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 66
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GILES BRENT, esqr."
" Instructions to captain Henry Fleete, to which his commis- sion bearing date herewith relates.
"1. You are to go up with your company to Piscataway, and there to consider by the best means you may, what hope there is of a real and firm peace or truce with the Susquehanowes, and whether it will be more to the honour, safety, or advantage of the English to have war or truce with them at this present.
" 2. If you find the most and best reasons to persuade to peace, you may enter into treaty of peace with them, and under- take to them in our name a truce or cessation of all acts of hos- tility on our part, until such time as you shall agree upon for expectance of performance of conditions on their parts, and of the governor's assent to a peace, and give such hostage or hos- tages in exchange as shall be willing to go with them, if you should find it convenient.
"The conditions to be demanded and stood upon by you, (so much and so long as you shall think fit,) for this cessation are to be
"1. For hostage, or such other security as you shall think best, that they shall not do any act of hostility upon us or our confederates, (such as you shall think fit to include, wherein the Patowmacks not to be forgotten,*) nor shall come within the territories of us or our confederates according to such bounds
* As governor Calvert, on his first arrival in the Patowmack, (1634,) and as- cending the same is said to have been received in a very friendly manner by some Indians at their town called Patowmack-town, (as before mentioned, chap. I.) and that this town was on the Virginia side of that river at a place now call- ed New Marlborough, we may infer, that "the Patowmacks" above mentioned were a tribe of Indians of that place, and, although resident in Virginia, were in friendship and alliance with the Maryland colony. They must have been the same tribe as those denominated the Patowomeks in Smith's Hist. of Virginia.
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HISTORY OF MARYLAND.
CHAPT. as you shall agree upon during this cessation, unless it be two IV. or three messengers repairing hither for public treaty, and carry- 1644. ing the safe conduct under his lordship's seal, which you may deliver to them to that end.
"2. For satisfaction for their plundering of Mr. Angne and of Mattapanian house twice ;* wherein especially to require a return of all the arms taken at those times or of other to that number.
"3. For restoring as much as you can get of the arms and other goods lost or left in our last march upon them, at least the two field pieces.t
"4. For some present to the governor, or any other condi- tions as you shall think fit for the honour, safety, and advantage of the colony or our confederates, and namely the Virginians.
"5. The better to endear our peace to them, you may insin- uate to them, how the hostages of both sides will quickly be- come interpreters between us and them, and then our men will be willing to come and live among them, and to aid them against their enemies as now we do the Piscataway's, &c.
"6. If you shall not think best to treat or truce with them, you are to use all lawful and discreet means you can to pillage or take them, or (if it shall seem best) to kill them, and to break off all league and treaty between them and our confederates, and especially such as you shall note most bold and active that way, from leaguing or treating with the common enemy, afore or against our liking or consent, and the Piscataways without the authority or consent of their queen residing here.}
* "Mattapanian house" here spoken of was most probably the same as that alluded to by Oldmixon, in his Brit. Emp. in Amer. vol. I, p. 199 .- "Mattapany in this country" (St. Mary's county,) "is noted only for having been the lord Baltimore's seat, when he dwelt in this country. Here he built a handsome house, though more for convenience than magnificence ; it stands near the mouth of the river Patuxent."
+ From this it would appear, that our colonists had been defeated in some bat- tle with the Indians not long before this ; though no mention of such defeat or battle appears upon our records ; at least, that I have been able to ascertain.
# The last sentence of this paragraph is a little obscure, but the meaning seems to be-that he should endeavour to hinder any league or treaty between the Susquehanocks and Piscataways without his assent or that of the queen of the latter tribe, who, as it would seem, was then resident at St. Mary's .- Fe- male monarchy was common among the Indians. In Beverly's Hist. of Virg. p. 199, mention is made of two instances thereof then (about the year 1709,) existing on the eastern shore of Virginia, to wit, the queen of a tribe at a town called Pungoteague, and an empress at Nunduye, who, as he says, had all the na- tions of the eastern shore of Virginia under tribute.
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HISTORY OF MARYLAND.
