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 55
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The house did not agree to their "rules and orders," until the second day of their session; some of which rules illustrate the constitutional organization of the house.
By the first of them, "the lieutenant general" was "to be call- ed the president of the assembly," that is, to act as speaker of the house.
By the second,-"Ten members of the house, whereof the lieutenant general to be always one, at any time assembled, with the clerk of the assembly, shall be a full house, except on the session-day it shall not be a full house under the number of twelve, as afore."
This, however, seems repugnant to the act made at the last session, entitled, "an act for establishing the house of assem- bly," &c., (1638-9, ch. 1,) since that act says,-" that any twelve or more shall be called the house of assembly;" which
*From this it appears, that the secretary of the province, (Mr. Lewger,) did not act as clerk of the assembly at this session, as he did at the session before ; but Mr. Britton here appears in that character ; and among the orders of the house on the first day of this session, it was "ordered, that the clerk of the as- sembly should have 5 shillings per day, and for every private draught, 12s ;" but this per diem allowance of 5s. was altered on a subsequent day of this session to 50 lb. of tobacco per day .- This seems to afford us some probable datum, whence we may calculate the price of tobacco at this time, and the proportional rate when paid and received as a medium of commerce, which it bore to the current money of the province. If so, the nominal price of tobacco at this time in the province must have been ten shillings per hundred.
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CHAPT. seems to imply that less than twelve should not make a house; III. and that twelve at least were requisite at all times to make a 1640. house on every day of their session, as well as "on the session- day;" by which last expression must be meant the first day of the session.
By the fifth rule ;- "Notice shall be given of the day of ses- sion, nine days before;" (This is obscure, but we may suppose it to mean, that after a prorogation or adjournment, notice should be given nine days before the first day of the next session;) "and at the session all the bills engrossed shall be read and severally voted, and such bills as are assented unto by the greater part of the gentlemen and burgesses shall be presented to the lieutenant general, and when he hath signed the bill it shall be recorded and published under the great seal of the province, and if the votes of the gentlemen or burgesses be equal the bill may not pass."*
Remarks of the ses- sion. A few animadversions on the acts of assembly passed at these on the acts first or earliest sessions, seem to be indispensably necessary. They are, indeed, together with the few proclamations and com- missions still extant upon record, the principal materials of a provincial history. Care will be taken, however, to avoid a reiteration of remarks upon acts similar in substance to those before commented upon.
The first of the acts passed at this session, entitled, "an act for church liberties," is nearly verbatim the same as the first sec- tion of the second act of the preceding session ; but the next, entitled, "an act for uncertain goods," varies somewhat from the tenth section of the act just mentioned of the preceding session. The former act directed, that "the governor and council should appoint, how such goods should be employed;" but this act is more definitive, by vesting the right to such goods in the lord proprietary. It may be remarked here, that this act of assem- bly was considered by Mr. Bacon, when he compiled the laws of the province, in 1763, as a law then in force. It does not appear to have been repealed between that period and the revo- lution ; when the continuance of all acts of assembly then in force, together with the common law, was recognized by the declaration of rights.t This act is, nevertheless, omitted by
* For the proceedings of this session of assembly see the journal thereof in the book of the council chamber, entitled, "Assembly Proceedings from 1637 to 1658," p. 136 to 147.
+ Sect. 3.
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the succeeding compiler of all the laws of Maryland,* being CHAPT. deemed by him, as we may suppose, abrogated by the revolu- III. tion. It would seem, however, that the same principle, which 1640. vested the real property of the lord proprietary in the state, (as the vacant lands of the province, which were never expressly transferred to the state, either by the declaration of rights, con- stitution, or any subsequent law, would also have transferred all his rights to any personal property. But, be that as it may, the subject matter of the law can so seldom occur, that its opera- tion can be of little consequence at this day.
