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 59
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Attempt in England to revive the old charters of Virginia.
It would be improper to pass over in this place unnoticed some proceedings of the assembly of Virginia, held in this year, which, at least in the tendency of their consequences, had mate- rial relation to the colony of Maryland. Shortly after the com- mencement of the session of parliament called and held in the year 1640,* commonly called the long parliament, which soon manifested the ascendency they had now gained and exercised over the power and prerogative of the crown, this acquired in- fluence of the popular branch of the English constitution sug- gested to some of the old proprietors of Virginia under their abolished charter, that a favorable occasion now presented itself for the revisal of the judgment of quo warranto in the year 1624, whereby these charters had been annulled. If an act of parlia- ment could be procured, which should vacate or set aside that judgment of the court of king's bench, all the rights of the mem- bers of the old corporation under those charters would revive, and the colony of Virginia become again proprietary, and sub- ject to the government of the corporation in England. All sub- sequent grants of lands within the territories of that ancient do- minion, and particularly the charter of Maryland to lord Baltimore, would then become void, and, what perhaps was of more im- portance in the view of the first instigators of this transaction, the well known loyalty and adherence of the lordly possessors of Virginia to the royal cause might be suppressed, and the "growth of popery"-that noxious weed, be cut and rooted up out of Maryland. These previous facts are, however, best stated in the words of "the declaration" of the assembly of Virginia.
" To all christian people to whom these presents shall come
* Chalmers's Annals, p. 215.
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to be read, heard, or understood, we, the governor, council and CHAPT. burgesses of the grand assembly in Virginia, send greeting in III. our Lord God everlasting :- Whereas George Sandys, esqr. be- 1642. ing appointed agent for the colony by the assembly 1636,* hath exhibited a petition in the name of the adventurers and planters in Virginia, to the honourable house of commons in parliament in England, for restoring the letters patent of incorporation to the late treasurer and company, mistaking his advice and instructions from the said assembly for his so doing, it being neither the meaning nor intent of the said assembly or inhabitants here, for to give way for the introducing of the said company or any other.
"To which intent and purpose, this grand assembly having fully debated and maturely considered the reasons on both sides, as well arguing for as against a company, and looking back to the times under the company, as also upon the present state of the colony, under his majesty's government, they find the late company in their government intolerable, the present compara- tively happy, and that the old corporation cannot with any pos- sibility be again introduced, without absolute ruin and dissolu- tion of the colony, for these reasons following, viz:"-A variety of reasons are then forcibly urged at considerable length, the principal of which appears to be-an apprehension, that the cor- poration would again assume to themselves a monopoly of their trade, and also usurp a right of legislation over them, when they had a legislature of their own, granted to them by the indul- gence of his majesty; and moreover, that the planters now en- joying their lands under grants of his majesty, "the wiser world" (they said,) "we hope will excuse us, if we be weary to depart with what (next our lives,) nearest concern us, which are our estates, being the livelihood of ourselves, wives, and children, to the courtesy and will of such task-masters, from whom we have already experienced so much oppression." The declaration concluded in the form of an act, in which is prescribed a severe penalty, (to wit, the forfeiture of their estates in the colony,) on "any planter or adventurer, who should go about by any way or means either directly or indirectly, to sue for, advise, assist, abet, countenance or contrive the reduction of this colony, to a com-
* "George Sandys, gentleman," is in the list of the members of the corpora- tion, whose names are inserted in "the second charter of Virginia" of 1609 .- The gentleman above mentioned being, probably, the same person, his interest therein might have influenced his conduct.
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CHAPT. pany or corporation, or introducing a contract or monopoly upon III.
our persons, lands or commodities."*
1642.
This declaration, accompanied with a petition for the royal confirmation of it, was transmitted to his majesty, who, having now come to a final rupture with his parliament, had on the fif- teenth of March preceding fixed his residence at the city of York. Well pleased with the loyalty of his faithful colony, his majesty quickly returned an answer, of which the following is the most material part.
