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 56
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at this time, (1640,) both in Virginia and Maryland, very much in its value, from what it was in Virginia in 1618, when it was at three shillings per pound. The increasing quantity of it, now annually grown both in Virginia and Mary - land would probably occasion this.
* This seems to be additional proof, that articles of food were nearly of the same prices in Maryland at this time as they were in England. Hume, in his Appendix just before cited, states a regulation of the market with regard to poultry and some other articles, very early in Charles the first's reign, and ob- serves,-" the prices are high." Among other articles of poultry he mentions,- "a capon two and six pence." I would add, that Shakspeare, (who wrote but a few years before the first emigration of the Maryland colony, ) has affixed nearly the same price to a capon, in drawing his inimitable character of Falstaff, whom he makes to be very fond of that delicious fare. In the bill or " tavern reckon- ing" humorously picked out of his pocket when he was asleep, by Poins and Prince Hal, is the following charge :- " Item, a capon, 2s. 2d."-Mr. Clayborne, when he made his rents payable in this way, most probably followed some old English usage, and might moreover have had somewhat of Sir John Falstaff's epicurean taste. Capons appear to have been then considered as a delicious ar- ticle of animal food. Shakspeare makes Jacques describe a justice of the peace, (in As you like it, written in the year 1600,)
" In fair round belly, with good capon lined."
But either our modern epicures have varied from their ancestors in their taste for luxuries, or our good house wives have acquired more humanity towards the male sex of their poultry ; for, this dish is not now held in much estimation.
t " Council Proceedings from 1636 to 1657," p. 51.
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HISTORY OF MARYLAND.
ing year, (1640,) the governor had authorised, by commission, CHAPT. the high constable of St. Clement's hundred, in St. Mary's III. county, to attend Mr. William Britton, gentleman, of that hun- 1641. dred, in demanding of the king or great men of some Indians, who had done him considerable injury in his swine, to make re- paration to him, and warning them, that if such reparation be refused or delayed, that free liberty should be given to Mr. Brit- ton, " to right himself upon any the persons or goods belonging to that town, by all means that he may."-Such petty plunders might be considered, indeed, as a natural result from the habits and customs of the American savages; but the inhabitants of the isle of Kent were threatened with more determined acts of hos- tility; insomuch that the governor was induced to issue, (on the 10th of July, 1641,) a proclamation to the inhabitants of that island of the following tenor :- " Whereas it is necessary at this present to stand upon our guard against the Indians, these are therefore to publish, and strictly to prohibit all persons what- soever, that no man presume to harbour or entertain any Indian whatsoever after notice hereof, upon pain of such punishment as by martial law may be inflicted; and I do hereby authorize and declare it lawful to any inhabitant whatsoever of the isle of Kent, to shoot, wound, or kill any Indian whatsoever coming upon the said island, until further order be given herein."" "* The Indians thus in hostility to the inhabitants of the isle of Kent were most probably those denominated the Ozinies, whose prin- cipal residence or town seems to have been, according to Smith, at or near the confluence of the Corsica creek with the Chester river, in Queen Ann's county, and within fifteen miles from the Narrows or Strait, which separates the isle of Kent from the main. This tribe of Indians, according to Smith, in his History of Virginia, could then turn out, as he was informed, sixty war- riors. Had these warriors been armed with fire-arms, they would have been a most formidable enemy, indeed, to the English in- habitants of the isle of Kent at that time, whose militia or fight- ing men did not probably exceed twenty-five in number, as appears from the number of voters thereon in the year preceding.f
From some cause, not apparent at this day, it was thought Session of proper to call an assembly of the province about midsummer of assembly. this year. The writs of summons for that purpose, still extant
* * Council Proceedings from 1636 to 1657," p. 52 and 56. t See ante p. 100.
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HISTORY OF MARYLAND.
