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 63
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"By the lieutenant general .- Whereas I understand of divers jealousies and fears abroad in the colony touching the Indians, and the expectation of a great charge and hinderance this year either in making a march upon them, or in guarding against them, to the disanimation of the people and foreslowing their usual diligence and alacrity in proceeding in their labours for the next crop, for remedy whereof, and to assure them of what consideration is had of their safeties and ease, I have thought fit to publish and declare hereby, that all possible diligence is and shall be used for the furnishing the county with ammunition, and that, as soon as conveniently may be, there shall be an expedi- tion set forth against the Indian enemies of this province, at the sole charge of his lordship, (excepting the persons of the soldiers to make the expedition withall, for whose service the country shall be charged,) and that capt. Cornwaleys, esq., is appoint- ed and hath undertaken to go as general of the said expedition,t
* "Council Proceedings from 1636 to 1657," p. 92.
+ His commission for that purpose appears on the records immediately pre- ceding the above proclamation, and bears the same date.
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to whom I have given all purchase* that shall be made CHAPT. upon the enemy during the said expedition, to be by him dis- III. posed of for the encouragement of volunteers, that shall set 1643. themselves forth and serve at their own charge, and for the re- ward of his soldiers as he shall find them to deserve ; and fur- ther for the greater encouragement and relief of those that shall go upon this service, I will use all circumspection that may be, that the said expedition shall be so made, and (by God's help,) performed, that it shall be no considerable hindrance to any one's crop, and that [as to] the debts of those whose present abilities will not reach to the satisfying of their creditors without the grievous pressure and disabling them for their necessary subsist- ence for the future, I will use means with their creditors, (if they be inhabitants of this province,) to forbear until the next year, which I have already assurance of from some of the chiefest .- Given at St. Mary's, 23d January, 1642."}
It has been before observed, that the colonists of St. Mary's had not only been liable to the invasions of the Susquehanock Indians, but that the Nanticokes also had been so bold as to cross the bay and commit hostilities upon them. Accordingly war had been formally declared against them as well as the Sus- quehanocks, by a proclamation for that purpose in September last, as before mentioned. But it would seem, that within a day or two subsequent to the last mentioned proclamation of January 23d, the governor had agreed to a truce with the Nanticokes, for the purpose of forming a treaty of peace with them. In order, therefore, that they should not be liable to the severe penalties denounced against those Indians, who should presume to intrude within the limits of the colonists on the peninsula between the Patowmack and Patuxent rivers, as prescribed by the proclama- tion of the 16th last, it became necessary to issue another pro- clamation, setting forth this matter and revoking the former, as follows :- "By the lieutenant general .- Whereas by a late pro- clamation dated the 17th} of this instant month the English were authorised to kill any Indians in any the parts about Patuxent
* The word "purchase" here must mean the right of booty or plunder of what- soever kind, that might be taken from the Indians. It was so understood occa- sionally by old English writers nearly cotemporary with our first colonists .- See Johnson's Dict. who cites Shakespeare.
+ "Council Proceedings from 1636 to 1657," p. 95.
į This is so in the record ; but it evidently alludes to the one before stated, which is dated in the record, the 16th.
VOL. II .- 32
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CHAPT. river, that should be met with upon the land or water on this side IV. the neck between the back river of the Patuxent and the main 1643. road towards Nicholas Hervey's, with certain exceptions therein mentioned ; now I do hereby, upon some reasons and accidents since happening,* utterly repeal and reverse the said proclama- tion, and strongly prohibit, upon pain of death, that no English, within the county of St. Mary's or any other part of the pro- vince do kill or shoot any Indian whatever, (other than such as he shall know to be Sesquihanowes or Wicomeses,) unless first assaulted or put in bodily fear of his life by the Indian; And whereas, by one other proclamation, dated the 13th of Septem- ber last, the Nanticoke Indians were declared to be enemies of the province, I revoke likewise hereby the said declaration, and do publish and declare that there is a treaty of peace betwixt me and them, and a truce of six weeks agreed upon for the finishing of the treaty, and hereupon have taken them into his lordship's protection for the time aforesaid, but for the better securing of all English inhabitants of the province from all harm that may hap - pen to them through the treachery and falsehood of any Indians, I do forbid all the said English to entertain or harbour in their houses any Indian whatsoever without special license or appoint- ment from me, and, upon any Indian's refusal to depart upon ne- cessary demand given, to expel them by violence, but not to the the killing them unless they shall assault the life of the English .- Given at St. Mary's this 26th of January, 1642."+
Colonists compelled to take pa- tents for their lands.