"These are to signify, that your acknowledgment of our grace, bounty, and favour towards you, and your so earnest desire to continue under our immediate protection, is very agreeable unto us ; and that as we had not before the least intention to consent to the introduction of any company over that our colony, so we are by it much confirmed in our resolutions, as thinking it unfit to change a form of government wherein (besides many other reasons given, and to be given,) our subjects there having had so long experience of it, receive so much contentment and satis- faction. And this our approbation of your declaration and pro- testation, we have thought fit to transmit to you under our royal signet. Given at our court at York, the 5th of July, 1642."}- Thus a blow, which would have been more effectually destruc- tive of the rights of lord Baltimore and his colonists than even those of the planters of Virginia, was happily warded off by the spirit and resentment of the latter. That these endeavours to re-establish the old corporation of Virginia were undertaken partly with a view to the abolition of the Maryland charter, re- ceives considerable confirmation from "an elaborate memorial, which" (it is said,) "was written in those days, entitled, a de- claration shewing the illegality and unlawfulness of the patent of Maryland."}
War with the Indi- ans.
The Indians of Maryland still continuing their hostilities, pro- bably with increased violence, it was deemed necessary to intro- duce a more strict military discipline among the colonists, than they had heretofore practised. The following "orders" were
$ This declaration is dated "the first of April, in the year of our Lord 1642, and in the eighteenth year of the reign of our sovereign lord king Charles over Eng- land," &c .- See it at large in Burk's Hist. of Virg. vol. ii. p. 68.
t See Burk's Hist. of Virg. Ibid ; and Chalmers's Annals, p. 121, and 133 ; who cites Virg. Entr. vol. 1, p. 237.
# Chalmers's Annals, pp. 215, 236 ; for which he cites Virg. Papers, 75 B. p. 135.
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therefore "proclaimed on the 23d of June, 1642, upon pain of CHAPT. death or other penalties as by severity of martial law may be in- III. flicted. 1642.
"That no inhabitant or housekeeper entertain any Indian upon any colour of license, nor do permit to any Indian any gun, pow- der and shot.
" That all housekeepers provide fixed guns and sufficient pow- der and shot for each person able to bear arms.
" No man to discharge three guns within the space of one quarter of an hour, nor concur to the discharging so many, ex- cept to give or answer alarm.
""Upon the hearing of an alarm every housekeeper to answer it, and continue it so far as he may.
"No man able to bear arms to go to church or chapel or any considerable distance from home without fixed gun, and a charge at least of powder and shot.
"Of these every one required to take notice upon pain of con- tempt ; for better execution the serjeant to inform the lieutenant general or captain."
With these "orders," and on the same day, commissions of captaincies were issued to two several gentlemen :- to William Blount, esq., to be a "captain of the soldiers of St. Mary's county ;" and to Robert Evelyn, gent., "to take the charge and command of all or any the English in or near about Piscattaway, and to levy, train, and muster them," &c. In a week or two afterwards also, (July 11th,) written orders or commission issued to Mr. Rigby,-"to repair to the great men of Patuxent and of the nations adjoined to them, and of them to demand in my name," (the lieutenant general,) "to deliver without delay unto Simon Demibiel or Henry Bishop, or any other the bearer or bearers hereof, the persons of such Indians of any of those na- tions, as shall be named to you by the said Simon or Henry to have done unto them and other English, injury in their swine and otherwise, to the end the said Simon or Henry may bring the said Indians before me to answer such complaints as shall be ob- jected against them by the said Simon or Henry or any others, and certify me what you have done herein, as soon as you may, and this shall be your warrant."*
From these proceedings at this time relative to the Indians,
* For these military orders and commissions, see " Council Proceedings from 1636 to 1657," pp. 59, 61.
