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 98
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To establish fairs and markets.
Power of pardon ex- cept for high treason.
Governor to be keeper of the great seal.
To make grants of lands.
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gent : to be of our council of and within our said province, with whom our said Thomas lieutenant shall from time to time advise, as he shall see cause, upon all occa- Cornwaleys, and John
sions concerning the good of our said province and of the people there ; And Lewger, we do hereby give and grant full power and lawful authority unto him our said appointed lieutenant to inquire and determine, and finally to judge of and upon all causes councillers. criminal whatsoever, of what nature, kind, quality, degree, or condition soever The governor to be the the same shall be, which may - or arise within our said province, as fully judge of cri- and absolutely as if we ourself were personally present, to give sentence or minal causes. judgment in or upon the same, (excepting only where the life or member of any person shall or may be inquired of or determined,) and to award execution upon every such sentence or judgment; and also to hear and determine all civil To hear and causes, actions, suits, and demands both in law and equity - concerning civil causes. determine any goods, chattels, contracts, debts, demands, or other personal or mixt action or actions, suit or suits whatsoever, in the most summary and equal way that he may, according to the orders, laws, and statutes of that our said province already made and established, or hereafter to be made or established, and in de- fault of such laws established or to be established within our said province, then according to the laws and statutes of the realm of England, as near as he may or can - and determine thereof, and where the life, member, or freehold of any person or persons shall happen to come into question within our said pro- vince we do hereby give and grant to him our said lieutenant or* to such per- sons as we shall from time to time by our letters or any other warrant under our Where the hand and seal nominate and appoint to be of our council within the said pro-life, member, vince, or to any three of them, whereof our said lieutenant always to be one, come in or freehold full power and authority to inquire and determine thereof according to the laws question, the of our said province established or to be established, and finally to give sentence council to in- governor and and judgment thereupon, and to award execution accordingly, and we do here- quire and de- by for the better executing of the premises, and preservation of the records of termine. all proceedings in the premises, appoint, constitute, and ordain the said John John Lewger Lewger, as well to be our secretary and keeper of the acts and proceedings of appointed se- our lieutenant and council for the time being, and for the doing and recording province. cretary of the of all grants by us and our heirs to be made of any lands or offices within our And register said province, and of all matters and acts which by any instructions, laws, or of the land ordinances made or given, or to be made or given for or concerning our said office. province, shall or ought by the appointment of us and our heirs, or by the ap- pointment of our lieutenant or other chief governor for the time being, or other- wise to be recorded, as also our collector and receiver of all our rents, profits, Also collec- and customs from time to time to be due or payable within the said province. customs and tor of the And lastly, whereas our said lieutenant may [happen to die, or] hereafter, by receiver of absence out of our said province, not attend the said charge and trust hereby in rents. the quit- him by us reposed, We do hereby give and grant unto him our said lieutenant Power to the full power and authority from time to time, in such cases of absence, [or death ] governor to to nominate, elect, and appoint such an able person inhabiting and residing puty in case appoint a de- within our said province, as he in his discretion shall make choice of and think of his own fit to be our lieutenant general, admiral, chief captain and commander, as well absence. by sea as land of our said province, [in as large and ample manner as we have by these presents authorized him our said lieutenant to govern for the present ; And in case our said lieutenant shall happen to die or be absent out of our said province of Maryland, and shall fail to make choice of, nominate, and appoint some person to be our lieutenant general, admiral, and chief captain and com- mander of our said province, as aforesaid,]t We do hereby give and grant to.
