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 74
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The fourth section, providing against a breach of the "Sabbath or Lord's day, called Sunday," under a penalty of whipping for a repetition of the offence, demonstrates that puritanism was now strongly diffusing both its sentiments and language into the pro- vince. The terms-"Sabbath, or Lord's day," were never in com- mon use among Roman Catholics, nor indeed with members of the church of England;} and dancing parties, so common in Catho- lic countries as an innocent amusement on a Sunday evening,
* In reading over this list of hard names, we cannot but be forcibly reminded of Butler's inimitable description of these times in the opening of his poem, en- titled, Hudibras.
" When hard words, jealousies, and fears, Set folks together by the ears, And made them fight, like mad or drunk, For dame religion, as for punk."
t In New England, about this time, a religious scruple prevailed against calling the first day of the week Sunday ; on account of its supposed idolatrous ori- gin; and the "Sabbath, or the Lord's day," was the common phrase .- See Hutch- inson's Hist. of Massachusetts, vol. i. p. 377.
VOL. II .- 45
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CHAP. V. would assuredly have been considered by the Puritans as "un. 1649. civil and disorderly recreation ;" and therefore within this legis -- lative prohibition.
The fifth and last clause of this act, (deserving attention,) against "the inforcing of the conscience in matter of religion," is that part of it, which has principally attracted notice, and oc- casioned much eulogium on a Catholic government for this ex- ample of its liberality and disposition to toleration in matters of religion. But, from all the circumstances herein before mention- ed, if this law was one of those "selected" by the assembly out of the "sixteen in number," as before mentioned, sent in by his lordship, as it would appear to have been, the eredit, to be de- rived from the liberality of this clause, is certainly due to lord Baltimore himself, and not to the Roman Catholic inhabitants of the province generally. There are moreover strong grounds to believe, that the majority of the members of this assembly of 1649 were Protestants, if not Protestants of the puritanic order. It has been before stated, that governor Stone and a majority of the members of the council were Protestants. There are strong reasons for a supposition that a majority of the members of the other house of assembly were Protestants also; inasmuch as they certainly were at the next session of 1650. We may then fairly presume, that the governor and council sitting with the lower house at this session, (for they were not yet divided into two houses as at the next session,) made a majority of Pro- testants. The acts of this assembly, therefore, were the legis- lative proceedings of Protestants; but, although they rejected the body of laws sent in by lord Baltimore, as will presently be seen, yet they themselves acknowledge, that they "selected" out of that body, many of the laws which they passed at this session; and from the "certificate" of the Protestants, made in 1650, which will be hereafter stated, it may be inferred, that the "act concerning religion" was, in substance at least, one of those sent in by his lordship. The remarkable conformity also of this act to the commission and oath of the lieutenant general pre- scribed by his lordship, as before stated, with respect to a gen- eral toleration of all sects of christians, contributes to corrobo- rate the supposition, that this remarkable act of assembly was initiated by the lord Baltimore himself; and, as it emanated ori- ginally from him, so ought he personally to have the greatest credit of it, whatever his motives for it might have been. The
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error, (as it appears to be,) of a learned annalist,* where he says, CHAP. V. in his encomium on this act, that this assembly of 1649 was 1649. "composed chiefly of Roman Catholics," has propagated the opinion, generally adopted, that this act of religious toleration proceeded from a Catholic government ; an opinion certainly in- correct as to those who now administered the Maryland govern- ment, since unquestionably the governor and most of the council were Protestants, (of the old church of England perhaps,) and, in all probability, a majority of the assembly were so, with some few Puritans mixed with them.t The act of assembly may be said, in- deed, to have been a political measure of a Roman Catholic no- bleman, and so far the Roman Catholics are entitled to all the credit which may accrue to them from this measure of an indi- vidual of their sect. But, without the slightest endeavour to detract from the personal merit of Cecilius, lord Baltimore, it may be safely maintained, that the history of affairs throughout the British empire in Europe, at this period of time, clearly de- monstrates, that this measure of general religious toleration, now adopted by his lordship, flowed rather from a prudent policy than any personal disposition to a general religious toleration. The Catholics throughout England and Ireland were evidently now . endeavouring to make their peace with the Puritans, who held
the reins of power. Even good church of England-men were daily becoming converts to them, or temporising; and these fanatics were now pouring their members, like an in- undation, throughout every the remotest branch of the British dominions. The lord proprietary had adopted, almost at the first commencement of the population of his province, the