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CHAPT. we seem authorised to suppose, that our colonists had now ex- III. tended a scattered population as high up the Patowmack as Pis- 1642. cattaway creek, so as to include in peaceable possession that portion of the peninsula lying between the rivers Patowmack and Patuxent, which now constitutes the counties of St. Mary's and Charles ; although some tribes of Indians might perhaps have still remained precisely within these limits, over whom the Ma- ryland government might have exercised some civil jurisdiction. It will be recollected, that on their first settlement at what was called the city of St. Mary's, the Yoamacoes, for reasons before mentioned, particularly on account of the hostilities practised towards them by the Susquehanocks, were about receding far- ther into the country ; and the particular scites of towns of the next adjacent tribes were at Piscattaway, where Mr. Fleete had resided with them some time, and at another place somewhere on the right or south bank of the Patuxent, whose king visited the colonists on their first landing in a friendly manner, as be- fore related. Our records do not make mention, during these times, of any other nation or tribe, inhabiting what is commonly called the western shore of Maryland, with whom our colonists were engaged in any warfare, than the Susquehanocks and the Wycomeses .* The plundering of live stock by the Indians of Patuxent does not seem necessarily to imply, that they were in a state of war with the colonists. Savages, in all cases, pay but a feeble respect to the rights of property.
Another session of assembly this year.
Although at the conclusion of the last session of assembly, which ended on the 23d of March last, the house "appointed," that "another assembly was to begin on the first of June next," yet no further notice thereof appears on our records until the first of July following, when a proclamation appears to have been
* The Susquehanocks, Wycomeses, and Nanticokes were, by the governor's proclamation of the 13th of September of this year, declared to be " enemies of this province," as will be seen in a few pages further on. The sites of the Nanticokes and the Susquehanocks are well known at this day to have been on the rivers of their respective names ; but insuperable difficulty occurs in ascer- taining the true location of the Wycomeses. In a pamphlet published in 1648, entitled, "a description of the province of New Albion, in North America," as stated in the notes of Smith's Hist. of New Jersey, (p. 31,) the " Wycomeses," together with " the Ihon-a-Does" (meaning most probably the Oneydas, one of the Iroquois tribes,) were the "forced auxiliaries" of the Susquehanocks. But whether these Wycomeses inhabited any part of the western shore of Maryland, or on the western side of the Susquehanah in Pennsylvania, we have no autho- rity to determine .- See Proud's Hist. of Pennsylv. vol. 1, p. 114, and Holmes's Annals, vol. 1, p. 347.
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issued by the lieutenant general "appointing a general assembly CHAPT. to be held on Monday the 18th of July, 1642, and requiring the III. freemen of every hundred to elect burgesses for that purpose ;" 1642. and also "personal writs" of the same date were issued to di- vers gentlemen therein named to attend the assembly.
It will be recollected, that by the first act passed at the last session, to wit, that entitled, "an act for the putting in force of some laws for the government of the province," certain branches of the act of 1638, ch. 2, before mentioned, were revised and continued until the end of the next assembly, particularly that part of it which related to "the settling the house of assembly;" whereby " The lieutenant general and secretary, (or his deputy,) and gentlemen summoned by special writ, and one or two bur- gesses out of every hundred, (at the choice of the freemen,) at any time hereafter assembled, should be judged a general assem- bly." This first act of the last session, therefore, restored the representative principle of the provincial constitution, and abol- ished the democratic principle, (or that of a pure democracy,) as exercised at the last session, wherein every freeman in the province had claimed, or was entitled to a seat in the legislature, either by his individual presence or by that of his proxy .*
Accordingly, the first business, which appears to have occu- Proceed- pied the attention of the house, on the first day of the session, (18th of July,) had relation to this subject .- " Richard Thomp- son and Robert Vaughan exhibited themselves proxies for the several freemen of Kent,t who elected them as such, and shew- ed their names; but they were refused to be admitted as such, in regard the act had appointed burgesses, and the writ had com- manded the election of burgesses. Then they pleaded, that the freemen had likewise elected them burgesses, and desired as such to be admitted. Whereupon Mr. Giles Brent'st letter was looked into, and there found a certificate of their election as burgesses ; whereupon they were admitted as such."-From this it appears, that in the opinion of this assembly, there was an essential difference between the words proxies and burgesses ;
ings there- in.
* See the proclamation for calling that assembly, before p. 190.
t The isle of Kent.
