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 72
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pears, that such distribution was made by Miss Brent, in virtue of her appoint- ment as attorney in fact to lord Baltimore after governor Calvert's death. This transaction most probably was alluded to by the agents above mentioned in their expression of "matters against lord Baltimore."
His name does not appear in the list of those Protestants, who signed the certificate of April 17th, 1650 ; which most probably would have been the case, had he been a Protestant, he being then one of the council.
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CHAP. V. which exception might possibly have arisen from some former 1648. exercise of that prerogative of the lord Baltimore by either his brother or Mr. Greene .* 'The usual power also is given to him to call assemblies and assent to laws; but this last authority is clogged with closer restrictions than in any former commission. A proviso, annexed to this clause of power, restricts the lieuten - ant from assenting to the repeal of any laws already or hereafter to be enacted, and also from assenting to any law for the con- stitution, confirmation, or change of any officer, or to any law which shall impose any fine, forfeiture, or confiscation to any other use or uses than to the use of the lord proprietary, or to any law or laws which may any way concern matters of religion, constitu- tion of parishes within the province, payment of tithes, oaths to be imposed or taken by any of the people in the province, treasons, matter of judicature, or any matter or thing which may any way infringe or prejudice any of the rights, prerogatives, or royal jurisdictions and dominions of the lord proprietary over and in his said province, "without further and special warrant from time to time under his hand and seal at arms first had and obtained, and published to a general assembly of the freemen of the said province or their deputies, and to be kept from time to time among the records of the said assembly there." Although this expression-"without special warrant,"-is rather obscure, yet it receives some elucidation from a document, which was sent by the lord proprietary, (and which will be hereafter stated at large,) bearing the same date and accompanying this commis- sion to governor Stone; annexed to which document or "commis- sion," as it is entitled in the record, was a copy of certain laws, "sixteen in number and written on three sheets of parchment," which laws or acts governor Stone was, by the last mentioned com- mission, directed to "propose" to the general assembly to be en- acted by them. So that from hence it appears, that the lord pro- prietary had imprudently resumed his favorite and long cherish- ed prerogative of initiating or propounding to his provincial le- gislature all laws, which were to be enacted by them. But this renewal of his old scheme did not succeed, as will soon be here- in seen. We discern also, in this proviso, the lord proprie- tary's caution relative to "matters of religion," and to what
* But this clause,-"excepting councillors,"-seems to be in some degree re- pugnant to a subsequent clause in the same commission, whereby the governor was enabled to appoint supernumerary councillors, "over and above those nomi- nated by the lord proprietary's commission," subject however to removal by the lord proprietary.
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might look like an establishment of his own or any other sect of CHAP. V. religion within the province, by the division of it into parishes 1648. and the payment of tithes. All which was done, without doubt, to avoid giving offence to the then ruling powers of the mother country. But he does not seem to have been equally prudent in the reservation to himself of rather an illegal stretch of preroga- tive in "imposing upon the people of the province" oaths of his own coining, without the intervention or assent of the provincial legislature ; and it might be truly said,-hinc lachrymæ! for, from the imposition of the oath of fidelity, (accompanying cer- tain conditions of plantation hereafter stated,) which he sent into the province, to be taken by every one before he could obtain a grant of lands within the province, principally (or at least os- tensibly,) flowed all the bloodshed which subsequently ensued.
In this commission also was inserted an unusual special pro- A new viso, that before the said William Stone or any other lieutenant general should take upon himself that office, they should take the go- the oath, entitled, "The oath of the lieutenant general or chief vernor. governor of the province of Maryland," annexed to the said commission. The oath of the lieutenant general hitherto used seems to have been only that, which was prescribed by the act of 1638, ch. 2 ;* which was very short and couched only in a few general expressions. It is probable also, that the lieuten- ant general being chief judge of the province by his commis- sion, took also the oath of a judge prescribed by the same act. The lord proprietary, however, since the death of his brother and the perturbation of the times, had very naturally become more suspicious of his lieutenant generals, and to guard against any infidelity in their conduct towards him or his interests, he seems to have taken unusual pains in minutely dictating to them the duties of their office, which they were to observe under the obligatory sanction of an oath; and particularly in surrendering up the office, whenever he should call upon them so to do. It is remarkable also, that the lieutenant general, (who in this in- stance was a Protestant,) was to bind himself by this oath, that he would not directly or indirectly trouble, molest, or discounte- nance any person whatsoever in the said province professing to believe in Jesus Christ, and in particular no Roman Catholic for or in respect of his religion or in his free exercise thereof with- in the said province, nor would he make any difference of per-
* See this oath of 1638 referred to before in p. 140, and at large in note (XXXII.)