Amidst these hostilities of the Indians, and some subsisting discontents among the colonists, it became necessary for the government to pay some attention to some abuses and ill prac- tices which had arisen in the colony relative to "rights to land." Divers adventurers into the province had obtained, it seems, in virtue of the "conditions of plantation," on their emigration here, warrants for the quantity of land due to them on such emigration. It would seem, that after having their given quan- tity of land laid out for them, agreeably to their warrant, they had seated themselves thereon, and so remained without giving themselves the trouble or expense of obtaining grants or patents for the lands thus obtained by them, whereby it appeared, that
* It is possible, that some friendly Indians had been unjustly shot and killed, under the above recited proclamation of the 17th (16th) of January. But this is mere inference, the records being entirely silent as to the "reasons and acci- dents" above alluded to.
+"Council Proceedings from 1636 to 1657," p. 97.
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they meant to occupy the lands without making themselves lia- CHAPT. ble to pay any rent for the same to his lordship. To prevent this IV. intended fraud, a proclamation was issued, (April 2d, 1643,) re- 1643. quiring that "all persons pretending any right unto any lands within this province by virtue of any former conditions of plan- tation or special warrant, shall, within twelve months from and after the date hereof, come and make appear their right so pre- tended, and take out grants of the same upon pain of being re- fused grants after the said time."*
It will be proper to advert in this place to two several attempts Perplexed on the part of the governor to call an assembly of the province fairs in the state of af- about this time. A proclamation was issued on the 16th of De- province. cember last, (1642,) for a general assembly of the freemen to meet at St. Mary's on the third of February ensuing. But by another proclamation of the first of February, 1642, (1643, N. S.) the assembly was dismissed and all men discharged of their atten- dance on the day appointed. Another proclamation issued on the 28th of March, 1643, for the freemen to be at a general as- sembly on the 3d of April following. But, (as Mr. Bacon has observed,) "it does not appear by any record, whether they met accordingly, or what their proceedings (if any) were."} These occurrences strongly indicate the unsettled state of affairs in the province at this period of time.
Much perplexity also seems to have pervaded the mind of the governor at this time through causes, which our materials do not sufficiently develope. Notwithstanding the danger in which the colonists were placed, from the hostilities of the Indians, parti- cularly the Susquehanocks, as appears from what precedes, and the resolution entered into by the government of repelling their invasions by an expedition against them, as before mentioned, yet this measure seems to have been soon unaccountably relin- quished, and the frontiers of their settlements on the peninsula left in a defenceless state. To this purpose a proclamation was issued by the governor, on the eighth of April, as follows :-
" Whereas by a proclamation, bearing date at St. Mary's, the 23d of January last,į upon certain hopes then presumed upon, of means to go a march upon the Susquehanahs, I did declare
* " Council Proceedings from 1636 to 1657," p. 98.
t See Bacon's edition of the laws of Maryland, under the date of 1643; and the record book in the Council Chamber, entitled, "Assembly Proceedings from 1637 to 1658," p. 304.
Į Ante, p. 248-9.
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CHAPT. to the colony, that there should be an expedition set forth at his IV. lordship's charge, with other things therein contained, which 1643. means not being yet found answerable to my hopes, I do think fit to advise further of the intended expedition, and therefore do hereby annul and revoke the said proclamation, and the obliga- tions therein undertaken on his lordship's behalf, and all powers and commissions therein given touching or concerning the said expedition, until I have further considered thereon."
Governor Calvert re- turns to England.
