such an office. This principle was again reiterated in another act (1641, ch. 5,) much to the same purport, and, as we shall see in its place, re- ceived the pointed reprobation of captain Cornwaleys, the most influential'man in the government of the province at this time.
t Although some inhabitants are mentioned to have been settled by Clayborne at the mouth of the Susquehanah, at the time of the first arrival of the first Ma- ryland colonists under Calvert, yet there does not appear on the records of the province for several years after that arrival, any legislative or other notice of any inhabitants there settled.
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HISTORY OF MARYLAND.
CHAP. II. within the county of St. Mary's, until another county should be 1639. erected on the eastern shore. A court of record also was there- by erected, to be called-the Hundred-Court of Kent; of which the commander of the said island was to be the judge, and from which court an appeal lay to the county court at St. Mary's. Provision was also made therein for the supreme court at St. Mary's to sit occasionally on the isle of Kent, apparently in the nature of a court of assize .*
Oaths of office pre- scribed.
A few additional observations are to be made on the fifth and sixth sections of this act of 1638, ch. 2, before stated. It is observable, that those sections require the lieutenant general and each of the council to take an oath,-the former, " to administer equal justice to all persons, without favour or malice of any one;"-the latter, "to defend and maintain the rights and pre- rogatives of the lord proprietary in all things, and to assist the execution of justice without favour or malice of any one, and to do all other things as becomes a councillor to do." But al- though the substance of these oaths is here stated, yet no parti- cular form of an oath is therein prescribed to either. There is strong evidence, however, to induce us to believe, that the oaths of office, here prescribed, were to be taken according to the forms prescribed in one of the bills of this session, entitled, "an act for the several oaths to be taken by judges and public offi- cers." Agreeably to this, we find, that at a court holden at St. Mary's, on the 20th of March, 1638, (1639, N. S.) the day after the assembly of this session rose, oaths of office were taken, manifestly according to the forms prescribed in this last men- tioned bill, as appears from the following entry :- "The gover- nor authorised the secretary to administer an oath to him for the equal administration of justice, &c .- Then were sworn captain Thomas Cornwaleys, esq., Mr. Giles Brent, gent., Mr. John Lewger, gent., in the form appointed for a councillor to take upon the same bill. Then was sworn the said John Lewger in the oath appointed for the secretary. Then was chosen and sworn for sheriff and coroner, Thomas Baldridge for one year. Then was chosen for treasurer of the province, Mr. Giles Brent. Then the governor authorised the secretary to administer to him the oath of allegiance, &c .; "} which oath of allegiance was therein expressly to be according to another bill of this session,
* See note (XXXI.) at the end of this volume.
+ "Council Proceedings from 1636 to 1657," p. 40.
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HISTORY OF MARYLAND.
entitled, "an act for swearing allegiance," which has been be- CHAP. II. fore stated and commented upon .* The oaths of office, there- 1639. fore, to be taken, were manifestly also those prescribed by the other bill relative to "judges and public officers." In further corroboration of this, we find the following entry, under the date of April 15th, 1643 :- "James Neal had the oath of a councillor of state administered to him by the said Giles Brent, according to the form of a bill drawn up in assembly, 15th of March, 1638, entitled, an act for the several oaths to be taken by judges and public officers."t This reference can be applied to no other bill than one of the thirty-six bills before mentioned of this session, under the same title.}
The principal use of our notice of this subject is to adduce a very strong proof, that these thirty-six bills said to have been "twice read in the assembly, engrossed, but never passed," were notwithstanding considered as laws obligatory, in some measure at least, on the people of the province, and appearing to have been in several other instances, besides the one here cited, re- ceived and acted under as laws of the province in force. From the tenor of the fifth rule or order of the house, before stated, if a bill was "engrossed" after a second reading, and nothing more done with it, it could not be said to be "utterly rejected," the expression in the rule being in the alternative-"engrossed or utterly rejected." This, indeed, is consonant to modern par- liamentary usage.§ It does not appear, therefore, that these bills were neglected and not passed on account of their demerits or any specific objections to them by the house. Some cause thereof operated at the time, but of what nature, it would be improper to hazard conjectures.
Supplementary to the foregoing arrangement of courts of jus- The mode tice and the necessary officers attendant thereon, some short of recover- notice may be here taken of the mode or practice prescribed by ing debts. one of the bills of this session "for recovering of debts" in those courts.
By the bill entitled, "an act for recovering of debts," it was enacted, "That the complainant in any action of debt upon booke
* See before p. 110.
t See the record-book in the council chamber, entitled, "Council proceedings from 1636 to 1657," p. 99.
¿ See the forms of these oaths as in the bill or act above mentioned, in note (XXXII.) at the end of this volume.
§ 1 Bl. Com. 183. Jefferson's Manual, sect. 31.
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HISTORY OF MARYLAND.
CHAP. II. or accompte shall or may sue his booke or accompt at the first 1639. county court or at the hundred court of Kent, in October, or at any time after.