oath pre- scribed to
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CHAP. V. sons in conferring of offices, rewards, or favours, proceeding
1648. from the authority which his lordship had conferred upon him as his lieutenant, for or in respect of the said religion respectively, but merely as he should find them faithful and well deserving of his lordship, and to the best of his understanding endowed with moral virtues and abilities fitting for such rewards, offices, or favours; and, if any other person should, during the time of his being his lordship's lieutenant here, without his consent or pri- vity, molest or disturb any person within this province professing to believe in Jesus Christ, merely for or in respect of his reli- gion or the free exercise thereof, upon notice or complaint there- of made to him, he would apply his power and authority to re- lieve and protect any person so molested or troubled, whereby he might have right done him for any damage which he should suffer in that kind, and to the utmost of his power he would cause all and every such person or persons as shall molest or trouble any other person or persons in that manner to be pun- ished."*
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In this measure of his lordship we discern the commencement of that general toleration of all sects of religion, which prevail- ed under the early provincial government of Maryland, and which has been the subject of eulogium even to the present day. The excellent character which Cecilius lord Baltimore is said to have always borne, would prompt us to impute this proceeding to the most laudable motives-the liberal indulgence of all men in their religious opinions. But, whoever is acquainted with the history of Europe, during the seventeenth century, must know, that no genuine Roman Catholic at that time could enter- tain these liberal sentiments, or at least openly avow them. All Protestants were deemed by them-heretics, and liable to the strong arm of persecution for their impious and presumptuous doctrines. We must, therefore, unavoidably confess, that this liberal and tolerant measure of lord Baltimore, wears very much the appearance of that policy of conduct, just herein before al- luded to, which the English Catholics are accused of having pursued, that is, of joining the two great fanatic sects-the pres- byterians and independents, in their united endeavours to effec- tuate the destruction of the church of England :- this, under the
The reader will find the above mentioned commission to governor Stone, and the oath of the lieutenant general, both at large in note (LXII.) at the end of this volume.
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vain expectation, that, whichever of these two sects should at- CHAP. V. tain the supremacy, the Catholics would meet with greater tole- 1648. ration from them than they had before experienced from the En- glish church. Perhaps also, it partook strongly of that prudent policy, which his lordship seems to have aimed at, in tempo- rising and balancing between these two great rival religious parties.
With the foregoing commission to a new lieutenant general, A new his lordship sent also a new commission for "his privy council of sion of the · commis- state," as it is therein expressed ; in which none of the former council. councillors appear to have been reappointed; but Mr. Thomas Greene, the former governor, was now the first named in this new commission of the council. The rest were "captain John Price, Thomas Hatton our secretary, John Pile, and captain Robert Vaughan." A small change in this new commission is also observable, that the lieutenant general or governor of the province is not named as one of the council, as he invariably was in the former commissions. The reason of this might possibly be, that, as the lieutenant general was directed by his commis- sion "to advise with the council," the offices of councillor and lieutenant general might be now considered as distinct, though - formerly, in case of the lord proprietary's arrival and presence in the province, as was contemplated, the lieutenant general would have been only a councillor to his lordship without any new com- mission for that purpose. In this new commission also was in- serted a proviso, that before any of the councillors therein men- tioned should presume to act as such, they should take the oath annexed to the said commission ; in which oath was also inserted a clause, similar to that of the lieutenant general before stated, relative to the religious liberty of all sects of the christian religion, and particularly of that of the Roman Catholics. It is worthy of notice here also, that not only the lieutenant general Stone, but all of the councillors appointed by this new commission, ex- cept Mr. Greene and Mr. Pile, were Protestants,* but of what denomination of Protestants we have no authority to determine.t
His lordship appears to have sent in from England these re- Mr. Hat- spective commissions, by Mr. Thomas Hatton, with whom most ton sent probably he had held consultations at his residence in Bath in tary.
in as secre-
* This appears from the declaration and certificate of the principal Protestants of the province, of the 17th of April, 1650, hereafter stated.
t See this commission of the council and the oath thereto annexed, in note (LXIII.) at the end of this volume.
