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 73
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* See before, p. 304.
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CHAP. V. therefor, with purpose of amendment. Whereupon the governor 1648. withdrew his action and pardoned the offence." The governor seems to have been so completely satisfied with and reconciled to captain Vaughan, that he agreed to reinstate him in his office of commander of the isle of Kent, and for that purpose in a few days afterwards issued his proclamation, bearing date the 11th of December, 1648, reappointing the said captain Vaughan as commander of the isle of Kent, with all the power and authority upon the said island according to his former commission granted unto him from Leonard Calvert, esq., late governor, bearing date at Kent, 18th of April, 1647; and further, "for special reasons him thereunto moving," he thereby suspended all power and authority from all the assistants or commissioners joined with the said captain Robert Vaughan in the aforesaid commission of 1647, (Mr. Philip Conner only excepted,)* and in their room constituted and appointed Mr. Nicholas Brown only, so that captain Vaughan, Mr. Philip Conner, and Mr. Nicholas Brown were to hear and determine all causes upon the said island according to the commission aforementioned. From this act of the governor in removing the former commissioners or justices of peace, appointed in 1647, it may be inferred, that great dis- contents with Mr. Greene's government or the lord Baltimore's proprietaryship had then subsisted in the isle of Kent, and that the governor, on his reconciliation with captain Vaughan, had found much cause of displeasure against the justices of peace of that island under the former commission .;
Question, as to the right of forfeitures for treason, accruing within a manor.
About this time, towards the close of the year 1648, a pro- ceeding took place in the provincial court held at St. Mary's, which, as it is explanatory of the nature of manors in Maryland, many of which lord Baltimore still continued to have laid out within his province, requires to be mentioned here in its proper place, although it has been before touched upon. As the real estates of several persons, engaged in the late rebellion, had been forfeited for their treason, particularly some of the estates held by the tenants of certain manors, which had been granted to Mr. Leonard Calvert, and which manors must have been now in the possession or occupation of his administratrix,-Miss Margaret Brent, the lady before mentioned, she, claiming these forfeitures as accruing to the estate of Mr. Leonard Calvert, the
* See before, p. 304.
t The documents relative to this quarrel between governor Greene and captain Vaughan are inserted in note (LXX.) at the end of this volume.
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late lord or owner of these several manors, thought it most pru- CHAP. V. dent to have the opinion of the provincial court, relative to that claim. Her application for that purpose is thus entered on our 1648. provincial records.
"December 7th, 1648 .- Came Mrs. Margaret Brent, and re- quired the opinion of the court touching the patent of Mr. Leonard Calvert, in the case of the tenements appertaining to the rebels within his manors ;* whether or no their forfeitures be- longed to the lord of the manors.
" The resolution of the court was, that the said forfeitures did of right belong to the said lord of the manors, by virtue of his lordship's conditions of plantation, the said rights usually be- longing to the lords of manors in England ; and that the words in the patent expressed, viz : all commodities, advantages, emolu- ments, and hereditaments whatsoever, (royal jurisdiction except- ed,) included the same."t
The conditions of plantation, referred to in this record, were most probably those of November 10th, 1641, and not those last stated of 1648 : inasmuch as the commissions last mentioned of this year, 1648, as before observed, either had not as yet arrived in the province, or they had not yet been published, so as to su- persede either the former commissions or the former conditions - of plantation. In that clause of the conditions of 1641, wherein his lordship directs the grants of manors, they were to " be con- veyed by grant with all such royalties and privileges as are usual- ly belonging to manors in England."; But, as the governor and council, composing the provincial court at this time, were probably not lawyers, and seem here to have given an extra- judicial opinion without litigation, and therefore probably without argument before them, it may not be presumptuous to entertain doubts of the legality of their adjudication. For the reasons before stated,§ forfeitures for treason did not usually belong to the lords of manors in England; but to the king. So that the court, assuming a mistaken principle as the groundwork of their decision, were led also into an erroneous construction of the
* There were three manors, all of them probably in St. Mary's county, which had been granted to Mr. Leonard Calvert, to wit, Trinity manor, St. Gabriel's, and St. Michael's. It is probable that the forfeitures above mentioned arose in some or all of these manors.
t "Council Proceedings from 1636 to 1657," p. 215,
¿ See these conditions, &c. at large, in note (XLIII.) before referred to, at the end of this volume.
