The history of Maryland : from its first settlement, in 1633, to the restoration, in 1660 ; with a copious introduction, and notes and illustrations, Part 68

Author: Bozman, John Leeds, 1757-1823
Publication date: 1837
Publisher: Baltimore : J. Lucas & E.K. Deaver
Number of Pages: 1062

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 68

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Hill re- signs upon terms.

Mr. Hill, the pretended governor, was, on "this invasion," as he calls it, of governor Calvert, obliged to give up his office ; but, this was done, as it would appear, upon "conditions mutu- ally subscribed to by them ;" which conditions were, as may be inferred from Hill's letters,-a payment of or compensation for all arrears of perquisites granted to him by the before men- tioned commission in the name of governor Calvert. Mr. Hill appears upon this to have retired to Virginia, where we shall leave him for the present.

Governor Calvert convenes An assembly of the province, it seems, had, during the go- vernment of Mr. Hill, been called by him, had met, and had the assem- passed some laws, (not now extant,) but had been adjourned be- bly before called by Hill. fore governor Calvert regained the government. Mr. Calvert, probably supposing that no "new summons to the inhabitants," or proclamation for that purpose, were necessary, convened the

* See the letter of the assembly, of April 21st, 1649, to the lord proprietary hereafter inserted.

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same assembly again, which so stood adjourned without issuing CHAP. V. any "new summons" or proclamation; which circumstance is here 1646. mentioned, principally on account of its giving rise to subsequent objections, as will hereafter be seen, to the validity or legality of the acts passed at this session ; inasmuch as the assembly could not be lawfully called by Mr. Hill, who was not lawfully a go- vernor. It seems also extraordinary and unaccountable to us at this day, how governor Calvert could have reposed confidence enough in the same assembly, called by captain Hill, to have induced him to trust the same members with the legislation of the province ; especially, if the circumstance be true, as stated by a subsequent assembly of 1649, in their letter to the lord pro- prietary, that this "whole house of commons," as they call this assembly of 1646-7, "(two or three only excepted,) consisted of that rebelled party and governor Calvert's professed enemies." However ill or well disposed this assembly might have been to- wards lord Baltimore's government, they were reassembled and met again under the authority of governor Calvert, on the 29th of December, 1646, O. S., which was, according to the compu- tation of the rest of Europe, now new style, the 8th or 9th of January, 1647.

It is peculiarly remarkable, that, notwithstanding the turbu- The first lence of the times, it is at this session of assembly, we discern instance on the records the first notice, taken on the records, of the distinction, which of the pro- was subsequently adopted and used, between the upper and lower distinction vince, of a houses of assembly, and the form practised of sending for the between lower house to attend the governor in the upper, to hear his and lower the upper houses of Assembly. 1647. speech to them, in the manner of an English legislative body .- It is thus entered on the journal .- "In the upper house present, the governor, Mr. Lewger, Mr. Greene .- The burgesses being sent for and all appearing, the governor declares to them, that they were called hither as freemen to treat and advise in assem- bly touching all matters, as freely and boldly, without any awe or fear, and with the same liberty, as at any assembly they might have done heretofore, and that they were now free from all re- straint of their persons, and should be free during the assembly, saving only to himself, after the end of the assembly, such charge as he had or hath against any for any crime committed since the last general pardon."*

* It may be proper to state, that although the fact of sending for the burgesses to come to the upper house, leaves the inference, that the assembly was at this VOL. II .- 38

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CHAP. V.

1647. Proceed- ings of the assembly.

Immediately after this speech of the governor and on the same day, a singular proceeding appears to have taken place in the assembly, relative to the terms on which the "soldiers," who at- tended the governor from Virginia, had embarked with him for the purpose of reinstating him in his province. Several persons were sworn as witnesses, who "testified, that the governor, afore their coming up out of Virginia, declared to all the soldiers in public, and to these deponents in particular, in these words or to this effect :- that they were to attend him upon these terms, viz. that if he found the inhabitants of St. Mary's had accepted his pardon for their former rebellion, and were in obedience to his lordship, the soldiers were to expect no pillage there, but he would receive the inhabitants in peace, and only take aid from them to the reducement of Kent."-This does not necessarily imply, that governor Calvert's soldiers were to be allowed to "pillage" and plunder the inhabitants in rebellion, as they pleased. It might mean only, that the property of the rebels, being enemies, cap- tured in war, should be divided and distributed among the sol- diers. But, even in a literal sense of "pillage," the warfare of the most civilized nations in Europe, at this period of time, particularly throughout the war, called the thirty years war, from 1618 to 1648, was constantly attended with a license to the soldiery to plunder; and during the civil war of England, in consequence of this general usage, scarcely a city or a fortress was surren- dered by either party, but plunder and pillage were practised by the conquerors .*- It does not appear, however, from any docu- ments extant, that governor Calvert's soldiers committed any "pillage" upon the rebels on their regaining the province ; but, on the contrary, seem to have expected their compensation out of his lordship's private property.

