The history of Maryland : from its first settlement, in 1633, to the restoration, in 1660 ; with a copious introduction, and notes and illustrations, Part 79

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

USA > Maryland > The history of Maryland : from its first settlement, in 1633, to the restoration, in 1660 ; with a copious introduction, and notes and illustrations > Part 79

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His lordship's declaration, (anno 1649,) before mentioned, seems to intimate also, that another act of this session, entitled, "An act against raising of money within this province without consent of the assembly," was one of those sent in by him. If so, there arises at once a strong presumption against the va- lidity of an argument, which was raised by some lawyers of Maryland, at the commencement of the American revolution, that this act of assembly, inasmuch as it expressly exempted "the freemen of this province," from any "subsidies, aids, customs, taxes, or impositions" to be laid upon them "with- out the consent and approbation of a general assembly of this province," exempted them from parliamentary taxation. In re- ply to which it might be observed, that if this act emanated solely from the will of lord Baltimore, he had no power or authority to exempt the inhabitants of this province from the legislative pow- ers of the parliament of England; nor, could the assembly itself

* See the quotation from Leonard Strong's pamphet, entitled, "Babylon's fall," &c., ante, p. 371.

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or the inhabitants of the province themselves, deprive, by their CHAP. V. own legislative act, the English parliament of any powers which 1650. they before had. But it is most certain, that this act, to whom- soever it might owe its origin, was not meant by any one, at the time of its enactment, to have any relation to the powers of an English parliament in imposing taxes upon the colony of Mary- land. It is most probable, that his lordship, on account of some former attempts by him to legislate for the province without the intervention of the assembly, had created jealousies and given his enemies (the Clayborne faction,) ostensible grounds to raise a clamour against his proprietary rights. To conciliate the good will of his colonists, and to give them assurances, that he meant not for the future to exercise even the semblance of arbi- trary power, especially in taxation, he sent them this act of as- sembly; to which, without doubt, they readily, when met in assembly, gave their assent. That the act could have no al- lusion to the power of the English parliament is evident from the preamble of it. "Forasmuch as the strength of the lord pro- prietary of this province doth consist in the love and affection of his people, on which he doth resolve to rely upon all occasions,* for his supplies both by sea and land, not doubting of their duty and assistance upon all just and honourable occasions, be it enacted, &c." It might be added also, that neither lord Balti- more in England, nor his colonial assembly in Maryland, in these times, especially in the year 1650, when the government of En- gland was a democratic republic, and the parliament every thing, with Cromwell and his army to back them, would have had the assurance and effrontery to call in question the powers of the English parliament as it then existed. This opinion seems to be corroborated by subsequent events ; particularly by an ordi- nance of the English parliament of this very year, passed October 3d, 1650, "for prohibiting trade with Barbadoes, Virginia, Ber- muda, and Antago." This prohibition of the trade of these colonies was intended as a punishment for their rebellion against the English parliament, and the preamble of the ordinance is de- claratory of a very different construction of their powers than our act of assembly was supposed to intimate. It states, that "whereas the islands and other places in America, where any En- glish are planted, are and ought to be subject to and dependent

* This resolution of future conduct seems to intimate, that the whole of this act was penned either by his lordship or under his inspection in England.

. VOL. II .-- 51

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CHAP. V. upon England, and hath, ever since the planting thereof, been and 1650. ought to subject to such laws, orders, and regulations as are and shall be made by the parliamant of England."* This declara- tion does not seem to confine their powers to the "regulation" of trade merely, but to extend them "to laws and regulations" in all cases whatsoever; and, therefore, to include laws of taxation. This parliament were not in the habit of uttering empty words; they followed up this ordinance with the "reducement," as it was called, not only of the West India islands and Virginia, but even of unoffending Maryland; as will presently be seen.

