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 60
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Immediately succeeding these orders, there appears on the journal, the following paragraph .- " Upon the motion of the sec- retary, intimating the necessity to pass the first of these orders by way of bill, in regard of an act in force, the first order was read by itself as a bill and passed by all the freemen. Then the lieutenant general enacted it, in his lordship's name, for a law."
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CHAPT. On the following day, to wit, the 20th of July, it was again III. read, and two clauses were added; first, the repeal of all former 1642. acts touching the house of assembly; and, secondly, the limit- ing of this act to endure till the end of the next assembly : which being accepted, it was accordingly that same day pub- lished under the great seal.
A chasm afterwards appears in the proceedings of the house, probably on account of an adjournment, until the 30th of July, when a petition of Henry Bishop was read,-"touching a reme- dy against the Indians of Patuxent, for killing his swine; and answered, that he is required to prove his petition, and then he shall have remedy."-From this it would seem, that the mission, before mentioned,* of Mr. Rigby "to the great men of Patux- ent, and of the nations adjoined to them," failed in its intended effect; and that satisfactory proof of the alleged injury was necessary in such cases, before the government would under- take to indemnify the sufferer.
On the first of August, which appears to have been the last day of the session, some proceedings, worthy of notice, arose on passing the act entitled, "an act determining what shall be adjudged a lawful tender."-From the tenor of this act it would appear, that it was not made to make tobacco a legal tender ; for, that, we may presume, had been done by some former law, pos- sibly by that passed at the session of 1637-8, entitled, "a bill for ordering the payment of tobacco;" but it seems to have been intended to direct the mode of tendering tobacco .¡ This act passed by a majority of only one or two, for, eight members were in the negative, and the house consisted of only eighteen or nineteen members. This close voting gave rise to a consti- tutional question in the house, stated as follows :-
" Then Mr. Greene excepted against the voting of this bill ; that it was not by the major part of burgesses, as it ought to be. Whereupon the act, made in the beginning of this assembly, was read, and it was found, that the company present was a house, and in this house every one present, whether by personal writ or as a burgess, had a voice, and that the major part of such voices present and such as they were to be proxies for, was to be judged to be the vote of the house."
This entry on the journal is rather obscure, and not sufficiently explanatory of the grounds of Mr. Greene's objection. We may,
* See before, p. 213.
+ See this ancient tender law, in note (XLVI.) at the end of this volume.
ho b S
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however, infer, that, as the act above referred to, "made in the CHAPT. beginning of thi's assembly," required six burgesses to be pre- III. sent, to constitute a house, it is possible, that Mr. Greene might 16-12. have supposed, that the assent of six burgesses was necessary for the passage of a law, as well as to constitute a house. But it would seem, that the act was sufficiently satisfied, if there were six burgesses present, although some of them should vote in the affirmative and some in the negative. It is difficult, however, to reconcile the privilege above mentioned, of appointing proxies in the house, with the representative principle of the legislature, as now settled, unless the privilege of appointing proxies, as above, be supposed to refer only to those gentlemen, who were summoned by "personal writs," and who sat in the house in their own right, and could therefore legally constitute a proxy .*
Several other important acts were passed at this session. In the act entitled, "An act for judges," is the following clause :-- "In cases not limited in the rule or sentence by any certain law of the province, judgment shall be by the lieutenant general and council of the province then present in court, or the major part, (if it be in the provincial court,)-or by the lieutenant general or commander, or commissioners of the county then present, (if it be in the county court,)-and if the votes be equal, that sen- tence shall be entered, which is given by the chief judge."
The purport of this act appears to have been to vest a discre- tionary power in the judges of the two courts therein mentioned, in cases where the judgment of the court was not particularly prescribed by some act of assembly ; but it more particularly de- serves notice on account of its being the first legal recognition, now appearing on the records, of the supreme court of the pro- vince under the denomination of the "provincial court;" which, indeed had existed ever since the first settlement of the province, or at least since the year 1637, under the "ordinance" or com- mission of the 15th of April of that year .;
The next act of this session, immediately following the last mentioned, was that entitled, "An act for the rule of judicature;" intended, as it appears, to chalk out, as it were, the outlines of a system of jurisprudence, for the better guidance of the judges of the courts of the province. By this act, "first, right and just, in all civil causes, were to be determined according to the law, or
* For the proceeding of this session, see the record book, in the council cham- ber, entitled, "Assembly Proceedings from 1637 to 1658," p. 186-189.
t See before p. 41 42, and 86.