§ See the latter part of note (IX.) before referred to, at the end of this volume, VOL. II .- 44
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CHAP. V. patent or patents, by which each of these respective manors were
1648. granted to Mr. Leonard Calvert,* to wit, that the words-"all commodities, advantages," &c. included the right to forfeiture s for treason ; and omitted due attention to the exception therein,- "royal jurisdiction excepted," which reserved the royal right to forfeitures for treason.
The materials for our Provincial History now fail us for some Affairs of months. In the mean time the chasm may be filled up by re- the mother country in relation to Maryland.
sorting to those interesting and important transactions, which had now taken place in the mother country. The efforts, which had been made in divers parts of England by several insurrec- tions in behalf of the royal cause, during the year 1648, having. been suppressed, and Cromwell having returned from Scotland, where, pursuing his before mentioned victory over the Scots, he had marched and had effectually settled every thing to his wishes, the army, under his command, now returning and approaching the environs of London, reassumed their dictatorial power over the parliament, and began again to prescribe to them such ordinances and acts as comported with Oliver's ambitious schemes. During his absence, indeed, in Scotland, and the existence of the late temporary insurrections, the Presby- terians, who still composed a majority of the members, had held up their heads, and had made something like an effort to negotiate with and restore the monarch to the throne. The independents, however, with Oliver at their head, and the army at their heels, took a very summary and effectual remedy to suppress these ebullitions of royalty exhibited by the Presby- terians. Two regiments of soldiers, under the command of a colonel Pride, on two several days, (the 6th and 7th of Decem- ber, 1648,) environed the house of commons, arrested and im- prisoned all the Presbyterian members, to the number of about. two hundred, and completely purged the house, as they merrily termed it, of all its Presbyterian acidities. Oliver, and his mi- litary independents, were now completely masters of the English nation, with a subservient parliament of their own species to fetch and carry such ordinances and acts, as should be pointed out and dictated to them. This artful leader now began, if he:
* The word "patent" here in the record could not refer to lord Baltimore's patent for the province, no such expression as above-"all commodities," &c. being in that patent ; commonly called the charter of the province. The word "patent" must therefore refer to some one of Mr. Leonard Calvert's patents for his respective manors.
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had not before, to entertain his ambitious schemes of his own CHAP. V. personal elevation. What an awful and useful lesson is here 1648. taught to the friends of civil and political liberty! The most critical periods in the histories of republics are generally at the conclusion of a war, especially a civil one. A military chief, who happens to have been uncommonly successful, sees his way so clearly at such a period to the assumption of the supreme power of the State, that it is impossible for human nature to re- sist it. Cromwell was not made of that kind of conscientious stuff, as your Washington, to boggle and hestitate at schemes inconsistent with honour and rectitude. He was clogged with no such delicate principles. Masked with the vizar of religious hypocrisy, and backed with a well disciplined army of twenty thousand men, his vaulting ambition saw no impediments to a very sure leap to the throne. The dethronement of the mon- arch became necessary to effectuate this, and no means to ac- complish that desirable incident appeared so secure as the cutting off his head. Through the instigation of Cromwell the army demanded, that the king should be brought to justice; and ac- cordingly, within a little more than a month he was tried, con- demned, and executed. The English constitution, so often the theme of foreign panegyrists, was now completely abolished ; and the remaining members of the house of commons, consist- ing entirely of independents and anabaptists, assuming the name of parliament, voted, and afterwards enacted, "that the kingly office should be abolished as unnecessary, burdensome, and dan- gerous, and that the state should be governed by the represen- tatives of the people in a house of commons without king or lords." They also made choice of thirty-nine persons to form a council of state, or an executive council, for the administration of public affairs under the parliament.