The next act of this assembly also, in the order of publication, entitled, "an act concerning the levying of war within this pro- vince," was, from his lordship's declaration, before stated, one of those acts sent in by him. The first section thereof enacted, "that if the lord proprietary, or his lieutenant, or governor, should, at any time hereafter, make any war out of the limits or precincts of this province, without the consent and approbation of the general assembly of this province first had and declared, the freemen of this province shall be no way obliged or compel- led, against their consents, to aid or assist with their persons or estate in the prosecution or maintenance of such war.

" Sect. 2. That no martial law shall, at any time hereafter, be exercised within this province, but only in times of camp, or garrison, and that within such camp or garrison.

" Sect. 3. That all charges arising by defence of this province- against any invasion, insurrection, or rebellion, shall be defrayed by this province, by an equal assessment upon the persons and estates of the inhabitants thereof."}

This act was, without doubt, intended by his lordship, as one of those conciliatory measures, which he was now practising in order to regain the "affections of his people," and was most pro- bably the result of some just complaints, which had existed within the province, on the subject of martial law. To take planters from their civil employments on their plantations and compel them to the performance of military duties as soldiers,

* The substance of the enacting part of this ordinance is in Hazard's Collec- tions, vol. 1, p. 636, but the preamble thereto, containing the above declaration, is unaccountably omitted. That part of it, however, quoted above, is to be found in the same volume, p. 559, stated in the "Province of Maine's Petition." It is also stated by Chalmers in his Annals, p. 122, and by Robertson in his Hist. of America, vol. 4, b. ix.

t This and the preceding act, published at large in Bacon's Collection, 1650, ch. 25 and 26.

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and subject them to the summary adjudications of martial law, CHAP. V. is a despotism inconsistent with rational human liberty in a state 1650. of society.

The act, passed at this session also, entitled "an act for taking an oath of fidelity to the lord proprietary," seems to have been rendered, by subsequent events and complaints, one of as much notoriety as any of those before mentioned, which were passed at this last session. The oath prescribed by this act varies considerably from the oath of fidelity, before stated, pre- scribed by his lordship to be taken by every person, who would obtain the grant of any lands, and which was so obnoxious to the Puritans .* One of their objections to the former oath has been before mentioned, that is, that the words-"absolute lord" and "royal jurisdiction," were "thought far too high for a sub- ject to exact, and too much unsuitable to the present liberty, which God had given the English subjects, from arbitrary and popish government, as the lord Baltimore's government plainly appeared to be."t These objectionable expressions were now carefully expunged from the oath now prescribed by this act of assembly; and a new clause inserted, somewhat bordering on mental reservation, so as at all convenient times to admit of equivocal meaning, to wit, "that they would defend and maintain all such his lordship's just and lawfulį right, title, interest, pri- vileges, jurisdictions, prerogatives, propriety, and dominion over and in the said province, &c., not any wise understood to in- fringe or prejudice liberty of conscience in point of religion."§ This infringement of liberty of conscience alluded to a second objection to the oath of fidelity prescribed by his lordship ; which second objection has been thus expressed by the agent of the Puritans. |-" Secondly. The oath," (meaning the oath of fidelity first prescribed by his lordship,) "was exceedingly scrupled on another account, viz : that they must swear to up- hold the government and those officers, who are sworn to coun- tenance and uphold anti-Christ, in plain words expressed in the

* See a copy of the former oath prescribed by his lordship in note (LXIX.) before referred to.

: + Leonard Strong's " Babylon's Fall in Maryland."

# These words, "just and lawful," not in the former oath, would at all times leave open a door to let in a convenient objection to any of his lordship's privi- leges, rights, or interests within the province.

§ See a copy of the oath prescribed by this act of assembly of 1650, in note (LXXVI.) at the end of this volume.

|| Leonard Strong, in his " Babylon's Fall," &c,

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CHAP. V. officers' oath, the Roman Catholic religion. And for these peo-