* Quere, if the word "or" here should not be "and." In the like paragraph in the commission of 1642, it is so expressed, and the sense seems to indicate, that it was so in the original.
tThe preceding words, inserted between brackets, are not in this commission, as it now stands. recorded, but, as the sense without them would be evidently imperfect, and a clause, to the same:
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our councillors there for the time being, or the greater part of them, full power and authority from time to time in every such case, to nominate, elect, and ap- point such an able person inhabiting within our said province, as they or the greater part of them shall make choice of and think fit to be our lieutenant ge- neral, admiral, chief captain and commander as well by sea as by land of our said province and of the islands to the same belonging, which person to be cho- sen and appointed in either of the cases aforesaid,* We do hereby declare shall be our lieutenant general, admiral, chief captain and commander during the ab- sence of our said brother our present lieutenant, or until we or our heirs shall constitute and appoint another lieutenant or governor of our said province, or otherwise determine the same, to which lieutenant general, admiral, chief cap- tain and commander to be elected, nominated and appointed as aforesaid, we do hereby give and grant the like power and authority in all causes and things as we have by these presents given and granted unto our said brother, willing and commanding all our council, captains, soldiers, officers, ministers and people of our said province and all others whom it may concern to be obedient unto him in all things, matters, and causes as we have herein and by these presents com- manded them to be obedient unto our said brother our present lieutenant gene- ral, admiral, chief captain and commander upon pain of such punishment to be inflicted upon them and every of them as such a high contempt shall deserve. Given under our hand and seal at London in the realm of England the fifteenth day of April in the year of our Lord God one thousand six hundred and thirty- seven.
Signed LEWGER.
LOCUS MAGNI X Sigilli.
Endorsement .- These are to authorize you to put our great seal for the province of Maryland to this our commission for the government there-15th of April, 1637.
To our secretary for the province of Maryland.
Signed C. BALTIMORE.
NOTE (VII.) p. 56.
This right of originating or propounding laws, as exercised in the English house of commons, is alleged by De Lolme, to be peculiar to the English consti- tution. (See his treatise thereon, B. 11. ch. 4.) "In most of the ancient free states," he adds, "the share of the people, in the business of legislation, was to approve or reject the propositions which were made to them, and to give the final sanction to the laws. The function of those persons, or in general those bodies, who were intrusted with the executive power, was to prepare and frame the laws, and then to propose them to the people : and in a word, they possessed that branch of the legislative power which may be called the initiative, that is, the prerogative of putting that power in action." In a note to the preceding passage the author seems to explain his remarks therein, as being principally in allusion to the mode of legislation practised by the Roman republic ; wherein all laws originated in the senate before they could be proposed to the comitia of the people for their assent. This seems, indeed, to have been the necessary result
purpose and nearly in the same words, is in the commission of 1642, (which will be exhibited in a subsequent part of this work under its proper date,) the preceding words in brackets, taken from the last mentioned commission, are here inserted, to render the above clause more intelligible.
* This alternative expression might possibly be referred either to the two cases of absence or death, or to the two modes of appointment, either by the lieutenant general or by the council ; but the whole purview of the clause appears to indicate a reference to the two "cases" of ab- sence or death, rather than the two modes of appointment; and therefore justifies the preceding insertion in brackets.
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of the want of the principle of representation, confessedly the modern invention of the English. When all the citizens were to assemble, each in his individual capacity, to give his assent to a law, as they were both at Athens and at Rome, in the times of their republics, it became impossible to indulge every man in this right of propounding his own scheme of a law. The Athenian and Roman senates, therefore, exercised the power of propounding the laws, which the people were either to affirm or reject.
Most of the modern republics also, (according to this ingenious writer,) are or were deficient in this great popular privilege. At Venice the Senate, (which was composed of a choice few of the nobles,) exercised the exclusive power of proposing the laws to be enacted by the grand council or assembly of the nobles. In the Canton of Berne, all propositions must be discussed in the little council, which is composed of twenty-seven members, before they are laid before the council of the two hundred, in whom resides the sovereignty of the whole Can- ton. And in Geneva, the law is, (according to De Lolme,) "that nothing shall be treated in the general council or assembly of the citizens, which has not been previously treated and approved in the council of the two hundred ; and that nothing shall be treated in the two hundred, which has not been previously treated and approved in the "council of the twenty-five." (See also Coxe's Travels, or Letters on Switzerland, Lett. 64.)