The next law of this session, (1640, ch. 3,) "for providing against sudden accidents in the government, seems to be, in part, but a re-enactment of the 15th section of the act of the preceding session, (1638-9, ch. 2,) before commented upon. It makes further provision against as great an inconvenience, as the preceding part of the act, (should such an incident happen, ) in the following manner :- "and in case the lieutenant general shall decease or be absent out of the province without nominat- ing or substituting another in his room, the first councillor of state residing at St. Mary's, shall exercise the office of lieutenant gene- ral in all points belonging to it until his return into the province, or that another be appointed by the lord proprietary." It will be recollected, that the "ordinance" or commission from the lord pro- prietary to his brother Leonard Calvert, of the 15th of April, 1637, before stated, vested a power in the governor, in case of his "absence out of the province," to nominate and appoint some other person, whom he should think fit, to be his lordship's lieutenant general of the province, and in case of the failure of the governor to do so, that the councillors for the time being should nominate and appoint such lieutenant general in his room. The governor, on his visit to Virginia in 1638, as before noticed, accordingly twice availed himself of the power granted him by that commission. This act seems to provide a more effectual remedy for one of the inconveniencies before mentioned than the ordinance, inasmuch as dissentions might arise among the coun- cillors, each of whom would probably be a candidate for the office, so as to prevent their appointment of any one, in case of failure of the governor to do it. The designation of the appoint- ment of the eldest of them, as directed by this act, seems, there- fore, to have been a prudent provision. It is to be observed,
* It is not inserted by Mr. Kilty in his compilation of the laws,
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CHAPT. also, that the act guards against the inconvenience resulting from III. the death of the lieutenant general, a circumstance omitted in the 1640. ordinance, unless it be supplied by intendment, as we have ventured to do, in the copy of that document herein before exhibited ;* which we shall see arise on the death of the present lieutenant general, but which was happily guarded against by a commission of the lord proprietary previous to the incident.
Two other acts of this session; one "for prohibiting the ex- portation of corn;" and another, "for the planting of corn ;" would seem at first to indicate an apprehension of a scarcity at this time of that necessary article of subsistence for the colony ; but two bills, with the same title as that of the last mentioned act, one at each of the preceding sessions, had been passed ; from which it may be inferred, that these acts, relative to corn, were intended only as a cautious regulation of that agricultural produce ; and licences for exporting corn appear to have been frequently granted for several years back.t In pursuance of this last mentioned act, however, " for the planting of corn," we find that, during the succeeding crop in July, 1641, a special com- mission "to the sheriff of St. Mary's," was issued by the gover- nor, "requiring him to repair to every several plantation within the several hundreds of St. Mary's, St. Michael's, St. George's, and Mattapanient, and there, by all means that he may, to in- form himself, whether every hand planting tobacco this crop do plant and tend two acres of corn, as the ground shall be estimat- ed by the deputy surveyor, who is to accompany him for that purpose; the names of the defaulters and the quantity of their deficiency to be returned by him to the secretary."}
The "act touching tobaccoes," of this session also, is the first inspection law, which appears to have been passed in Maryland. As this great staple of our former trade, and principal commodi- ty of our agricultural produce, upon which formerly depended all the wealth of the province, is now happily ceasing to be in demand, and is gradually yielding to articles of more substantial value, the contents of this ancient inspection law will afford but little interest to the reader.§ It suggests, however, an animad-
* See note (VI.) at the end of this volume.
+ Ante, p. 164.
į "Council Proceedings from 1636 to 1657," p. 56.
§ The reader will find an abridgment of this first Maryland inspection law, (made by the judicious Mr, Bacon,) in note (XL.) at the end of this volume.
