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 52
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Under this head may be arranged the bill of this session, en- titled, "An act for succession to goods;" which seems to have been framed, in most parts of it, in conformity to the law of En- gland on this subject, as it existed at this period of time ; except in one particular, wherein our colonial legislature appears to be entitled to the honour of having anticipated the equity and justice of the English statute of 22 and 23 Car. 2, c. 10, com- monly called the statute of distributions. It is known to law- yers, that prior to the statute of distributions an executor or ad- ministrator, after paying all the legacies and debts of the testator or intestate, might retain the whole of the surplusage of such testator's or intestate's personal estate to his own private use, nor could he be compelled by the ordinary or any court of law to make a distribution of such surplusage among the next of kin. A remarkable hardship of this kind, occurring between a brother and sister, about the year 1666, (18 Car. 2,) in which Sir Walter Walker, an eminent civilian, was counsel, he had in-
* This right of a creditor to the service of his debtor existed under the Athenian government, until such right was abolished by Solon, as being inconsistent with the Athenian democracy. The Roman republic, however, engrafted it into their twelve tables, most of the articles of which were said to have been borrow- ed from Greece. But one or two horrible instances of cruelty, practised under this right, occurring at Rome, the people would no longer bear it, and that part of the twelve tables was repealed or altered.
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HISTORY OF MARYLAND.
fluence enough, shortly afterwards, to get the statute of 22 and CHAP. II. 23 Car. 2, c. 10, passed, to remedy the evil .* But our colonial 1639. legislature, in the year 1639, had done this in substance before them, by the before mentioned bill, "for succession to goods;" which provides, that "if upon the accompt of the administration there remain any goods of the deceased intestate, (after funeral expenses, debts, and other charges defrayed,) such remainder shall be divided into two moieties, whereof one moietie shall be allowed to the widow of the deceased intestate, and the other moietie to the child or children of the deceased," &c.t and so on, nearly as is directed in the statute of 22 and 23 Car. 2, except, as will be perceived, our act gives a moiety to the widow, but the statute only a third.
Sect. (8.) "The captain of the military band, (at the direction Military of the lieutenant general,) shall use, &c., all power, &c., neces- discipline. sary or conducing in his discretion to the safety or defence of the province. And the commander of Kent to do the like with- in that island."
A bill of this session, entitled, "An act for military discipline," seems to have been intended to carry into effect the details of the above general clause. As it is the first militia law of the pro- vince, now extant upon record, the insertion of it here may per- haps gratify the reader's curiosity.}
Sect. (9.) "All officers' fees to be paid according to a bill upon Payment the records of this assembly: and all necessary public charges to of officers' be defrayed by the treasurer of the province, upon account of public . fees, and the colony or province, by warrant from time to time from the charges lieutenant general and council."
We see here in the first clause of this ninth section an express reference to one of the thirty-six bills before mentioned,-"en- grossed but not passed, to wit, the one entitled "An act for fees." This seems to carry with it an undeniable proof, that in the esti- mation of the members themselves of this assembly at this ses- sion, these bills, thus "engrossed but not passed," were never- theless to be considered as explanatory and directive to the gen- eral precepts and provisions of the act passed. Indeed, the title of the act, to wit, "An act ordaining certain laws for the go-
provided for.
* See the case of Hughes vs. Hughes, Carter's Rep. 125; and also 1 Lord Ray- mond, 574, and 2 Bl. Com. 516, where it is said, that the statute of distributions was penned by Sir Walter Walker.
t Lib, C. and WH. p. 34.
# See note (XXXIII.) at the end of this volume.
VOL. II .- 19
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CHAP. II. vernment of this province," might bear the construction, of an allusion to other laws not comprised within the body of the act.
1639.
