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 62
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This act, it seems, had occasioned particular uneasiness in the isle of Kent, and accordingly, on the first day of the session, Mr. Brent, who was proxy, as before mentioned, for the inhabi- tants of that island,-"moved, as from the inhabitants of Kent, that it might be declared by the house, whether the inhabitants may freely without leave depart out of the province, being en- gaged or obnoxious to justice .- And it was answered by the governor, that he did not consent, that it should be decided by or in this house."
"Then the lieutenant general adjourned the house till the third beating of the drum, four o'clock this afternoon."
Why the governor should have exercised this intemperate warmth on the subject, does not appear. The purport of Mr. Brent's motion is here expressed on the journal rather obscurely ; but it seems to have been merely to ascertain the sense of the house, whether the act relative to this subject, to wit, the "act touching passes," before stated, should be continued or not, in-
well as commander, of the isle of Kent .- See this commission in note (XXXIX.) (before referred to,) at the end of this volume.
* This must have been intended as prospective, that is, in contemplation of other counties to be laid out ; for, there was but one county yet in the province. The isle of Kent, by the last regulation, was to be considered as a hundred of St. Mary's county.
t See this act, in the record book, entitled, "Assembly Proceedings from 1637 to 1658," p. 241, and in " Lib. C. & WH," p. 99.
/
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HISTORY OF MARYLAND.
CHAPT. asmuch as it was a temporary act "to endure till the end of the IV.
next session."
1642.
The motion rested, as above, until the next morning, (Sep- tember 6th,) when "Mr. Brent desired, it might be put to the question, whether the house had power to decide the right of a freeman to depart out of the province at their pleasure, unless they were indebted, or otherwise obnoxious to justice .*
" The governor refused to put it to the question to the freemen to determine thereof as judges of the matter in question."
The governor could have objected to the right of the house to legislate upon the subject on no other principle than that of the common law, (mentioned in the note below,) which prohi- bited a subject from departing out of the realm without special license from the king; and that, as the lord proprietary had the same prerogative, in virtue of his palatine regalia, no inhabit- ant of the provice also could depart therefrom without special li- cense from his lordship or his lieutenant general.
The governor ought to have been sensible, that these were not times for an English governor of a province to aspire to such a high toned exertion of prerogative. His more prudent men- tor, (Mr. Secretary Lewger,) probably thought so; for he im- mediately rose, and (according to the journal,) "spoke, not to the question, but as a councillor; }-that he thought the matter was to be put to the question, and that it could not be rightfully denied to them; and that the house hath power to decide such things as shall be put to the question, both by former usages and precedents of the house, and by the writ calling them to consult, and by his lordship's intent, that the house should have such
* We have touched upon this subject before in note (D.) in our " Introduction to this History," (already published,) wherein we have mentioned the doubt which was entertained, after the repeal of the statute of fugitives, (5 Rich. II. c. 2,) by that of 4 Jac. 1, c. 1, whether the common law did not prohibit any subject from going out of the realm without special license previously obtained. But although this position was endeavoured to be maintained, shortly after the repeal, by the crown officers, particularly by the attorney general and the re- corder of London in the case of the King vs. the earl of Nottingham, in the court of exchequer, 7 Jac. 1, (see Lane's Rep, 42,) yet the law seems to have been subsequently settled, agreeably indeed to some former decisions on the point, that every man might go out of the realm, when he pleased, without any license for that purpose, unless, as Mr. Brent has expressed it above, he was "indebted or otherwise obnoxious to justice," in which case he might be pro- hibited from emigration by a writ of Ne exeat regno.
t Mr. Lewger was appointed one of the council by the commission of the 5th of September; see the commission note (LI.) before referred to.
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HISTORY OF MARYLAND.
power, expressed in the acts formerly consented unto and sent CHAPT. over by his lordship." IV.
The governor, perceiving perhaps that he had gone too far, seems to have partly withdrawn his objection. "Upon further debate it was declared by the governor, that it was the common right of all inhabitants to depart out of the province at their pleasure, unless indebted or obnoxious to justice, or unless there be some transcendant cause, for the safety of the people, for the lord proprietary or his substitute to over-rule that right in some particular cases for a convenient time."