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version on a remark made by one of the oldest historians of Vir- CHAPT. ginia, (a native of that province,) on the mischiefs accruing to III. Virginia from lord Baltimore's grant. He observes,-"that by 1640. this unhappy accident," (that is, by the grant of the province of Maryland to lord Baltimore,) "a country, which nature had so well contrived for one, became two separate governments. This produced a most unhappy inconvenience to both; for, these two being the only countries under the dominion of England, that plant tobacco in any quantity, the ill consequence to both is, that when one colony goes about to prohibit the trash, or mend the staple of that commodity, to help the market; then the other, to take advantage of that market, pours into England all they can make, both good and bad, without distinction. This is very injurious to the other colony, which had voluntarily suffered so great a diminution in the quantity to mend the quality; and this is notoriously manifested from that incomparable Virginia law, appointing sworn agents to examine their tobacco."* A remark made by Mr. Oldmixon,t on this passage just quoted, deserves to be here inserted :- "Whether the people of Mary- land have not the same or the like complaints to make against the Virginians, is to be doubted, and that the industry and good management of that colony have set an example, even to her mother plantation, which it had been better with her if she had followed. We must leave this dispute to be decided by the gentlemen concerned in it." Although this remark of Mr. Old- mixon might have resulted from a just resentment of Mr. Bev- erly's conduct towards him,¿ yet nevertheless it does not appear
* Beverly's Hist. of Vrginia, B. 1, sect. 57, (edit. 1722.)
+ Brit. Emp. in America, vol. 1, p. 239.
# These two gentlemen had a literary quarrel in England about their books. It appears, that while Oldmixon was compiling his work, (British Empire in America,) in the year 1703, the part of it relative to Virginia was shewn in manuscript to Mr. Beverly, a native Virginian of note, then in London, by the bookseller, who was the editor of it, in order that he should "overlook" and correct it. Displeased, as he says, with that part of the work thus shewn to him, he resolved himself to compile an account of Virginia, which should be published by itself, and not make a part of Oldmixon's work. This was accord- ingly done, before Oldmixon's work was published; so that this gentleman was enabled to borrow much from Mr. Beverly's Account of Virginia; retaining; however, as he says, such parts of his own previously compiled as rested upon other foundations than those of Beverly's work. How far it was fair among authors, for Mr. Beverly to anticipate Mr. Oldmixon, after the work of the latter was shewn to the former, will admit of much variance of opinion. It appears, that Mr. Oldmixon was vexed at this anticipation, and manifests his resentment at it in a variety of passages in his work. See the prefaces to each of these works.
VOL. II .- 23
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CHAPT. to be destitute of foundation. Of what date this "incompara- III. ble" inspection law of Virginia was, we are not informed by the 1640. historian last mentioned ; but, according to the latest historian of that state,* "the original of the several laws that have been enacted (in Virginia,) concerning the inspection of tobacco," was passed at the session of Assembly of that province, held in March, 1628 .; This subject, he says, was "the first object of this body's attention. The quality of their principal staple had become debased by the rage for producing a sufficiency to answer the increasing demands ; and this deterioration had of late be- come so palpable, as to raise the clamors of the merchants, and to call forth the reproof of the king. Another evil, more im- mediately mischievous, was produced by this cupidity. The attention of the colonists to the articles of primary necessity, was sensibly relaxed; and they were alarmed all at once by the approaches of famine. To remedy this evil, an act was passed, limiting the culture of tobacco to so many plants per head ; and sworn triers or inspectors were appointed to see, that the inten- tion of the legislature should be strictly carried into effect. The culture of corn was at the same time commanded under severe penalties." Whether this was the "incomparable" inspection law alluded to by the historian, or not, or whether there might have been some more improved legislative regulation on this subject, passed between this date, (1628,) and the time when he wrote, (1705,) to which he might here refer, cannot be of much importance to the dispute. Such complaints, as those made by this historian, could apply only to the times previous to this Maryland inspection law of 1640. As soon as this law passed we may suppose the evils complained of to have ceased; for, we are to suppose the inspection laws of each province to have been equally salutary. There seems then to have been but little foundation, existing at the time when this author wrote, (for he speaks of the "ill consequence" then existing,) for that splene- tic regret, which he expresses, for the "unhappy accident" of lord Baltimore's grant.
* Burk's Hist. of Virginia, vol. 2, p. 24.
+ Although the inspection law of this session of the Virginia assembly is thus said to be their original inspection law ; yet it appears, that one of the articles of the first law now upon record in Virginia, (passed in 1624,) contains a regu- lation upon this subject in the following words :- " that men shall be sworn, in every plantation, to censure the tobacco." See Burk's Hist. Virg. vol. 1, p. 284; and Chalmers's Annals, p. 64, who cites Stith, 318.
