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 77
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* The freemen of St. Mary's hundred were rather discontented with this allot- ment of only one burgess ; as appears from the following memorandum inserted in the record immediately after the above proclamation .- "The freemen of St. Mary's hundred earnestly request the governor to give them power of choosing two burgesses ; alleging that hundred to be the ancientest hundred and the first seated within this province under his lordship's government; who granted their request and desire accordingly."
t This abbreviation of a word is so in the record. But from all the circum- stances before stated, and from that of two burgesses appearing in this assembly from Providence, the name of the new settlement on the Severn, it seems evi- dent, that the word, thus partly inserted in the record, was intended for the word Puritans. It is true, that the act of assembly of the last session, entitled, "an act concerning religion," forbade the "reproaching" any person, among other terms, with that of Puritan, under a severe penalty ; but, it is possible, that as they could not be designated by any other term known at that day, and on this occa- sion not done "reproachfully," the term was adopted in the abbreviated form as above. Thus Quakers are now commonly so called, without any reproachful meaning, although certainly the term in its origin was so considered,
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HISTORY OF MARYLAND.
CHAP. V. Given at St. Mary's, this 24th day of January, anno domini, 1649.
1650.
To the sheriff of St. Mary's county, his deputy or deputies. 5
WILLIAM STONE."
A duplicate of this proclamation is stated to have been sent to the sheriff of the isle of Kent county, with the slight alteration therein, that the freemen there were "to make choice of one, two or three burgesses," &c. The freemen, throughout the province, it seems, embraced the alternative prescribed in the proclamation, of choosing burgesses ; instead of appearing per- sonally, or by proxies. In St. Mary's county burgesses were chosen from the respective hundreds therein. From the isle of Kent one burgess only, but from Providence, two were sent.
On the appointed day for the meeting of the assembly, (the second of April,) the sheriff of St. Mary's county made his re- turn, that "all and every of the freemen of St. Mary's county had been summoned according to the directions of the summons, and had made choice of the burgesses following for every hun- dred, viz," &c .* As no return had been made, on this first day of the session, nor any appearance of the freemen or burgesses, either from the isle of Kentor Providence, "the governor adjourn- ed the house till Friday next being the fifth day of the same pre- sent month."
On the day of adjournment, (the fifth,) the burgesses from the isle of Kent and from Providence appeared. Mr. Robert Vaugh- an, the only burgess from the former place, made his own return, as follows: "This summons," (meaning probably the writing upon which the return was thus endorsed,) "was duly execut- ed, and by virtue thereof I was by the major part of the freemen chosen burgess for the isle of Kent county, which I do certify in return thereof. Robert Vaughan." It will be recollected, that Mr. Vaughan was at this time also one of the council, as well as commander of the isle of Kent; so that some difficulty arises at this day, in reconciling his election as a burgess to the division of the assembly into two houses or branches. It will, however, be seen, when we come to the "act for settling this present assembly," that Mr. Vaughan was not considered as a member of the lower house but of the upper, that is, as one of
*The names of the burgesses of St. Mary's county are the same as those in the "act for settling this present assembly," hereafter stated, except that in the sheriff's schedule those names are respectively affixed to the several respective hundreds for which they were burgesses.
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the council. The return from Providence was somewhat more CHAP. V. singular, and was made by the governor himself; who, as it 1650. would seem, had gone up the bay, shortly before the meeting of the assembly, to visit the new colony at Providence ; probably with a view of reconciling in an amicable way these refractory Puritans to the proprietary government. They consented to send burgesses to the assembly, and the governor's return there- of was as follows :- "By the lieutenant, &c. of Maryland. The freemen of that part of this province of Maryland, now called Providence, being by my appointment duly summoned to this present assembly, did unanimously make choice of Mr. Pudding- ton and Mr. James Cox for their burgesses, I being there in person at that time."