Although the monarchical republic of England may thus proudly boast of a pre- eminence in establishing and cherishing, in the popular branch of its constitu- tion, this most essential principle of political liberty, beyond that of all other republics, ancient or modern, yet it appears, that at some unfavourable periods of her history, she exhibited some symptoms of desire to exclude it from her colonial system of government. A great portion of Ireland might, without doubt, be considered as a colony of England. The original natives of Ireland, prior to the conquest of that country by the English, were in a state of perfect barbarism ; and knew no more of the institutions of a free government, than the Indian tribes of America, living like them in clans or bands under the arbitrary and tyrannic sway of some one chieftain ; who had the power of life and death, according to his own will. After the conquest, and as soon as the English had colonized all Leinster and the greatest part of Munster, (forming a portion of the island commonly termed the English Pale,) the government of England, in whom the supremacy of Ireland became vested, constituted parliaments therein, as a natural concomitant with their colonists. To be governed by the laws of a parliament, and to renounce their barbarous Brehon laws, was considered by the native Irish as a grievous calamity. The English colonists there also, in process of time, began to experience some oppression and inconvenience resulting from the frequeney of parliaments unnecessarily called by some of the lords lieuten- ants. To throw difficulties in the way of calling a parliament, as also to limit the power of an Irish governor or lord lieutenant, they obtained, in the reign of Henry the seventh, an Irish statute, made by their own parliament, (10 Hen. 7th, commonly called sir Edward Poyning's law,) which was enacted, (as the statute itself expresses,) "at the request of the commons of the land of Ireland," by which, " No parliament was to be holden thereafter in the said land, but at such seasons as the king's lieutenant and council there first do certify the king under the great seal of that land, the causes and considerations and all such acts, as them seemeth should pass in the same parliament, and such causes, considera- tions, and acts, affirmed by the king and his council," (in England) "and his license thereupon, as well in affirmation of the said causes and acts, as to summon the said parliament had and obtained. (See Leland's Hist. of Ireland, vol. 2, p. 108, and the Appendix thereto, and 4 Inst. 352.) It is true some differences took place between the Irish house of peers and the lord lieutenant of that king-
VOL. II .- 73
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dom, about the time of the first emigration to Maryland, (1634,) relative to a conjoint right, which the Irish peers claimed, of originating laws to be "certified" to the king of England, for his approbation, with the lord lieutenant and his privy council. (See Leland's Hist. of Ireland, vol. 3, p. 20.) But in either event of this question in Ireland, the royal prerogative of first assenting to any proposed bills, before they could be propounded to the immediate representatives of the people, the Irish house of commons, seemed to afford sufficient analogy to authorise lord Baltimore, (being an Irish peer, and claiming palatinate regalia over his province of Maryland,) in contending for the like prerogative of initiat- ing and propounding the laws to be enacted by his provincial assembly in Mary- land. The mode of legislation prescribed by the first and second charters of Virginia, for that colony, seems also to have afforded a precedent for his lordship's construction of his prerogative. By those instruments of grant, the powers of both originating and enacting laws for the government of Virginia, were exclu- sively vested in the king and his council of Virginia in England. It is true, that in the year 1620, (when the first legislative assembly of Virginia is said to have been holden,) they appear to have originated certain laws, which they transmit- ted to the treasurer and company of England for their assent ; and probably ever afterwards continued to exercise that right. The primitive colonial policy in England, however, was at least to originate all laws, if not to legislate entirely for the colonies. Nor has lord Baltimore been singular in these ideas of his powers. In the year 1678, a new system of legislation was adopted for the island of Jamaica, founded nearly on the model of the Irish constitution under Poy- ning's act ; and the earl of Carlisle was appointed chief governor for the purpose of enforcing it. A body of laws was prepared by the privy council of England ; which his lordship was directed to offer to the assembly, requiring them to adopt the whole code, without amendment or alteration. In future the heads of alk bills (money bills excepted) were to be suggested in the first instance by the governor and council, and transmitted to his majesty to be approved or rejected at home ; on obtaining the royal confirmation, they were to be returned under the great seal in the shape of laws, and passed by the general assembly; which was to be convened for no other purpose than that, and the business of voting the usual supplies ; unless in consequence of special orders from England. On his lordship's arrival in Jamaica he called an assembly and propounded to them the laws, according to his instructions ; but they were rejected by the assembly ; not so much, as it appears, from any special objections to the particular laws themselves, as generally to manifest their indignation at this colonial mode of legislation. The assembly persisting with perseverance in their rejection of any laws thus made, and the governor reporting their proceedings to the king and council in England, it appears to have occupied the attention of "the committee of trade and plantations" for several years ; but, after referring the subject to the opinions of the attorney and solicitor-general, who, on account of its difficulty, advised a reference of it to all the judges of England, it was finally, in the year 1680, abandoned, and the assembly left to enjoy their former method of legisla- tion. (See Edwards's Hist. of the West Indies, vol. 1, p. 186, and the Hist. Account in the appendix thereto.)