CHAPT. upon the records, expressly mention that the session was to be III. "held by prorogation ;" from which it would appear, that the 1641. assembly held in the preceding year, (1640,) had not been dis- solved, but only prorogued. It is difficult, however, to reconcile this with the new elections, which took place immediately pre- ceding the present session, in the several hundreds; as appears from the several certificates, returned to this assembly, and sign- ed by the individual freemen of each hundred, designating the person by name, whom they had chosen as a burgess for their hundred. These certificates were, (according to the orders of the house, it seems,) read on the first day of the session, which was the 5th of August. One of them, as it indicates a material change in an important constitutional principle of the provincial government, requires notice. Mr. Thomas Gerard had, in the year 1639, obtained a grant of St. Clement's manor, as before mentioned,* which manor comprehended very nearly the whole of St. Clement's hundred. But, he being absent from St. Cle- ment's hundred, perhaps out of the province, at the time of the election of a burgess for that hundred, which took place preced- ing the session of 1640, the freemen of that hundred certified, in the return made by them to that session, that "being but a small company in number they had made election of lieutenant Ro- bert Vaughan as a burgess for that hundred, who had been left and constituted Mr. Thomas Gerard's attorney."-Among the writs of summons issued for this session of 1641, one was ad- dressed "to Thomas Gerard, lord of the manor of St. Clement's, gent.,"-requiring him to repair in person to the house of gene- ral assembly. This seems to have been in conformity to the prerogative right of the lord proprietary, as before mentioned, of summoning " gentlemen of able judgment and quality" to a seat in the assembly. But besides the writ of summons to Mr. Gerard, it appeared, on reading the certificate or return of elec- tion for St. Clement's hundred, that the freemen of that hundred had also elected him as their burgess for that hundred .- "Where- upon,"-(as the entry is in the record,t) "Robert Vaughan (then appearing for the said hundred) was discharged of his voice and seat ; and demanding to have voice in his own person was refused." This seems to have been a legislative recogni-
* See before, p. 167.
t See the record book in the Council Chamber, entitled, "Assembly Proceed- ings from 1637 to 1658," p. 158.
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HISTORY OF MARYLAND.
tion of the total abolition of the right claimed by every freeman CHAPT. of the province, as before observed upon at the first settlement III. 1641. of the province, to a seat in the house of assembly, and which abolition appears to have been in pursuance and virtue of the act of 1638, (1639, N. S.) ch. 1, before referred to ; by which act the several persons elected and returned, (pursuant to the writs issued,) should be called burgesses, and supply the place of all freemen consenting to such election, in the same manner, and to all the same intents and purposes, as the burgesses in any borough in England, in the parliament of England, use to sup- ply the place of the inhabitants of their respective boroughs."*
acts passed. therein.
This assembly continued in session but a few days, and en- Some few acted only three laws; two of which require some notice. The first of them, entitled, "an act against fugitives," was excessive- ly severe, and beyond any modern idea of the due proportion between crimes and punishments. This act made it "felony of death, together with forfeiture of lands, goods, &c., for any ap- prentice-servant to depart away secretly from his or her master or dame, with intent to convey him or herself away out of the province; and for any other person that should willingly accom- pany such servant in such unlawful departure ; unless his lord- ship, or his lieutenant general, should think proper to change such pains of death into a servitude not exceeding seven years." This exceeded the punishment annexed to the same or a similar crime under the whimsical description of-"stealth of one's self," to which the benefit of clergy was allowed by the bill, entitled, "an act allowing book to certain felonies," of the session of 1638-9, as before stated.t It is to be observed, however, that a clause appears on the journal of the house, of this session, which seems to have been intended by the legislature as an ex- planatory declaration of their meaning as to one part of this.
* The following certificate returned to this session from Mattapanient hun- dred, in St. Mary's county, illustrates the mode, in which the freemen of these times exercised their important right of suffrage.
" MR. FENWICK .- We whose names are hereunder written do desire you to answer for us at the parliament, and we shall be much beholding unto you for the same.
Richard Gardner, Richard Lustick, Lewis Froman."
See a document similar to this certificate, and nearly cotemporary as to date, which occurred in England, inserted in note (XLI.) at the end of this volume, t See before, p. 123.
VOL. II .- 24
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HISTORY OF MARYLAND.