¿ Mr. Giles Brent must have been, from this, a resident in the isle of Kent, at this time, and in some official capacity there. He had been commander of the isle of Kent, (see before, p. 166;) but in this office, it seems, he was shortly af- terwards succeeded by Mr. Brainthwayte, (see before, p. 170.) He must, how- ever, have given the above mentioned certificate, by virtue of some public pow- ers then vested in him.
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CHAPT. the former being a representative of an individual; the latter, of III. the people in an aggregate capacity.
1642.
In the afternoon of this first day of this session, a more im- portant motion was made in the house. One, which laid a foundation for the adoption in Maryland of that great constitu- tional principle of "checks and balances," which, next to that of representation, is said to form peculiar features of excellence in the English and American constitutions. "Robert Vaughan" (one of the before mentioned burgesses of Kent,) " in the name of the rest,* desired that the house might be separated, and the burgesses to be by themselves, and to have a negative; but it was not granted by the lieutenant general; "that is, it was not agreed to by the lieutenant general, without whose assent, he being the lord proprietary's lieutenant or deputy, so important a change in the form of the provincial government could not with propriety take place.
This conduct of the governor must be viewed, at least at this day, as one of those instances, wherein the rulers of a govern- ment are often too tenacious of their power ; an impolicy, which often thwarts its own purposes. To yield it up with grace and at least apparent willingness, on such occasions, especially when good principles of government and the happiness of the people require it, would often be the surest means of preserving the remnant of power, which it would be their duty to retain. When we attend to the state of this house of assembly, we easily see through the policy, which actuated the governor at this time. From the journal there appears to have been nine gentlemen in the house, (besides the lieutenant general and the secretary, the former of whom acted as president,) who were "called by spe- cial writs" to attend, and who with the president and secretary made up eleven in number; and nine gentlemen, whose names appear as burgesses elected for the several hundreds, to wit, two for each hundred, inclusive of the isle of Kent as one hundred, except for St. Clement's hundred, for which only one appeared, and one was elected for Mattapanient hundred, who did not ap- pear at the first of the session. The governor was, therefore, sure of a majority, even after the number for Mattapanient hun- dred appeared, by means of his own casting vote. It is to this cause only, that we can attribute the refusal of the governor to
* That is, "the rest" of the burgesses of the house, in contradistinction from those summoned by special writ.
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assent to this salutary alteration of the provincial form of govern- CHAPT. ment as it then existed. III
1642.
Another incident occurred in this afternoon's session, which, having relation to the lieutenant general's powers in the govern- ment, also requires to be noticed .- " Upon motion made of a march against the" [Indians*] "they" to wit, (the burgesses,) "expressing a great opposition, the lieutenant general told the burgesses, he did not intend to advise with them, whether there should be a march or not, for, that judgment belonged solely to himself, as appeared by the clause of the patent touching the power of war and peace;} but to see what assistance they would contribute to it, in case he should think fit to go; and a motion was made by the secretary, that a bill might be drawn up for the levying of 20 lb. tobacco per head toward the charge of it, whereto the burgesses desired to have the patent to peruse, and respite till the next morning to advise of their answer."- What was the cause of the "great opposition expressed by the. burgesses" to this "march against the Indians" is not explained ; and, as a war now subsisted against them, it is difficult to form any conjecture concerning it. The clause in the charter, to- gether with the analogy between the constitutional laws of Eng- land and those of the province, seem to justify the governor in his claim to the power of arraying and mustering the inhabi- tants of the province and to wage war. It is not impossible, however, but that the dispute between the king and parliament in England before alluded tot about the right of commanding the militia and commissioning the officers thereof, had dictated a disposition in our colonists to deny the like right to the go- vernor of Maryland .- It must be acknowledged, that if this prerogative of mustering and arraying the militia did not ap- pertain of right to the king, he could not by his grant have con- veyed it to the lord proprietary. King Charles the first had, at the commencement of the civil war, while he was at York, (in June, 1642,) issued out a commission of array "for the better ordering and governing of the militia," and at the same time
* There is a blank here in the record; but from the whole of the paragraph it evidently appears, that either the word Indians, or some particular denomination of Indians, was in the original record book, of which that now remaining in the council chamber, from which the above extracts were taken, was only a trans- cript.
t See the twelfth section of the charter, in the former part of this volume. : # See p. 197.