"7. Lastly, in all matters of importance which shall concern CHAPT. the execution of your commission, or of these instructions, in IV. matters left to your discretion; you are to advise with Thomas 1644. Gerard and James Neale, esqrs. and councillors of the province, Thomas Greene and Cuthbert Fenwick, esqrs., Thomas Bald- ridge, Nathaniel Pope, and John Rice, planters, or two of them, whereof the said Thomas Gerard to be one and the said James Neale to be another, if they or either of them be there to be ad- vised with.
Signed, JOHN LEWGER."
The "safe conduct under his lordship's seal" mentioned in the first of the preceding conditions, appears to be subjoined to them on the records, as follows :-
"Cecilius, &c., to all inhabitants of the province, &c., I do hereby signify and declare unto you, that I have promised and undertaken to the Indian bearer or bearers hereof of the Sus- quehanough nation, not exceeding three in number and repair- ing in good manner from the Susquehanough fort* to any lieutenant general or some of my council at Kent or Saint Ma- ry's, upon any public treaty or message, safe and free passage to and fro through my province, without any molestation or harm of the English; and therefore I require all and every of you upon sight hereof not to do any thing to the violating of the said public faith given unto them, upon the utmost peril of such punishment as by martial law may be inflicted upon the con- temners. Given at St. Mary's this 18th June, 1644. Witness Giles Brent, &c."t
Whether captain Fleete went to Piscattaway in pursuance of Disagree- his commission and instructions, or whether any treaty was held ment of or entered into with the Susquehanocks at this time, we are no Brent governor where positively informed. The conduct of Mr. Lewger in thereto. issuing this commission and these instructions, (if we suppose the absence of the governor,) seems to us at this day liable to no imputation of extraordinary impropriety. Some slight excess of his powers, we might suppose, would have been overlooked on such an occasion, had not some circumstances attended the transaction, which enhanced its impropriety, but of which cir- cumstances we have no information. It is with surprise, there-
* It is probable, that the fort at Susquehanah here mentioned was the fortifica- tion erected on Palmer's island at the mouth of the Susquehanah, in pursuance of the orders before stated, p. 259, dated April 18th, 1643.
t These documents relative to this contemplated treaty at Piscattaway are in "Council Proceedings from 1636 to 1657," p. 121-125.
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HISTORY OF MARYLAND.
CHAPT. fore, that we learn, that in about two months afterwards go- IV. vernor Brent appears to have entertained the highest indignation 1644. at this assumption of power by Mr. Lewger .- It is thus express- ed on the records :- "Whereas John Lewger, esq., one of his lordship's council of this province of Maryland, hath, without any order or authority derived from his lordship the lord proprie- tary or his lieutenant general, presumed of his own hand to counterfeit and deliver unto captain Henry Fleete a commission for treating a peace with the enemies of this province the Sus- quehanowes, and likewise for the making the said Fleete a cap- tain or general to make war against them or other Indians, and to exercise authority over his company-inhabitants of this pro- vince, and to do other acts according to the tenor of the said commission; unto which said commission he hath likewise pre- sumed to affix and counterfeit his lordship's great seal and his lieutenant's hand, which acts being of high misdemeanor and offence, and such as require severe animadversion; These are, therefore, to suspend the said John Lewger from the said office and dignity of councillor, and from all other offices and digni- ties thereupon depending; and I do further hereby revoke all other commissions at any time granted unto him the said John Lewger by me, as his lordship's lieutenant general, for granting out writs, or exercising any other power of judicature within his lordship's province. GILES BRENT."
"Declared by the lieutenant general the 26th of August, 1644."
On the same day a commission appears to have issued to "William Brainthwayte, esqr., commander of our county of St. Mary's, Thomas Greene, gent., and Cuthbert Fenwick, gent.," appointing them "commissioners for our county of St. Mary's, to hear and determine all civil causes, and likewise all criminal causes, not extending to life or member, arising or pleadable by the law of this province before the commander and commission- ers of a county."-Which commission we may suppose to have been issued principally for the purpose of substituting others in the place of Mr. Lewger in a new commission for the justices of the county court .*
These differences between governor Brent and Mr. Lewger appear to have been quickly absorbed in more important transac- tions, and we learn no more of them. In about a week or two
Governor Calvert re- turns from England
* See these proceedings of the 26th of August, in "Council Proceedings from 1636 to 1657," p. 125-6.