** Chalmers's Annals, p. 218.
+ While writing the above, (having just taken up a newspaper-the National Intelligencer of November 12th, 1816,) I have accidently perused therein an ac- count of a speech of a Mr. O'Conner at a "Catholic aggregate meeting," then lately held at Cork in Ireland, wherein the orator indulges himself, as usual, with many rhetorical flourishes on the British persecutions of the Irish Catholics, and by way of proving the general disposition of Roman Catholics to religious tole- ration, when they are in power, adduces the example of the early Roman Ca- tholic government of Maryland. How far this was really the case, has been here- in stated above. It is essential to the utility of history, that such an important measure as this should be set right, and the world no longer imposed upon. For evidence of the disposition of Roman Catholics, as a sect, to grant toleration to other religious seets, the reader may be referred to the history of Ireland through- out the seventeenth century, and, indeed, to that of the greater part of Europe under Roman Catholic government, during that period, except France, where philosophy and that pure system of religion denominated Deism had disarmed .or mitigated the horrible powers of an inquisitorial tribunal.
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CHAP. V. measure of admitting persons of every sect, without discrimina- 1649. tion, to become inhabitants of his province; and it was not, therefore, now possible for him to avoid its necessary conse- quences. The government of Virginia was now also ferreting out from their hiding places all the Puritans, who lurked within that ancient dominion. Maryland, unfortunately for his lord- ship, became an asylum for most of them, The inhabitants of this province now formed a heterodox mixture of almost every christian sect. 'To keep peace among them a general toleration was obviously the only prudential measure to be adopted.
The next act of this session, in the order in which they have been arranged by the best compiler of the laws of Maryland,* is that entitled "an act for punishment of such as shall counter- feit the lord proprietary's, or his heirs' lords and proprietaries of this province, great seal of this province." Such an act seems to have been necessarily required by the introduction of a new great seal of the province, instead of the one purloined by Ingle and Clayborne ; and which new seal had been sent in by the lord Baltimore as before mentioned and described.
The next act, entitled "an act concerning purchasing lands from the Indians," is a law, as to its principle, of general utility even at this day. The principle, upon which it was founded, seems to have been adopted by the United States in the dispo- sition of all the territories conquered or purchased by them from the Indians. For every or any individual to have been allowed to purchase lands from the Indians wherever and for whatever price they chose, would have been a liberty of most mischiev- ous policy. And this consideration, as before observed, at once demonstrates the futility of Clayborne's claim to the isle of Kent. He wishes to retain the possession of it, under a mere purchase from the Indians, without the expense or trouble of obtaining a patent for it from the representative of the nation-the monarch, who had, as congress has under our republic, the sole right of purchase from these aborigines of the country. The substance of the act, (being abridged and condensed,t) is as follows :- "The preamble recites, that divers persons have heretofore pur-
* The laws of this session remain recorded in different books and in different orders of succession to each other. As no journal remains, there is no possi- bility of determining which were first introduced into the house ; nor is it ma- terial, each of them having relation to a different subject. They were all passed on the same day, to wit, on the 21st of April, the last day of the session ; and are here commented upon in the order in which Mr. Bacon has placed them,
t As it is in Mr. Bacon's Collection of the Laws of Maryland,
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chased or accepted of lands, &c., from the Indians, and made CHAP. V. use of and possessed the same, without any lawful title and au- I649, thority derived from the lord proprietary, neglecting also to take out grants from his lordship, under the great seal, for such lands as have been due to them by virtue of his lordship's conditions of plantations, or other warrant from his lordship, which pro- ceedings are not only very great contempts and prejudice to his lordship's dignity and rights, but also of such dangerous conse- quence, if not timely prevented, that they may hereafter bring a great confusion in the government and public peace of this province. Be it therefore enacted by the lord proprietary, with the assent and approbation of the upper and lower house of this assembly, &c .- (1.) All purchases or acquisitions whatsoever, of any lands, &c., within this province, made or to be made, from any person whatsoever, not deriving at the same time a lawful title thereto, by, from or under his lordship or his heirs, under the great seal, shall be void and null .- (2.) It shall be lawful for his lordship to enter upon, seize, possess, and dispose of any such lands, &c., so purchased or acquired from any Indian or other, at his will and pleasure, unless such purchaser, at the time of such purchase or acquisition, have some lawful right or title to such lands, &c., by some grant from his lordship, &c., under the great seal."