"act against fugitives."-"It was declared, that receiving of a
CHAPT. III. runaway servant shall not include felony or misprision of 1641. felony."*
The next act, entitled, "an act for measures," seems to be too short and obscure for the importance of the subject. A bill, entitled, "an act for measures and weights," was among those "engrossed" at the session of 1638-9, as was stated in the pre- ceding chapter ; but as nothing appears, relative to that subject, in the principal act "ordaining laws for the government of the province," (ch. 2,) the interference of the legislature might now possibly have been deemed again necessary.t-On this subject it may be observed, that the regulation of weights and measures appertained by the common law to the prerogative of the crown, and accordingly, even prior to the conquest, the standards of weights and measures were kept at Winchester ; and it seems, that by the laws of king Edgar, near a century before the con- quest, there was an injunction that the one measure, which was kept at Winchester, should be observed throughout the realm.} In Magna Charta also, (ch. 25,) it is enacted, that " there should be but one measure throughout the realm; and that it should be of weights as it was of measures."-If the Maryland colonists, therefore, took with them, on their first emigration, the benefits of the common law and of magna charta, there could not be a more important article thereof for their adoption than the regu- lation of weights and measures. It is true, that Montesquieu, (in his Spirit of Laws,) says, "It is a mark of a little mind in a legislator, to attempt regulations of this kind." But this mode of thinking seems to exhibit an example of that inattention to the convenience and comfort, and consequently the happiness, of the people generally, so observable in France under all their govern- ments, even under that of their republic. On the other hand, these minute attentions of an English parliament to the domestic
* The words-"apprentice-servant," in this act of 1641, ("against fugitives,") varies from that of 1638, which uses the word "servant" only .- It is almost unnecessary to mention, that the word "servant" in these acts, and indeed in all the earlier records of the province, means exclusively-a white servant never being applied to negroes, who where properly called-slaves ; as is frequently now done among the politer class of people in the state, copying therein, as usual, English customs and manners.
t As the regulation of weights and measures forms an important portion of the science of political economy, in order to assist any future philosophical econo- mist in the investigation of this subject, the act above mentioned is inserted at large in note (XLII.) at the end of this volume.
# 1 Bl. Com. 274.
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HISTORY OF MARYLAND.
policy of the nation, form a principal groundwork in that civil CHAPT. liberty, which that nation enjoy in such a superior degree to any III. 1641. other. In counteraction to this-certainly weak remark of Montesquieu, it may be observed, that the execution of the laws relative to weights and measures was esteemed among the Romans of such importance to the public, that it was committed to the care of some of their most dignified magistrates-the curule ediles .* But a more pertinent reply to this remark of Montesquieu, is made by Mr. Justice Barrington, (in his obser- rations on the ancient statutes.)-" He should rather have con- tended," says he, "that it does not shew wisdom to attempt what appears, by long experience, to be impracticable, though in theory it seems to be attended with no great difficulties, and much to be desired for general convenience: with us (in Eng- land) it hath occasioned at least six different statutes, all of which have proved ineffectual."-It is proper to observe, that one of these statutes on this subject was made in the same year with this act of assembly, of 1641 .; Among the numerous grievan- ces complained of in England, and which the long parliament, which had commenced its session on the third of November, 1640, had undertaken to redress, were those resulting from the "inequality of weights and measures," together with the im- proper exercise of the office of clerk of the market, who had a general inspection over the weights and measures throughout the kingdom. This parliament, therefore, by the statue of 16 Car. 1, ch. 19, enacted, "That from henceforth there shall be but one weight, one measure, and one yard, according to the standard of the exchequer, throughout all the realm ;" and trans- ferred the former power of the clerk of the market to the mayor, or other head officers of the cities, boroughs, and towns-corpo- rate. The "standard of the exchequer" was, as to the bushel, the same as the Winchester measure, at which last mentioned place the standard had been kept prior to the conquest, as before stated.
* 4 Bl. Com. 274.
t The remarkable coincidence of time in the passing of the statute of 16 Car. 1, c. 19, here alluded to, and our act of assembly of 1641, ch. 2, is not unwor- thy of notice. The king gave his assent to the statute on the tenth of August, 1641, and our act was passed on the twelfth of the same month and year. The progress of civilization in a colony generally keeps pace with that of the mo- ther country ; but where the redress of a grievance is long delayed in the latter, a colonial legislature of the former, equally sensible of its effects, will some- times precede the parent country in applying a remedy.