1650. ple to own such by an oath, whom in their hearts they could by no means close with; what could it be accounted but col- lusion?" This plainly referred to the oaths of office before mentioned,* to be taken by the governor and each of the coun- cil, who were Protestants: to wit, that they were to bind them- selves by oath-"not to trouble or molest, directly or indirectly, any person whatsoever in the said province professing to be- lieve in Jesus Christ, and in particular no Roman Catholic, for or in respect of his religion." To this objection it was very properly replied by lord Baltimore's friend, t-"This oath was never imposed upon any body, nor any penalty appointed for the refusall thereof; for, it was free for any man, if hee did not like the oath, not to accept of the place of governor or one of the council there. Lord Baltimore appointed this oath to be taken by the aforesaid officers, when he made captain Stone governour and Mr. Thomas Hatton secretary, and other of his counsell there, who being of different judgment in religion from himselfe, his lordship thought it but reasonable and fit, that as he did oblige them by oath not to disturbe any there, who professed to believe in Jesus Christ, so to expresse the Roman Catholickes in particular, who were of his own judgment in matter of religion." This second objection, which was solely directed against the Roman Catholics, was one, among numer- ous proofs of those times, that these Puritans, though perpetually vociferating their clamours for religious liberty, were really hos- tile to every liberal sentiment on the subject of religion. It strongly corroborates the remark of Hume upon them :- " They maintained, that they themselves were the only pure church ; that their principles and practices ought to be established by law; and that no others ought to be tolerated."} With what propriety, therefore, can it be trumpeted forth, as it is at this day, in every newspaper of the United States, that these people were persecuted and driven from their native country to seek an asylum in the wilds of America?

The act of assembly, however, of this session, "for taking an oath of fidelity to lord Baltimore," was the work of the Puritans themselves. It is certain, that they had a preponder-

* In p. 335-6, and in note (LXII.) and (LXIII.)

i Mr. John Langford, in his " Refutation of Babylon's Fall," &c.

# Hume's Hist., in his Appendix to the reign of James I.

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ating influence in the house of burgesses or delegates of this CHAP. V. session. And, although the laws of this session, (of 1650,) 1650. bespeak much moderation, and perhaps political wisdom, yet this might have been the result of what appears to have been the fact, that the religious parties in the province were at this time nearly balanced. The Puritans settled at Providence, to the amount perhaps of about a hundred, were exceeded in popula - tion by those of the county of St. Mary's, whom we may sup- pose to have been for the most part Roman Catholics. Policy, therefore, evidently dictated to these Puritans, thus newly settled in the province, to adopt some degree of moderation in their conduct. But, when the strong arm of the mother country was stretched out in their behalf, and Maryland with Virginia and the other colonies, was "reduced" to a submission to the Puritanic parliament of England, these Puritans then exhibited their pro- pensities to arbitrary power ; as the sequel of this history will shew .*

With this view of the state of parties at this time within Maryland, we can easily reconcile the enacting clause in this act of assembly, which prescribes the penalty on a refusal of this oath. It is in substance thus expressed :- " Every inhab- itant of this province, above the age of sixteen years, who has, or shall from time to time have, any estate in lands within this province, and be at any time in person within the same, shall take the oath here under mentioned.t On refusing the same he is to be expelled and banished this province, and not to return again without leave. Persons expelled or banished for such refusal, or shall afterwards return without leave and refuse the same, shall be subject to such fine and imprisonment, as the lord proprietary, his lieutenant, or chief governor or privy coun- cil of this province, or the major part of them, shall think fit." The lord proprietary's lieutenant and privy council constituted at this time the provincial court, the supreme court of the pro- vince, so that the penalty was indeed nothing more than that punishment which the common law of England vests in all its courts in cases of misdemeanor :- fine and imprisonment at the discretion of the court. But, if we are to believe Mr. Langford, who wrote within a few years after this period, (viz. in 1655,) "no person within the province was ever yet banished or fined

* See note (LXXVII.) at the end of this volume.

t The oath before stated in note (LXXVI.) at the end of this volume.

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CHAP. V. for refusal of it; only they would have no land granted them from his lordship, unless they took it."

1650.