The closing condition,-"for the safety of the people," seems to wear too much of the appearance of an insidious statement of the position. There is scarcely an act of political despotism to be found in history, whether exercised by a mob or by a single tyrant, by a parliament or by a king, which has not its pretend- ed foundation-in the safety of the people. We are not able, at this day, to perceive readily any pressing necessity, which should have induced the governor to an anxiety for the exercise of the royal prerogative of prohibiting the inhabitants of the province from the free enjoyment of the right of departure. Possibly indeed some apprehensions might have been entertained at this time by the government, that emigrations from the province would too much weaken the colony, especially when they were suffering under a war with the Indians. It is certain, however, that the foregoing statement of the law by the governor upon this ques- tion, did not give general satisfaction; and a protest of some of the members of the house, "touching the departure of in- habitants out of the province without leave," was read on the last day of the session, *- "The lieutenant general then consent- ed, that this should be entered for his answer, instead of the for- mer, touching that point, -- that he declareth it to be the common right of all inhabitants to depart out of the province at their pleasure, unless indebted or obnoxious to justice." He must also have finally yielded to the house their right of legislating upon the subject; for, "An act touching passes" appears among the laws of this session; which, in order to shew its variance from the former, may be here inserted.
"No man after publishing hereof in the county without con- sent of the chief judge of the county in commission for the time
* This is so stated in the journal, but no protest appears therein as the record now exists.
VOL. II .- 31
1642.
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HISTORY OF MARYLAND.
CHAPT. being, shall transport any inhabitant out of the province that is. IV obnoxious to justice for some malefice, nor without consent of the 1642. party or parties interested may transport any one against whom there is an action or judgment (unsatisfied upon record, or that is another man's servant, or the party's own servant, and liable as afore, (except it be an apprentice,) upon pain of making recom- pense to all parties grieved. This act to endure for three years from this present day."*
Exemp- Another cause of uneasiness arose, on the first day of the ses- tion of the sion, on a bill, drawn and returned to the house, by a committee governor and his servants from mili- tia duty. for that purpose, entitled, "An act for an expedition against the Indians." After it had been read, the governor demanding to be exempted from the levy, it was put to the question, whether a clause for his exemption should be inserted in the bill, and that it should, was voted by thirty-eight voices,-denied by one hundred voices."+
This uncourtly rejection of the governor's request or demand seems to indicate, that a general opposition to his measures run deep in the minds of the colonists at this time. We should have supposed it to have been the part of a patriotic governor to have volunteered his services at the head of an expedition against the natural enemies of the colony. When a chief shrinks from his duty, he must expect an abatement in the ardour of his follow- ers. Notwithstanding this vote of the house, however, it ap- pears, that such a clause of exemption, not only for the gover- nor himself, but for his servants, was finally inserted in the bill, though not without the opposition of captain Cornwaleys, who voted against it, "by reason of the clause exempting the gover- nor's servants."}
* See this act of Assembly in the book, entitled, "Assembly Proceedings from 1637 to 1658," p. 295. In illustration of these acts of assembly it may not be amiss to mention, that the statute of fugitives, (5 Rich. ii. c. 2,) imposed the penalty of a forfeiture of the vessel on the master of any vessel, who carried the persons departing out of the realm. A law, similar to these Maryland acts, re- Jative to "passes," is said to exist at this day in the English colony of Jamaica. " Every person, who has resided six weeks in that island, must obtain from the office of enrollments a passport before he takes his departure ; and the captain, who admits him as a passenger without receiving such passport, is liable to a penalty of £1000."-Extract from a "Tour through Jamaica," in 1811, publish- ed in the Port-folio for 1812, vol. 1, p, 536.
t These "voices" on both sides included the votes of the members present as proxies, as well as in their own right, the house consisting, as before mentioned, of only eighteen members.
# The record states, that this "bill" passed by all except that captain Corn- waleys "denied it for 15 of his proxies of St. Michael's hundred."
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HISTORY OF MARYLAND.