This seems to have been connected with a further resolution now formed by the governor, dictated apparently by the perplex- ed state of the affairs of the province, and, perhaps, in part oc- casioned also by the confusion arising from the civil wars now raging in the mother country. From some cause not assigned nor clearly to be inferred he had formed the resolution of return- ing home to England, and, in virtue of his last commission from his brother, he appointed Mr. Giles Brent deputy governor in his absence. To make this appointment known, he issued the fol- lowing proclamation :-
Appoints Mr. Giles Brent to be Governor in his ab- sence.
" By the lieutenant general .- Whereas I am determined to go for England, I do hereby publish and declare to all inhabitants of this province, that I have nominated, appointed and elected Mr. Giles Brent, esqr., to be lieutenant general, admiral, chief captain, magistrate, and commander, as well by sea as land, of this province of Maryland and of the islands to the same belong- ing, in as large and ample manner as his lordship by his com- mission under the great seal, bearing date at St. Mary's the 4th of September, 1642,t hath authorised me, for the present during my intended absence, until further order from his lordship there- in .- Given at St. Mary's this 11th April, 1643."}
Exemp- tion from militia duty.
On the same day, which probably was but a day or two be- fore his departure, he executed an instrument of writing, which will appear to us at this day but illy calculated to conciliate the esteem and affection of the colonists. It will be recollected, that at the last session of assembly an act had passed, entitled, "an act for an expedition against the Indians ;" in which act a clause of exemption from military service, not only for the go- vernor himself but for his "apprentices," had been inserted and passed, though much opposed by some influential members of
* " Council Proceedings from 1636 to 1657," p. 98.
t See this commission, as before referred to, in note (LI.) at the end of this volume.
# " Council Proceedings from 1636 to 1657," p. 99.
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the house, particularly captain Cornwaleys .* In virtue of this CHAPT. clause in this act, as we may suppose, he now, immediately IV preceding his depurture, granted a special writ of privilege, or 1643. charter of exemption, if it may be so called, in the name of the lord proprietary, to a certain "Nathaniel Pope and his menial servants."-The instrument of writing is as follows :-
"Cecilius, by our sovereign lord king Charles, lord proprie- tary, &c., to all persons to whom these presents shall come, greeting ; know ye, that we, for divers good causes us thereun- to specially moving, have exempted, and by these presents do exempt, the persons of Nathaniel Pope and his menial servants being nine in number, from all watches and wardings, and from all attendance at musters and trainings, and from being called or commanded out of or from his house to or upon any levy, march, or party without or against his will or consent, and we do hereby will and require all our captains, commanders, and officers what- soever, not to infringe or violate any the exemptions aforesaid at their peril .- Given at St. Mary's this 11th of April, 1643. Witness our dear brother, &c."t
Having no authority to determine in what capacity Nathaniel Pope stood in relation to the lord proprietary or his brother the governor, we are not enabled to decide with certainty upon what principle of law the aforesaid charter of exemption was granted. If Pope was a tenant upon some of the demesne-lands of the lord proprietary reserved and cultivated for his own use, or if he acted as an overseer or steward of such estate specially reserv- ed by the lord proprietary, to be cultivated at his own expense and for his own use, it does appear, that in virtue of the lord proprietary's jura regalia his tenants in ancient demesne or his menial servants upon such demesnes, like those of the king, would have been entitled to various privileges;} and although an exemption from military or militia duty be not particularly mentioned as one of those privileges, yet it appears to be within the like reason, especially as that of being exempted from taxes and talliages. That particular orders or profession of men, such as attorneys of the court of king's bench, were entitled to writs of privilege exempting them from militia duty or mustering in trained bands, seems to have been adjudged in one or two cases
* See before, p. 242.
t " Council Proceedings from 1636 to 1657," p. 99.
# 4 Inst. 269. 2 Inst. 542. 3 Durnf. and East. 73
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CHAPT. prior to the first settlement of this province .* More recent cases IV. also acknowledge this privilege of exemption, until a late mili- 1643. tia law in England gave the alternative of either providing a sub- stitute or paying a certain sum of money, when the militia ser- vice ceasing to be merely personal, the privilege ceased also.t But, waving the legality of this measure of the governor, it cer- tainly appears to have been dissatisfactory to the people of the province, and consequently at this period of time highly im- politic.