Among those laws sent in by his lordship and passed by this assembly, or recorded among its legislative acts, not hitherto herein noticed, was that entitled "an act of oblivion." By this act was granted a free pardon of all offences, capital or other, and an abolition of all actions tending to recover damages for any fault committed against any one in his lordship's peace, &c. by any of the party, who were in rebellion against his lordship's government here, at any time between the 15th of February, 1644, and the 5th of August, 1646-excepting Richard Ingle and John Durford, mariners, and such others of the isle of Kent as were not pardoned by his lordship's brother, Leonard Calvert, esq., deceased, &c. Also, that no contract entered into with any one in that rebellion should be enforced. "And for the preserving of peace and amity, all reviling speeches, practices, or attempts, tending to the disturbance of the amity desired and intended, and all reviling and upbraiding others with matter of plunder, rebellion, or other odious or reproachful terms for any matter or thing, pardoned by his lordship or abol- ished by this act, be utterly forborne and laid aside, upon pain of imprisonment during pleasure, fine, banishment, stocks, pil- lory, whipping, any one or more of these as the lieutenant or chancellor and council of this province for the time being, or the major part of them then being in court present, whereof the said lieutenant or chancellor, or their respective deputy, being always one of the said council, to be always one, and to have a casting voice, shall think fit." This was one of the conciliatory mea- sures of his lordship to restore himself to the "affections of his people," and to counteract the threats of depriving him of his province.

The only remaining laws of this session, deserving notice, are two, remarkable for their attention to what may be called the do- mestic policy of the province. One, entitled, "an order for the relief of the poor," and another, entitled, "an act concerning the registering of births, marriages, and burials." In respect to the former, it has been observed by a learned annalist,* that this order was "the first notice that any such existed" within the province. Europeans still continue in the delusion, that no one can possibly starve in this land of promise. Alas! every landholder in Ma-

* Chalmer's Annals, p. 221.

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ryland at this day can testify, that England is not the only coun- CHAP. V. try in the world, where the relief of the poor becomes the bur- 1650. then of the rich, or the support of the idle vagabond is the op- pression of the industrious citizen. As to the latter act; as long as civil society consists of an aggregation of families, and property is allowed to be descendible, such a law is essentially necessary ; and it must be always of political importance to rulers to be apprised of the increase or decrease of the population over whom they rule. But our statesmen of Maryland, at this day, think these subjects below the dignity of a republican legisla- ture.

After this last session of assembly, the affairs of the province The go- seem to have subsided into apparent peace and quiet. The vernor Puritans of Providence appear to have acquiesced in and sub- vidence e visits Pro- mitted to the proprietary government at St. Mary's. Our docu- ises it into and organ- ments do not furnish us with any material occurrence within the a county province for several months until the governor's visitation in July Arundel. called Ann of this year to the settlement at Province for the purpose of or- ganizing it into a county. The reader will observe, that there were now three distinct settlements formed within the province at some distance from each other. The inhabitants of St. Mary's county forming the principal part of the population of the pro- vince, retained with themselves the seat government. Those of the isle of Kent, though prior in time, yet being fewer in num- ber, had been organized, some years before this, into a separate county, under the special superintendance of an officer, called a commander. It is not easy at this day to define with exactness the extent of the powers of this officer. He appears to have been somewhat in the nature of a deputy to the governor of the province, on account of the insular and detached situation of the inhabitants of that part of the province, and to have been invest- ed by the tenor of his commission with all the governor's mili- tary as well as civil powers, as to that particular county, though subordinate to the superior powers and appellate jurisdiction of the governor and council at St. Mary's. This will be more par- ticularly understood from the commission to Mr. Robert Vau- ghan, to be commander of the isle of Kent, as herein before stated .* A similar commission was now issued by the governor, while on his visit at Providence, directed " to Mr. Edward Lloyd, gent.," appointing him "to be commander of Ann Arundel

* See before, pp. 304, 305.