VOL. II .- 43
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HISTORY OF MARYLAND.
CHAP. V. England, about the affairs of his province, and whom he thought 1648. a proper person to be appointed the secretary of his province. Accordingly, a commission to him for that purpose appears. among the records of this period of time, bearing the same date as that to the council just before stated. It is couched in nearly the same terms and expressions as those heretofore given to Mr. Lewger; and, although no mention is made in the commission of any oath to be taken by the secretary, yet an oath to be taken by him is recorded immediately following the commission, and appears to be nearly of the same tenor as the former oath taken by Mr. Lewger. Whether this last mentioned gentleman was now dead, or being a Roman Catholic was now removed by his lordship, it does not appear. His name ceases to occur on the records from this period .*
A new great seal.
It seemes to have been the intention of his lordship, at this period of time, to have new modelled entirely the executive branches of his government of the province ; and for this pur- pose Mr. Hatton appears to have been sent loaded with a large batch of commissions. Besides those already stated, there was another of the same date, (12th of August, ) entitled, a "commis- sion for the great seal." This was rendered necessary, accord- ing to the preamble thereof, by reason that "the great seal of the province was treacherously and violently taken away from thence by Richard Ingle or his complices in or about February Anno Domini 1644, and had been ever since so disposed of as: it could not be recovered again." His lordship in this commis- sion "protests" against all acts done under the authority of that seal since the time of taking it away, as just stated; and more- over substitutes another seal, now sent in by him, the manner- and form of which is therein minutely described, and which, as Mr. Bacon observes in his preface to the Laws of Maryland, was the same as that which was continued to be used to the time of his compilation, 1765, and probably during the remainder of the existence of the provincial government.t
Office of muster- master ge- A new office also, of a military nature, seems to have been now instituted in the province, denominated-"muster master neral insti- general;"' the duties of which, as referred to in the commission, tuted. were to train and exercise the inhabitants of the province to the
* See this commission to the secretary, in note (LXIV.) at the end of this volume.
t See this "commission for the great seal" in note (LXV.) at the end of this: volume.
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use of arms. A commission for this purpose, dated the 12th of CHAP. V. August, now came also, directed to John Price, probably the 1648. same gentleman appointed a councillor in the commission for the council, as just before stated. This seems to have been con- ferred on him, not only for "his knowledge and great abilities in martial affairs," as the commission expresses it, but for "his great fidelity to his lordship on the occasion of the late rebellion by Richard Ingle." The fees of this office were directed to be "as ample as any muster master in Virginia of right then had or enjoyed ;" which is one among numerous instances, where the internal polity of Maryland was regulated very much after the manner and example of her elder sister colony-Virginia .* The same reference to the usage of Virginia occurs also in another commission of the same date, (August 12th of this year,) brought by Mr. Hatton, directed to Robert Clerke, gent., to be surveyor general of the province, "with all the fees, &c., and in as ample form and manner as any surveyor of Virginia ever had."
It appears to have been usual heretofore for the lieutenant ge- A new neral or governor of the province to appoint a "commander of the isle of Kent," though the commission to such officer might for the run in the name of the lord proprietary. His lordship himself, however, seems now for the first time to have sent in also, by isle of Mr. Hatton, a new and special commission for that office under Kent. his own hand and seal, of the same date, (the 12th of August,) as the other commission before stated, directed to Robert Vaugh- an, gent., most probably the same gentleman before mentioned in the commission for the council. It would seem from this commission that a commander of the isle of Kent was invested with nearly the same executive and judiciary powers as were conferred on the lieutenant general of the province as to the other parts of it by his commission ; except that in the judicial capa- city of the commander he had no cognizance of any criminal matter beyond the jurisdiction of justices of peace in England in the quarter sessions. He was authorised by his commission to elect and choose any six or more of the inhabitants of the island to be his council, with whom he was to advise and consult in all matters of importance, and who were to be constituted, by commission under the great seal of the province, justices of
* See the commission of "muster master" in note (LXVI.) at the end of this volume. The fees of the muster master were subsequently regulated by an act of assembly for that purpose, 1650, ch. 9.
f commis-
sion also
command- er of the
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CHAP. V. peace to hold a court of sessions of the peace with him the com- mander .*
1648.