It deserves remark, that the form of government framed by the justly celebra- ted Mr. Locke for Carolina, in the year 1671, provided, "that no matter should be proposed in parliament," (that is, in the assembly consisting "of all the pro- prietors, the landgraves, the casiques, and one commoner from each precinct sitting in one room, each man having one vote,) "that had not previously been prepared and passed by the grand council;" in whom the executive power was placed. (See Williamson's Hist. of North Carolina, vol. 1, p. 108-9.)
William Penn also, whose character has been assimilated to that of Lycurgus,
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the celebrated Spartan lawgiver, prescribed in his first frame of government for his Pennsylvania colonists, in 1682,-"That the governor and provincial coun- cil should prepare and propose to the general assembly, all bills, which they should at any time think fit to be passed into laws, within the said province ; which bills should be published thirty days before the meeting of the general assembly, in order to the passing them into laws, or rejecting of them, as the general assembly should see meet." Accordingly, at the meeting of the first assembly held, (in 1683,) under this constitution, this modern Lycurgus, (for he was then present in his province, and acted as governor thereof,) propounded to the assembly two bills, the principles of which he must certainly have borrowed from the Spartan legislator; one was-"that young men should be obliged to marry at or before a certain age;" and the other,-"that two sorts of cloaths only should be worn ; one for winter, and the other for summer." The historian does not say, whether they were passed into laws, or not. Perhaps their absurdity was too glaring to admit them. See Proud's Hist. of Pennsylvania, vol. 1, p. 238.
NOTE (VIII.) p. 64.
According to Chalmers, (see his Annals, ch. ix. note 21, ) among the same papers in the plantation office, before cited by him, (viz. Hist. Virg. Pap. 75 B. p. 139,) there is a copy of an indictment against Clayborne, and of the inquisition finding the forfeiture of his estate. It is, however, probable that the indictment referred to by him is only a copy of one of those herein before stated, in which Clayborne is charged as an accessary. As to the inquisition, I find among our records, (see an old thin book, with leather cover, entitled, "Council Proceedings from 1637 to 1644,") the following writ :- "Cecilius, &c. to the sheriff of the isle of Kent, greet- ing; we command you to seize to our use all the goods and chattels of William Clay- borne, gent., within that island ; and that you keep them in safe custody, until you shall have further order from us therein. Given at St Mary's March 27th, 1638." N. B. It appears from a commission, recorded in the same book, and in "Council Proceedings from 1636 to 1657," p. 25, that John Langford was both the sheriff and coroner of the isle of Kent at this time ; but no return appears, as I could find, to the foregoing writ. The following return, however, relative to Clayborne's property, I find made, as the record expresses it, "by serjeant Vaughan, meaning, as it would seem, Mr. Robert Vaughan, before mentioned, p. 45, who was, as the commission there referred to styles him, "serjeant of the trained band," at St. Mary's. It is probable that military force had been thought necessary for the seizure of Clayborne's property, and that Vaughan, as an offi- cer, had been sent for that purpose, and made the return here stated, to wit :
" June 20th, 1638 .- By virtue of a warrant to me directed I have seized into the lord proprietary's hands, these goods and chattels belonging to captain Clay- borne within Palmer's island ;" viz .- " Edmund Griffin, William Jones, William Freeman, Richard Seymoure, servants." Then follow, in the schedule, a list of some live stock, plantation utensils, and some household goods,-also, "six yards of peake, and one yard and a half of roanoke." To the foregoing is added a schedule also of "Thomas Smith's goods, of Kent ;" signed " Robert Vaughan."
