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 54
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1640.
The warfare with the Indians, which had commenced in the last year, seems to have still subsisted at the beginning of the next. From a commission issued to Nicholas Hervey, bearing date the 3d of January, 1639, (1640, N. S.) it appears, that certain Indians of the nation or tribe called the Maquantequats, had "committed sundry insolencies and rapines upon the English inhabiting within this province;" for which they had refused to make any satisfaction, as demanded of them. The government was therefore "compelled to enforce them thereto by the justice of a war." This commission therefore authorised Hervey, "with any company of English as should be willing to go along with him, so they exceed the number of twelve men sufficiently pro- vided with arms, to invade the said Maquantequats only, and against them and their lands and goods to execute and inflict what may be inflicted by the law of war; and the pillage and booty therein gotten to part and divide among the company that shall perform the service."t From the express direction
* See the license or commission to Andrew Chappel, recorded in "Council Proceedings from 1636 to 1657," p. 42 ;- the conclusion of which commission is thus :- "We will that this our commission continue in force until the next return of the said Andrew or his vessel into our said province of Maryland .- Witness, Leonard Calvert, esqr., admiral of our said province. Given at St. Mary's this 11th June, 1639."
t See this commission in "Council Proceedings from 1636 to 1657," p. 42 .- Although, by the ancient as well as modern usage of war, goods taken from an enemy, in what is called a solemn war, by soldiers or the army of a state, become the property of the sovereign power to which the soldiers belong, yet it was of- ten the practice, being a subject of municipal regulation, to direct, that the "pil-
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above, to make war only upon the Maquantequats, it is to be in- CHAPT. ferred, that the colonists were at peace with all other Indians; III. at least with such as lived in the neighbourhood of the Maquan- 1640. tequats. Correspondent with this supposition, a proclamation was issued not long afterwards, bearing date, January 24th, 1639, (1640, N. S.) declaring, "that we are in peace and amity with the Patuxent Indians our neighbours, and have taken them into our protection, and therefore do by these presents prohibit all English whatsoever within our province of Maryland for the time being, that they do not offer any injury or outrage whatsoever to any of the said Indians, upon pain of such punishment as the offence shall deserve,"* It may be here remembered, that these Indians of Patuxent seem to have been hitherto uniformly friendly to the colony in conformity to the remarkable sentiment express- ed by their king on the first landing of the colonists, as before mentioned.t
Some new regulations in the government appear to have now Prepara- taken place, which, although not very important it may never- training tions for theless be incumbent on us to mention. It will be recollected, the militia. that in the latter end of the year 1638, William Brainthwayte, esqr., was appointed chief captain and commander of the isle of Kent, in military as well as civil matters ; and he appears to have acted as such until the present time. But as captain Brent was now lately fixed upon as a proper person to train and discipline the militia of the province, as before mentioned, we are to infer, that he was a man possessed of some greater experience in mi- litary affairs, than most others in the province ; unless he had been so advanced, through special favour, by reason of some al- liance or affinity with the lord Baltimore's family. However
lage and booty," so taken in war, should be divided among the soldiers. See Grotius de Jur. Bell. & Pac. b. 3, ch. 6, sect. 17 .- It differs from a right given to every soldier individually to plunder as he pleases ; for besides being produc- tive of less cruelty to the enemy, it produces a greater equality and justice in the distribution of the plunder, the worst soldiers being commonly most intent on pillage. Ibid. sect. 18. It is worth observing, that at this period of time, the warfare of the most civilized nations in Europe was constantly attended with a license to the soldiery to plunder. During the war, called the thirty years war of Europe, from 1618 to 1648, as a modern historian observes,-"the exactions of the officers, and the plundering of the soldiers was at that time, the chief part of the art of war."-Mod. Univ. Hist. vol. 42, p. 240.
* "Council Proceedings from 1636 to 1657," p. 43.
t See before p. 31.