The house or houses of assembly continued to sit and adjourn from day to day until the second of January, when it finally ad- journed to the first of March following; but no meeting of this assembly appears to have taken place in pursuance of this last adjournment. Only two acts are mentioned to have been passed

session divided into two houses or branches, and actually set in two distinct apartments, yet no express mention thereof appears on the records of this ses- sion.

* When the town of Colchester in Essex was surrendered, after long resist- ance by the nobility and gentry, who had defended it for the king, in the year 1648, the barbarous generals Fairfax and Ireton, particularly the latter who dic- tated, exacted ten thousand pounds from the innocent inhabitants, to preserve them from plunder. Rapin's Hist. of Eng. (Tindal's edit.) vol. x. p. 477 .- See our remarks on this subject before, p. 164-5, note.

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at this session : One entitled, "an act for customs," and another CHAP. V. entitled, "an act touching judicature." But, as no copies of 1647. these acts are now extant, we have to suppose, that the former, relative to customs, was similar to some acts before made on the same subject, and before stated, to wit, the 13th section of the act of 1638-9, ch. 2, and the 36th bill of the same session, en- titled, "an act for a custom on certain tobaccoes," which gave five per cent. to the lord proprietary on all tobaccoes exported, except to England, Ireland or Virginia. But, from the pream- ble to a subsequent act-1661, ch. 6, made expressly to repeal this act of 1646-7, relative to customs, it appears to have con- tained an additional clause, (not in the former acts,) wherein his lordship, " in consideration of the custom therein granted to him, undertook the whole charge of the government, both in war and peace."-The other act, relative to judicature, might possibly be similar to the former act of 1642, ch. 4, entitled, "an act for the rule of judicature," before stated, but from a subsequent act of 1650, ch. 6, it appears to have related also to the regulation of sheriff's fees .*

The next proceeding of the provincial government, which oc- An embar- curs after this session, was an embargo :- dictated as the pro- go, and clamation purports, by the civil commotions of the province, and proclaimed martial law the continued hostile state of the isle of Kent. As the proclama- tion for this measure cannot well be condensed into a much shorter space and the material passages thereof be preserved, it is here presented entire to the reader .- "By his lordship's lieu- tenant and governor of Maryland .- Upon certain reasons known unto myself requiring an embargo to be laid at this present upon all persons and vessels, to the end no intelligence may be com- municated, or practice entertained with foreigners during this time of war, I do hereby forbid all persons now being in the

* See these acts, under their several dates, stated in Bacon's Laws; but, al- though Mr. Bacon has said, in a note to the titles which he gives to the acts passed at this session of 1646-7, that "no other traces of the acts or proceedings of this session appear upon record, that he could discover," yet he must have meant, that no copies of these, or any other acts, of this session, appear upon record, or he must have inadvertently, (contrary to his usual accuracy, ) passed over what is stated above of the proceedings of this session, taken from the re- cord book in the council chamber, entitled "Assembly Proceedings from 1637 to 1658," p. 307 .- We shall see also, that, at the next session of assembly held in January, 1647-8, a protest was entered by the assembly against the validity of the acts of this session, "conceiving that they were not lawfully enacted, for that no summons issued out to the inhabitants, whereby their appearance was re- quired by lawful authority."

