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 95
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549
HISTORY OF MARYLAND.
In this divided and distracted state the province appears CHAPT. to have been, when captain Fuller and his council thought it VI proper to convene another assembly. They met, agreeably to 1657. Another their summons as we may presume, on the 24th of September, Puritan as- 1657, at Patuxent. The lower house appears to have consisted sembly is of only ten members, including captain Richard Ewens the meets. called, and speaker. We notice also the name of captain Robert Vaughan among the members ; which seems to be an additional confirma- tion of what we have just supposed, that the government of the isle of Kent acted in unison with or subordination to that on the Severn, and that Mr. Vaughan might now sit as a member for the isle of Kent county, as he had formerly done at St. Mary's under the proprietary government .* As the names of neither the governor-captain Fuller nor of any of his council, except captain Ewens, the speaker, do not appear in the list of the members of this session, it is possible, that they might have sat as an upper house.t We have no journal of their debates or proceedings, but only copies of the laws enacted by them at this session. The first legislative act done by them was a confirma- tion of the "act of recognition," passed at the preceding ses- sion of assembly, held by the Puritans in October, 1654. Some acts of that same session, of no great moment, were now re- pealed by them. It was necessary also to provide for the ex- penses of their government ; which they did under the denomi- nation of "public charges;" but by a species of taxation not very popular in modern times-a poll tax. The act was as follows :-
" It is ordered, enacted, and declared, in the name of his high- ness the lord protector of England, and by the authority of this present general assembly, that all public charges of this province shall this present year be levied upon all persons taxable per
* By one of the acts of this session, Poplar island, lying contiguous to the eastern shore and south of and within a mile or two of Kent point, was made a part of the isle of Kent county. From which it may be inferred, that this small island, containing about seven or eight hundred acres, was then settled and in- habited.
t See the names of captain Fuller's council, before, p. 505. In this early pe- riod of our history, and amidst the civil disturbances of these times, it is a mat- ter of some interest, especially to the posterity of the present day, to know what side their ancestors took in these provincial contests. The names of this assem- bly, as they are on the record, are as follows :- captain Richard Ewens, speaker ; captain Robert Vaughan ;- captain Robert Sley ;- captain Joseph Weeks ;- Mr. Robert Taylor ;- captain Thomas Beston ;- Mr. Peter Sharpe ;- captain Phil. Morgan ;- Mr. Michael Brooks ;- and Mr. James Johnson."
550
HISTORY OF MARYLAND.
CHAPT. poll; and all men servants, that are or shall be brought into this VI. province for the future, of what age soever they be, shall be 1657. taxable per poll as aforesaid."
It is to be presumed, that the "men servants," herein men- tioned, were not negro slaves, but white servants imported into the province under indentures for a temporary servitude; and, as would appear to be reasonable, that the servants themselves did not pay this tax, but their owners. In this way, the tax would be, in a small degree, a tax upon property. Poll taxes, how- ever, were not thought in those times so highly objectionable, as since the American revolution. It was the mode of raising pub- lic revenue then generally used in our sister colony of Virginia; from whom Maryland has always been accustomed to borrow both good and bad habits .* By another act of this assembly, "it was agreed and assented unto, that all necessary charges, that were occasioned by the disturbance of captain Josias Fendall, should be paid and discharged by a public levy on the province." This last mentioned act, together with an "order" of this same assembly, "for payment of all just demands for killing wolves in St. Mary's county," seem to indicate that governor Fendall's revolt, from the Puritan authority over the province, had not been quite successful even in St. Mary's county, but that this assembly exercised their sovereignty over that part of the pro- vince as well as the rest of it.
