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CHAP. 1. an ecclesiastical court, by granting letters testamentary on last 1638. wills in several cases; but it is possible, that Mr. Lewger's commission might be intended to create him only a ministerial officer, as a deputy-commissary was, prior to our revolution, while the judicial cognizance of testamentary causes, in controverted cases, might still remain in the highest tribunal,-the governor and council.

These appear to be the first proceedings, now extant on our records, in the regular arrangement of courts and officers for the administration of justice in those two distinct parts of the province, which had been as yet settled by Europeans. The paucity of inhabitants, and consequently of suits or actions at law, will possibly reconcile, what at first appearance strikes us at this day as too large a monopoly or reservation of judicial power in the hands of the chief executive magistrate. But, in justice to the memory of those, in whom the supreme power of the province, both executive and judicial, had been hitherto vested, from the first landing of the colony in March, 1634, to the close of the year 1638, a period of almost five years, it ought to be remarked, that it would be difficult to find on our records a single instance of an arbitrary or wanton exercise of such power on either the persons or property of any one individual.

See, in the "Council Proceedings, from 1637 to 1644,"-Letters testamentary on the last will and testament of Mr. John Saunders, granted by the court, (the governor and council,) to Thomas Cornwaleys, esq. on the 12th February, 1637, (1638, N. S.) and in another instance on William Smith's estate. This appears to be the same court as that before which the bills of indictment were found against William Clayborne and Thomas Smith, and which is there called a county court, held before the lieutenant-general, captain Robert Wintour, and Mr. John Lewger. A Mr. Jerome Hawley appears to have been a man held in high estimation in the province, at its first settlement, having been always the first named of the council; it may be proper here to mention his death, which happened about midsummer in the year 1638. In the same record-book, just mentioned, there is a memorandum made of the granting administration on Mr. Jerome Hawley's estate to captain Cornwaleys, August 2d, 1638. From which book it also appears, that he left a widow, but no children.

CHAPTER II.

Lord Baltimore assents to the right of the assembly to originate laws-An assembly of the province called-Their proceedings-The constitutional act for establishing the house of assembly-The house sit as a court of justice, and adjudge several cases civil and criminal-The general act, ordaining certain laws for the government, to wit, for securing the rights of holy church-for prescribing an oath of allegiance to his majesty-for securing the rights and prerogatives of the lord proprietary-for securing the rights and liberties of the people-for the better administration of justice and conservation of the peace-Some particular laws for the punishment of crimes-as for treasons, felonies, and enormous offences-Laws for erecting courts of justice-A court of admiralty-County courts-Court of chancery-A pretorial court-The authority and jurisdiction of justices of peace-the particular offences under their cognizance-Inferior executive officers-The administration of justice in the isle of Kent more particularly regulated—Oaths of office prescribed-Officers for the probate of wills and granting administration-Military discipline-Payment of officers' fees and public charges provided for-Derelict property, directions concerning it—A short insolvent law-The planting of tobacco and Indian corn regulated— Weights and measures-Customs or duties on the exportation of tobacco-The constitution of the general assembly more specially provided for-The duration of commissions in case of the death of the lord proprietary-A water mill and a town house the building of them directed-Other bills of this session not recognised in the general act, as—the act for descending of lands—for assuring of titles to land-for enrolling of grants-Also, for peopling of the province, and for limiting the times of servants.

1639.

Although it was not expressly prescribed by the charter of CHAP. II. Maryland, that the colonists under it should be entitled after their emigration to the benefits and protection of the common law of England, or that that system of jurisprudence should be the code by which they were to be governed, yet the clauses at the end of the seventh and eighth sections of that instrument of grant seem to imply strong inferences, that such colonists should be so entitled, or were to be so governed. Indeed, the common law principle, that the English laws were the birth right of every English subject, necessarily drew the inference," that such colonists would carry with them so much of the English law, as was applicable to their own situation and the condition of an infant colony."* This seems to have been the practical construction of the charter in the colony of Maryland from the time of its first emigration to the declaration of its independence.

* 1 Bl. Com. 107.

CHAP. II. Hence, therefore, in the "declaration of rights" prefixed to their

1639.

Lord Bal

sents to

ginate laws.

new constitution, after that event, they declared-" That the inhabitants of Maryland are entitled to the "common law of England, and to the benefit of such of the English statutes as existed at the time of their first emigration."

Agreeably to these principles it will appear from the events detailed in the foregoing chapter, that, notwithstanding the disassent of the lord proprietary to the laws enacted by the two preceding provincial assemblies, and the rejection also, by the last assembly, of the laws framed and sent in by the lord proprietary himself, and notwithstanding some doubt seems to have been expressed by some of the members of the last assembly with respect to the adoption of the laws of England for their government, yet the whole of their proceedings, both legislative and judicial, were evidently predicated and founded upon the English system of jurisprudence. But it will be obvious, upon the least reflection, that the situation of this infant colony in Maryland necessarily demanded many local regulations, peculiarly adapted to their own circumstances, and not provided for by the municipal code of the mother country.—The lord proprietary, it seems, saw this in its proper point of view; and, with a noble generosity, which does lasting honour to his memory, overlooked the indignity offered to him by the rejection of the laws proposed by him, and yielded to the freemen of the province themselves, the right of propounding the laws to be enacted. For this purpose the following letter, (or commission,) was sent by him from England to his brother the governor.