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afterwards Mr. Leonard Calvert returned from England to his CHAPT. station of governor of Maryland. He brought with him new IV. commissions from the lord proprietary in England for the ad- 1644. ministration of the government of his province, one for himself
with new commis- as governor or lieutenant general, another for the appointment sions. of his council, and a third for Mr. Lewger re-appointing him secretary of the province, judge of all causes testamentary and matrimonial, attorney general, and register of the land office, besides that of councillor, he being included in that commission also. This re-appointment of Mr. Lewger must have been made in England by the lord proprietary previous to his knowledge of the supposed misconduct, for which he was now suspended ; but we shall see him again, after the storm of Clayborne's at- tack on the province had blown over, in the exercise of his for- mer office of secretary, as we may suppose, in virtue of this last commission .- The commission for the governor purports to have been-"Given under the great seal of the province at the fort of St. Mary's on the eighteenth day of September, 1644." But, as before observed on the former commission, it must have been drawn up in England, under the immediate inspection of the lord proprietary, and, according to his lordship's command in- serted in the body of it, "proclaimed and published within the province at the places accustomed to proclaim and publish any his edicts and ordinances;" to which proclamation or publica- tion the last mentioned date must refer. As this commission contained an express revocation of all preceding commissions- to any lieutenant general, and those for the council and secretary seperseded former commissions also for those offices, it became necessary for them to be proclaimed and published as speedily as might be after the governor's arrival. Hence we may infer, that his return into the province must have been between the 26th of August and the 18th of September following. His new commission was in form the same as that in 1642, and nearly so in substance. A few of the most important variances between them may be remarked here, as they seem to indicate the opin- ions of the lord proprietary, and perhaps those of the statesmen of that day on whose judgment he might have reposed, as to Some few his legislative powers over his province. In the clause of the variances former commission of 1642, where he authorised his lieutenant the new between general to call assemblies of the freemen of the province for the commis- sion and enacting of laws and to give his assent to such as should be en- the former.
VOL. II .- 36
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HISTORY OF MARYLAND.
CHAPT. acted by them, a proviso was inserted, that "every law so to be IV. assented unto by him the said lieutenant should be in force till 1644. we or our heirs should signify our or their disassent thereunto un- der our or their hand and seal, and no longer, unless after the transmission thereof unto us or our heirs and due consideration had thereupon we or our heirs shall think fit to confirm the same under our or their hand and seal." *- The meaning of which, though a little obscurely expressed, seems to be, that the lord proprietary should reserve to himself the right of abrogating at any time any act of assembly by his express "disassent" there- to, notwithstanding his lieutenant general in the province had previously given his assent to it, unless his lordship should give his express confirmation of such law under his hand and seal; after which, it would seem, that the law would be binding on himself .- In the similar clause or paragraph of the present com- mission of 1644, now newly arrived, the proviso contained great- er restrictions on the lieutenant, as to the laws to which he was authorised to give his assent .- "Provided, that every one of the said laws so to be enacted and assented unto in our name be made to continue in force till we or our heirs shall signify our disas- sent thereto, under our or their hand and seal, and not to con- tinue in force only for any other limited time, as till the next ensuing general assembly thereafter the making thereof, or for any certain number of years, as divers laws heretofore have been made there, which causes a great deal of uncertainty and pro- duces many ill effects in the government there; Provided also, that our said lieutenant do not in our name enact or assent unto any law for the constitution, confirmation, alteration or change of any officer or officers within the said province, or which may any way infringe or prejudice any of our rights, prerogatives, or royal jurisdictions over or in the said province granted unto us and our heirs by the letters patent above mentioned; every which law, so to be assented unto, and enacted by him our said lieu- tenant general there in our name, and consented unto and ap- proved of by the said freemen or their deputies or the major part of them in such manner as aforesaid we do hereby declare shall be in force within the said province until we or our heirs signi- fying our or their disassent thereunto under our or their hand and seal and no longer, unless after the transmission thereof
* See the clause more at large in the commission of 1642, before referred to and inserted in note (LI.) at the end of this volume.