The Puritan government at Providence on the Severn hav- ing, in virtue of their executive or judicial power,t issued an order, soon after the battle in 1655, for the sequestration of the estates of such delinquents, as resided on Patuxent, Patowmack, and in St. Mary's, that is, of those of the proprietary party there;} which order not having been honestly executed, as it
* The public levy laid by the assembly of Virginia, which sat in November 1654, at James city, was a poll tax, to be levied on all the titheables of the seve- ral counties therein mentioned, at 26 lb. of tobacco per poll. Burk's Hist. Virg. vol. ii. p. 101. The Maryland poll tax was fixed, by our above mentioned as- sembly of 1657, at 32 lb. of tobacco per poll.
t This peculiarity in our proprietary government, and indeed in most of the English colonial governments, has been herein before noticed; to wit, that the governor and council of the province possessed threefold powers, and therefore acted occasionally as the executive branch of the government, or as a branch of the legislature, or in a judicial capacity; in the last instance constituting the provincial court. Captain Fuller and his council seem to have continued the same mode of government, except, perhaps, that it does not appear to be quite certain, that they ever sat as an upper house of the legislature.
Į See before, p. 529.
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HISTORY OF MARYLAND.
would appear, this assembly, of 1657, now appointed a stand- CHAPT. ing committee of three of their members, to wit, captain Richard VI Ewens, captain Thomas Beston, and captain Joseph Weeks, who 1657. were to continue to sit after the session ; with power "to question and call to accompt any person whatsoever in the province, that had received or disposed of all or any part of the fines amerced upon any of the disturbers of the publick peace of the inhabitants of this province in the last engagement ; and that all the sheriff's, in their respective places and counties within this province as aforesaid, are likewise required by virtue of this order, to give and deliver a just accompt to the aforesaid committee of all and every part of the aforesaid fines* by them received, or to whom they were paid, or by whom they were disposed; which foresaid ac- compt to be made and given to the foresaid committee, or any one of them, by the first of January next; and it is further or- dered, by the authority aforesaid, that the said committee are required, in the speedy dispatch of their charge and trust com- mitted unto them as aforesaid, faithfully to declare and make manifest all and every thing, that shall be in their own knowledge, or that shall be delivered or declared unto them, and return a just and full accompt and report thereof unto Mr. Michael Brooke or Mr. Peter Sharpe, before the provincial court to be holden at Patuxent in March next, which foresaid report is there to be presented to the provincial court as aforesaid, to their consideration in the premises as far as may tend to the public good, that they may receive further satisfaction therein."}
When this assembly adjourned, or rose from their session, we
* The word-fines, here used, is to be understood as synonimous to ransom or composition. To make fine and ransom for any offence amounting to a breach of the peace is an old law phrase. See Litt. sect. 194, and Coke's comment there- on. Also Cunningh. Law Dict. verb. Finem facere. There was, at common law, an ancient writ, entitled, Fine capiendo pro terris, &c., "lying for one that, upon conviction by a jury, having his lands and goods taken into the king's hands, and his body committed to prison, obtaineth favour for a sum of money, &c., to be discharged from his imprisonment, and his lands and goods to be re- delivered unto him." Ibid. The above proceedings, against our Maryland de- linquents, seem to have been founded on these principles. The purport of the order of 1655, to which these fines evidently had relation, was, not to forfeit the real estates of the delinquents, but to sequester the profits arising from them, un- til composition was made by the offenders ; and, in the receipt of this composi- tion money, some frauds appear to have been practised, as may be inferred from the above order of the assembly.
t The foregoing extracts from the acts and orders of the Puritan assembly, of September, 1657, were taken from the book in the council chamber, entitled, "Assembly Proceedings from 1637 to 1658," p. 465.
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HISTORY OF MARYLAND.
CHAPT. are not informed; nor have we any further information of any VI. transactions relative to the province during the remainder of the 1657. year, except those which had in the intermediate time taken place in England.