# It appears from the land records of the province, (Liber, No. 1,) that Mr. Giles Brent and Mr. Fulke Brent his brother first arrived in the province on the
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CHAPT. that was, it seems to have been now thought proper to transfer III. him to the command of the isle of Kent; the dangers arising 1640. from the hostilities of the savages in that quarter most probably requiring a person of more military knowledge than Mr. Brainth- wayte. A commission was therefore issued to "captain Giles Brent, esqr., one of the council of our said province," bearing date, February 3d, 1639, (1640, N. S.) constituting and appoint- ing him "to be commander of our isle of Kent within our said province, to rule and govern the inhabitants and all other per- sons within our said island, according to the powers herein com- mitted to him."*
Although it is probable, that captain Brent went to the isle of Kent in pursuance of his commission, yet, if he did, he must have sojourned there but a few months ; for, in August of this year the records recognize Mr. Brainthwayte again as command- er of the isle of Kent, as we shall presently see.
In the mean time some regulations took place towards the further population and division of the province. All that part of St. Ma- of St. Mary's county comprehended within the following metes and bounds, viz. "the two islands called St. Clement's isle and Heron's isle, and all the land over against the said islands on the north bank of Patowmack river between the creek common- ly called the Herring creek on the east and St. Catherine's creek
22d of November, 1638. With them came two of their sisters, Mrs. Margaret Brent and Mrs. Mary Brent, the former of which ladies we shall have to men- tion again on a singular occasion. This family brought with them a considera- ble number of servants of both sexes .- It further appears, that in contemplation of capt. Brent's appointment as commander of the isle of Kent, he received the promise of a grant of a considerable quantity of land on that island ; for, about a month before the date of his commission as commander thereof, an order was issued to the surveyor, as follows :- " 7th January, 1639 .- I would have you to lay out for Giles Brent, gent., treasurer, of the council of this province, one thou- sand acres of land, lying nearest together about Kent fort, and one thousand more where he shall desire it, and to certify Mr. Secretary what you do therein." The first mentioned thousand acres was accordingly laid out as directed, and by a grant thereof, bearing date the 7th of September, 1640, it was erected into a ma- nor under the name of " The Manor of Kent Fort." The scite of this manor included all that neck of land now commonly known and called by the name of Kent point,-the southernmost extremity of the isle of Kent. The fort al- luded to must have stood near to the first creek on the left hand when sailing up what is now called the eastern bay, after passing Kent point ; and was, probably, the place, where Clayborne made his first settlements prior to the arrival of the first Maryland colonists under Leonard Calvert. This manor remained in the possession of persons of the name of Brent, (probably of the family of Giles Brent the grantee,) until some time during the American revolution.
* See note (XXXIX.) at the end of this volume.
A further division of the county ry's.
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on the west, and extending into the woods five miles any where CHAPT. from the said bank," was thought fit to be erected " into a hun- III. dred by the name of St. Clement's hundred." In consequence 1640. of which, commissions issued, (bearing date the 16th of March, 1639, (1640, N. S.) appointing Thomas Gerard, gent. conser- vator of the peace within the said hundred ;* and John Robinson, of St. Clement's isle, "high constable" thereof. The powers vested in these officers by these commissions exhibit not only the state of the common law as it was then supposed to exist in the province in relation to the duties of such officers, but also a pe- culiar royal prerogative appertaining to the lord proprietary of the province. Mr. Gerard was appointed "conservator of the peace within the said hundred, as well upon the land as upon the water adjoining to it, with all powers and authorities belonging to any two justices of peace in England by the law or usage of England ;" Robinson "to be high constable of the said hundred with all powers to a high constable belonging by the law or usage of England." The special duties prescribed in these commis- sions were :-- To the justice of the peace,-"to use all power and means necessary for the preserving of any of our rights within the said hundred, either upon the land or water, and to punish according to his discretion with imprisonment or fine not exceeding t tobacco, with any corporal correction not ex- tending to life or member, any offenders against our said rights, and specially such as shall destroy or disturb our game of herons upon Heron island by unlawfully taking either the fowls or eggs, or by shooting upon or near the said island, and to take to your own use the guns, nets, or any other instruments used by any offender to the disturbance or destruction of any of our game as aforesaid, and to apprehend and send to St. Mary's all unlaw- ful traders with the Indians, and specially such as shall give or sell to any Indian any arms or ammunition, and to see that the inhabitants of the said hundred be provided of necessary and sufficient arms for their defence upon all occasions, and to do all other things necessary for the execution of the powers hereby committed unto you."-To the constable,-"to inquire of and
* A great part of this hundred, with the exception of Heron island, had been, a few months before, erected into a manor, called " St. Clement's Manor," and granted (November 3d, 1639,) to Mr. Thomas Gerard, (most probably the same gentleman above mentioned,) with a clause in the grant, as usual, of holding a court-baron and court-leet therein. See Land Records, Lib. No. 1, p. 43. t This blank so in the record.