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HISTORY OF MARYLAND.
CHAPT. III.
1641.
Upon reflection it would be improper to pass over, without some notice, a material alteration made in the discharge of the ministerial duties relative to the probate of wills and granting administrations, by the other only remaining act of this session, entitled, "An act for causes testamentary." It will be recollect- ed, that Mr. Lewger, the secretary, was appointed early in the year 1638, "commissioner in causes testamentary to prove the last wills and testaments of persons deceased, and to grant let- ters of administration." Prior to this, it would appear, that the governor and council, sitting as a county court, exercised all the ministerial as well as judicial duties of an ecclesiastical court, relative to the probate of wills and granting of administrations ;* but, on this last mentioned appointment of Mr. Lewger, it is probable, that these ministerial duties devolved upon him, while the county court retained the judicial jurisdiction over contro- verted cases in relation to the validity of wills and the right to administration. The act of 1638-9, ch. 2, sect. 7, by enacting that "the secretary shall prove wills and grant administrations, and use, &c., all power, &c., necessary thereto,"}-seems to have confirmed to him these ministerial powers, while the bill, before stated, entitled, "An act for the erecting of a county court,"} expressly vests most of the judicial jurisdiction of an English ecclesiastical court in the then only county court of the province, which was, at the same time, the provincial court. This arrangement appears to have so continued, until this pre- sent act of 1641, ch. 3, entitled, "An act for causes testamenta- ry," in which was inserted an express clause, that this act was "to revoke any former law concerning causes testamentary." The first and only material section was as follows :- "Whereas the laws of this province now in force have not sufficiently provided for the disposing of administrations and making just appraise- ment of the goods of parties deceasing within this province for remedy be it enacted by the lord proprietarie of this province of and with the assent and approbation of the freemen of this province, that the lieutenant generall or in his absence his depu- tie or otherwise the first councillor resident in the county shall prove wills and grant administrations and exercise all temporal jurisdictions to testamentary causes appertaining, and shall doe
* See before, p. 91.
t See before, p. 144.
Į See before, p. 128.
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HISTORY OF MARYLAND.
or cause to be done right to all persons in all such causes ac- CHAPT. cording to the law of the province, and in defect thereof accord- III. ing to the law or laudable usage of England in the same or like 1641. cases, and where the same is uncertain or doubtful then accord- ing to equity and good conscience."* A tribunal, distinct from the county court, appears to have been hereby erected, clothed with the "temporal jurisdictions to testamentary causes apper- taining," which were exercised by an ecclesiastical court in En- gland, and moreover with the ministetial duties of proving wills and granting administrations. Whether the secretary continued to act as the "deputie" of "the lieutenant generall," in the dis- charge of the same ministerial duties in this respect as before, does not appear. As he seems to have acted on all occasions, as the right arm of the governor, it is probable, that he did, for in a little more than a year from the passage of this act, we shall find him created by the same commission, which reappointed him secretary, "judge of all causes testamentary and matrimonial within the province."
This short session of assembly was closed on the twelfth of August by prorogation to a future day. The entry on the record is thus-"The house prorouged by the lieutenant general in au- dience of the house till the next Monday after twelfth day, which shall be in the year 1642." As the English Catholics sometimes followed the Gregorian calendar in their dates, there is no neces- sity to suppose an error here in the manuscript as to the year, but that the day on which the house was to meet again by prorogation, was some time about the middle of the January then next fol- lowing. But, in the mean time, it seems that the governor think- ing it proper to call the assembly again before the day to which it stood prorouged, issued his proclamation on the 18th of Octo- ber for it to be held on the 29th of the same month. He, being absent however about that time, "out of the province," as is stated, "the secretary in his absence prorogued the day of as- sembly until the twentieth of March following." Notwithstanding this prorogation by the secretary, the governor appears to have deemed it proper to issue his proclamation also for calling an as- sembly ;- "appointing to hold an assembly on the twenty-first of March next at St. Mary's fort, and therefore every hundred to choose and send one or two burgesses to come to the said assem- bly, in such manner as hath been accustomed, and to take notice
* Liber C & WH. p. 73.