It is not impossible, but that these attempts to purchase lands within the province from the Indians had been lately made, un- der a supposition, that from the late important political changes, which had recently taken place both in England and Maryland, there was a probability, that lord Baltimore would in a very short time be deprived of all right of propriety in his province, and consequently of the right of making grants of lands therein. We shall see hereafter, that some such conjectures were now afloat in both Virginia and Maryland. Apprehensions of such an event must have dictated to lord Baltimore's friends within the province, or have caused them to assent to such a very severe law as the act of assembly of this session, next in order after that just mentioned, entitled, "an act for the punishment of certain of- fences against the peace and safety of the province." By this act, "all mutinous and seditious speeches, practices, or attempts without force, tending to divert the obedience of the people from the lord proprietary of this province, or his heirs, or the governor under him for the time being, and proved by two sworn witnesses, shall be liable to be punished with imprisonment
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CHAP. V. during pleasure, not exceeding one whole year, fine, banishment, 1649. boaring of the tongue, slitting of the nose, cutting off one or both ears, whipping, branding with a red hot iron in the hands or forehead ; any one or more of these as the provincial court shall think fit .- (2.) All mutinous or rebellious speeches, prac- tices, or attempts with force, either against the person of the lord proprietary now being or his heirs, or of his or their governor of the province for the time being in his or their absence out of the province, or against any the forts, dwelling houses, or guards, provided for the safety of their or any of their persons, or for the publishing, establishing, or advancing any other right or title to the propriety or dominion of this province than the right or title of him the said lord baron of Baltimore ;- and all accessaries (afore such force, and proved by two sufficient witnesses as aforesaid,) to such speech, practice, or attempt, shall be liable to be punished by loss of hand, or by the paines of death, and con- fiscation of all lands, goods and chattels within the province, ban- ishment, imprisonment during life ; any one or more of these as the provincial court shall adjudge ; and all accessaries after to such speeches, practices, or attempts (with force) shall be liable to be punished in such manner as in that clause which is pro- vided for mutinous speeches and practices without force."
It must be allowed, that this act of assembly armed the judi- ciary authority of the province with an extensive power ; but we must suppose, that none of these severe punishments could have been inflicted but by the regular intervention of a trial by jury and legal testimony. The proprietary government of the pro- vince was now in the most imminent danger ; and if that was to be considered as necessarily confounded with the safety of the people, this supreme law might have reasonably dictated such a harsh legislative act. Inasmuch as the forms of law and judi- cial proceedings were still preserved, the act of assembly ad- mits of stronger justification than the extraordinary and summa- ry powers with which our councils of safety in Maryland, at the time of our revolution, were armed with, or than our modern proclamations of martial law and occasional suspension of the writ of habeas corpus; or, in the worst sense of it, may be placed upon an equality with that notorious Maryland act of as- sembly of 1777, "to punish certain crimes and misdemeanors and to prevent the growth of toryism."
The next act, deserving notice, is that entitled, "an act touch-
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ing Indians." The cause of making this act was, according to CHAP. V. the preamble thereof, "to the end that no breach of peace may 1649. happen betwixt the neighbouring Indians and the inhabitants of this province." By this law' it was made felony, punishable with death, (though without forfeiture of estate,) " to take, en- tice, surprise, transport, or sell any friend Indian." From this it would appear, that a species of the offence called kidnapping, in relation to Indians, must have had some existence at this time within the province. But it is difficult to conceive, how this offence could have prevailed to any great degree ; especially if such Indians, so "taken" and "surprised," were "transported" and "sold" out of the province as slaves. The holding Indians in slavery had never attained to a general usage within the pro- vince, nor indeed, as it would appear, in any of the British colo- nies as yet planted .* If they were transported and sold at all, they must have been sent to some of the Spanish colonies in America, among whom, as we are informed, in some instances, the slavery of Indians was allowed. There was another clause in this act, which does not appear to have had much connection with the former part of it, though highly useful and necessary. A forfeiture of 1000 lb. of tobacco was to be imposed on any person, who should deliver any gun or ammunition to any Indian. This had been frequently provided against before.