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CHAPT. most general usage of the province since its plantation, or for- III. mer precedents of the same or the like nature. Secondly-In 1642. defect of such law, usage, or precedent, then according to equity and good conscience; not neglecting, (so far as the judges shall be informed thereof, and shall find no inconvenience in the ap- plication to this province,) the rules by which right and just useth and ought to be determined in England, in the same or the like cases. Thirdly-All crimes and offences to be judged accord- ing to the law of the province; or, in defect of certain law, ac- cording to the judge's best discretion, judging as near as con- veniently may be to the laudable law or usage of England in the same or the like offences. Fourthly-But no person to be ad- judged of life, member, or freehold, without law certain of the province."*
These acts of assembly indicate the sense of the colonists at this time relative to the extent of the laws of England within the province; that for all the purposes of domestic policy or in- ternal provincial government, the special laws of the province, denominated acts of assembly, should be paramount to all other laws; but in defect of these, the laws of England, to wit, the common law and such English statutes, as should not "be found inconvenient in the application to this province, should form the rules of right and just."
The next act of this session, entitled, "An act providing for officers," demands some animadversion; inasmuch as it exhibits the early usages of the province as to the exercise of that branch of the lord proprietary's prerogative, which relates to the ap- pointment of civil officers. It is as follows :
"The lord proprietary, or his lieutenant general (in his lord- ship's absence,) may appoint any person to be conservator of the peace, or commander, or commissioner of any county,} wherein he is ordinarily resident, during his abode in that county, or to execute or return any commission to him directed for examining or certifying any matters, and may appoint any person that hath been freed by service to execute any other office or command,¿
* See this summary of the act in Bacon's Laws, 1642, ch. 4.
t "Commissioner of a county" was a term used at this time, and long after, as synonymous to a justice of the peace, who was also one of the justices of the county court.
# From this it would appear, that some doubt had been entertained, whether white servants imported into the colony at the expense of others, on condition of service for so many years as agreed upon, were, when "freed from service," eli- gible to or lawfully capable of being commissioned to the execution of any office.
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so there be reasonable fee allowed for it to be determined by the CHAPT. judge; and yearly, at or afore the end of the county court in III. March, the council or major part of them then present in court, 1642. if it be in the provincial court,* or otherwise the commissioners of the county, if it be in the county court, or the major part of them present in court, shall nominate and recommend to the chief judge, then sittting in commission, such persons as they shall think fitted for to execute the office of sheriff, out of which per- sons the chief judge shall or may appoint one to be sheriff of the county for the year next following, or otherwise may appoint any other not being of the council, and may demand and take such recognizance or security for the well discharge of his office, as he shall shall think fit, and any person refusing to obey any the lawful appointment aforesaid may be fined and imprisoned till he submit. This act to endure till the end of the next session."}
The mode of appointing sheriffs, here prescribed, was evi- dently intended to be as nearly conformable to the law and usage in England in that respect as might be. The law and usage in England, relative to the appointment of sheriffs, was at the time of passing this act, (1642,) and still continues the same to this this day,-that all the judges, together with the other great officers, meet in the exchequer chamber, (Westminster hall,) on the morrow of All-Souls yearly, and then and there propose three persons to the king, who afterwards appoints one of them to be sheriff .¿ It is true, that by this act of assembly, the ap- pointment of the sheriff is directed to be by the "chief judge;" but, as the lieutenant general or governor was certainly at this time chief judge of the provincial court, we may infer, from this act of assembly, that he acted also as chief judge of the county court. By which means the prerogative of the lord proprietary, (in whom, by the seventh section of his charter, the appointment of all officers of justice seems to have been vested,) would be
* This affords further proof of what has been before mentioned, that the go- vernor and his council sitting in their judicial capacities, constituted at this time what was then denominated, and ever afterwards retained the name of the "pro- vincial court ;" which seems to have been, as before observed, under the "ordi- nance" or commission of the 15th of April, 1637.
t The above act is recorded in the book in the council chamber, entitled, "As- sembly Proceedings from 1637 to 1658," p. 218, and also among the old acts of assembly in the court of Appeals office, in "Lib. C & WH," p. 81.