On the next day, (April 6th,) the house, after choosing Mr. Their pro- James Cox, speaker, and Mr. William Britton their clerk, pro- ceedings. ceeded to business. We may remark here, that this choice of a speaker seems to indicate strongly, how the politics, or rather the religion, of the house stood. Mr. James Cox, one of the members from Providence, was without doubt a zealous Puritan, or he would not probably have been chosen as a burgess by the inhabitants of that settlement. Neither can we suppose that he would have been now elected speaker of the house, unless a ma- jority of the members had professed, or at least been inclined to, the same religious opinions, as he did. The house consisted of fourteen members, eight of whom subscribed their names, as Protestants, to the "declaration and certificate" of the 17th of this month, as will presently be seen. It seems to follow, there- fore, that all of these Protestants, who made a majority in the house, approved of the religious sentiments of this zealous Pu- ritan, whom they had thus elected as speaker.
The first business, which the house took up, was the adoption of an oath to be taken by every burgess; which proceeding seems to have emanated from the burgesses themselves, and not on the part of the governor and council, it being thus expressed : "Upon the motion and desire of the burgesses this day assem- bled, the governor appointed Mr. Secretary to draw two several oaths, one for the burgesses, and the other for the clerk ; which was done." This seems to indicate the mode, in which the business of the legislature of the province was transacted in these early times. Some proof has been before offered herein of the extreme deficiency in literature among the first planters or
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CHAP. V. settlers in Maryland ;* as was the case indeed in those times, 1650. not only among those of New England and Virginia also, but even among the common people of Old England. It was pro- bable, therefore, that very few of the fourteen members of the lower house, at this session, were capable of draughting a bill. The former secretary of the province, Mr. Lewger, appears to have been a lawyer by profession, and it is probable that the pre- sent secretary, Mr. Hatton, being sent from England by his lordship expressly for the office, was also of that profession, pro- bably some English attorney. He was, therefore, the most pro- per person to prepare the form of oath required ; and indeed it might possibly have been deemed at that time the appropriate duty of the secretary to prepare all legislative acts. These oaths, it seems, were very speedily prepared, and, on this same day, "were administered by Mr. Secretary to the clerk and bur- gesses then present ; no one contradicting."+-Why secrecy, in relation to the debates and proceedings of this session, was en- joined by these oaths, no adequate cause is to be traced from the journal or records. The Catholic party in the house appear to have been discontented with it.
It appears from the journal, that on the first day of this ses- sion, (April 2d,) the house had made an order, for drawing "an act for settling this present assembly," as also for rules and ör- ders to be observed. The act had been prepared and was now on this day (April 6th,) read, and from the urgency of the mea- sure seems to have been passed immediately on its first reading. It is stated on the journal to have been "unanimously agreed
* Out of fifteen members of the assembly of 1639, seven of them made their marks, not being able to write their names .- See before, p. 99.
+ An objection to the oath, which occurred in a subsequent part of the session, may perhaps render that of the burgesses worthy of perusal. It is therefore here inserted .- "I, A. B. do swear that I will faithfully and truly, according to my heart and conscience, to the best of my understanding and ability, without favour, affection, or self ends, advise, consult, and give my vote to all bills and other matters, wherein my advice or vote shall be required, during this assem- bly, wherein my chief end and aim shall be the glory of God in my endeavours for the advancement and promotion of the lord proprietary's just rights and pri- vileges, and the public good of this province; and will also keep secret during this assembly all such matters and things as shall be acted and debated or con- sulted of in both or either houses of this present assembly, wherein secrecy shall be required or be requisite, so far as I may, and will not wittingly or willingly publish, divulge, or speak of the same to any person or persons whatsoever be- ing no member of one of the said houses of assembly-So help me God."
The oath of the clerk contained the same clause of secrecy, in addition to the faithful performance of his office.
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unto ; and signed and confirmed by the governor."
As this act CHAP. V. constituted a form of government for the province, which ex- isted from the time of its passage to the dissolution of the pro- 1650. vincial government at the American revolution, it becomes a do- cument of material import in the history of the province. It therefore claims a place in the body of this work.
"An act for settling of this present assembly.