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CHAP. V. county of St. Mary's, that they presume not to go, or attempt 1647. to go, out of the county of St. Mary's without acquainting me first therewith, and my leave so to do ; and that no person en- tertain any communication, or give any entertainment to any one coming into the province or from the isle of Kent ; but that, im- mediately after the knowledge of any arrival of any person or vessel coming into the county of St. Mary's, they give notice thereof to me as soon as may be, and warn all persons so arriv- ing to come to the fort to me before they entertain any commu- nications with any person of the province. This proclamation to be in force in every hundred immediately after the publishing thereof in the hundred, and to continue in force for one month from the date of it, and all men after the publication to take no- tice of it and observe it in every point so far as it shall concern them, upon pain of death or such other censures as the offence shall deserve, in the judgment of a martial court; assuring all persons, that I intend to take a very strict accompt of all offences to the contrary hereof .- Given at St. Inigoe's Fort, this 16th of January, 1646."*

The act for customs on imports and ex- ports en- forced.

At or about the time of issuing this proclamation, a vessel belonging to Mr. Ralph Beane arrived within the hundred of St. Clement's or New-town, in St. Mary's county, from Virginia, laden with wine and other spirituous liquors, and Mr. Beane had sold some of those liquors to the inhabitants of those hundreds, who came on board of his vessel for that purpose according to the then usual practice. This appears to have been contrary to the before mentioned act of the last session, entitled, "an act for customs," which it seems must have laid a duty as well upon im- ports as exports. The governor, therefore, issued his commis- sion, bearing date the 19th of January, 1646, (1647, N. S.) to Mr. William Britton to make inquiry into this business, and, if

* See this proclamation in the record book entitled, "Council Proceedings from 1636 to 1657," p. 145: where a note is subjoined thereto as follows :- " Renewed for one month on the 12th of February, 1646, especially prohibiting export of cattle or corn." -St. Inigoe's fort appears to have been situated about three or four miles to the south eastward from the site of the city of St. Mary's, (probably where St. Inigoe's ware house now stands,) and being then the most secure fortress on that part of the province, the governor had fixed his re- sidence there, and had there held the last assembly. This part of the province appears to have been kept in subjection at this time by military power, for the purpose of supporting a due administration of the laws and government of the lord proprietary. The "exercise of martial law, in case of rebellion, sudden tumult, or sedition," was authorised by the thirteenth section of lord Baltimore's charter.

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he found the facts stated to be true, he was commanded "to seize CHAP. V. and bring to St. Inigoe's fort all wines and hot waters imported by 1647. the said Ralph Beane or any other."-The commission further directed ;- " and you are to require the said Ralph Beane and all other persons intending to freight any tobaccoes out of the province upon the said vessel, that he or they do either come to the fort to discharge or secure the custom, or else that they bring the said vessel under command of the fort, and there lade their tobaccoes, upon peril of forfeiting all tobaccoes, which shall be laden otherwise, as attempted to be exported afore the custom dis- . charged or secured." *- The latter customs, here referred to, on exports, appear to have been conformable to the several acts of assembly just before mentioned. But, it must be acknowledged, that the custom upon imports, if now exacted by the provincial government upon other goods and merchandize than "wine and hot waters," must have borne particularly hard upon the colo- nists, who were the consumers, more especially if the same goods or merchandize so imported had paid a custom or excise in Eng- land before their exportation thence, and moreover a custom in Virginia also, from whence, as it seems, the goods referred to in this commission were last imported.

This leads us to the notice of an ordinance, passed by the The Eng- English parliament, about this time, (on the 23d of January, nance of lish ordi- 1646, O. S.) relative to the customs and duties on goods and 1646-7, re- merchandize exported from England to "the several plantations lative to customs,

of Virginia, Bermudas, and Barbadoes ; which ordinance, al- &c., and though Maryland is not expressly mentioned therein, may never- English the first theless be supposed to have extended to this colony also; espe- excise law. cially as the preamble thereof refers to "other places of America" besides the plantations just mentioned, and the subject matter of the ordinance applied as well to Maryland as Virginia. It may be remarked also, by way of confirmation of this construc- tion, that the parliament and their partisans in America affected to consider Maryland, at this time and for some years after, only as a part of Virginia, and consequently included in that general term.t The ordinance enacted, "that all merchandize, goods, and necessaries, which shall be for the supportation, use, and expense for the several places in Virginia, Bermudas, Barbadoes, shall and may be exported from this kingdom, without paying

* " Council Proceedings from 1636 to 1657," p. 146.

t See the several state papers, relative to Maryland, inserted in Hazard's Col- lections, vol. 1, p. 620-630.