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It is probable, that in imitation of the above mentioned poli- CHAPT. cy of Virginia, "limiting the culture of tobacco to so many III. plants per head," a proposition was made in the first day of this 1640. session of the Maryland assembly, to limit the quantity of to- bacco to be planted in Maryland ; as appears from the following entry on the journal :- "Then was propounded some bill to be drawn for stinting the planting of tobaccoes, but rejected." Soon after, however, another proposition was more successfully made in the house on the same day, as follows :- "Then was appointed a bill to be drawn for the destroying of unsound to- bacco ; which bill appears to have been the "act touching to- baccoes" before mentioned. It may, perhaps, deserve notice, that the "president" of the assembly, (who was the governor, Leonard Calvert,) was among the dissentients to the bill.
One or two other occurrences of this session may also be Judicial mentioned. An instance again occurs at this session of the ex- powers ex- ercise of judicial powers by the house of assembly, which de- the assem- ercised by serves notice principally on account of the unusual mode of com- bly. muting the punishment of the offender. The secretary of state, (Mr. John Lewger,) had, on the first day of this session, issued his writ to the "sheriff of St. Mary's," to "have the body of John Dandie, smith, before the house of assembly at nine of the clock this morning to answer to such crimes as on his lordship's behalf shall be objected against him." What these "crimes" were, does not appear ; sentence of death, however, was passed upon him ; but, on the tenth of May next succeeding, "upon the petition of a great part of the colony for the pardoning of Dandie, the governor exchanged the sentence of death into three years service to the lord proprietary, wherewith the said Dandie was well contented." *- In a subsequent document, bearing date June 12th, 1647, which purports to be a further pardon for John Dandie, it is stated, that "amongst other penalties he was adjudg- ed to be public executioner within this province, but for his good services and particular fidelity to governor Calvert he was there- by remitted from all former penalties whatsoever." There seems, however, to be some small error or omission here in the entry of this last mentioned pardon or remission ; for, if he had "sentence
* It ought to be observed here, that the lord Baltimore had one or more plan- tations or manors in the province, at this time, cultivated at his own expense and for his own immediate profit, on some one of which plantations, most probably Dandie was to serve, perhaps in his trade of a smith.
+ "Council Proceedings from 1636 to 1657," p. 153.
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CHAPT. of death" passed upon him, as appears by the records of this III. session, (of 1640,) he could not have been "adjudged" at the 1640. same time "to be public executioner within the province." It is therefore to be understood, as having been one of the con- ditions of his pardon, that he should be "public executioner of the province," (an officer, whom it might, on account of the paucity of inhabitants, have been difficult to procure,) as well as serve his lordship on one of his plantations for three years. The common law authorised the king, and consequently the lord proprietary or his lieutenant, to pardon upon any condition or conditions whatsoever, which he might think fit, and the cri- minal would accept. It will be recollected, that by a bill of the last session, (1638-9,) entitled, "an act for the appointment of certain officers," the governor and council were authorised to appoint a public executioner of all corporal punishments .* They probably took this method of carrying the act into effect.
The other occurrence of this session deserving notice was as follows :- Mr. Thomas Adams, a member of this assembly from the isle of Kent, and who appears to have been a man of some note there, had uttered, most probably at the present session, dis- respectful expressions concerning the lord proprietary. What these expressions were, does not appear. The journal however, states, that he was "for these indecent speeches touching the lord proprietary, censured to ask forgiveness of the lieutenant general ; which he did." The reconciliation appears to have been complete on both sides ; for, early in the succeeding year, (March 6th, 1640-1,) a special writ of pardon was granted to him, which set forth, "that for and in consideration, that Tho- mas Adams, one of our commissioners of our isle of Kent, gent., hath performed unto us acceptable service within our said island, and to the end he may be encouraged to do unto us and our heirs further faithful service within our said island and province, we do hereby fully acquit, remit, and pardon for ever unto the said Thomas Adams, all and all manner of piracies at any time heretofore committed by the said Thomas Adams against our peace and dignity within our said province."-From this it may be inferred, that Mr. Adams had been a coadjutor of Mr. Clayborne in his resistance to the lord Baltimore's authority in the isle of Kent, though now converted into a zealous friend to the lord proprietary.