The first section of the act, containing this exceptionable CHAPT. clause may be here inserted, "It shall be lawful to the lieuten- IV ant general or other captain or captains by or under him author- 1642. ised to make an expedition against the Susquehanahs or other Indians as have committed the late outrages upon the English at such time and in such manner as he or they shall think fit, to take out of every county or hundred within the province the third man able to bear arms, such as he or they shall think fit to go upon the said expedition, except that the lieutenant general and his apprentices* are not to be reckoned in any hundred to any purpose of this act." The other sections of this act detail the manner in which the men were to be equipped.
As all the acts of the last session had been limited "to endure Debate on till the end of the next session," much of the discussion of this the act "providing session consisted in debates about the propriety of continuing or for offi- rather re-enacting such acts as had been passed at the former cers." session. Among these, that entitled "An act providing for offi- cers," under which the appointment of a sheriff had been regu- lated, as before stated,t received at this session a singular oppo- sition. The act had been construed, as giving to the lieutenant general power to appoint any person whatever to any office or command whatever, "so there be reasonable fee allowed for it." Captain Cornwaleys and Mr. Brent are stated in the jour- nal as being much opposed to re-enacting this law, "as being unnecessary, as giving away their liberties, and as being unlim- ited in point of sheriff's recognizance and number of offices to be imposed, and as against common right and decency-com- pelling men to be hangmen."
These objections, except that relative to the office of sheriff, seem to be founded on rather a strained construction of the act. The power of the lieutenant general to appoint any person to any office is therein expressly confined to "any person that hath been freed by service ;" and, although this might have been a hardship upon such men, yet the hardship does not appear to have been of such a nature as to have been very oppressive upon men of that class of life, who, just emancipated from manual servitude and labour, might be supposed to have been glad of any office, to which "a reasonable fee" was annexed. To "com-
* The word "apprentices" may be understood here, as synonymous with "in- dented servants" belonging to the governor.
+ See before, p. 222-5.
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HISTORY OF MARYLAND.
CHAPT. pel" even such men "to be hangmen," indeed, might be deem- IV ed an act of oppression; but, unless some particular and un- 1642. common incident had then recently occurred wherein such op- pression had been exercised, it was a remote conclusion, that the governor would exercise power in so arbitrary a manner. It may be added, that the common law at this day, still imposes on the sheriff, as a part of the duty of his office, that of being a hangman, unless he should be able to procure some other per- son, at his own expense, to perform the disagreeable duty .* This part of their objections to the act must, therefore, have been mere declamation. As to the "unlimited" power in taking re- cognizance of the sheriff, what is a well known truth at this day, might, perhaps, have been as much so then, that is, that too much caution as to the sufficiency of such recognizance can- not well be used. The paucity of inhabitants in the colony, or at least of those well qualified for offices, might have been a reason also of "imposing" a number of "offices" on one man. Upon the whole, these objections seem to exhibit symptoms, rather of unreasonable discontent than of a temperate and pa- triotic opposition to arbitrary measures of government.
The governor, however, appears to have shown on this occa- sion a temperance and mildness, which does him much honour. "He consented, that an exception should be made of the office of hangman, and that the sheriff's recognziance might be limit- ed to such a value as the business might amount unto commit- ted to his trust, as 10,000 lb. tobacco, or the like sum.
"With these amendments the bill was thought fit to pass, by the governor, secretary, surveyor,t and Mr. Binks, denied by by the other four."
* It is not impossible, that this objection-"of compelling men to be hang- men,"-might have some allusion to Dandy's case before stated, (p. 179,) but, there does not appear to have been any thing illegal in that case, since the of- fice of "public executioner" was voluntarily undertaken by Dandy, as a condi- tion of pardon on a judgment or sentence of death. Our Saxon ancestors thought differently of the office of "hangman." "Cornifex fuit splendidi officii, appella- tio apud Saxones nostros. In anno 1040, Rex Hardecanutus Thrond suum car- nificem, et alios magnœ dignitatis viros, Londinum misit." Spelman's Gloss. verb. Carnifex. .
+ Mr. John Langford had been appointed surveyor-general, by commission dated March 24th, 1641, (1642, N. S.) " during his natural life." He was con- sequently the "surveyor" above mentioned. He was an able and zealous friend of lord Baltimore not only now in this province, but afterwards in England, as will appear in this history. He had before this, in the year 1638, filled the offi- ces of sheriff and coroner in the isle of Kent. (See before, p. 89.)