The latter clause of this section seems to be further explained by another of the before mentioned bills, entitled, "An act for the common defraying of certain public charges." By this bill "the charges of all expeditions against Indians and other ene- mies, or rebels, (thought necessary by the lieutenant general and council,) were to be levied upon all the inhabitants of the pro- vince rateably to their personal estates, in such manner, and after such proportions, as the general assembly, or lieutenant general and council should rate and tax the same."* From which it would seem, that real property or lands were not considered by the members of this assembly as forming a proper object of di- rect taxation. This might possibly be owing to the considera- tion, that such lands of the province, as were already granted, were sufficiently burthened by the annual payment of a quit-rent to the lord proprietary. The allusion also, in this bill, to "ex- peditions against Indians," indicates disturbances and hostilities of those savages, with whom our colonists were now on the eve of a war.
Derelict property ; directions it.
Sect. (10.) "If any goods be within the province without any challenging the same, and having right thereunto, the lieu- concerning tenant general and council shall appoint, how the same shall be employed."
It will be recollected, that by the law of nature as well as the Roman civil law, whatever moveables are found upon the sur- face of the earth, or in the sea, and are unclaimed by any own- er, are supposed to be abandoned by the last proprietor ; and, as such are returned into the common stock and mass of things; and therefore they belong, as in a state of nature, to the first oc- cupant or fortunate finder. The common law of England was the same, unless such goods or moveables fell within the de- scription of waifs, or estrays, or wreck, or hidden treasure ; for these are vested by that law in the king,t and consequently in the lord proprietary in Maryland, by virtue of his palatinate re- galia. It may be supposed, therefore, that this section of this act was made to take away any uncertain right of an occupant in such cases, yet to leave it in the power of the governor and council to permit such occupant to retain the goods, where the
¥ See this bill abridged in Bacon's laws.
+ 2 Bl. Com. 402.
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HISTORY OF MARYLAND.
peculiar merit of such occupant might appear to entitle him to CHAP. II. them. This clause, it would seem, did not extend to lands, al- 1639. though no owner might appear to "challenge the same ;"' besides being confined to personal property by the word "goods," a par- ticular provision was made at a subsequent session, as we shall see, "concerning deserted plantations."
Sect. (11.) " Where the goods of a debtor sued are not suffi- A short in- cient to pay all his debts within the province, they shall be sold solvent at an outcry, and distributed equally among all the creditors inha- law. biting within the province ; except that the mere and proper debts of the lord proprietary shall be first satisfied, and then fees and duties to public officers, and charges ;* and that debts for wine and hot waters be not satisfied till all other debts be paid."f
Sect. (12.) " Every person planting tobacco shall plant and The plant- tend two acres of corn."
ing of to- bacco and
corn regu- lated.
Although the rulers of the mother country, (particularly king Indian James,) had done every thing in their power to discountenance the growth of tobacco in Virginia and the adoption of it as a staple product of that colony ; which policy had been continued by his son Charles ; yet, through want of some other means for the acquirement of wealth, and indeed for the procurement of those articles of English manufacture necessary for their com- fortable subsistence as well as the cultivation of their crops, the growth of tobacco had been persisted in by the colonists of that province in spite of all opposition. This process of agriculture, like many other of the customs and habits of that elder colony, was adopted by the Maryland colonists very soon after their first settlement at St. Mary's. But as corn was essential to their ex- istence, it seems to have been much apprehended by the govern- ment of Maryland about this time, that the colonists might ex- perience considerable distress from the want of that necessary article of food, especially as the Indians, from whom they were in the habit of purchasing considerable quantities of it, began now to exhibit some symptoms of hostility. It was, therefore, deemed prudent policy to encourage the growth of corn, even at
* The "charges" here referred to most probably meant the " public charges" provided for by the bill of this session, before mentioned, for that purpose.
t It may be pardonable, perhaps, to observe here, that this legislative frown, (if we may so call it,) upon the excessive use of spirituous liquors, might be copied by our state legislature of the present day. The pernicious effects of our modern " hot waters," such as rum, brandy, and whiskey, on the morals as well as health of the people of this state, are beyond all calculation. They not only generate idleness, but thin the population of the country.
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HISTORY OF MARYLAND.