1642.
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HISTORY OF MARYLAND.
CHAPT. thereof at their peril. Given at Kent fort, 12th January, 1641."* III. Several writs of summons, according to former practice, were 1642. issued to several gentlemen by name to attend the assembly.+ A writ also issued to the sheriff of St. Mary's to assemble the free- men of each of the hundreds, viz: St. Mary's, St. Michael's, St. George's, and Conception alias Mattapanient hundred to choose burgesses. Also a writ to the constable of St. Clement's hundred to assemble the freemen of that hundred for the same purpose. Some variance is observable here from the practice of former elections, in which the writs issued to the freemen them- selves of each hundred. But the writs for such purpose as now issued to the sheriff of the county was more conformable to the English law, and what was subsequently the usage of the pro- vince.
But notwithstanding these apparently regular proceedings for the election of burgesses, according to the constitutional law of the province before mentioned, the governor was induced to is- sue another proclamation, "published and proclaimed by the sheriff at the fort at St. Mary's on the second of March," (1642, N. S.) and a copy thereof sent to Kent on the thirteenth; the tenor of which proclamation seems to be in direct repugnance to what had been, to all appearance, permanently settled by the constitutional act of assembly of 1638-9, ch. 1, as the represen- tative system of the government.
"Proclamation .- By the lieutenant general .- These are to publish and proclaim to all persons, inhabitants within this pro- vince, that I have appointed to hold a general assembly of all the freemen of this province on Monday being the one and twen- tieth day of this instant month, and therefore do require all free- men whatsoever to take notice hereof, and either to repair person- ally to the said assembly at the time and place aforesaid, or else to appoint and depute some other for their proxy or deputy dur- ing the said assembly there to consult and advise, touching the enacting of new laws and other important affairs of the pro-
* "Assembly Proceedings from 1637 to 1658," p. 166.
t As these writs, by the established law before mentioned, were to be sent to "gentlemen of able judgment and quality," mention of the names of those gen- tlemen to whom these writs were sent on the present occasion, lets us into some knowledge of the men who were considered as the leading characters in the pro- vince at this period of time : viz. Mr. Giles Brent, Thomas Cornwaleys, esqr., Mr. Fulk Brent, Mr. John Lewger, Mr. Thomas Greene, Mr. John Langford, and Mr. Thomas Gerard.
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HISTORY OF MARYLAND.
vince. Given at St. Mary's the 2d of March, 1541; signed CHAPT. Leonard Calvert."* III.
We are to infer from this proceeding of the governor, as also from the complexion of some proceedings of the assembly at the session now to take place, that the spirit of discontent, which had now reared itself to such a height in the mother country, as to have placed the king and his parliament nearly in actual hostility to each other, had passed the Atlantic, and had diffused itself among the colonists of Maryland. It seems to afford some ground to suppose, that although the colony was originally in- tended by its founder as an asylum for Catholics, where they might enjoy their religious liberty without interruption, yet, as some few puritans, or protestants at least, had, as before men- tioned, in 1638, been admitted into the colony, so by this time probably their number had so much increased as to create a for- midable power not easily to be controlled by the feeble exertions of a provincial government. The governor might, therefore, be so far influenced by some such discontent of the colonists mani- fest by them at this time, as to acquiesce in their unwillingness to trust their affairs in the hands of burgesses or representatives, and to permit them to assemble as in a state of pure democracy, every freeman the representative of himself.
The situation of Ireland at this time, also, might have had some influence in the affairs of the province. The most formi- dable insurrection of the Catholics that ever took place in that kingdom, occurred in October of the preceding year, (1641,) and forty thousand protestants, as it is said,t were in a few weeks massacred by them with the most horrible circumstances of cruelty. It is a singular fact, however, that a little prior to this insurrection the Catholics and Puritans of Ireland appear to have formed a coalition against the royal party and English church. In pursuance of which, the committee of the Irish parliament appointed, in the year 1640, to carry the remonstrance against the earl of Stafford to England, was composed "of vir-
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