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CHAP. V. any custom, subsidie, taxation, or other imposition, or duty for

1647. the same, the duty of excise excepted,* during the space of three years next ensuing." A proviso is inserted in the next or second section of this ordinance, which seems more properly to apply to the first and preceding one; as follows :- " Provided, that none of the said plantations permit any vessel to take in any goods of the growth of the said plantations from any of their ports, and carry them to any foreign parts, except in Eng- lish bottoms." The house of commons had before this, in the year 1642, (1643, N. S.) through special favour to "the planta- tions in New England," they being "now likely to prove very happy for the propagation of the gospel in those parts," ( similis simili gaudet,) made an ordinance or resolve, "that all goods exported out of England into New England, or from thence im- ported hither," (that is, into England,) "shall be free from paying any custom, subsidy, taxation, or other duty; either inward or outward, either in this kingdom or New England."t A respectable annalist, on the British colonies in America, ob- serves that these ordinances are "remarkable, as well for assert- ing over the plantations the parliamentary right of internal taxa- tion, as for establishing in part what was afterwards extended and executed by the famous act of navigation."} It may be ob- served, however, that the first section of this ordinance of 1646 seems to have been intended only as a regulation of the trade between England and her colonies, and to imply only a right in the parliament to impose a custom or tax upon goods exported from England to the colonies, which custom or tax, upon goods and necessaries for the colonies, unless it had been suspended by this ordinance, (upon the condition expressed in the proviso, that is, that the colonies would export their tobaccoes in English bottoms only,) would have been collected by the officers of the customs in England before exportation. The ordinances of

* The parliament had before this made an ordinance, bearing date the 22d of July, 1643, whereby a duty, which they called an excise, was laid upon certain goods therein mentioned ; one particular of which it may be proper to mention : " Every pound of tobacco, not of the English plantation, was to pay, over and above all customs, 4s. and that of English plantation, 2s." See Rapin's Hist. Eng. (Tindal's edit. ) vol. 10, p. 253 .- "This was the first time," says lord Clarendon, (Hist. fol. edit. p. 385,) "that ever the name of payment of excise was heard of or practised in England ; laid on by those who pretended to be most jealous of any exaction upon the people."

+ Hutchinson's Hist. of Massachusetts, vol. 1, p. 110.

# Chalmers's Annals, p. 176.

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1642, in favour of New England, it must be acknowledged, re- CHAP. V. cognized, by strong inference, a right in the parliament to 1647. impose " taxation" to be collected in New England. The inde- pendence of the colonies, now United States, has rendered this question a subject more of curiosity than utility. But the second section of this ordinance, of 1646, seems to have some bearing upon the great and important dispute, which has for some years subsisted between the United States and Great Britain, relative to the expatriation of British subjects. This section ordains, "that it shall be lawful for any persons, subjects of this king- dom, to transport from hence unto the said plantations such per- sons as, being fit to advance the trade, shall be willing to be employed in the several plantations : provided the names of them be registered in the custom house books, and also that certificate be returned from the governor of such plantation, within one year, of the arrival of the said persons there."* The parliament, in making this ordinance, appear to have been clearly of opinion, that they had the right and power of imposing restrictions on the emigration or voluntary transportation of English subjects to the colonies. If they could impose restrictions in such case, they could totally prohibit. If they could prohibit English subjects from emigrating out of the kingdom, even to their own colonies, they could, a fortiori, prohibit them from emigrating to foreign countries or other independent states. These observations are here made only to exhibit the sense of the times upon this sub- ject.

As soon as the winter season was over, as it appears, gover- The isle of nor Calvert proceeded to reduce the isle of Kent to the obedi- Kent sub- ence of the lord proprietary ; and he seems to have accomplished the go- mits, and it some time in April of this year. We have no documents, on vernment thereof is

this occasion, whereby we might amuse the reader with details settled. of battles, of deeds of personal valour, or of acts of individual honour and generosity. The conquest of the isle of Kent was probably not attended with such brilliant and interesting circum- stances. The inhabitants thereof are said to have "submitted themselves again to his lordship's government;" but whether without any resistance we are not informed. The governor went in person to take possession of the island, and, after the inhabitants had taken the oath of fealty to lord Baltimore, he granted his pardon, bearing date April 16th, 1647, to the seve-

* See this ordinance at large in note (LVI.) at the end of this volume.