The agree- ment be- tween lord Baltimore and the agents, Bennett and Mat- thews
The before mentioned report of the committee for trade, of the 16th of September, 1656, being in a great degree decisive of the dispute between lord Baltimore and the Puritan agents, Bennett and Matthews, (wanting only the confirmation of the lord pro- tector,) and purporting in substance, as may be fairly inferred, that lord Baltimore should be reinstated again in the government of his province, though perhaps under certain restrictions, con- ditions, or limitations therein expressed, these agents began to perceive, from the inattention and indifference of the lord pro- tector about the business, or, as stated in the record, "by reason of his great affairs, not having leisure to consider of the said report," that his final decision, if ever made, would in all probability be a confirmation of the said report. Under this im- pression, they seem to have been now softened into a disposition for accommodation of the controversy on friendly terms with the lord proprietary. It will be recollected, that Mr. Edward Digges had been sent to England, auring the preceding year, by the as- sembly of Virginia, as an additional agent, with Bennett and Matthews, for the management of the affairs of that province in England. In the special instructions of this assembly to Mr. Digges, they directed him, "to get address to his royal highness the lord protector, and to assure his highness, that, according to his letter, they had not interested themselves in the business betwixt Maryland -*- , and had been unconcerned in their quarrel from the beginning until this time, and so should continue according to his highness's direction in that letter." Mr. Digges, on his ar- rival in England, most probably retained in remembrance this important sentiment of the assembly. It is possible also, that he might, from other causes not now known, have entertained a personal friendship for lord Baltimore .; However that mighthave
* Meaning, " betwixt Maryland" and the Puritans settled at Providence on the Severn. It would appear from this, and the exclusive application from the term Marylanders to the inhabitants of St. Mary's county at the time of the battle on the Severn, as before mentioned, and from other circumstances, that the Puritans on the Severn did not acknowledge themselves as being within lord Baltimore's province of Maryland, but as being either a part of Virginia or a distinct colony by themselves.
t The families of Calvert and Digges were subsequently allied by intermar- riages; but they do not appear to have been so at this time.
b
553
HISTORY OF MARYLAND.
been, it is certain, that Mr. Digges, after his arrival in England, CHAPT. which must have been in the spring of 1657, interested himself. VI. much in favour of an accommodation with lord Baltimore. This 1657. circumstance is acknowledged with some emphasis in the body of the agreement itself, as will presently be seen. All things in England now looking unfavorably for the cause of the Puritans of Maryland, especially as Cromwell had been just offered both the crown and title of king of England, which he reluctantly re- jected, but had re-accepted that of protector with many additional powers and prerogatives, and from thenceforth paid much court to the old nobility of England, establishing anew the house of lords as a branch of the legislature, Mr. Bennett, who appears to have been a zealous Puritan and a faithful servant of those in Maryland, was under a necessity of making the best terms he could with lord Baltimore. His lordship, in prudence also, adopted a similar disposition. Accordingly, on the 30th of November, 1657, without doubt after many interviews and dis- cussions on the subject, an agreement was entered into and signed by lord Baltimore and the aforesaid agents, Bennett and Mat- thews ; of which the following is a copy.
"Articles of agreement between the lord proprietary of this province and Richard Bennett, esqr., which are as followeth, viz.
"Whereas there have bin of late, viz. in the year 1652, and since, some controversies between the right honorable Cecilius Lord Baltimore lord and proprietary of the province of Mary- land and Richard Bennett, esqr., and other people in Maryland nowe or late in opposition to his lordship's government of the said province upon which have unhappily followed much blood- shed and great distempers there, endangering the utter ruine of that plantation if not timely prevented, and whereas upon com- plaint made thereof by the said lord Baltimore the matter was by his highness the lord protector referred first to the lords com- missioners, Witlocke and Widdrington, whose report thereof was afterwards referred by the councell to the commissioners for trade, who made their report also thereupon to his highness and coun- cell, but they by reason of their great affaires having not as yett leisure to consider of the said report, the same remains yett un- determined, and in the mean time the inhabitants of the said province remaine in a very sad distracted and unsettled condi- tion by reason of the said differences touching the said govern-
VOL. II .- 70
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554
HISTORY OF MARYLAND.
CHAPT. ment there, therefore the said lord Baltimore, upon a treaty with VI. the said Richard Bennett and colonel Samuel Matthews, occa- 1657. sioned by the friendly endeavours of Edward Digges, esqr., about the composure of the said differences, and in pursuance of the said report of the said committee for trade, dated 16th of September, 1656, hath for the good of the inhabitants of the said province condescended and is willing to do as followeth, viz., in case the said people in opposition to his lordship's go- vernment there as aforesaid, shall forthwith, upon notice hereof, from his lordship's governor or secretary there, for the time being, cease and forbeare for the future, from executing any act or power pertaining to government and administration of justice within the said province, and shall deliver up to his lordship's said go- vernor or secretary aforesaid, all records of the said province- now in their power, and also his lordship's former great seale of the said province, if it be found or procured by them, and shall for the future give all due obedience and submission to his lord- ship's government there, according to his pattent of the said pro- vince, that then his lordship doth promise :
" Imprimis, that no offences or differences, which have arisen in Maryland upon and since the said controversies there, shall be questioned by his lordship's jurisdiction there in the said pro- vince, but shall be left to be determined by such ways and means as his highness and the councell shall direct.