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unto us or our heirs and due consideration had thereupon we or CHAPT. our heirs shall think fit to confirm the same under our or their IV. hand and seal."-By these restrictions the governor seems to 1644. have been prohibited from assenting to any act of assembly, which was made to continue only for a limited time, as until the next session, or for any certain number of years expressed there- in. This artifice in legislation, so much practised in modern days by the free and independent states of America, we per- ceive, was not unknown in the early periods of colonization. It results from the principle of "checks and balances" so highly prized in the legislative powers of government as arranged in the several constitutions of America and borrowed from that of England. Each distinct body of men, vested with the powers of legislation, is fond to gratify the natural passion of the hu- man heart and to retain power to its latest breath. The contests between the senate and house of delegates of the state of Ma- ryland for the retention of power and control in permitting the longer existence or continuance of a law, have in a variety of instances operated most perniciously on the happiness, as well as prosperity of the people. When a law was temporary, and the time of its expiration arrived, either body had a power by its negative to withhold its assent for its longer continuance; but if its duration was indefinite, both must consent to its repeal. It was, without doubt, to guard against this inconvenient "check" upon the lord proprietary, resorted to by our provincial legisla- ture, that his lordship so strenuously opposed this mode of legis- lation. If the lieutenant general of the province, through the means of the proprietary influence, or his own, should fortunate- ly obtain the passage of a law favourable to the interest of the proprietary, and the law was permanent, that is, without limita- tion, the assembly could never afterwards obtain its repeal with- out the assent of the governor or lord proprietary ; but if the act was temporary and made to continue only for a definite time, the assembly could, at the expiration of that time, refuse its assent to its further continuance, and the law would cease to exist. It is probable also, that the provincial legislature had passed some law or laws, which his lordship thought, had affected his "rights, prerogatives, and royal jurisdictions" over his province, parti- cularly in the creation or alteration of offices. If the principles of the English parliamentarians had been by this time even partially imported into the province, as we may justly suppose
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HISTORY OF MARYLAND.
CHAPT. they were, his lordship had much cause indeed of apprehension IV. on this ground; for, the long parliament had now assumed en- 1644. tirely to themselves, the right, not only of creating offices, but of appointing officers to fill them in all cases. It is not proba- ble, that, in the spirit of the times, the prerogative rights of a lesser baron, such as lord Baltimore, would be more regarded than those of the king. In justice to the provincial legislature, however, it ought to be observed, that by the law of England, the creation of offices could be done only by a statute enacted for the purpose, or at least that the king could not create any new office with any new fees annexed to it, or annex new fees to an old office; for that, it was held, would be imposing a tax upon the people without consent of parliament ; though the appointment of officer's to fill offices already created, most certainly appertain- ed to the king, and such properly, it might be said, ought to have been the law of Maryland. But lord Baltimore's charter went beyond the English constitution in this respect ; for, by the seventh section of that instrument, power was given to him "to constitute and ordain judges, justices, magistrates, and offi- cers, of what kind, for what cause, and with what power soever, within that land" (Maryland) "and the sea of those parts, and in such form as to the said now baron of Baltimore, or his heirs, shall seem most fitting." It must be acknowledged, that this was a very extensive power, and might very justly create a wish in the provincial legislature to impose some limits to it. That they should have had the power of giving or withholding their assent to the "constitution" or creation of an office was reason- able, had the charter so allowed; but if they presumed to "alter or change," not offices, but officers, they certainly gave to the lord proprietary just cause of complaint.
Another important variance between the commission of 1642 and the present one, consisted in a clause therein containing additional instructions to the lieutenant general relative to grants of lands. By this clause one of the conditions previous to ob- taining a grant of land, was, "to take the oath of fidelity to the lord proprietor;" which condition does not appear to have been ever before prescribed, and became subsequently one of the os- tensible causes of much contest and bloodshed in the province.