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CHAP. V. ral inhabitants therein named, "of and for all crimes of rebellion, 1647. or other offences whatsoever, committed within the province at any time before."* He then proceeded to settle the civil as well as military government of the island, and for that purpose issued a commission, on the 18th of April, whereby he appointed Robert Vaughan, gent., to be chief captain and commander under him (the governor) "of all the militia of the isle of Kent, and with it to com- mand and execute whatsoever shall be by him thought requisite for the defence of the said island against all intestine mutinies or seditions, that shall happen within the said island, and against all invasion of any foreign enemies whatsoever." He also "au- thorised him to constitute and ordain under him all such officers for military service as he should think requisite, and inflict such punishment upon all offenders under his command against mar- tial discipline, as the nature of the offence shall deserve, accord- ing to the law martial; provided that where the offence shall deserve the forfeiture of either life or member, that such offender for his trial be referred, and judgment, to the provincial court to be held by his lordship's governor and council of this province."t He further authorised "the said captain Robert Vaughan to award all process necessary, according to the law and custom of this province, for or concerning all actions civil and criminal within the said isle of Kent; and he authorised the said captain Robert Vaughan, William Cox, Thomas Bradnox, Edward Comins, Philip Conner, and Francis Brooke, gent., or the major part of them, whereof the said Robert Vaughan to be always one, to hear, try, and judge, according to the laws of this pro- vince, all actions and causes civil, which shall happen between

* "Council Proceedings from 1636 to 1657," p. 150. The names of those, who were pardoned, and who, therefore, had been engaged in resistance to lord Baltimore's authority, with others who had fled, are thus stated in the pream- ble :- "Whereas the inhabitants of the isle of Kent, Thomas Bradnox, Edward Comins, John Metham, Thomas Belt, Robert Short, Francis Lumhard, John Ayres, Zachary Wade, Richard Cotesford, Edward Lannin, and Walter Joanes, have taken the oath of fealty to the lord Baltimore, and submitted themselves again to his lordship's government," &c.

* This is additional confirmation of what has been before observed, relative to the origin of the provincial court ; to wit, that lord Baltimore, in virtue of the seventh section of his charter, which authorised him to erect courts of justice, and to appoint judges thereof, had, in all his commissions to his governor and council, given them the supreme judiciary power within the province; and, as they thereby became the supreme court of the province, courtesy and common par- lance bestowed on them the name of the "provincial court," and this without any formal enactment thereof by the provincial legislature, but by force of his Jordship's commissions.

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party and party within the said * *,t and to award execu- CHAP. V. tion upon the same, except where the freehold of any one shall 1647. come in question, provided that it shall be lawful for any man, at any time before execution served, to appeal from the said judgment unto the provincial court of this province, the appel- lant first putting in sufficient security to the court, from whence the appeal is made, for treble damages to be satisfied to the ad- verse party in the cause, in case he be cast in the provincial court in the said cause; and he further authorised the said cap- tain Vaughan and his associates before mentioned, or the major part of them, whereof the said captain Robert Vaughan to be always one, to hear and judge, according to the laws of this province, all crimes and offences committed within the said island, and to cause such sentence, as shall be given by them therein, to be executed, excepting where the life or member of any one person shall come in question."} This arrangement for the administration of justice in the isle of Kent seems to have been similar to what had been before practised in the latter end of the year 1642,§ when that island appears to have been first considered as a county distinct from that of St. Mary's, and not a hundred appertaining to it, as it formerly was by the bill enti- tled, "an act for the government of the isle of Kent," passed at the session of 1638-9. The appellate jurisdiction of the pro- vincial court, traced out by this commission, seems also to have been nearly the same as that which continued to be practised from county courts during the existence of the provincial go- vernment.

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The history of Maryland : from its first settlement, in 1633, to the restoration, in 1660 ; with a copious introduction, and notes and illustrations, Part 68

Author: Bozman, John Leeds, 1757-1823 Publication date: 1837 Publisher: Baltimore : J. Lucas & E.K. Deaver Number of Pages: 1062

Author: Bozman, John Leeds, 1757-1823
Publication date: 1837
Publisher: Baltimore : J. Lucas & E.K. Deaver
Number of Pages: 1062