"2. Item, that the said people in opposition as aforesaid shall have patents from his lordship for such lands in the said province as they can claime due unto them by his said lordship's condi- tions of plantation, and in the same manner and with all the same rights as they might have had if the said controversies and differences had not happened, any former order, instructions, proclamations or any other thing proceeding from the said lord Baltemore, or any deriving any authority from him to the con- trary hereof in any wise notwithstanding, provided that they and every of them respectively who shall desire the same, doe sue out their said patents for the said lands, within nine months after notice hereof given them by his lordship's said governor or secretary there for the time being, and that before they have theyr pattents they take the oath of fidelity there to his said lord- ship with such alteration in it as is mentioned in the said report of the committee for trade, and shall pay or satisfy his said lord- ship's receiver generall there for his lordship's use, all arrears of
555
HISTORY OF MARYLAND.
rent due to his said lordship from the time they first entered upon CHAPT. the said lands respectively, and due fees to his said lordship's VI.
secretary, surveyor, and other officers there as other inhabitants 1657.
ought to doe, and according to his said lordship's conditions of plantation for the said province.
"3. Item, that such of the said people in opposition as afore- said, who shall desire to remove themselves or estate from Mary- land, shall have free leave and a year's time so to doe.
"4. Lastly, the lord Baltemore doth promise, that he will never give his assent to the repeal of a law, established heretofore in Maryland by his lordship's consent, and mentioned in the said report of the committe for trade, whereby all persons, professing to believe in Jesus Christ, have freedom of conscience there,* and doth faithfully promise upon his honour to observe and performe as much as in him lies the particulars above mentioned ; and his lordship doth hereby authorise and require his lordship's go- vernor and all other his lordship's officers there to give assurance to the people of their due performance hereof. In witness whereof, the said lord Baltemore hath hereunto sett his hand and seale the 30th day of November, 1657.
C. BALTEMORE. SAMUEL MATTHEWS.
"Signed, sealed, in the presence of Edward Diggs, John Harris, Richard Chandler, A. Stanford, William Barrett.
"This is the paper which was mentioned in my letter to cap- tain William Fuller and being of the same date with this.
RI: BENNETT."} :
The signature of Mr. Bennett, as above, is exactly as it now appears on the record. Although it does not seem to have been strictly in legal form as a party to the instrument of agreement, yet, as his name is mentioned in the body of the instrument of writing as a party to the same, we must suppose, that his mode of signature was then deemed sufficient. It appears from thence, however, that immediately on the execution thereof, on the same day, he dispatched a letter to captain Fuller, the Puritan gover- nor of Maryland, apprising him of these proceedings. Gover- nor Fendall also, who was now in England, must have soon
* This alludes to the act of assembly of 1649, ch. 1, entitled "an act concern- ing religion," herein before stated.
t Taken from the book in the council chamber, entitled, "Council, &c. HH 1656 to 1668," p. 10.
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HISTORY OF MARYLAND.
CHAPT. afterwards embarked for Maryland; taking with him, not only VI: an authenticated copy of this important agreement, but also spe- 1657. cial instructions from the lord proprietary to be observed in fu- ture by his governor and council in Maryland. These instruc- tions bear date the twentieth day of November, 1657, ten days prior to the date of the agreement herein just before stated ; and that no error in this respect has here occurred by the inattention of the transcribers of those instruments into our records or other- wise, may be fairly inferred from the remarkable circumstance, that these instructions make no mention of or reference to the agreement ; which they would necessarily have done, had they not been drawn up and delivered to governor Fendall prior to that agreement, as their date purports. If such was the case, it seems to indicate, that his lordship now entertained a thorough conviction, that his proprietary authority would be speedily and peaceably restored to him.