1
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HISTORY OF MARYLAND.
From this it may be inferred, that there were only eight mem- CHAPT. bers present. The house being equally divided, the bill, conse- IV. quently, did not pass; and accordingly we do not find any act 1642. with that title in the list of the laws passed at this session. The governor, therefore, must have been under the necessity of exercising the lord proprietary's prerogative in selecting and ap- pointing a sheriff, or the colony would have been deprived of that ministerial officer so essential to the administration of jus- tice according to the laws of England. In confirmation of which supposition, we find that a commission issued, in about ten days afterwards, to Edward Parker, bearing date September 15th, 1642; appointing him "high sheriff of our county of St. Mary's until the first of October, 1643," and authorizing him "to appoint his bailiff or under-sheriff in every hundred within the said county at his pleasure."
The act of this session entitled, "an act for the support of the The act for government," varied somewhat in expression, though not appa- the support of the go- rently in substance, from that of the last session with the same vernment. title. By this-"For the better support of the lord proprietary all tobacco shipped to be transported out of the province, (ex- cept to Virginia, and except to any of the king's dominions where customs are used to be paid to his majesty,) shall pay a custom of five in the hundred to his lordship." The exception in the former act was-"to England, Ireland, or Virginia as the last port."-The former also was to endure only "till the end of the next session ;"-this was "to continue for three years."- As the export of tobacco from Maryland to Holland in Dutch vessels became, in a few years after this period, an object of le- gislative attention, we may suppose, that some trade of this sort now constituted a basis for these customs given to the lord pro- prietary.
There were but few original acts passed at this session. Most of them, (twenty-five in number,) were but the laws of the last session re-enacted. 'The only original act of this session, yet unnoticed by us, was that entitled, "an act providing some An act for things for the better safety of the colony." This seems to have the im- been made to enable the lieutenant general "to press or take away of vessels, pressment vessels, men, provisions, arms, ammunition, or other things ne- men, &c. cessary for defence, at the most usual rates of the country, and the price or hire thereof to charge upon the inhabitants. Any person receiving corporal harm in the service, whereby he is dis- abled from labour or his calling, to be maintained at the charge
246
HISTORY OF MARYLAND.
CHAPT. of the province."-Compensation to be made to any person IV.
"for loss of property by forsaking his house and goods .*
1642.
Except some petty plundering committed by the Indians on the inhabitants of St. Clement's hundred, some time in October of this year, for which Mr. Gerard and Mr. Neale were autho- rized by commission from the lieutenant general to threaten and punish them, if necessary, our materials furnish no other occur- rence of the present year than the appointment of Mr. Giles Brent, by commission of the 16th of December, "to be command- er of our isle and county of Kent;}-to be chief captain in all matters of warfare ;- and to be chief judge in all matters and things civil and criminal, happening within the said island, not extending to life or member or freehold." In the same commis- sion also, " William Ludington, Richard Thompson, and Robert Vaughan, gent., were appointed to be commissioners within our said island to all powers and effects as to commissioners of a county by the law of the province do or shall belong."} Com- missioners of a county appear to have been then considered as having, not only the powers of conservators of the peace at com- inon law, but as thereby authorized to hold a county court. §
* "Assembly Proceedings from 1637 to 1658," p. 300.
This seems to be the first passage, which occurs in the records, wherein the isle of Kent was considered as a county. By the bill of 1638-9, (No. 13.) en- titled, "an act for the government of the isle of Kent, (before referred to, and inserted at the end of this volume in note XXXI, ) the island was erected into a hundred, to be considered as within the. county of St. Mary's, "until another county should be erected of the eastern shore, and no longer." It appears to have been the sense of those who administered the provincial government in its earliest period, that no legislative interposition was necessary for the erection of a county within the province. It possibly might have been so considered, in confirmity to the original distribution of England into counties ; which is said to have been the sole executive act of king Alfred. ( Spelman's Gloss. verb. Comi- tatus.) Nor is any act of assembly to be found for the original erection of any of the counties in this province, (except that of 1650, ch. 8, "for the erecting of Providence into a county, by the name of Ann Arundel,") until the year 1695, when by an act of that year, (ch. 13,) a county was "constituted" by the name of Prince George's county, and the bounds of the several counties of St. Mary's, Charles, Prince George's, Talbot, Kent, and Cecil were. therein "regulated ;" and, by a distinct clause therein, the isle of Kent was "made part of Talbot county."-We may, therefore, suppose that the power of erecting a county within the province was considered as a part of the palatinate regalia, and a personal prerogative of the lord Baltimore as lord proprietary of the province ; but no proclamation or other executive document for the erection of any county within the province in the earliest period of the settlement of the province, or prior to the restoration of the lord proprietary in the year 1658, appears on the records. # "Council Proceedings from 1636 to 1657," p. 92.