CHAP. II. the expense of checking that of tobacco. In explanation of this 1639. clause in this act, it may be proper to state here also the sub- stance of one of the bills of this session, entitled, "an act for planting of corn ;" by which it was directed, that "every person planting tobacco was yearly also to plant and tend two acres of corn for his own food, and two acres of corn more for every per- son in his family planting tobacco, under the penalty of five bar- rels of corn, or other commodities to the value thereof, for every two acres of corn wherein he shall make default."*
Weights and mea- sures regu- lated.
As the measurement of corn, when made, has a natural con- nection with the planting or growing of it, it will be proper to take some notice here of another bill of this session, next to the one last mentioned, as they appear on our records, entitled, "an act for measures and weights." This bill, after regulating "measures and weights" in relation to other articles, thus proceeds with respect to Indian corn,-"And all contracts made for pay- ment in corn shall be understood of corn shelled ; and a barrel of new corn tendered in payment at or afore the fifteenth day of October in any year shall be twice shaked in the barrel, and af- terwards heaped as long as it will lie on ; and at or before the feast of the nativity shall be twice shaked and filled to the edge of the barrel, or else not shaked and heaped as before ; and af- ter the said feast it shall not be shaken at all, but delivered by strike."
Notwithstanding the expressions of this clause are somewhat obscure, yet it is plainly to be understood, that when speaking of "a barrel of new corn," it means corn in the ears, and not shelled, as in the preceding sentence.
As the regulation of weights and measures forms one of the most important articles in the police of every government, it was highly proper that the legislature of the province should make it a subject of its earliest attention. With propriety it adopted the usage and practice of the mother country, in relation to this sub- ject, in all other respects than in that of corn. Indian corn not
* Taken from Lib. C. & WH. p. 57 .- It may be proper to observe also, that similar regulations respecting the growth of corn had been adopted in Vir- ginia. It is an article of the oldest law upon record in that colony, passed in the year 1624, " That three capable men of every parish should be sworn to see, that every man planted and tended corn sufficient for his family ; and that those who neglected so to do, should be presented by the said three men, to the cen- sure of the governor and council ;" and in the year 1629 it was further regulated, " That every labourer was to tend two acres of corn or forfeit all his tobacco." See Burk's Hist. of Virg. vol. 1, p. 283, and vol. 2, p. 31.
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being an agricultural produce of England or the British isles, CHAP. II. no regulation thereof had ever there taken place. Some provi- 1639. sion relative thereto in the province was, therefore, absolutely necessary. It is probable, that the usage of shaking and heap- ing, as described in this bill, was borrowed from Virginia, where corn must have been now cultivated in considerable quantities. It seems extraordinary, however, that the mode of measuring corn by the barrel has never been precisely ascertained by law in either the province or state of Maryland, and to this day, when corn has been contracted for by the barrel, disputes frequently arise on the mode of measurement .*
Sect. (13.) "All tobaccoes shipped out of the province, (ex- Customs or cept to England, Ireland, or Virginia,) shall pay a custom of duties on five in the hundred."
the expor- tation of tobacco.
This clause, we may suppose, like the other clauses of this act, had reference to one other of the before mentioned bills of this session, entitled, "an act for a custom on certain tobaccoes;" by which five per cent. on all tobaccoes exported, (except to England, Ireland, and Virginia,) was given to the lord proprie- tary .- In further explanation of this subject, it may be proper to lay before the reader two clauses in the instructions to Sir William Berkeley, on his being appointed to succeed Sir John Hervey, as governor of Virginia, in the early part of this year, (1639.) It will be recollected, as before observed, that two colonial principles had been adopted by king Charles with re- spect to his dominions in America ; which were, that no tobac- coes should be imported into England from any foreign country, but from the American colonies only, and on the contrary, that these American colonies should export no tobaccoes to any fo- reign country, but to England only.+ But this latter prohibition with respect to the exportation of tobacco from the colonies to any foreign country seems to have failed in its intended effect. The order of the king in council, before mentioned, is said to have been either disregarded or eluded. However that was, the fore- going section of our act of assembly demonstrates, that the Ma- ryland colonists were at liberty at this time to export their tobac- co to other countries than England, Ireland and Virginia. The two clauses in the instructions to Sir William Berkeley afford
* As the regulation of weights and measures is a highly important subject un- der every government, the reader will find a full copy of this first essay towards it in our Maryland colony, in note (XXXIV.) at the end of this volume.