These were the important changes and revolutions of affairs, which had taken place in the mother country, prior to that pe- riod when our provincial records again afford us some grounds on which we may proceed. The first subsequent transactions of any importance on record commence with the opening of the Assembly. Session of next session of assembly, on the second of April, 1649; by 1649. which time the before mentioned transactions in England might have been known in Maryland, and have had some operation in producing those changes within the province, which we are now about to recite. Whether this session was an adjournment or prorogation of the last, which ended on the fourth of March,
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CHAP. V. 1647-8, or whether it was a new assembly called by summons,
1649. agreeably to the common usage heretofore practised in the pro- vince, we are not enabled to determine, as no journal of the pro- ceedings thereof are extant upon record : except the laws which were now passed at this session. Neither are we enabled to de- termine, when the new organization of the government, intend- ed by the last mentioned preceding commissions of 1648, was commenced and carried into execution, for no memoranda or other record of the qualification, by oath, of governor Stone or the other officers thereby appointed, now appears. Yet it seems to be certain, that governor Stone was now, at the commence- ment of this session, acting in his capacity of lieutenant gene- ral or governor of the province; so that the assembly was most probably convened by him or under his authority. Among the "council proceedings" a memorandum is still on record, relative to all the records of the province, which were properly to be in the custody of the secretary of the province, that seems to throw some light on the obscurity of this period. It is as follows :-
Anno, 1649, memorandum, That I, Thomas Hatton, by vir- tue of my commission from the right honourable the lord Balti- more, of being his lordship's secretary of the province, did, upon the 2d day of this present month, being the first day of the assembly, receive into my custody this book of entries, before the governor and council then met together; this being the 9th day of April, anno domini, 1649.
"16 April, Mr. William Bretton, with his own hand in the house of assembly, delivered to me this book, and another lesser book with a parchment cover, divers of the leaves thereof being cut or torn out, and many of them being lost, and much worn out and defaced, together with divers other papers and writings bound together in a bundle : And then, upon the delivery of them, made oath, That these were all the books of record, pa- pers, draughts, precedents and other writings that he had, could come by, or know of within this province, which belonged to the secretary or register of this province, their office or officers : except some warrants, and some draughts of Mr. Hill's time, and some few other papers of little consequence ; which he pro- mised to deliver me ere long.
"Testor, THOMAS HATTON, Secr."*
* Taken from the book in the council chamber entitled " Council Proceedings from 1636 to 1657," p. 219 .- See it also in Bacon's Preface to his collection of the Laws of Maryland.
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It may be remarked on this document, that, although it now CHAP. V. appears entire, as above, in one record book, in the council 1649. chamber, yet the two paragraphs thereof were evidently made at two different times ;- the first on the second day of April, and the other on the sixteenth; and moreover relate to two different books delivered at the two different times therein specified ; and must have been therefore originally so distinctly entered in the two distinct books so distinctly delivered, most probably in the first and blank pages of each of them. It is to be inferred also from these memoranda, that the two oldest books now extant, relative to the first proceedings of the government of the pro- vince, to wit, the one entitled, "council proceedings from 1636 to 1657," and the other "assembly proceedings from 1637 to 1658," are only fair transcripts from those books now delivered to Mr. Hatton; and that the former is a copy of that delivered on the second of April, in the presence of or "before the gover- nor and council then met together," and the latter, of that de- livered on the sixteenth of April in the house of assembly.
We may fairly infer also, from the delivery of these records to Mr. Hatton at these specified times, particularly from that de- livered on the second day of April, "being the first day of the assembly," that Mr. Hatton had not entered on the duties of his office, as secretary of the province, prior to that day; which carries with it some presumption also, that the whole of the new organization of the government had been purposely postponed to this first day of the sitting of the assembly-the second of April, when we may suppose governor Stone, the new members of the council, and the other officers now invested with new commissions, qualified themselves for their respective offices by taking the several oaths prescribed by each, as before stated.