" And the complainant in any action of debt, after his action entered in the booke of the register of the said county or hun- dred court ; and after such caution given for prosecuting of the cause, and performing the sentence of the court to be therein given, (as shall be reasonably desired of him,) shall or may have a precept under the hand of the register of the hundred court of Kent, or otherwise a writ out of the chancery directed to the defendant,* containing the whole tenor or effect of the plaintiff's bill, and commanding the said defendant to underwrite his answer to the said bill, and to bring or send it so underwritten into the said county or hundred court, or to deliver it to the plaintiff, or to come to enter his answer in the register's booke, (within a reasonable time limited,) or otherwise to be at the next county or hundred court, (naming the certain time and place,) to make answer to the said bill, and to bring with him his wit- ness, accompts, and all muniments necessary for his defence upon pain of having judgment proceed against him at the said court in punishment of his contumacy."
It will be perceived from these clauses, that the practice of these courts in all civil cases, especially for the recovery of debts, was intended to be assimilated more to that of the court of chan- cery in England, than to the practice of a court of common law. The peculiar situation of a colony, in its infant state, might pos- sibly justify this departure from the English jurisprudence; but it is observable, that even at this day in the state of Maryland, a summary mode of trial is prescribed by law in the cases of small debts, and judgment therein to be given "according to the laws of the land, and the equity and right of the matter."
The act then, after several clauses, providing for the attach- ment of debts in the hands of the defendant's debtors,-regulat- ing the service of "precepts and writs,"-also, the mode of trial, wherein the wager of law is expressly allowed to the de- fendant, and prescribing general directions to the sheriff relative to executions, has this singular clause :
"And where there is not sufficient distresse of goods, the par-
* It is proper to observe here, that agreeably to the ancient practice in Eng- land, the beginning or foundation of every suit in a civil case was a writ, called an original writ, taken out of the court of chancery-the shop or mint of justice, wherein all the king's writs were framed. 3 Bl. Com. 272.
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HISTORY OF MARYLAND.
tie himself, or any his servants attached, shall be either sold at CHAP. II. an outcry, or otherwise his service valued and appraised by the 1639. month as before,* and delivered in execution to the partie or par- ties recovering, according to the several proportions of their re- coveries to be his or their servant so long as until the execution be satisfied, according to the rate of the parties or servant's la- bour appraised as before; and the greatest creditor recovering shall have first execution upon the body of such partie or ser- vant attached, and so the rest in order according to the value of the debts recovered."t
Although the power vested by this clause in the creditor over the person of his debtor, compelling him to a temporary service in dischage of his debt, would sound harsh to the ears of a mo- dern republican, yet it was in reality nothing more than the hard- ship, to which the adventurous emigrant, (the "servant" liable to execution by the act,) voluntarily entered into, when he exe- cuted an indenture, by which he stipulated to pay the expenses of his transportation from Europe to America, by a service for a specified number of years. So the thoughtless or fraudulent debtor, when he voluntarily contracted his debts, knowing the law upon the subject, might be said to have voluntarily also subjected himself to a similar hardship. It was not slavery, for that is a term properly applied to a service for life, aris- ing from their condition by birth, and applicable to none in Mary- land but negroes .¿ It must be acknowledged, however, that fraudulent artifices might be used by an artful creditor to inveigle a simple or ignorant man into his debt, with a view of drawing him into his bondage, and laws should not open a door to such oppressive practices. The right of a creditor to compel his in-
* The preceding clause directed, that "where an execution was served upon one's servant or other goods, &c., they should be sold at an outcry, or otherwise appraised and valued upon oath, and delivered to the plaintiff at their valuation." t Taken from Liber C & WH. p. 38.
t This distinction seems to be explained by the learned English annotator (Dr. Harris,) on Justinian's Inst. (Lib. I. Tit. III. sect. 4.) Quibus modis servi con- stituuntur .- "Although absolute slavery, says he, "is now disused in Europe, yet a species of servitude is allowed among us, which is justifiable ; thus, an ap- prentice is bound for a certain time, and for particular purposes, and men of full age may also, by contract, bind themselves for a maintenance either for years, or for life. But such a contract, made by the ancestor, is merely personal, and can by no means oblige his posterity. It must be added, that a person, bound to an- other for a term, does not labour under any civil capacity, but is entitled to all the legal privileges of other men; and in this, his condition is widely different from that of an absolute slave."
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HISTORY OF MARYLAND.
CHAP. II. solvent debtor to compensate him for his debt by personal service
1639. has been, through all ages, a vexata questio in the science of le- gislation, and the duty of a historian does not here require a dis- cussion of it .*
Officers for Sect. (7.) "The secretary shall prove wills, and grant admin- the probate istrations, and use, &c., all power, &c., necessary thereto. And and grant- the commander of Kent to take order for the saving of the goods of wills, of deceased persons within that island, till a will be proved or administration granted."
ing admi- nistration.
6
Mr. John Lewger had been by his commission of the 24th of January, 1537, (old style, ) appointed "commissioner in causes testamentary," as before stated. His powers and jurisdiction, under this act as well as under his former commission, were pro- bably similar to what subsequently appertained to the office of commissary general of the province; while the power and duty of the commander of Kent, in respect to the estates of deceased persons on that island, seems to have been only that of one to whom letters ad colligendum had been granted, accountable there- in to the secretary as supreme ordinary of the province.
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