į 1 Bl. Com. 340; and the instance in the 16 Car. I. November 6th, 1640, stated in Cro. Car. 595.
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CHAPT. saved to him, being in part at least, in this instance exercised by III. his deputy, the lieutenant general. It is probable, that prior to 1642. this act both the nomination and appointment of sheriffs, as well as all other civil officers, had been usually exercised by the lieutenant general; for, former commissions to sheriffs had issued, as before stated, without any mention made of any previous nomination by the judges of the courts. This indeed seems to have been warranted by what is stated to have been the opinion of the judges in the fifth year of queen Elizabeth, when, by reason of the plague, the judges could not meet at Westminster to nomi- nate the sheriffs, and it was held, that the queen by her prero- gative might make a sheriff without the election of the judges, notwithstanding any statute to the contrary .* But this, as Mr. Justice Blackstone observes, was "a very particular case,"} and was, without doubt, dictated by the peculiar circumstances at- tending it. Thus, the novel and peculiar situation of the colo- ny, on its first settlement, together with the express authority vested in the lord proprietary by his charter, as before mention- ed, and doubts probably existing as to the extension of the En- glish statutes on this subject to the province, might have hereto- fore induced the lieutenant general to the exercise of this prero- gative without the interposition of his judges; which power, we must suppose, to have been again exercised by him on the ex- piration of this act. It being a temporary law, "to endure only till the end of the next session," it must then have expired, (not being then continued,) and the former practice of the lieu- tenant general revived.
Reflections might here be indulged on the still more popular mode of electing sheriffs adopted by the state, when it assumed its independence. The experiment of vesting the choice of this subordinate ministerial officer in the people at large, had been made in the earliest stage of the English constitution. Even prior to the statute of 28 Edw. 1, ch. 8, (by which "the king granted unto his people, that they should have election of their sheriff in every shire,") such officers, according to lord Coke, "were of ancient time by force of the king's writ in every seve- ral county chosen in full or open county by the freeholders of that county."} But, as stated in the preamble of the statute of 9 Edw. ii. st. 2, (by which that mode of election was altered,)
* Dyer, 225.
+ 1 Bl. Com. 342.
# 2 Inst. 558.
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"from the grievous complaint of the people of great oppressions CHAPT. and disheritances to them by reason of insufficient sheriffs," the III. nomination of them was, by that statute, vested in the judges, 1642. as before described. It cannot possibly be denied by any one tolerably acquainted with the present mode of the administration of justice in Maryland, that the like injuries (or " disheritances,") accrue to the people of this state from "insufficient sheriffs." That legislators should be freely elected by the people, is a principle which should be carefully cherished; but that such subordinate of- ficers, whose intercourse with the people tempts them to use undue means of election, particularly in the promised relaxation of the duties of the office, should be chosen by popular suffrage, expe- rience both in England and Maryland has clearly demonstrated to be incompatible with a just execution of the laws.
Several other acts passed at this session, which seem to dis- play a manifest solicitude in the legislature to provide, as well as the situation of the province would then admit, for the due ad- ministration of justice. Separate and distinct acts were made- on the following subjects :- "touching appeals ;- appointing the order, wherein causes shall be heard and determined ;- appoint- ing court days ;- providing remedy for plaintiffs in certain cases ;- for the forms of proceedings in causes ;*- ordering some things touching the trial and judging of causes ;}-touching verdicts and judgments ;į-providing some rule for executions ;- touch- ing execution upon corn and tobacco ;- and an act touching causes testamentary ; §-Regulations were also made on the im-
* As discussion frequently arises in our courts of justice, relative to an adhe- rence to English precedents and " forms of proceedings in causes," this act is in- serted here in note (XLVII.) at the end of this volume, in illustration of such dis- cussions.
t This act seems to afford additional evidence of the desire of our provincial Roman Catholics to adopt the forms and usages of the Roman civil law. See the act in note (XLVIII.) at the end of this volume.