See what is observed in the preceding chapter on this subject, p. 78.
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HISTORY OF MARYLAND.
CHAP. II. further proof, that this last mentioned order of prohibition had 1639. lost its force also, as to Virginia. They are as follows :- "14thly. Whereas many ships laden with tobacco and other merchandizes have thence carried the same directly to foreign countries, where- by his majesty loseth the duties thereupon due, there being no- thing answered in Virginia ; you shall be very careful that no vessel depart thence loaded with those commodities, before bond, with sufficient sureties, be taken to his majesty's use, to bring the same into his majesty's dominions, and to carry a lading from thence ; that the staple of those commodities may be made here ; whereby his majesty, after so great an expense upon that plantation, and so many of his subjects transported thither, may not be defrauded of what is justly due for customs on the goods. The bonds to be transmitted, that delinquents may be proceeded against .- 15thly. To forbid all trade with any foreign vessel, except upon necessity : the governor shall take good bonds of the owners of tobacco, that it be brought to the port of London, there to pay such duties as are due." *- Although the prohibition of all foreign trade with Virginia was here again renewed, yet these instructions shew, that the former order in council, in this respect "was more honoured in the breach than the observance." The "duties" payable in London were said to be those payable under the statute of 1 Jac. 1, ch. 33, entitled, "an act of a sub- sidy of tonnage and poundage," by which the subsidy of pound- age was granted to the king on all "goods and merchandize brought into or carried out of the realm, at the rate of twelve pence on every twenty shillings value," equal to "five in the hundred," as expressed in our act of assembly. It is further said also, that the exception in the clause of exemption from taxes in the second charter of Virginia, (of 1609,) relates to this statute ; in which clause the king grants to the treasurer and company, "that they shall be free of all subsidies and customs in Virginia, for the space of one and twenty years, and from all taxes and impositions for ever upon any goods or merchandizes at any time hereafter, either upon importation thither, or expor- tation from thence into our realm of England, or into any other of our realms or dominions, by the said treasurer and company and their successors : except only the five pounds per cent. due for custom upon all such goods and merchandizes as shall be brought or imported into our realm of England, or any other
* See large extracts from these instructions, in Chalmers's Annals, p. 132.
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HISTORY OF MARYLAND.
of these our dominions according to the ancient trade of mer- CHAP. II. chants."*
1639.
Although this charter, as well as the others granted to the old Virginia Company, had been long since dissolved, and the colo- ny placed under a royal government, when the king would con- sequently have been entitled to any customs or duties, which should be imposed within the colony of Virginia on its exports or imports ; yet the king, in these instructions, demanded noth- ing more than what was contained within the exception in the charter, to wit, the customs or duties payable in England on to- bacco imported therein from Virginia. The like reservation to the crown of these customs or duties on goods and merchan- dize, to be imported from Maryland into England, seems to have been made in the eleventh and fifteenth sections of lord Balti- more's charter ; which customs or duties so saved or reserved to the king in that charter, we may suppose to be those imposed by the before mentioned statute of 1 Jac. 1, ch. 33 .- But in a subsequent section (the seventeenth) of the charter of Maryland, a grant is made to lord Baltimore of "the taxes and subsidies payable or arising within the ports, harbours, &c., within the province, for wares bought and sold, and things there to be la- den or unladen." Hence, therefore, we are enabled to discern the power and authority of the assembly to bestow the "customs of five in the hundred," on the lord proprietary instead of the king. A reimbursement of the extraordinary expenses, to which the lord proprietary had been put in the settlement of the colony, operated without doubt with the assembly, as a cause of their legislative remuneration.