The act of this session, entitled, "an act touching hogs, and marking of cattle, appears to have been the first act, relative to the subject, made in this province. The uncultivated and un- inclosed state of the country must have dictated its utility. It was then the usage, as it is at this day, for neighbouring plant- ers to turn their hogs and cattle promiscuously into the adjoin- ing wood or forest. This necessarily produced a practice for every planter to affix some mark on the animal so turned out, in order to ascertain his ownership. This act, after imposing a
* There is, however, in this act of 1649, " touching Indians," a short clause, by way of exception to the tenor of the act, thus expressed :- "Andrew Ouza- mazinah, being now servant to Mr. Fenwick, is hereby excepted from this law." But, supposing Andrew to have been an Indian in the service of Mr. Fenwick, it does not necessarily imply, that he was a slave for life. He might have in- dented himself as a servant to him for years, for some cause not explained. Sub- sequent acts of assembly, however, demonstrate that the holding Indians in slave- ry within this province had been deemed lawful, but probably they must have been Indian enemies captured in lawful war. The above act against kidnapping Indians, was re-enacted in the act of 1715, ch. 16, sect. 6, which seems to be in force at this day. The act of 1717, ch. 13, seems to have recognized " Indian slavery," as then lawfully existing.
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CHAP. V. heavy fine upon any person, who should "steal, wrongfully kill,
1649. or carry away any marked swine of another man's," very pro- perly added the following provision :- "And all the inhabitants of this province are required, by virtue of this act, to bring in their several marks of hogs and other cattle, and cause them to be re- corded before Michaelmas next, upon peril of such censure as the governor and council then present or other judge shall think fit." This latter clause, though neglected, as it would appear, yet was deemed of so much importance, that "an order" was made by the assembly, at their next session, 1650, "for record- ing the mark of cattle and hogs," nearly in the same words as the preceding act, adding in a more particular manner, where such marks should be recorded, to wit : "in the secretary's of= fice, or in the records of the county court where every such in- habitant liveth." The act, however, was subsequently repealed, and the order has become obsolete ;* nor does it appear to have been ever revived, except by the act of 1692, ch. 32, which also was repealed. So wholesome an ordinance, relative to the internal police of the state, ought not to have been disused.
The next act also, entitled "an act for planting corn," was a renewal of that temporary policy frequently before resorted to in the early settlement of the province, in order to guard against a scarcity of food in the articles of bread stuff; a remedy bor- rowed from a similar police in Virginia. By this act, two acres of corn were to be planted and attended to for every taxable per- son on the plantation.
From documents annexed to this volume, consisting of a let- ter or address, by this present assembly now sitting, to the lord proprietary in England, and his reply thereto, it will be seen, that his lordship had (very improperly as it would appear to us at this day,) considered it as a great offence, that some of his personal property on his own plantation in St. Mary's county, consisting (as the assembly express it in their letter to his lord- ship) "of a few cattle, not above eleven or twelve cows at the most, of your lordship's known clear stock, and those conquered again to your lordship and taken from the unlawful possessor, should be distributed among those men, who had ventured their lives and estates in the defence, recovery, and preservation of your lordship's province." It has been before stated, that go- vernor Calvert, while in Virginia, through want of other means,
So stated by Mr. Bacon, in his Collection of the Laws of Maryland.