* See anto p. 139.
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This leads us to advert to some regulations made in the course CHAPT. of this year, relative to the lands held in that island. Many of III. the settlers there had received grants, of the lands possessed by 1640. them, from captain Clayborne. His claim being now probably deemed by the planters there ineffectual, they had ceased to cher- ish any further resistance to lord Baltimore's jurisdiction ; and it is possible, that Mr. Adams had now become instrumental in allaying all former discontents. It was, therefore, thought to be proper at this period for the government at St. Mary's, to regrant new patents or grants of all such lands, as had been before grant- ed by Clayborne, to the same persons, who held those lands un- der Clayborne's grants. This was accordingly done ;* and in further regulation thereof a commission issued to the sheriff of the isle of Kent, bearing date the 7th of December, 1640, stat- ing that-" Whereas, since our conditions of plantation, pub- lished in the year 1633, and since, divers persons have entered upon the isle of Kent and seated themselves, and taken up seve- ral parcels of land, whereby they became obliged to the rent re- served upon the said conditions,-these are, therefore, to will and require you to demand of every several tenant possessed of or claiming to any land possessed or claimed by every such ten- ant, viz. for every fifty acres twelve pence sterling or the com- modities of the country ; for every year that he hath been pos- sessed of the same, for which twelve pence you may receive four pound of tobacco or one peck of wheat ;* and whereas divers
* See the oldest record book in the Land-office, Lib. No. 1, during the year 1640.
+ If we may suppose these rates to have been fixed at the then minimum cur- rent price of tobacco and wheat within the province, we may take them as data to ascertain the proportional current value of these articles at this time in the province; which would be three pence per pound for tobacco, and four shillings per bushel for wheat. But, from this it would appear, that the current price of wheat was the same, or nearly so, in the province as it was in England. From the statute of 21 Jac. 1, ch. 28, sect. 3, (anno 1624,) it appears, that the current price of wheat at that time in England was thirty-two shillings per quarter, which is equal to twelve pence the peck, the value of the rents fixed by the commission. Hume, (in his Appendix to James the first's reign,) observes upon this, that the price of wheat, (as mentioned in this statute,) " though then regarded as low, would rather pass for high by our present estimation." The ascertainment of rents in produce at the above mentioned rates is not, however, conclusive, that such were the current prices of tobacco and wheat within the province at that time, but only presumptive evidence thereof. In like manner, in the bill, " for the authority of justice of the peace," in 1638-9, before stated, (p. 124,) the of- fender was to be fined " 51b. tobacco or one shilling sterling," which, supposing that a shilling was meant as equivalent to 5 lb. tobacco, would make the price of tobacco at that time, about two pence farthing per lb. Tobacco must have fallen
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HISTORY OF MARYLAND.
CHAPT. persons are possessed of several parcels of land by virtue of a III. pretended grant from capt. William Clayborne, for the yearly 1640. rent of two capons, our will is that from such tenants you demand no more for the time past than the said two capons for every year that the rent hath been behind, and from such as shall be willing to commute the said rent into some other commodities, that you may take for every two capons sixteen pound of tobacco or one bushel of wheat ;* and if any shall refuse or delay to pay their said rents and arrears of rent due in manner as aforesaid, then we do hereby authorise you, and withal will and require you to distrain for the same upon any the lands, goods or chattels of the party or parties so refusing or delaying, and such rents, as shall be by you received by virtue hereof, make accompt thereof to our receiver general at St. Mary's, who shall satisfy you for your pains therein, whereof fail not," &c.t
1641.
The Indians, inhabiting within the limits of Maryland, seem now to have been permanently fixed in their irreconcilable dis- content at the intrusion of the colonists. They not only annoy- ed the exterior or frontier settlers of St. Mary's county, in the plunder of their live stock, but on the eastern-shore rendered themselves formidable by their hostile conduct towards the in- habitants of the isle of Kent. At the latter end of the preced-
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