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CHAPT. present to our lieutenant general or other justice aforesaid all III. persons whatsoever, that shall unlawfully trespass upon any our 1640. game of deer, turkies, herons, or other wild fowl or shall destroy their nests or eggs either upon our land or waters without leave of us or under, &c. and to take away their nets, hounds, or other means of taking them."*
Lord Bal- timore's right to the Although by the law of nature animals fera nature were lia- ble to be made the property of the first occupant, who should royal game take them ; yet by immemorial usage most of the monarchies of of the pro- vince. Europe had appropriated these animals to be the exclusive right of the sovereign of the state. This, it is said, was to avoid dis- turbances and quarrels, which would else have frequently arisen among individuals, contending about the acquisition of this spe- cies of property, The common law of England, like that of the rest of Europe, to cut up this root of dissension, vested the right and property of these animals in the king, or else in his representatives appointed and authorized by him, being usually the lords of manors.t Thus the lord proprietary of Maryland, being by his charter invested "with all and singular such and as ample royal rights as any bishop of Durham ever heretofore hath had," and the bishops of Durham having been, prior to the sta- tute of 27 Hen. 8, ch. 24, possessed of all Jura Regalia,} (sav- ing allegiance to the crown, ) among which royal rights that of game must have appertained to them, the lord proprietary of Maryland, therefore, must have been, in pursuance or in virtue of this clause in his charter, invested also with this royal right to all animals fera naturæ, since and then well known under the denomination of game, which were to be found within his province. This, perhaps, was the first instance of the exercise of this royal right by his lordship within his province. 'The state, since the revo- lution, has thought itself, it seems, entitled to this same prero- gative by succession to the sovereign power ; having made di- vers laws at different times for the preservation of the breed of wild deer, and for the protection of the fisheries, without which right they could not have legislated upon the subject, every ci- tizen being equally entitled to gain a property in them by occu- pancy. §
* "Council Proceedings from 1636 to 1657," p, 45.
+ 2 Bl. Com. 14, 414.
į 1 Bulstr. 160.
§ The birds, which were considered in England about this time, (according to lord Coke, Co. Litt. 233, a.) as fowls of the warren, in modern language called
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In this year also, William Clayborne, who appears to have CHAPT. been at this time still a resident of Virginia, thought it proper III. to make his application, through the medium of an attorney, for 1640. a restoration of his property left by him on the isle of Kent at borne's de- Clay- his departure. What inducement led him to this proceeding mand of his does not appear ; but it strongly wears the appearance at this within the property day of a bravado to the Maryland government, calculating on province. the approximation of confusion through the near approach of a civil war in the mother country .- By a letter of attorney, bear- ing date the 8th of August, 1640, he appointed "George Scovell of Nancimim, in Virginia, his true and lawful attorney to ask, demand, recover, and receive for him, in his name and to his use, all sums of money, debts, cattle, and tobacco debts, and every thing whatsoever to him due or payable from any inhabitant of the province of Maryland."-In virtue of this authority, Scovell presented a petition to the governor and council of the following purport :- " That captain William Clayborne, at his departure from the isle of Kent, left an estate within your pro- vince, as your petitioner is informed, amounting to a good value ; since which time divers inhabitants within your province, are possessed of the said estate, but by what right your petitioner knoweth not .- Your petitioner's humble request therefore is, the premises considered, that your worships would be pleased not only to allow of your petitioner's letter of attorney, but also to grant unto him free power and liberty, together with your wor- ships' furtherance therein, for the recovery of the aforesaid es- tate in the hands of any, in whom it shall be found."