Mr. Giles Brent qua- lifies as governor.
The governor must have left the province in a day or two after the last mentioned transaction; for, on the 15th of April, 1643, Mr. Giles Brent qualified as governor, in virtue of his appoint- ment before mentioned,¿ by taking the oath of lieutenant gene- ral, which was administered to him by the secretary-Mr. Lew- ger. It will be recollected, that the fifth section of the act of 1638, (1639, N. S.) ch. 2, entitled, "An act ordaining certain laws for the government of the province," required the lieuten- ant general to "take an oath to administer equal justice to all persons, without favour or malice of any one." No form of oath, however, was prescribed by this act; but it appears, as we have before stated,§ that this clause of this act had reference to one of the thirty-six bills of the same session, engrossed but not passed, entitled, "An act for the several oaths to be taken by judges and public officers," wherein the oath of a judge is pre- scribed and stated at large. But no special oath for the lieuten- ant general, except as judge, is prescribed by that bill. As the oath now taken by Mr. Brent developes in some measure the na- ture of his powers at this time as lieutenant general, it is here in- serted, as follows :-
"You swear, that you will be true and faithful to the right honourable Cecilius, lord proprietary of this province of Mary- land, and that you will defend and maintain to the utmost of your power all his just rights, interests, royal jurisdictions, and
* See Venables's case, (in the first year of Charles the first,) in Cro. Car. 11, which seems to have been founded on the precedent in Coke's Entr. 436, and another case in the 22 Jac. 1. Officin Brev. 164.
t See this subject fully discussed by Mr. Justice Blackstone in his Reports, in Gerard's case, (2 Bl. Rep. 1123,) which turned principally on the construction of the statute above alluded to, viz. 2 Geo. 3, ch. 20.
# No formal commission to Mr. Brent, as lieutenant general, appears on the records ; nor other act of appointment, but the proclamation of the 11th of April, before stated.
§ See before, p. 140.
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seignory in to and over the said province, and the islands there- CHAPT. unto belonging; and you will faithfully serve him as his lieu- IV. tenant of the said province; and in all other offices commit- 1643. ted to your charge you will do equal right and justice to the poor and to the rich within the said province after your cunning wit and power, according to the laws of the province ;* you shall delay or deny to no man right and justice; you shall not know of any appempt against his lordship's right and dominion in to and over the said province and the people therein, but you shall resist and oppose it to the utmost of your power, and make the same known with convenient speed to his lordship; and you shall in all things faithfully counsel and advise his lordship ac- cording to you heart and conscience. So help you God.
In presentia Capt. CORNWALLIS, EDWARD PARKER."+
Immediately following this oath and the entry on the record rela- tive to the administration thereof, and of the same date, viz. April 15th, a commission in the name of lord Baltimore, is re- corded, appointing "Colonel Francis Trafford, esqr., John Lew- ger, esqr., William Blount, esqr., Giles Brent, esqr., John Lang- ford, esqr., and James Neale, esqr., to be of our privy council within our said province of Maryland, &c., ut supra in commis- sion of council page "į This evidently refers to the com- mission of the council of the 5th of September, 1642, before stated, § in which all of the above named gentlemen, except Giles Brent and James Neale, had been appointed members of the council. Mr. Giles Brent had probably been omitted in the for- mer commission, on account of the office of commander of the isle of Kent being intended for him, to which he was subse- quently appointed, (as before stated,) and now made lieutenant general. Mr. James Neale then being the only new member of the council, he was consequently the only member, who was now to qualify by taking the oath of a councillor, it being deemed, as we may suppose, unnecessary for the rest to take the oath again. We can account in this manner only for the mentioning
* This clause seems evidently to relate to his office of judge, or chief justice of the province or provincial court, and inserted apparently in lieu of the oath of a judge according to the form of that oath as prescribed by the bill.
t "Council Proceedings from 1636 to 1657," p. 99.
# The blank above is so in the record .- See "Council Proceedings from 1636 to 1657," p. 100.
§ In note (LI.) at the end of this volume.