In these instructions his lordship authorises his lieutenant of the province for the time being to discharge any one of his coun- cil there, who should desire the same; and moreover, with the approbation of any three of the council, of whom his brother Philip Calvert was to be one, to discharge any one from being a councillor, who should refuse to act as such or give attendance at the provincial courts without good excuse.
Lord Bal- timore's instruc- Also, after stating that he had now sent to the province a new great seal by captain Josias Fendall, his lieutenant there, to whom tions to his the custody thereof was now committed as keeper of the great for the time seal, his lordship authorises him to pass grants or patents of lands, governor being. as heretofore used, to any persons whatsoever who should be en- titled thereto under his lordship's conditions of plantation ; al- though such grantee did not make his claim thereof in due time or had since forfeited his right to the same ; which grants or pat- ents were to be attested by his lordship's secretary, Mr. Philip Calvert, before they should be deemed valid; provided always, that such grantee or patentee do take the oath of fidelity to his lordship and his heirs, mentioned in his last conditions of plan- tation for the province,* with such alteration in the said oath as was agreed unto by his lordship, and directed in the report of the committee for trade, dated the 16th of September, 1656 ; a
* The Conditions of Plantation, here referred to, appear to be either those of the twentieth of August, 1648, which see in note (LXIX. ) or those of the second of July, 1649, (see before, p. 375,) both to the same purport as to the oath of fidelity.
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557
HISTORY OF MARYLAND.
copy of which report his lordship had before sent to the province CHAPT. together with his instructions of the 23d of October, 1656 .* To VI. 1657. this same clause in these instructions his lordship thought it pro- per to annex two other provisoes ; the first of which, being of some political importance, may be here stated :- viz., " Provided also, that such person or persons, who had acted or abetted any thing against his lordship's lawful right and jurisdiction in this province, do make and subscribe in the presence of his lordship's lieutenant and principal secretary of the said province for the time being, or one of them, a submission, of the forme hereunto annexed, to remaine on record here, or such other submission as his lordship's lieutenant and secretary, or either of them, in the absence of the other out of the said province, shall think fit, be- fore any such grant or patent of any land in the province be passed under his lordship's great seal unto them respectively as aforesaid."{ This form of submission was subsequently confirm- ed by the agreement of the 20th of March following, and fur- ther confirmed by an act of the next session of assembly, (April, 1658,) and substituted in lieu of any oath of fidelity be- fore mentioned.
The third clause related to a private grant of ten thousand acres of land to Edward Eltonhead, esqr .; which, although it is expressed to have been "upon certain terms and conditions of a certain number of persons to be transported by the said Edward Eltonhead within a certain time," yet, it is probable, that this Mr. Edward Eltonhead was a near relative (possibly the son) of Mr. William Eltonhead, who had been shot by the Puritans of Severn after the battle of 1655, as before stated, and that his lordship might have been more particularly anxious to reward him on that account.
The fifth clause authorised the grants of lands to foreigners in the same manner as if they had been of British or Irish de- scent.
The sixth and last clause seems to indicate some little distrust entertained by his lordship, of the fidelity of his present lieuten- ant or governor of his province, Fendall. It states, that, where- as his lordship had authorised, in these instructions, his lieuten-
* See before, p. 541-2, and note (LXXXIX.); but as these instructions, as before stated, are not now entire upon our records, the "alteration" alluded to does not appear.
+ The reader will see this form of submission, with the instructions, presently referred to.
558
HISTORY OF MARYLAND.
CHAPT. ant to act and do several things with the advice and approbation VI. of his lordship's brother Philip Calvert, esqr., he herein provides, 1657. that in case the said Philip Calvert should die, or by absence out of the province or otherwise should be disappointed of act- ing there, the said Josias Fendall, or any other his lieutenant of the said province for the time being, should act and do the same things with the advice and approbation of captain Thomas Corn- waleys, esqr., in lieu and stead of the said Philip Calvert, esqr. The reader will greet with pleasure the return of this venerable old primitive settler of the province upon the stage of our provin- cial affairs. He had often before stept forth in the hour of danger, and by his prowess and his prudence rescued our infant colony from the brink of ruin. From a similar motive, he now without doubt again came forward, to tender his services to his noble friend, the proprietary of the province .*
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