It may be proper, perhaps, to state in explanation of the above, that "Palmer's island" is situated at the mouth of the Susquehanah, whereon Clayborne had made a settlement, or erected a trading house, at the time he made his other set- tlements on the isle of Kent, and prior to the arrival of the first Maryland colo- nists. The terms Peake and Roanoke will be explained hereafter in note (XVI.)
NOTE (IX.) p. 67.
This is so stated in "The Landholder's Assistant," (p. '93;) a work of au- thenticity, published by Mr. Kilty who was then register or clerk of the land office
H
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of Maryland. He seems to " infer, that these baronies were divisions for feudal, as counties and hundreds were for political, purposes." But, as before stated in a former edition of this part of our history, there are strong and probable grounds to believe, that the before mentioned " Bill for Baronies" contemplated a civil division of counties similar to that adopted in Ireland ; where, it seems, the word barony is used as synonimous to that of hundred in England. This appears from one or two law authorities. In Spelman's Glossary, (published about the year 1626,) verb Baronia, is the following passage. « Baronia pro parte comitatus quam hundredum dicimus. Sic frequens in Hibernia, ubi connacia provincia sub nostra memoria in comitatus dispartita est; comitatusque deinceps in baronies dissecti, ut nuper etiam in ultonia factum intelligo." Sullivan also, in his law lectures, (see Lect. 26,) states, that even at this day those divisions of a county, which in England are called hundreds, are in Ireland called baronies. Lord Bal- timore, being an Irish peer, might have directed, in this respect, the mode of co- lonization then recently adopted in Ireland during the preceding reign, to be pursued in his colony. An additional argument against the supposition, that this " bill for baronies" was intended in a feudal sense, seems to arise from the pro- viso annexed to the clause in the charter, which authorises the lord Baltimore to confer titles and dignities,-"so that they be not such as are now used in Eng- land." Baronies, in a feudal sense, would imply, that the grantees, or lords thereof, would be called barons,-a "title and dignity then used in England," and, therefore, incompatible with the charter. This may afford a reason, perhaps, why no grant of a barony, even should the contemplated division have been in- tended in a feudal sense, is to be found among our records, and possibly also, why no act of assembly was renewed with a similar title. But the more proba- ble purport of the act may be supposed to have been, to use the word barony as synonimous to the word hundred, though subsequently the word hundred was adopted, as being more consonant with the common law of England, which was deemed to extend to the province.
Chalmers, in his Annals, (ch. ix.) the principal writer referred to in the text, states that "the province was divided into baronies and manors ; the privileges of which were carefully regulated." The charter authorised lord Baltimore "to erect any parcels of land within the province into manors, and in every of those manors to have and to hold a court baron, and all things which to a court baron do belong ; and to have and to keep view of frank pledge, for the conservation of the peace and better government of those parts, by themselves and their stew- ards, or by the lords, for the time being to be deputed, of other of those manors when they shall be constituted, and in the same to exercise all things to the view of frank pledge belonging." In pursuance of this clause in the charter, seve- ral bills, relative to manors, appear in the list of bills passed at this session of 1637-8 ; to wit,-"A bill for bounding of manors ; a bill for assigning of manors; a bill for the peopling of manors ; a bill for the supporting of manors ; a bill against aliening of manors ; and a bill for services to be performed for manors and freeholds." From these titles only, it would seem, Mr. Chalmers has infer- red, that the "privileges" attached to manors "were carefully regulated." Although the lord proprietary made several grants of manors within this province, in pur- suance of the before mentioned clause in his charter, yet it does not appear, that any very substantial privileges were ever exercised by the grantees thereof, as lords of those manors. The court held under the commission before stated, (p. 19,) "to certain justices of the peace on the isle of Kent to hold a court leet" there, seems to have partaken more of the nature of what was subsequently called a county court, than a court appertaining to a manor ; and "the manor of Kent fort," the only manor ever erected on the isle of Kent, was not then granted. However, it does appear, that at subsequent periods of time, one or
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