"Be it enacted by the lord proprietary, with the advice and consent of the council and burgesses of this province now as- sembled, That the present assembly, during the continuance thereof, be held by way of upper and lower house, to sit in two distinct houses, apart, for the more convenient dispatch of the business therein to be consulted of: And that the governor and secretary, or any one or more of the council for the upper house ; and Mr. John Hatch, Mr. Walter Beane, Mr. John Medley, Mr. William Broughe, Mr. Robert Robins, Mr. Francis Poesie, Mr. Philip Land,* Mr. Francis Brooke, Mr. Thomas Matthews, Mr. Thomas Sterman, Mr. George Manners, burgesses for St. Ma- ry's county, Mr. George Puddington, and Mr. James Cox, bur- gesses of that part of the county now called Providence, or any five or more of them, for the lower house, together with the clerk of that house for the time being, who shall from time to time assemble themselves, at the time and place to be by the governor (or whomsoever of the council he shall, by writing un- der his hand, depute for that purpose) from time to time ap- pointed, during this present assembly, shall have the full power of, and be, two houses of assembly, to all intents and purposes. And all bills which shall be passed by the said two houses, or the major part of both of them, and enacted or ordained by the governor, shall be laws of the province, after publication there- of under the hand of the governor, and the great seal of the province, as fully, to all effects in law, as if they were advised and assented unto by all the freemen of the province person- ally."+
Although the expression in the preceding act,-" during the continuance thereof,"-seems to intimate, that the arrangement of the "two houses" was to continue only "during the continu- ance"' of this "present assembly," yet it is certain, that this di-
*In the list of the members, as it is on the journal of the house, the name is Philip Lane.
+Copied from Mr. Bacon's Collection of the laws of Maryland.
VOL. II .- 49
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CHAP. V. vision of the legislature into two houses, the governor and coun- 1650. cil forming what was called the upper house, continued until the American revolution, with the exception, perhaps, of the few years, when the government acted under his highness the lord pro- tector ; nor does our statute book afford any other authority for that division of the legislature, which was always so observed under the proprietary government.
At the meeting of the lower house, on Monday, 8th of April, a case occurred, relative to the oath just before prescribed to the burgesses. Mr. Thomas Matthews, burgess from St. Inigoe's hundred, had neglected or refused to take that oath, and on being required to take it, (perhaps, by the speaker,) he replied, "that he thought that oath could not be taken by him ; for, that according to his lordship's instructions sent hither, that all peo- ple believing in Jesus Christ should have the free exercise of their religion ; and accordingly he ought to be guided in matters of conscience by his spiritual council ; and, if so be he understood not and could not be satisfied in his judgment in any matter which may be spoken or debated, he could not advise with whom he ought therein, if he took such oath; and so conse- quently had not the free exercise of his religion."
We must suppose from the tenor of this reasoning, that Mr. Matthews was a zealous Roman Catholic. Although indeed it is impossible for any sect of christians to have been more com- pletely under the dominion of their priests and elders, than the Congregationalists or Puritans of New England were at this period of time, which must have been the case also with the colonists of Providence in Maryland ; yet, as the Roman Catho- lic party of the province were evidently at this session of assem- bly in the minority, and did not heartily approve of the proposed oath of secrecy, which must have emanated from the Puritans, we must infer from Mr. Matthews's objection, that the "spiritual council," to which he alludes, was some father confessor, or other ecclesiastic character, of the Romish church, with whom he had been in the habit of consulting and advising in all diffi- cult cases, whether spiritual or temporal, as many good Catho- lies, as well as other members of other sects, are in the practice of doing even at this day. The principle, however, which per- vades his reasoning, as above, would be rather inadmissible under our modern governments of America. When our Ameri- can congress occasionally sit with closed doors, (notwithstanding
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the republican principle, that republics ought to have no secrets,) CHAP. V. should a member rise and say, that he could not consent to keep 1650. any of the proceedings of congress secret from his pastor or preacher, whose advice he was in the habit of asking in every case, would it not excite a smile, and perhaps a retort courteous from some "ungodly Virginian." This remark is here made mere- ly to illustrate the impropriety of Mr. Matthews's objection to the oath, however unnecessary such oath might have been; and such appears to have been the opinion of a majority of this assembly ; for "the house thereupon gave censure, that the said Mr. Thomas Matthews should depart the house, and not have any vote therein; who departed and absented himself accord- ingly."