"DEAR BROTHER,-I do hereby give you full power and autimore as-thority from time to time in every general assembly summoned the right of by you in the province of Maryland, in my name to give assent the assem- unto such laws as you shall think fit and necessary for the good bly to origovernment of the said province of Maryland, and which shall be consented unto and approved of by the freemen of that province or the major part of them, or their deputies assembled by you there from time to time for the enacting of laws within that province; Provided that the said laws, so to be assented unto, be, as near as conveniently may be, agreeable and not contrary to the laws of England; every which law, so to be assented unto by you in my name, and consented unto and approved of by the freemen aforesaid, I do hereby declare shall be in force within the said province, till I or my heirs shall signify mine or

1639.

their disassent thereto, under the great seal of the said province, CHAP. II and no longer, unless, after the transmission thereof unto us, and due consideration had thereupon, I or my heirs shall think fit to confirm the same. Given under my hand and seal at London in the realm of England, the 21st of August, 1638.

C. BALTIMORE.*

To my dear brother Mr. LEONARD CALVERT esq.

my lieutenant general of the province of Maryland.” Although this letter does not in express words conceded to every member of the assembly a right of propounding any law, which he may deem proper to be passed by the house, yet the expressions therein, which authorise the governor "to give assent unto such laws as he should think fit and necessary," strongly imply, that laws might be proposed in the house by other persons than the governor himself. It is probable, indeed, that the practice was, during many of the first sessions of assembly next after the first settlement of the colony, for the secretary of the province, who appears to have been always a member of the house, to make draughts of and bring in, all such bills, as should be thought "fit and necessary," he being, perhaps, the best lawyer and most capable of such a task. It is evident, however, from the practice of the last session before mentioned, where bills had been brought into the house by a committee specially appointed for that purpose, as we have before seen, that the members of the house were fully aware of this their right; and might occasionally have exercised it, although it does not appear upon the journal of the next session, that any such committee was during that session appointed.

The constitutional principles, therefore, acceded to by the lord proprietary and established by this letter, seem to have been, that the freemen in assembly met might originate and pass "such laws as they should think fit and necessary for the good government of the said province," subject to the assent or disassent of the governor in the name of the lord proprietary, and subject also to the constitutional proviso of the charter, "that the said laws be, as near as conveniently may be, agreeable and not contrary to the laws of England;" but at the same time if the lord proprietary should subsequently disassent to any such laws, that they should then cease to be considered as laws, and no longer binding on the inhabinants of the province; that is, that laws

* See "Assembly Proceedings from 1637 to 1658,” p. 36.

CHAP. II. passed by the house of assembly and receiving the governor's assent should be deemed and acted under as laws, until the lord proprietary signified his disassent thereto.

1639.

An assem

province

called.

However inconvenient it might be, that the lord proprietary, when resident at so great a distance from his province, should reserve to himself a final negative upon the laws proposed to be passed, yet it will be acknowledged, that the right hereby acquired by the freemen of the province of originating such laws for themselves, as they should think fit, was a most important corner-stone in the foundation of their provincial liberties. This judicious concession of lord Cecilius might well be considered as an earnest of those repeated acts of generosity, which subsequently acquired to him the appellation of "the father of his province." Fortunate had it been, indeed, for his sovereign, could he have copied from his noble subject so excellent an example of prudent caution in yielding in time even what he deemed to be his just right and prerogative; and fortunate also, we may say, would it have been, if not for Americans at least for the English nation, had the present monarch of that throne exercised equal wisdom and moderation in retracting in due season measures manifestly obnoxious to his American people.

In pursuance of the foregoing authority from the lord probly of the prietary, and under the influence of the urgent necessity of the measure, the governor immediately formed the resolution of calling an assembly of the province. As the isle of Kent was the most distant part of the province then inhabited, it became necessary to give a more early intimation thereof to the inhabitants there settled. The governor accordingly issued his writ to the commander of that island for the purpose of causing "deputies or burgesses" to be chosen to represent that district. But, as the proceedings in relation to and during the holding of this assembly about to be convened, exhibit the establishment of constitutional principles, which pervaded the provincial form of government during its existence, it is deemed to be proper to insert them here more in detail than would otherwise be necessary or admissible. The documents appertaining thereto could not be condensed by abridgment into much less space, than they originally occupy. The writ of election to the isle of Kent is as follows:

"After my hearty commendations, &c., Whereas I have appointed to hold a general assembly at St. Mary's, on the 12th

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