# The extraordinary power given by a clause in this act to a judge over a jury makes it worth the attention of the reader .- See this clause in note (XLIX.) at the end of this volume.
§ This act seems to have been supplementary to the former act of 1641, ch. 3, with nearly the same title, as before stated in p. 188; except in the following clause :- "All causes of complaint against the judge in testamentary causes, and all probats, accounts, or other matters testamentary, wherein he is interested as a party, shall be heard and determined by the judge of the provincial court, accord- ing to the law or usage of the province, or former precedents of the same or the like nature, (to be determined by the judge,) and in defect of such then accord- ing to his sound discretion."-" Lib. C. & WH." p. 91.
VOL. II .- 29
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CHAPT. portant subjects of "succession to goods of intestate persons" III. and "succession to land."*
1642.
Something like a new criminal code was also instituted. By an act, entitled, "an act ordaining punishment for certain greater capital offences,"-"These shall be adjudged capital offences within this province ; that is to say, all offences done within this province, which are declared treason by statute of 25 Edw. iii. ch. 2. And all offences of wilful murther to be determined by the judge as near as may be to the law of England. And all offences of conspiring the death or destruction, or of attempting any violence against the person of the lord proprietarie of this province, or (in his absence) of his lieutenant generall, or of holding any private intelligence with a declared enemy of the province, or of rising in armes or of meeting against the lord proprietarie or (in his absence) against his lieutenant generall ; and the offender (whether principal or accessary) in any of these shall suffer paines of death, and shall forfeit all his or her lands, goods and chattels to the lord proprietarie, and the wife shall lose her dower, and the offender's blood shall be corrupted."
By another act, entitled, "an act ordaining punishment for cer- tain lesse capital offences,"-"These following shall be judged likewise capital offences within this province ; that is to say, all offences of homicide, piracy, robbery, burglary, sacrilege, sodo- my, sorcery, rape, polygamy, and larceny, to be determined by the judge as near as may be to the laws of England ; likewise all offences of wilful burning or destroying a house, or stack of tobacco, corne, or hay, of another man's, or of cutting or pluck- ing out another's eyes or tongue ; and the offender, (whether principal or accessary afore that offence committed,) in any of these shall or may be judged to suffer paines of death, or of burning in the hand, or losse of member, or to lose all his or her lands for life, goods or chattels, dignity of office, or may be out- lawed, exiled, imprisoned during life, or adjudged to serve the lord proprietary and his assigns for the term of 7 or lesse years, (except he be a gentleman,f) or may be otherwise corporally
* This act, entitled, "an act touching succession to land," seems to have been intended as a supplement to the bill of 1638-9, No. 16, entitled, "an act for the descending of land," with some few alterations ; (see before, p. 157-8.) As this subject may be of some use in tracing some ancient titles to lands within this province, the reader will find it in note (L.) at the end of this volume.
t The lord proprietary had landed estates in the province, cultivated as other estates of the planters were, at his lordship's own expense. Persons thus con- demned to serve him might possibly be employed as labourers on one of his
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corrected or put to shame, as the court shall think the crime to CHAPT. deserve. This act to endure till the end of the next assembly." III.
By a third act, entitled, "an act for punishment of some of- fences not capital,"-"Every person striking any officer, juror, or witness, in presence of the court in and for the doing of his office, or counterfeiting the hand, or sign manual, or any of the seals of the lord proprietarie, and using such counterfeiting hand or seal within his lordship's jurisdictions to the prejudice of another, or wilful falsifying, corrupting, or embezzling of a re- cord, or giving false witness upon oath in court, or persuading or hiring another to give such false witness, may be judged to lose his or her right hand, or to be burned in the hand, or to any other corporal shame or correction, (not extending to life,) or be fined as the court shall think .- This act to endure till the end of the next assembly."