As a part of the proceedings of the assembly on this day, (8th of April,) we find on the journal the following minute .- "Was read the sixteen laws sent in by his lordship to be assent- ed to and enacted without alteration." But it no where appears on the journal, that they were either adopted or rejected in toto ; yet, as some of the subjects of these laws were acted upon at this session, and legislative acts passed relative thereto, particu- larly the act of recognition, and the act against raising money within the province without consent of the assembly, also those concerning levying of war and concerning trade with the Indians, we may therefore suppose, that the assembly of this session did, as they themselves said, at the last session they either had done or would do, selected such of these sixteen laws sent in by his lordship, and enacted them, with perhaps such alterations as were agreeable to them.
The expulsion of Mr. Matthews from the lower house, as just stated, occasioned some animadversions upon it by one of the members of the upper bouse, particularly by Mr. Thomas Greene, the former governor, and now first named in the coun- cil. Mr. Greene, being a Roman Catholic, as appears, naturally espoused the cause of Mr. Matthews, and was thereby induced to utter some harsh speeches against the Puritans or Protestants for their injustice on this occasion. Those who formed a ma- jority of the lower house, whom we may suppose to have been Protestants, if not Puritans, proposed to deliver, what they called, a petition to the upper house, complaining of Mr. Greene's con- duct; as appears from the following entry :- "The burgesses delivered a petition to the upper house for certain harsh speeches
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CHAP. V. uttered by Mr. Thomas Greene against them, with injustice for 1650. expelling Mr. Thomas Matthews out of the house, refusing to take the oath of secrecy ; and for their taking the said oath in that manner."
During the debate on the above proposition of a petition, it naturally occurred to the lower house, that it would be useless for them to take an oath of secrecy, unless the like injunction was observed by the upper house. They, therefore, made the following order :-
" Upon debate of which," (that is, of the petition,) "it being conceived impertinent* for the burgesses to take the oath of secrecy in the lower house, unless the same were likewise taken by the council in the upper house,-t which said order was brought into the lower house; viz .- Whether such members in the upper house, refusing to take the oath of secrecy as the burgesses, shall have liberty or vote in the said house; and the house assented, that they should not have vote or seat in the said house during the assembly, unless they assent and take such oath."
The obscurity of expression, in which this order is drawn, occasions some difficulty or uncertainty in the interpretation of it. The impropriety in the lower house's attempting to expel a member of the upper house from having a seat or vote in such upper house, seems to preclude the supposition, that such was the meaning of the order. But, as the words-" said house" must refer to the house last mentioned, to wit, the upper house, and the members of the upper house sitting by themselves, hav- ing neither vote nor seat in the lower house, if the order meant to expel any member of the upper house from a seat or vote in the lower, unless he took the oath of secrecy, the order was useless and inoperative, such member not pretending to either vote or seat in the lower house. It therefore appears to have been meant as a proposition for the other house to adopt, and perhaps so presented to them, as a part of their petition.
This petition was presented to the governor by the speaker on the same day, on which it was agreed to, to wit, on "Wednes- day afternoon, April 10th;"" -- "and the governor told the
* The word "impertinent" here means useless, unnecessary, or inapplicable to the purpose.
t There is an omission of something here in the record, which renders the sense imperfect ; but it evidently means, that the house thereupon came to the following order, as stated above.