As no journal of the proceedings of this session now remains, we are left to judge of those proceedings only from the legisla- tive acts or laws of this assembly still extant on record. It ap- pears, from the enacting style of these laws, viz .- "By the lord proprietary, with the assent and approbation of the upper and lower houses," &c., that the assembly was now, at this session, for the first time, actually divided into two distinct and separate houses, and sat, as we may suppose, in two distinct and separate apartments or buildings. But how the same was effected does not appear, there being no record extant of any proceedings of this assembly, except those of their last day of sitting to receive
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CHAP. V. the report of the committee for settling the public charge, and of 1649. a letter from the assembly to his lordship .* It will be recollect- ed, that a motion was made by Mr. Robert Vaughan, (then a bur- gess for the isle of Kent,) at the July session of 1642, "that the house of assembly might be separated, and the burgesses to be by themselves, and to have a negative ;" which motion failed on account of the opposition to it by the governor-Mr. Leo- nard Calvert.+ Mr. Vaughan was now one of the council, and consequently a member of the upper house; but whether the motion for the same purpose was now renewed by him, or by some other person, we are no where informed. It appears to have been the opinion of the very judicious compiler of the Laws of Maryland, just referred to, that the adoption of this measure at this session, "was probably at the desire of the free- men, from their former application to that purpose," through Mr. Vaughan. It may be remarked, however, that there was in this measure at this time some small deviation from the proceed- ings of the Puritans in the mother country. There they had voted, on the fifth of February preceding, within a few days af- ter they had put the king to death, that "a house of lords was useless and dangerous," and "that the state should be governed by the representatives of the people in a house of commons with- out king or lords." It must be confessed, that our provincial politicians shewed greater wisdom in the adoption, than the English parliamentarians did in the abolition, of those whole- some "checks and balances" of the old English constitution; as our independent states have, by their general conduct in the formation of their governments, clearly demonstrated.
Remarks We may now proceed to a short review of the several most on the acts important acts of this session, as throwing considerable light on of this ses- sion. our provincial history at this era. The first of them entitled, "an act concerning religion," seems particularly to attract atten- tion, and has furnished to many writers, even of modern date, very plausible grounds for eulogium on the first Roman Catholic settlers of Maryland. There is, however, much to blame as well as to commend, when we impartially examine its different parts. The preamble of it sets forth rather a questionable prin- ciple. "Forasmuch as in a well governed and christian com- monwealth matters concerning religion and the honour of God
* So stated by Mr. Bacon, in his Collection of the Laws of Maryland.
t See before, p. 216.
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ought in the first place to be taken into serious consideration and CHAP. V. endeavoured to be settled, Be it therefore ordained and enact- 1649. ed," &c. This goes far in contending for the constitutional pow- er in the legislature to erect, by laws made for the purpose, an established religion of the state ; and accordingly we find, from the perusal of the history of these times, that nothing was fur- ther from the thoughts of either the Puritans or Roman Catho- lics, than that men should be allowed to entertain what religious opinions they thought proper. They were both for destroying the established religion or Church of England, and setting up in its stead, not a general toleration of all religious opinions, but their own sect or system, and then to put down by force all others. The principle should be in every "well governed com- monwealth," not to legislate upon religion at all, not even for the incorporation of any religious sect whatever; and then only can religious liberty be said to exist .*
The first section of it contains a horrible disproportion between the crime and the punishment. To punish blasphemy with death and confiscation of property, would be now deemed such an outrage on religious liberty, that, beyond a doubt, such a law could not at this day be executed in Maryland.
The second section is in some degree liable to the same ob- jection just made to the first, although certainly the dispropor- tion between the crime and the punishment is not so great. The alternative punishment-whipping, in case of non-ability to pay the fine, would not comport with our democratic principle of le- gislation ; which is, in all cases to favour the poor man. It would be improper to pass over unnoticed in this place a frivolous ob- jection, formerly made to this section of this act of assembly, within a year or two after its passage ; and it will be best stated in the words of the author, from whose book or pamphlet the fact is derived.t
"This act was passed by a general assembly in Maryland, in April, 1649, and assented unto by the lord Baltimore in 1650;
* Prior to any further remarks on this act, the reader is referred to it at large in note (LXXI.) at the end of this volume.