Sixteen laws sent in with a commis- sion for propound- ing them to the as- sembly.
Concomitant with the preceding commissions another very important one of the same date, (the 12th of August,) was sent in by his lordship, directed "to the lieutenant general, to all the councillors, and to the freemen or their deputies in their general assembly within the province." To this commission were an- nexed certain acts or laws, sixteen in number, written on three sheets of parchment, each sheet being signed by his lordship, and all three, jointly together with the commission, having the impression of the greater seal at arms affixed unto them, as de- scribed in the commission. The lieutenant general is directed by the commission to propose these laws to a general asssembly of the freemen of the province or their deputies, "and in case the said freemen or their deputies or the major part of them in any such general assembly within the said province should, with- in twelve months after the date thereof, give their consent, that all and every of the said acts or laws, jointly contained in the said three sheets of parchment thereunto annexed, should be en- acted for laws within the said province by his lordship or lieu- tenant there for the time being, in his lordship's name, in such manner and form as they are there written or drawn, without any alteration, addition, or diminution to them or any of them, in that case and not otherwise his lordship thereby declared his as- sent to them and enacted them as laws, and at the same time declared his disassent to all and every law which had been here- tofore enacted."} We have before observed upon this bold stride of his lordship towards something like arbitrary power, in reserving to himself the sole prerogative or exclusive power in legislation of initiating or propounding all laws to be enacted by a general assembly. He had once or twice before attempted this measure without success ; and we can account for his repe- tition of it again at this unpropitious period of his affairs, upon no other ground than that he thought it absolutely necessary in order to secure to himself all his provincial rights .¿ It is suffi- cient here to observe, that this attempt was as unsuccessful in the
*See this commission at large in note (LXVII.) at the end of this volume.
tSee this commission for propounding the laws sent, in note (LXVIII.) at the end of this volume.
¿ A mode of colonial legislation, similar to the above of lord Baltimore, was attempted by the English government not very long after the restoration, in 1678, to be imposed on the island of Jamaica, but finally relinquished. See it herein before stated in note (VII.) at the end of this volume.
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sequel as any which he had before made. What these laws CHAP. V. were, or what were their merits or demerits, we are in no way 1648. enabled to determine; as they do not appear at this day on our records in the form in which they were sent. It would seem, however, that some of these laws, now sent in by his lordship, were "chosen and selected out" by the next assembly, (to wit, of April, 1649,) and enacted for laws; some of them probably in the form in which they were sent, others with considerable emendations or alterations, especially those which were subse- quently confirmed by his lordship, and particularly that remark- able one entitled "an act concerning religion," as may be fairly inferred from its obvious consonance with the tenor of the pre- ceding commissions and oaths of office so far as they relate to that subject.
As a concluding part of the system of government now adopt- New con- ed by his lordship in his new organization of the affairs of his ditions of province may be mentioned another commission, bearing date the twentieth of August of this year; which, although it is a few days posterior in date to those just before stated, yet may be fairly presumed to have accompanied the rest, of which Mr. Hatton appears to have been the bearer. It was annexed to certain new conditions of plantation, which in the record bear no date, but are referred to, both in the first mentioned commis- sion of the sixth of August to governor Stone as lieutenant ge- neral before stated,* and in this last mentioned one of the twen- tieth of August annexed to the said conditions, as bearing date "the twentieth day of June last past." This apparent incongrui- ty of dates may be easily reconciled by supposing that these conditions of plantation were drawn up, and signed and sealed by his lordship, on the twentieth day of June as expressed, but were not dispatched or sent to America until the execution of the commission of the twentieth of August annexed to them, soon after which last date we may suppose Mr. Hatton to have left England.
The most prominent part of these conditions of plantation, principally on account of its being supposed to have been in a
* A small error may be here observed upon in Mr. Kilty's Landholder's As- sistant, p. 43, where he gives an "extract of commission to William Stone as lieutenant general, dated the 17th August, 1648."-It should have been the sixth of August, as herein before appears. The word "seventeenth year of our do- minion," in the commission, might, on a cursory view of it, have occasioned the mistake,
plantation.