"The answer" thereto is not long, but pithy, as follows :-
" What estate captain William Clayborne left with this pro- vince at his departure, undisposed of, on the 24th of March,
game, were "of two sorts, viz. terrestres et equatiles. Terrestres of two sorts, sylvestres et campestres. Campestres-as partridge, quail, rail, &c. Sylves- tres-as pheasant, woodcock, &c." Under this last head in Maryland we might rank wild turkies above mentioned,-a species of fowl, not inferior, perhaps, in the taste of the epicure, to the pheasant or woodcock. ".Aquatiles-as mallard, heron," &c. Either this last species of birds, (the heron,) must have vanished from our shores, or the taste of our modern sportsmen of Maryland must have varied from that of their ancestors, for these birds are not now held in any esti- mation.
The clause in the above commission to the justice of the peace, vesting in him powers equal to " two justices of the peace in England," had, probably, relation to the then existing statutes of game, particularly those of 1 Jac. 1, ch. 27, and 7 Jac. 1, ch. 11, whereby the conviction of such offenders was vested in two justices of peace out of sessions.
VOL. II .- 22
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CHAPT. 1637, the petitioner may know, that it is possessed by right of III. forfeiture to the lord proprietary for certain crimes of piracy and 1640. murder, whereof the said William Clayborne was attainted the day aforesaid by judgment of the house of general assembly. If the petitioner can find out any of the said estate not possess- ed or held by that right, he shall do well to inform his lordship's attorney of it, that it may be recovered to his lordship's use; but if the said Clayborne, or any other to his use, have since the said day acquired any estate within the province, the law of the province, without any grant or furtherance of governor or commissioners, gives the petitioner or any other attorney of the said Clayborne, free power and authority to recover it, and, when it is recovered, such order shall be taken with it, as jus- tice shall require." *- We shall see, however, in a few years, Mr. Clayborne acting towards Maryland in a very different char- acter, than that of a petitioner.
An assem- bly called.
At this peroid also, the calling of another assembly of the province, to be holden in the autumn of this year, was resolved upon by the government. In pursuance thereof, writs of elec- tion were issued to the several hundreds of the province, autho- rizing them to choose burgesses for their respective hundreds for the next assembly. As these writs are the only documents ex- tant upon record, which unfold the constitutional principles of provincial government in its earlest progress, it will be proper to exhibit at least the substance of some of them.
"Cecilius, &c., to ourtrusty and well beloved William Brainth- wayte, our commander of our isle of Kent, greeting; Whereas we have appointed to hold a general assembly at St. Mary's on Monday being the twelfth day of October next, these are there- fore to will and require you, that without delay you assemble and summon all the freemen of that island at a certain time and place to be reasonably by you prefixed, and there cause them to make election of any one or more burgesses for that island, (not exceeding the number of four,) and to make true return of the party or parties so nominated and elected by the said freemen or the major part of them to our secretary, before the said twelfth day of October .- Given at St. Mary's on the 14th of August, 1640."
The writs of election to the several hundreds of St. Mary's
*These proceedings bear date in the record,-" 21st August, 1640;" see "Council Proceedings from 1636 to 1657," p. 48.
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county, varied somewhat from the above; as thus :- "Cecilius, CHAPT. &c., to all the freemen of our hundred of St. Mary's, greeting; III. We do hereby summon you to be before our secretary at St. 1640. John's on Tuesday next at one of the clock after dinner to make election of one or two burgesses for that hundred for the next assembly .- Given at St. Mary's, 12th of September, 1640."- The like writ to the freemen of St. George's hundred to be be- fore the sheriff at a certain place, (therein mentioned,) within that hundred. The like to those of St. Michael's hundred to be before the constable of that hundred. The like to those of Con- ception hundred, Mattapanient hundred, and St. Clement's hundred to be before the particular person named in their respec- tive writs.