We proceed next to what may be called the great constitu- tional clause of this act :-
Sec. (14.) "The lieutenant general and secretary (or his The con- deputy) and gentlemen summoned by special writ, and one or stitution of two burgesses out of every hundred, (at the choice of the free- ral assem- the gene- men,) at any time hereafter assembled, shall be judged a gene- bly more ral assembly." especially provided
The bill of this session, which is peculiarly explanatory of for.
* See this charter in Hazard's Collections, vol. 1, p. 68 .- Chalmers, (in his Annals, p. 47-8,) observes upon this clause of exception in this charter, that "this duty was assuredly payable by virtue of the act of tonnage and poundage, which passed in the first year of king James ; though that prince, turning his face from the parliamentary grant, considered the custom as due, according to. " the ancient trade of merchants."
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HISTORY OF MARYLAND.
CHAP. II. this section of the act, must also be attended to. It is entitled, 1639. "an act what persons shall be called to every general assem- bly." -- By this bill, (which was intended to be perpetual,) "every member of the council, and any other gentlemen of able judgment and quality summoned by his lordship's writ, and the lord of every manor within the province, (after manors be erected,) together with one, two, or more able and sufficient men, (as the freemen should think good,) elected for each hun- dred, in pursuance of writs issued for calling any general assembly, and no other, should have a voice, seat, and place in such gene- ral assembly. And every act therein made by persons so called, and elected, or the majority of them, and assented to by the lord proprietary or his lieutenant general, thereunto authorised by spe- cial warrant from his lordship, to be of as good force, as if his lordship and all the freemen in the province had been personally present at such general assemblies, and had consented to and approved of the making and enacting such laws. Provided, that all acts so approved by the freemen and by the lieutenant general in his lordship's name, should be of force until the lord proprietary should signify his disassent to the same under the great seal, and no further or longer."-The next bill of this ses- sion, entitled, "an act concerning the calling of general assem- blies," requires also to be here mentioned. By this last bill, (intended also to be perpetual,) "assemblies were to be called once in every three years at the least, and the freemen assembled therein, to have the like power, privilege, authority, and juris- diction, in causes and matters arising within this province, as the house of commons in England have had, used, or enjoyed, or of right ought to have, use, or enjoy, in any matters which have at any time happened or risen within the realm of Eng- land."
We see here a closer imitation of the English constitution, and especially of those parts of it which have been estimated as affording the greatest security to political liberty, forming what is called the representative system, than we could possibly have expected from either the temper of the times in which it occur- red, or the peculiar political sentiments of those by whom it was enacted. It was now perceived, that even in the present popu- lation of the colony, it would be highly inconvenient, either to depend upon the assemblage of all the freemen in the province for the purposes of legislation, or to interrupt the occupation of a planter peaceably settled on some remote plantation, by calling
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HISTORY OF MARYLAND.
him to the performance of a duty, for which he was not in any CHAP. II. manner qualified. That any freeman of the province should 1639. have a right to give his vote in the choice of any person in whom he might think it proper to repose his confidence to repre- sent him as his delegate in the assembly, was deemed by the members of this assembly as a sufficient reservation of the natu- ral right of every citizen to assent to laws, before he is bound by them.
An exceptionable part however, of the foregoing regulations appears in that which admits of "the summoning by his lord- ship's writ any other gentlemen of able judgment and quality," besides the delegates from the hundreds. As long as they con- tinued to sit together in one body, and to enact laws by a plu- rality of voices, it would always have been in the power of the governor for the time being to create a majority in the house, by summoning particular "gentlemen," whom he well knew, would answer his purposes. This objection, however, would be in some measure done away, as soon as the legislature, (which afterwards took place,) was divided into two branches. As soon as the delegates from the hundreds obtained the secluded right of assenting to the laws according to the sense of their own body, the numbers, which might constitute the other branch or upper house, ceased to be an object of much importance. The principle of "checks and balances" remedied the evil. That the "lord of every manor" should also be entitled to a seat in the legislature, demonstrates an intention of the first rulers of the province, often before signified in other instances, to create an hereditary aristocracy in the province, which should, as it seems, from this bill, have been vested with an hereditary right to a seat in the legislature similar to the nobility of England.
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