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HISTORY OF MARYLAND.
CHAP. V. great measure the occasion of the succeeding civil war in the 1648. province, and therefore deserving of historical notice here, was the seventh clause or condition, whereby it was required, that "every adventurer or planter that shall have any land granted unto him by virtue of these conditions, before any grant be de- livered to him and before it shall enure to his benefit, shall take within the said province the oath of fidelity to his lordship and his heirs lord and proprietaries of the said province hereunto specified." The form of this "oath of fidelity," as here pre- scribed by his lordship, of which a "specification" or copy was sent, must have been that now remaining on the provincial re- cords immediately following the said conditions of plantation. It purports, at the end of it, to have been "given at Bath under his lordship's hand and greater seal at arms the 20th day of June, 1648;" agreeably to the reference made to it in the commission annexed to the said conditions, as also in that to the lieutenant general. As this oath of fidelity will subsequently require more particular animadversion, when we come to those times, in a few years hence, when it was held up by the discontented party as an evil of great consequence and highly oppressive to their consciences, the objectionable parts of it need not be here com- mented on. It may, however, be proper to remark on the com- mission annexed to these conditions, that heretofore it seemed to have been the policy of lord Baltimore to confine the admission of adventurers or colonists into his province to those, who were of British or Irish descent, but now by this commission the lieuten- ant general was authorised to make any person or persons of French, Dutch, or Italian descent, who were already planted or should thereafter come and plant in the province, capable of the said last conditions of plantation and of receiving grants of lands therein. This liberality seems to have flowed, principally per- haps, from his lordship's anxiety to increase the population of his province, but also from his now manifest indifference as to what sect of the protestant religion his colonists belonged .*
Although the preceding commissions all bear date prior to the last of August, 1648, yet it appears from our provincial re- cords, that they either were not sent from England, or did not arrive in Maryland, or were not opened and published to the
* The reader will find these conditions of plantation, with the commission thereto annexed, and the oath of fidelity subjoined, in note (LXIX.) at the end of this volume.
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people there during the remainder of that year. From several CHAP. V. documents on record Mr. Greene must have continued to act as 1648. governor until the beginning of April, 1649, as all those docu- ments have his name as lieutenant general annexed thereto. Among the most remarkable of these were several relative to a Quarrel quarrel between governor Greene and captain Robert Vaughan, between at this time commander of the isle of Kent, by virtue of his com- Greene governer mission of the 18th April, 1647, before stated .* Captain tain Vau- and cap- Vaughan had ventured, as it seems, at divers times, in his dis- ghan. course on the isle of Kent, where he was commander, to speak of governor Greene in a very disrespectful manner, using "scandal- izing and upbraiding speeches" of him, and taxed him with par- tiality in the distribution of justice. For this governor Greene had brought an action against Vaughan, probably in the provincial court at St. Mary's, and moreover, by virtue of his powers as go- . vernor of the province, issued his proclamation, which he sent up to the isle of Kent, and which bears date at St. Mary's on the eleventh of November, 1648, giving notice, that he thereby sus- pended and revoked all power and authority of command upon the said isle of Kent from captain Robert Vaughan, commander of the said island, and, in the same proclamation, authorised Mr. Philip Conner, one of the commissioners, (that is, a justice of the peace,) of the said county of the isle of Kent, to issue forth all writs and processes necessary for the administration of justice there, and directed him to bind all parties interested over to the provincial court at St. Mary's, there to have tried and determined their suits and causes until further order, finding it necessary, (as he alleged,) for the present to suspend all further power of judicature upon the said island. By a commission also of the same date, directed "to Mr. Henry Morgan, high sheriff of Kent county," (the isle of Kent,) he committed unto him, and added unto his office of high sheriff, the command of all the militia of the said county. The issue of this quarrel seems to have been rather unfavourable to the character of Mr. Vaughan, as it appears to us at this day; for, having come down to St. Mary's, he, on the 9th of December, 1648, before the governor and other parties present, acknowledged and con- fessed, that the charges he had made against the governor were "foul and rash, and altogether false," and "humbly required for- giveness for such his said misdemeanors, expressing sorrow
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