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.
speaker, that he should have an answer of the petition the next CHAP. V. day." But, a whole week elapsing, and no answer being re- 1650. turned thereto, the lower house, on the 18th of April, sent some of their members to the governor concerning it. They returned "with this answer from the governor and upper house; that the lower house had not power of themselves to expel any member out of their house, the governor not being present ; but conceived that Mr. Matthews expelled himself, for that he came not to de- mand his voice after the governor himself was present in the house." From this it would appear, that the governor and upper house were of opinion, that his presence was necessary in the lower house to render valid such an act of the legislature as the expulsion of one of their members. But this opinion seems to have been repugnant to the supposition, that the governor and council sat in an apartment by themselves, as before stated, and was moreover equally so to the principles of the English consti- tution; for, the king could not constitutionally take his seat in the house of commons.
After Mr. Matthews had been expelled from the lower house, as before stated, it became necessary that a new burgess should be elected for St. Inigoe's, or the hundred would have been un- represented in the legislature. Accordingly on "Thursday, 11th of April," (three days after the expulsion,) "summons issued for the choice of a new burgess in the stead of Mr. Matthews." Nearly a week elapsed, it seems, before this summons was returned ; when on "Thursday, 18th of April, the sheriff return- ed the summons and Mr. Fenwick, burgess of St. Inigoe's hun- dred in Mr. Matthews's room.
" Mr. Fenwick making his appearance in the house, Mr, Speaker proposed the oath of secrecy to him; and Mr. Fenwick declared, that he would take that oath, provided that it might not prejudice in any sort his religion or conscience. And the house voted, that the said Mr. Fenwick ought not to have place, or be a member, in the house, unless he took the oath directly as it lyeth without any reservation at all either of religion or conscience ; except Mr. Manners, Mr. Medley, and Mr. Lane, who declared and desired, that the said Mr. Fenwick might have time to consider of the said oath ; which was admitted and granted by the whole house till to-morrow morning."
However in the afternoon sitting of the same day,-"The whole house declared, that it never was intended by the house,
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CHAP. V. that in the oath of secrecy any thing is meant to infringe liberty 1650. of conscience and religion : whereupon Mr. Fenwick was sworn as the other burgesses."
Why such a strenuous opposition to this oath of secrecy should have been thus made by a party of the colonists, is not very ap- parent at this day ; especially as in itself it seems to have been a matter of no great consequence. If, however, we suppose, that this party, who thus opposed the measure, were Roman Catholics, we ought to infer, that thay had some good reasons for so doing, which are now unknown. It is certain, that the Pro- testants then ruled and governed the province ; and, although these Protestants might, for the most part, have professed them- selves to be of the old church of England, which was still the established religion in Virginia, yet, as religious consciences are very apt to veer and change with the times, and puritanism had become, in the mother country, the order of the day, many of our provincial politicians might think, that they could not make too much haste in following the fashion of the times ; especially, as profitable offices and honourable stations might reward those, who were most expeditious in their conformity. That the Roman Catholics of Maryland had, at this period of time, very just cause to apprehend mischief to themselves, subsequent events have fully justified ; and it is therefore probable, that these ap- prehensions dictated to them their strenuous opposition to any obligation to keep secret the measures of a deliberative and le- gislative body, (principally composed of their most inveterate enemies,) who might thus secretly lay plans for their destruction.
The journal specifies no other business of any importance, not even relative to any of the numerous laws which they passed at this session, except an objection to the "act of recognition," which will presently be attended to.
After the proceedings of the 18th of April, the journal com- mences again with those of the 29th of April, the last day of the session, when-" Both houses declare, that no further secrecy is required, mentioned in the oath, (after the present day of ses- sions,) taken for that purpose ; neither do they find it any wise requisite."* This might possibly have been done, to quiet un- founded apprehensions.
"Upon motion of adjourning the house of assembly, it was
* From the expression above-" Both houses," &c., releasing from the oath of secrecy, it would seem, that the upper house also had taken that oath.
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alleged, that all persons bound to attend the assembly ought to CHAP. V. be protected from arrests. Whereupon the burgesses desire no I650. protection at all for being burgesses ; but declare the contrary, and desire to be liable to all suits, actions, and arrests." In this, it must be acknowledged, that the members of this assem- bly exhibited a more dignified independence than those of some former sessions herein before remarked upon.
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