In virtue of the lord proprietary's prerogative before mention- ed, of summoning, by special writ, "any gentleman of able judgment and quality;" which prerogative right seems to have been recognized by the act of the last session, (1638-9, ch. 1,) and more particularly designated by the bill of the same session, entitled, "an act what persons shall be called to every general assembly," such special writs were in pursuance thereof now issued to several gentlemen, requiring their attendance at the assembly .- One of them as follows :-
" Cecilius, lord proprietary, &c., to our trusty and well be- loved Giles Brent, gent., treasurer of our province of Maryland, and one of our council, greeting; Whereas we have appointed to hold a general assembly at St. Mary's, on Monday being the twelfth day of October next, we therefore much relying upon your judgment and advice in that assembly, do hereby will and require you, that you repair in person to the said assembly at the time and place prefixed, there to advise and consult with us touching the important affairs of our province."
Another of these special writs, on account of its singularity, deserves to be mentioned .- "Cecilius, &c., to our trusty Cuth- bert Fenwick, gent., attorney within this province of our right trusty councellor, Thomas Cornwaleys, greeting ; Whereas we have ap- pointed to hold a general assembly at St. Mary's on Monday the 12th of October next, at which assembly we could have wished to have had the presence and advice of our trusty councellor Tho- mas Cornwaleys, which being not to be presumed upon by reason of his absence, nevertheless for the respect we bear unto him, and out of our care that so great a member of our province may have his attorney there to take care of such things as may con-
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CHAPT. cern him, therefore we do hereby authorize you to repair person- III. ally to the said assembly, there to have place, voice, and seat, 1640. as our said councellor's proctor or attorney during his absence. Given at St. Mary's, 19th September, 1640."
Regular returns from the several hundreds, according to the before mentioned writs of election, appear to have been made, and directed to the secretary, specifying the names of the per- sons chosen as burgesses for their respective hundreds.
Their pro- ceedings.
In pursuance of these writs the assembly met on the 12th of October, at St. John's, when "the house being called, all the gentlemen summoned by special writ, and all the burgesses that were returned from the several hundreds appeared, except Mr. Fulk Brent, whose absence was excused by the governor."
Some other proceedings of the house immediately on their meeting appear to indicate their ideas of the origin of the au- thority and power of the house.
"First, was read that part of the commission, which concerns the holding of assemblies."-This must allude to the commis- sion to the governor, of the 15th of April, 1637, before stated.
" Then was read his lordship's proxy to the governor for giv- ing his assent;"-which must have referred to the letter from lord Baltimore to the governor, of August 21st, 1638, stated before with the proceedings of the last session.
"Then was read that part of the act of last assembly, which ordained the house of assembly ;" to wit, the act of 1638-9, ch. 1, before stated.
The journal of this session, as it appears on our records, af- fords but little matter worthy of observation. One measure, which took place on this first day, (October 12th,) may perhaps be deemed to merit notice, on account of its exhibiting the ap- parently confused situation of the foreign trade of the province at this time. "A proclamation," (as it is called on the journal,) relative to this subject, was "issued by the house of assembly," (a singular mode of proceeding for a legislative body, and would therefore, be more properly called a resolution,) in the following terms :- " It is strictly prohibited, that no person whatsoever go aboard any pinnace or other vessel, wherein are any goods im- ported to be retailed, nor do treat or deal, or give intelligence to or with the skipper, factor, or any seaman in any such vessel, touching any goods buying, or the rates and quantities of to- bacco, or want of goods within the colony, before liberty of trade proclaimed at the fort, nor then at any higher or greater
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rate than shall be proclaimed, upon pain of such punishment as CHAPT. shall be thought fit by the house of assembly, and further it is III. prohibited, that no merchant, skipper, or other seaman, contract 1640. or deal for any goods with any inhabitant, nor sell or utter any, nor shall land at any place in the province, but at the governor's landing-place, afore license obtained from the lieutenant gene- ral upon such pain and loss as shall be likewise thought fit, whereof they are hereby required to take notice at their peril. Given at St. John's, this 12th of October, 1640 .- Signed Wil- liam Britton, clerk."*
Pursuant to this proclamation of the legislature, the governor (Leonard Calvert) issued his precept, on the same day, address- ed-"To the sheriff of St. Mary's or his deputy," requiring him to repair on board a pinnace, therein mentioned, for the purpose of preventing offences against the above proclamation. However, on the last day of the session but one, mention is made on the journal, of this proclamation being "reversed."
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