Two other distinct acts were made; one, "for the punish- ment of drunkenness," and the other "for the punishment of swearing." By the former, "every one convicted of being drunk shall forfeit 100 lb. of tobacco toward the building of a prison or such other publique use, as the lord proprietarie or his lieuten- ant general shall think fit, or if the offender be a servant and have not wherewith to satisfie the fine he shall be imprisoned or sett in the stocks or bilboos fasting for 24 hours."-By the latter, the punishment of swearing was, "by forfeiting 5 lb. tobacco," to be applied as directed by the preceding act.
This code, if it may be so called, wears at this day an aspect of considerable severity in many instances. It is for the most part, however, but a renewal of the bills before mentioned, in- troduced at the session of 1638-9, upon which we have already been diffuse in our observations .* The penal laws of a nation are said always to exhibit the state of morality therein. As these acts of assembly of this session are the first penal laws of the province, now appearing upon record, which had been regu- larly enacted as laws, unless the bills before mentioned be con- sidered as such, they could not with propriety have been passed over unnoticed.
plantations ; but being assignable, according to the act, his lordship or his lieu- tenant general might sell such convict to some other inhabitant of the province for the term of seven years. The exception of a "gentleman," as above, might possibly find some justification, when we reflect, that the personal labour of such a character would not be worth much on a Maryland plantation.
* See ante p. 120, and what follows in chap. II.
1642.
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CHAPT. III.
1642.
A very important law also, entitled, "an act touching taking up of land," was first passed at this session, and again re-enact- ed at the next session in the same words. It seems to have been principally intended to regulate the priority of warrants for surveying land ; but, as it is altogether a municipal regulation relative to private property, it does not fall within the duty of our animadversion.4%
Some other acts of this session, to wit, "an act providing for the planting of corn;" another, "limiting the exportation of corn;" and "an act against engrossers and forestallers," seem to indicate an apprehension of, or at least a desire to guard against, a scarcity of that necessary article of life The provi- sion, "for the planting of corn," seems to have been much to the same purport as the former acts on that subject .;
Prepara- tions Indians. Soon after the assembly had rose, more zealous preparations against the appear to have been taken, to meet the hostilities of the Indians ; who now seem to have been excited to their utmost height of inveterate enmity towards our colonists. A commission was issued on the eighteenth of August to captain Cornwaleys "to levy men and command them." This gentleman seems to have been always, from the first settlement of the colony, considered as its guardian genius. In debates of the assembly he appears as a popular leader, and in all military expeditions he is confided in as the ablest commander.
The colony of Virginia had been so fortunate, as to have settled, not long before this time, "peace and friendship" with the Indians of that province. They had nevertheless experi- enced some injuries and murders from the Indians of Maryland, particularly the Nanticokes, upon whom punishment or retalia- tion had been on that account made by the Marylanders. This probably excited the Nanticokes to a still more deadly enmity towards our colonists. Of all the tribes or nations of Maryland, except the Susquehanocks, the Nanticokes appear to have been the most warlike; for, they were frequently so bold as to carry their hostilities across the bay against the inhabitants of St. Mary's. The eastern shore of the province seems, however, to have been at present the seat of their warfare; as we may infer from the governor's proposal, that military aid from Virginia should meet him at the isle of Kent; which appears in a letter
* See it at large in Kilty's Landholder's Assistant, p. 248.
t See before p. 147, and 176.
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written at this time by the governor of Maryland to the governor CHAPT. of Virginia. III.
Previous to a perusal of this letter, it will be proper to state two paragraphs of an instrument of writing, entitled, "A Re- monstrance of the Grand Assembly," published in Virginia, under the signature of "William Berkeley," the governor there- of, dated as, "given at the grand assembly, at James city, the first of July, 1642," and purporting to be a representation "to the colony of the weighty consequences and benefits redounding thereto by their late consultations." Among various other arti- cles of this legislative statement are the following :-
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