t As we are now about to enter into the statement of several facts, the know- ledge of which is more particularly derived from two very old pamphlets, printed and published in England as far back as in the year 1655, (MSS. copies of which are now in my possession,) and as the citation of them will be frequent- ly necessary, it will be proper to give in this place a short account of them. After the civil war, battle and bloodshed, (which will be hereafter related,) had taken place in the province in the' year 1654, between the friends of lord Balti-
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CHAP. V. and the intent of it being to prevent any disgusts between those 1649. of different judgments in religion there, it was thought necessa- ry to insert that clause in it concerning the Virgin Mary, of whom some otherwise might perhaps speake reproachfully, to the offence of others. And in the time of the long parliament when the differences between the lord Baltimore and colonell Samuel Matthews, as agent for the colony of Virginia, were depending before a committee of that parliament for the navy; that clause in the sayd law, concerning the Virgin Mary, was at that committee objected as an exception against his lordship; whereupon a worthy member of the sayd committee stood up and sayd, that he wondered that any such exception should be taken against his lordship; for (says hee) doth not the scripture say, that all generations shall call her blessed ?* and the commit- tee insisted no more on that exception."
That adoration may with propriety be paid to the Virgin Mary, seems to have been always a tenet of the Roman Catholics; and this motion in the committee of parliament is a confirmation of the remark, which we have just before made, that the Puritans had not the least intention of granting religious toleration to the Roman Catholics, though it is certain that some good Catholics were beguiled into that opinion and acted accordingly with the Puritans in the destruction of the church of England.
more and the Puritans, who had settled at Providence, now Ann Arundel coun- ty, as before stated, each party became anxious to justify themselves in the view of the lord protector, (Oliver Cromwell, ) and the then ruling powers of Eng- land. Accordingly a pamphlet was published in London, in the year 1655, by one Leonard Strong, in behalf of the Puritans, entitled,-"Babylon's Fall in Maryland : a fair warning to lord Baltimore; or a relation of an assault made by divers Papists, and popish officers of the lord Baltimore's against the Pro- testants in Maryland, to whom God gave a great victory against a greater force of souldiers and armed men, who came to destroy them .- Published by Leonard Strong, agent for the people of Providence in Maryland .- Printed for the au- thor, 1655."-The other pamphlet, purporting to be an answer to the former, was entitled, "a just and clear refutation of a false and scandalous pamphlet, entitled Babylon's Fall in Maryland, &c. And a true discovery of certain strange and inhumane proceedings of some ungrateful people in Maryland towards those who formerly preserved them in time of their greatest distresse. To which is added a law in Maryland concerning religion, and a declaration concerning the same. By John Langford, gentleman, servant to the lord Baltimore .- Hee that is first in his owne cause seemeth just, but his neighbour commeth and searcheth him. Prov. 18, 17 .- Whose hatred is covered by deceit, his wickednesse shall be shewed before the whole congregation. Prov. 26, 26 .- London, printed for the author, 1655." The quotation here inserted above in the text is from the pamphlet last stated.
* The author here cites in the margin, "Lu. 1. 48."
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By the third section,-"Persons reproaching any other within CHAP. V. the province by the name or denomination of heretic, schismatic," 1649. idolater, puritan, independent, presbyterian, popish priest, jesuit, jesuited papist, Lutherean, Calvinist, anabaptist, Brownist, anti- nomian, barronist, round-head, separatist, or any other name or term,* in a reproachful manner, relating to matter of religion, were to forfeit ten shillings sterling for each offence, one half to the person reproached, the other half to his lordship: or, in default of payment, to be publicly whipped, and suffer imprisonment, without bail or mainprise, until the offender shall satisfy the party reproached by asking him or her respectively forgiveness pub- licly for such offence before the chief officer or magistrate of the town or place where the offence shall be given." To judge correctly of the propriety of such a law, as this third section comprises, the supposition should be made, that there existed a law of Maryland at this day, which imposed a penalty precisely similar to that just rehearsed, especially the whipping and asking forgiveness, on every person within the state who should re- proach another by the name or denomination of whig or tory, federalist or anti-federalist, aristocrat or democrat, monarchist or jacobin ;- what would be its operation and effect? It would probably be remarked, that it would be an assumption of intol- erable despotism to legislate so minutely on human actions, or rather on words or language.
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