§ See the act entitled, "an act for judges," passed at the last July session and re-enacted at the following session, before stated, p. 221.
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HISTORY OF MARYLAND.
These gentlemen seem, therefore, to have been now first autho- CHAPT. rized to hold a county count in the isle of Kent. IV.
The colonists appear now to have extended themselves, in a 1643.
Inter- scattered population, over a considerable portion of that peninsu- course la or neck of land formed by the Patowmack and Patuxent with the rivers. How far to the westward from the Chesapeake, it does gulated. not clearly appear .* The peninsula seems, however, to have been sufficiently occupied by them to authorize the government to claim a right of excluding the Indians from entering their ter- ritories within a prescribed line drawn from the Patuxent across to the Patowmack. This measure they were provoked to adopt in their own defence against the predatory hostilities of the na- tives; though it appears to have been of short continuance. The bickerings and discontents among the colonists, imported per- haps from the mother country, seem to have rendered them ap- parently insensible to dangers from the savages.
The governor states the reasons for this measure in a procla- mation, issued by him for that purpose, bearing date the 16th of January, 1642, (O. S.)
" Whereas I am determined, by all possible care and dili- gence, to provide, that the colony be put in safety, not only from all danger of the Indians, but from fear of any, I have thought fit to publish and declare hereby, that I intend instantly to dis- patch messengers to the neighbouring Indians to forewarn them of coming among or near the English till further order be taken therein, and to charge them not to come on this side the neck between the back river of Patuxent and the main river towards Nicholas Hervey's, neither by land or water, upon peril of their life that shall adventure further or without the said bounds either by land or water, and if there shall be any occasion of message or treaty with me, to send with the messenger or messengers a flag or fane of white fustian, with his lordship's arms in wax ensealed thereon, to be visibly carried or borne by such messen- gers or an Englishman in their company; Therefore, I do here- by authorize all or any the English of this colony to shoot or kill any Indian or Indians in any the parts about Patuxent river, that shall be seen or met either upon the land or water without the said bound after six days after the date hereof, except some
* On the 7th of March, 1641, (O. S.) the surveyor was directed to lay out " for captain Thomas Cornwaleys, esq., 4000 acres of land in any part of Pa- towmack river upward of Port Tobacco creek." From which we may infer, that settlements were then forming at that distance westward from the Chesapeake.
Indians re-
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HISTORY OF MARYLAND.
Indian "or Indians or some of them have or bear visibly such
CHAPT. IV. white flag or fane aforesaid, or with an Englishman in their com- 1643. pany, or shall without resistance yield themselves to the Eng- lish upon demand; and upon coming of any such Indian mes- sengers to bring him or them to me without delay,"*
Besides this measure of excluding the Indians from the occu- pied territories of the colonists, it was contemplated, by those who were entrusted with the administration of the government, to "set forth" an expedition against them, so as by such defen- sive annoyance, either to drive them further from the colony or to quiet their hostilities. But uneasiness seems to have arisen among the colonists, lest the discharge of their personal military services on this occasion should so interfere with the preparatory labours for the ensuing crop as to deprive them of the means of livelihood. In the first settlement of the province, the clearing of the grounds, intended for the growth of either Indian corn or tobacco, rendered the latter part of the winter and the commence- ment of the spring a most important part of the year with the planters, and their industry and labours during that season ena- bled them to calculate with some probability upon the profits or result of their succeeding crops. To allay these uneasinesses the governor issued the following proclamation:
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