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CHAPT. on the record Mr. Neale's qualification only; which is'in these IV. words :- "James Neale had the oath of a councillor of state ad- 1643. ministered to him by the said Giles Brent according to a form of a bill drawn up in assembly, 15th March, 1638," (1639, N. S.) "en- titled an act for several oaths." This entry has been before stated as a confirmation of the suggestion, that the thirty-six bills of the before mentioned session of 1638-9, were deemed laws of the province, and as such referred to in the title of the act of that session, entitled, "An act crdaining certain laws for the go- vernment of this province."
Measures incursions dians. These matters being thus arranged, and the government thus to repel the reorganized, as it were, some endeavours on the part of those of the In- now invested with the administration of the affairs of the pro- vince appear to have been exerted for a more effectual check to the incursions of the Indians. The "outrages" committed upon the colonists seem to have been done principally by the Susque- hanocks, who appear to have been the most formidable tribe or nation, from whom the colonists had to apprehend mischief. As the attacks of this nation was principally on the frontier settlers in St. Mary's county, it is probable that their incursions were by land, or marauding parties, from their own country on the bor- ders of the Susquehanah river to the peninsula between the Pa- tuxent and Patowmack; though it is possible, that the territo- ries claimed by them might have comprehended all that tract of the province lying on the western shore of the Chesapeake from the Susquehanah to the Patuxent, bounded on the west by the Alleghany mountains; for, if other intervening tribes inha- bited any portion of it, they must have been tributary or subject to them, as we may infer from the free right of passage through the said territory exercised by the Susquehanocks. To put a stop to their invasions, captain Cornwaleys was again resorted to, as the most proper person to conduct an expedition against them. Whatever were the causes of difference between him and the late lieutenant general-Calvert, who was now gone to En- gland, it is probable that the present lieutenant general-Mr. Brent-might deem it prudent to use conciliatory measures with the captain, (as he was usually called,) and by persuasion induce him to exert his influence in providing means for the defence of the province. In pursuance of these measures two commissions were issued by governor Brent, or at least two appear upon the record, to captain Cornwaleys; but, as no date is affixed to the
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latter, it is uncertain whether they were both issued on the same CHAPT. day, or on two successive days. As these commissions exhibit IV. the state of the military affairs of the province, and the irresolu- 1643. tion which seems to have unfortunately pervaded the minds of those entrusted with the government, as to the proper mode of defence of the province, together with some incidental circum- stances, it is thought proper to insert them here.
"Cecilius, &c., to our trusty captain Thomas Cornwaleys, esqr., greeting; we, relying much upon your known prudence and experience in martial affairs, do hereby appoint and author- ise you, to make an expedition against the Susquehanoughes or other Indians, as have committed or aided the late outrages upon the English, at such time and in such manner as you shall think fit; and to take out of every county or hundred within the pro- vince the third man able to bear arms, such as you shall think fit to go upon the said expedition; and to require every or any county or hundred, to furnish the said men for such expedition with all necessaries according to the law in that behalf ;* to have the said men so ready furnished at such rendezvous at such time as you shall appoint; and the men so levied, and all other vol- unteers, to command as captain; and with them a war to make upon the Indians aforesaid in such manner and with all such powers and authorities whatsoever for the doing, commanding, or appointing of any thing toward, for, or in the said expedition, and concerning the same, over all persons or goods within the province, or for the vanquishing or spoiling of the enemy, or any other thing touching the said war, to have, use, or exercise the same in as ample manner, power, and effect, to all intents and constructions, as may be had, used, and exercised in time of war by any captain general of an army by the law or use of war; and we require all officers, soldiers, and other persons whatso- ever within our said province to obey and respect him the said Thomas Cornwaleys in the nature and quality of captain gener- al of the said expedition for and during the said expedition upon pain of all such punishment as by martial law may by inflicted. Given under our great seal at St. Mary's this 17th of April, 1643. Witness Giles Brent, esqr., our lieutenant general of our said province."t
* The law, here alluded to, was the act passed at the last session, of the 15th of September, 1642, entitled, "An act for an expedition against the Indians," before stated, p. 242, the expressions of which are closely pursued in the above commission.
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