The new commission for the council, concomitant with the foregoing for the lieutenant general, was almost literally the same as the former of 1642, (to which the record refers,) except
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in the names of the gentlemen who were now appointed to form the governor's council. They were-"Giles Brent, John Lew- ger, Thomas Greene, Thomas Gerard, and James Neale, esqrs." Colonel Francis Trafford, Thomas Cornwaleys, William Blount, and John Langford, esqrs., who, together with Mr. Lewger, formed the former council under the former commission, either had left the province or were omitted in the new appointment for some cause not now known.
CHAPT. IV.
1644.
Mr. Lewger's commission also, constituting and appointing him to the several offices of secretary of the province, judge of causes testamentary, attorney general, and register of the land office, appears to be nearly the same as his former commission of 1642. As he subsequently appears again in the execution of his office of secretary, we may suppose that Mr. Brent's accusa- tion against him was not deemed by governor Calvert to be very well founded, or that Mr. Lewger was a man of that utility to the lord proprietary, that his services at this critical period of the provincial affairs could not be dispensed with .*
Governor Calvert, it appears, had not much time to repose Perturbed himself at St. Mary's, after his voyage across the Atlantic. state of the Some causes, possibly approaching symptoms of the rebellion to colony. the lord Baltimore's authority over his province, which shortly succeeded, obliged him to be absent from his government, most probably on a visit to Virginia. But it does not appear, that he was at this time constrained to fly to Virginia from hostilities carried on within the province, for they had not commenced; but his visit there might have been with intentions, either to come to some eclaircissement with Clayborne or to apply to the government of Virginia, which was still opposed to the parlia- mentarians, for its interference in behalf of his province. In contemplation, most probably, of this visit to Virginia, on the thirtieth of September, "by virtue of his commission," he "no- minated and deputed his well beloved cousin William Brainth- wayte, esq., to be lieutenant general, admiral, chancellor, keeper of the great seal, chief captain, magistrate, and commander of the said province during his absence." From which last expres- sion we may infer, that his absence from St. Mary's was not occasioned by a visit to the isle of Kent, that being within the province.t
* These commissions are inserted at large in note (LIV.) at the end of this volume.
* "Council Proceedings from 1636 to 1657," p. 138.
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HISTORY OF MARYLAND.
CHAPT. IV. In the mean time further measures were taken to guard against the hostilities of the Indians, by proclamation, (dated 1644. the 13th of November, 1644,) "prohibiting any inhabitant of the province from lending, selling, or bartering any arms or am- munition whatsoever unto any Indians within this province, without leave first had from the governor of the province for the time being; and to authorise any inhabitant of this province, who shall meet with any Indian within this province, (without the said license,) having with him ammunition, to take the same from him, and to deliver the same to the governor for the time being; and likewise to prohibit all the said inhabitants of this province to entertain or receive into their houses, (without the aforesaid license,) any Indians whatsoever .* "
Attempt to call an as- sembly.
Governor Calvert could not have been absent from the seat of government above ten days or a fortnight; for, on the sixteenth of November, (1644,) pressed perhaps by the difficulties of his situation and the perilous state of the province, he issued his proclamation at St. Mary's, for holding a general assembly, and summoning all freemen inhabiting within the province to be at the said assembly, either by themselves, or their proxies or bur- gesses, to consult and advise, &c. at St. Mary's, on Tuesday, the 3d of December following. The secretary was also thereby authorised, (in case of the governor's absence from St. Mary's on the said 3d of December,) to prorogue it to such further day as he should think fit. Duplicates of this proclamation were issued to St. Clement's hundred, and to St. Michael's, as also to the isle of Kent. Special writs also, as heretofore used on simi - lar occasions, issued to Thomas Gerard, James Neale, Thomas Greene, Giles Brent, and William Brainthwayte, esqrs., to attend in person ; the four first of whom were also of the council, as before stated. What was the result thereof we are not informed; for, no record appears of their meeting, proceedings, or proroga- tion in pursuance of the above mentioned authority.t
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