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as we may presume, to pay the soldiers, whom he had enlisted CHAP. V. and engaged to attend him in the recovery of the province, had 1649. expressly pledged to the soldiers, that "their hire and wages" should be payed out of the stock or personal property upon his lordship's plantation. In virtue of this engagement the above mentioned cattle of his lordship had been either sold for the payment of, or distributed among, the soldiers, as promised .. This was done, most probably after the death of governor Cal- vert, by Miss Margaret Brent, who being appointed administra- trix to the governor's private estate, was invested also, as has been before stated, with the same powers as governor Calvert had been, to manage his lordship's private estate as his attorney in fact. With Miss Brent's conduct in this respect his lordship, it seems, was excessively displeased, and expressed against her "bitter invectives." The assembly, however, in their spirited letter and address, generously defended her, and added, as a very strong reason, "that the soldiers would never have treated any other with that civility and respect ; and, though they were even ready at several times to run into mutiny, yet she still pacified them." This does great honour to the character and under- standing of this lady, and is one, among numerous examples to be found in history, where power lodged in female hands, if pru- dently exercised, is more readily obeyed and submitted to than the same would have been if administered by one of the other sex. There is a chivalrous disposition in citizens as well as soldiers, to obey the commands of women. His lordship, it seems, had expressed his displeasure at the these proceedings in a letter, which had been most probably written by him to governor Greene, but which letter does not appear to be now extant, at least on our records. The assembly, however, animadvert upon this let- ter in the following spirited terms :- "Hereupon we cannot choose but wonder, why your lordship should write so tartly against the people, and how your lordship could suppose it fit and necessary, that those your loyal friends should be deprived by law of their dues for so great and good a service done and effect- ed by them, and that it should be required at their hands, to pay themselves a levy upon themselves." A very just remark, if we suppose that these soldiers became afterwards the citizens upon whom the assessment, for the payment of the soldiers, was to be levied.
Previous mention of these few circumstances seems to have been necessary, in explanation of the next act of assembly of VOL. II .- 46
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CHAP. V. this session, entitled, "an act for the support of the lord pro- 1649. prietary;" which act seems to have been really and truly intend- ed as a conciliatory earnest of the loyal and faithful desire of the people of the province to remain under his lordship's pro- prietary government, however exceptionable they deemed many parts of his late conduct towards them, upon which they ani- madverted in their letter to him at the close of this session in terms of rather keen resentment. The preamble of the act, however, is couched in the following very soothing language :-- " That his lordship might better perceive the good will of the free- men, in complying with his lordship as far as their poor distract- ed condition could well bear, and to the end that he might be the better encouraged and enabled to protect them in their lives, liberties, and estates, "they gave, by this act, a custom to his lordship of 10s. per hundred on all tobaccoes* shipped upon any Dutch vessel, and bound for any other port than his majesty's, for seven years, on forfeiture of all tobaccoes chargeable with custom transported or attempted to be transported afore discharge had under the hand of the governor : one-half to be yearly em- ployed towards satisfaction of all arrears and claims touching the late recovery and defence of the province, which should be brought into the secretary's office and made appear to be due, be- fore the last day of March ensuing, &c. And an assessment also to be raised, on all the inhabitants for his lordship's use, for
* The reader will perceive, on perusing the letter of this assembly to his lordship at the close of this session, a considerable variance between the amount of the customs granted, as expressed in the act above mentioned, and their state- ment of it in that letter. Instead of "ten shillings per hundred on all tobaccoes," as above mentioned, they state in their letter, that they had "passed their con- sent to a law, that his lordship and his heirs, for seven years, should have a cus- tom of 10 lb. of tobacco upon every hogshead of tobacco laden upon any Dutch vessel," &c .- There is no other act of this session extant, to which they could have referred. The abridgment of this act, as above, was copied from Mr. Ba- con's Collection of the Laws, and not from the record of the act at large : but he is uniformly so accurate, that it is supposed, safe reliance may be placed in al- most every instance upon the correctness of his statements. It must be ac- knowledged, that "ten shillings per hundred," amounting to five pounds per hogs- head, supposing the hogshead to have been of 1000 lb. weight, as usual for- merly, is such an enormous imposition, as to induce us to suppose some mistake in the copying, either by Mr. Bacon or in making the present record of the act. Were it correct, it might well justify Mr. Chalmers, (Annals, p. 218,) where, following Mr. Bacon in his statement thereof, he remarks,-(intending it, per- haps, as a side blow against the American revolution,)-"Thus history seems to demonstrate, that rebellions, in superaddition to all other evils, never fail to en- tail grievous burdens on the unfortunate countries, which they had previously cursed."
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