VOL. II .- 28
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CHAPT. issued orders to the several counties, "expressly forbidding any III. obedience to be given to the ordinance for the militia passed by 1642. both houses." This commission of array was not thought legal, even by some of the friends of the king, who still retained their seats in the house of commons, particularly by the learned Mr. Selden .* And Mr. Justice Blackstone seems to acknowledge, that the king's power over the militia was then "unsupported by any statute and founded only upon immemorial usage."} He fur- ther observes,-"This question, long agitated with great heat and resentment on both sides, became at length the immediate cause of the fatal rupture between the king and his parliament: the two houses not only denying this prerogative of the crown, the legality of which right perhaps might be somewhat doubtful, but also seizing into their own hands the entire power of the militia, the illegality of which step could never be any doubt at all." -- We are authorized from this, it seems, to conclude, that although the lieutenant general might have had no power to order out the militia of the province, the house of assembly had none. A law for the purpose ought then to have been the issue of the dispute.
The bill proposed by the secretary, "for levying 20 lb. of to- bacco per head," did not pass at this session, and no further no- tice of it appears in the journal .- An act, entitled, "an act for the support of the government," was passed, whereby "five per cent. on all tobaccoes exported, except to England, Ireland or Virginia, as the last port," was granted. This, however, ap- pears to be only a re-enactment of the thirty-sixth bill of the session of 1638-9, together with the thirteenth clause in the act of 1638, ch. 2, all to the same purpose and in the same words ; which bill and clause were among those revived and continued at the last session by the act of 1641, ch. 4, entitled, "an act for putting in force of some laws for the government of the pro- vince." So that the re-enacting this act, "for the support of the government," now at this session, was only an exercise of the mode of legislating commonly practised at the earlier sessions of our provincial legislature, as before mentioned, instead of reviv- ing or continuing a former act; and formed no new provision for the support of the government. It seems difficult, however, to suppose, that the exports of tobacco from Maryland to other
* Lord Clarendon's Hist. (folio edit.) p. 218 .- See also Rapin's Hist. of Eng. (Tindal's edit.) vol. 10, p. 315.
+ 1 Bl. Com. 411.
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countries than "to England, Ireland, or Virginia," could amount CHAPT. to such a quantity, as to be an object of legislative considera- III. tion; but such it must have been, else these successive acts of 1642. the legislature to the same purpose, would not have been passed.
On the next day of the session, (July 19th,) a very important proceeding of the house, relative to the constitution or form of government of the province, took place; and appears to have been intended as a permanent confirmation of the representative principle of the government, as now adopted at this session, in- stead of the more democratic form, as practised at the last ses- sion, when every freeman of the province claimed a seat in the legislature. It appeared first in the form of an "order of the house," among other rules and orders for the better regulation of their session, which, on account of the importance of the first, and gratification of curiosity in the others; are here insert- ed at large.
"1. Any ten members of the house, at any time assembled, at the usual or appointed time, (whereof the lieutenant general and six burgesses to be seven,) shall be a house, unless sickness do hinder that number : in which case only the members present to make the house.
"2. Any one of the house not appearing upon call after the third beating of the drum, shall forfeit 100 lb. tobacco, unless he have leave of the lieutenant general for absence.
"3. The drum to beat as near as may be to sun-rising, and half an hour's distance between such beating.
"4. No bill to be read above once in one day.
"5. None to speak in one day above once to one bill with- out leave of the lieutenant general, upon pain of 20 lb. tobacco. If two or more rise together, the lieutenant general shall deter- mine, who shall speak first.
"6. None to use any indecent, taunting, or reviling words, to the naming or personating of any member in the house, or any other way misbehave himself in his speech upon pain of such censure as the house shall think fit."
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