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CHAP. V. county, until the lord proprietary should signify to the contrary," 1650. and to Mr. James Homewood, Mr. Thomas Meares, Mr. Tho- mas Marsh, Mr. George Puddington,* Mr. Matthew Hawkins, Mr. James Merryman, and Mr. Henry Catlyn,t "to be commis- sionerst of the said county with yourself,§ for granting warrants and commissions, and for all other matters of judicature, with · whom you are to consult in all matters of importance concern- ing your said county ; and you are to call and appoint courts to be kept within and for the said county ; in which courts you the said commander, or your deputy, (being one of the said com- missioners,) with any three or more of the said commissioners there present, from time to time are to hold pleas, and finally to determine all causes and actions whatsoever civil, happening or arising between any of the inhabitants of the said county, of what value soever, saving and reserving to all and every the in- habitants of the said county and others liberty of appeal from the said county court to the provincial court in any civil cause or action to the value of £20 sterling or 2000 lb. tobacco, and up- wards, the party so appealing first putting in sufficient security to the said county court to be answerable for treble damages in case the order or judgment of the said county court, made in that cause, shall happen to be confirmed upon hearing by the provincial court ; and also to hear and determine all matters criminal happening and committed in the said county, which may be heard by justices of the peace in any county in England in their courts of session, not extending to life or member ; and further to do, use, and execute all manner of jurisdiction and authority whatsoever for the conservation of the peace within the said county, as any justice of the peace in England may or ought to do, by virtue of his commission for the peace ; further likewise authorising you the said commander, or your said depu-

* Mr. Puddington had been one of the burgesses or delegates at the last ses- sion of assembly.

t The names of these gentlemen are here stated, principally with a view of gratifying the reader, who may be a native of the province, in his curiosity to know the names of those persons, who were, as may be inferred from the above commission, the principal men among the Puritans who first settled on the Severn, and from whom many respectable families in this state now deduce their descent.

# In all commissions in the provincial records, similar to the above, the word, commissioners-means justices of the peace.

§ That is, with Mr. Edward Lloyd, to whom the commission was directed, as above.

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ty, to elect and appoint all necessary officers for the execution of CHAP. V. justice and conservation of the peace there, with allowance of 1650. such fees as are usually belonging to the same or the like officers in Virginia ; and to do all other things and acts, which shall be necessary for the execution of the powers and jurisdiction here- by committed unto you. Given at Providence this 30th day of July, 1650 .- William Stone."*

As lord Baltimore's regulations of his land affairs within the The com- province are, on some occasions, necessarily connected with the manders of political history of the province, it will be proper to mention Kent and the isle of here, that governor Stone, while he was now at Providence on the del to grant

Ann Arun- Severn on the 29th of July, the day preceding the date of the fore- warrants going commission, issued two several commissions, one to each of therein. .for land the commanders of the isle of Kent and Ann Arundel, respectively, authorising them, each in their respective counties, "to grant warrants for land within the said county to any adventurers or planters according to his lordship's conditions of plantation, whereupon such land shall happen to be due to such adventurers or planters respectively, they the said commanders causing the said warrants together with the particular demands or assign- ments upon which the same shall be granted, to be entered upon record by his lordship's secretary of the said province."t The neglect of these commanders in performing the duties assigned to them by these two last mentioned commissions, relative to the grants of land, subsequently occasioned some uneasiness to the proprietary government, as will be seen in its proper place.

Before we close our narration of the historical events of Ma- King ryland for the present year, (1650,) some mention must be made, of the displeasure which the permission of the governor of Ma- appoints a ryland to the Puritans, who had been expelled from Virginia by vernor of new go- Sir William Berkeley, to form a settlement within the province Maryland. of Maryland, had given to the young king Charles the second. As lord Baltimore had instructed those, who administered his government in Maryland, to grant a general toleration to all sects of religion whatever, as has been herein before stated, part of this royal displeasure must have been directed against lord Baltimore himself. It seems to have been expressly granted to his lordship, by his charter from Charles the first, that he (lord

Charles the second

* " Council Proceedings from 1636 to 1657," p. 283.

t See a copy of one of these commissions, (viz. that to captain Vaughan, ) in Kilty's Landholder's Assistant, p. 75.

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The history of Maryland : from its first settlement, in 1633, to the restoration, in 1660 ; with a copious introduction, and notes and illustrations, Part 79

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

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