FOOTNOTES:
[24] This article was not ratified by Parliament.
[25] This was reënacted in 1658. Hening, I, 475. But cf. Nos. 105-109 for later developments.
[VII. MARYLAND]
36. Lord Baltimore to King Charles, August 19/29, 1629
Scharf's Maryland, I, 44, 45. The letter was written from Avalon (No. 38), in Nova Scotia. Only the second half is given here; the first half defends the writer against certain "slanders" by Protestant enemies.
Most Gracious and Dread Sovereign:—
... So have I met with greater difficultys ... here, which in this place are no longer to be resisted, but enforce me presently to quitt my residence and to shift to some other warmer climate of this new world, where the wynter be shorter and less rigorous. For here Your Majesty may please to understand that I have found by too deare bought experience, [what] other men for their private interests always concealed from me, that from the middlest of October to the middlest of May there is a sadd fare of wynter upon all this land; both sea and land so frozen, for the greater part of the tyme, as they are not penetrable, no plant or vegetable thing appearing out of the earth; ... nor fish in the sea, besides the ayre so intolerable cold as it is hardly to be endured. By means whereof, and of much salt meate, my house hath been an hospital all this wynter; of 100 persons, 50 sick at a time, myself being one; and nyne or ten of them dyed. Hereupon I have had strong temptations to leave all proceedings in plantations, and, being much decayed in my strength, to retire myselfe to my former quiett. But my inclination carrying me naturally to these kynd of workes, and not knowing how better [to use] the poore remaynder of my dayes, than ... to further ... the enlarging your majesty's empire in this part of the world, I am determined to committ this place to fisherman (that are able to encounter stormes and hard weather) and to remove myselfe with some 40 persons to your majesty's dominion Virginia; where, if your majesty will please to grant me a precinct of land with such privileges as the king your father, my gracious master, was pleased to grante me here, I shall endeavor, to the utmost of my power, to deserve it....
37. Charter of Maryland, June 20/30, 1632
The text in Latin and English is given in Bacon's Laws of Maryland. For explanation of events leading to this grant, see American History and Government, § 38. The document is in Latin.
I.—CHARLES, by the grace of GOD, of England, Scotland, France, and Ireland, King, Defender of the Faith, etc. To all to whom these Presents shall come, Greeting.
[II, III, and first part of IV, recite the petition of Cecilius, Baron of Baltimore, the determination of the King to "encourage the pious and noble purpose," and the grant of land, with confused geographical description.]
IV.—Also We do Grant ... unto the said Baron of BALTIMORE, his heirs and assigns, ... the Patronages, and Advowsons of all Churches which (with the increasing Worship and Religion of CHRIST) within the said Region ... hereafter shall happen to be built, together with Licence and Faculty of erecting and founding Churches, Chapels, and Places of Worship, in convenient and suitable Places, within the Premises, and of causing the same to be dedicated and consecrated according to the Ecclesiastical Laws of our Kingdom of England; with[26] all, and singular such, and as ample Rights, Jurisdictions, Privileges, Prerogatives, Royalties, Liberties, Immunities, and royal Rights, and temporal Franchises whatsoever, as well by Sea as by Land, within the Region ... aforesaid, to be had, exercised, used, and enjoyed, as any Bishop of Durham, within the Bishoprick or County Palatine of Durham, in our Kingdom of England, ever heretofore hath had, held, used, or enjoyed, or of Right could or ought to have, hold, use, or enjoy.
[V.—Tenure by Baltimore to be in free and common soccage, and not in capite, or by "Knight's Service," "yeilding therefore to Us ... two Indian Arrows of these parts every year," and the fifth part of gold and silver ore.]
VI.—Now, That the aforesaid Region, thus by us granted and described, may be eminently distinguished above all other Regions of that Territory, and decorated with more ample Titles, KNOW YE, that WE ... have thought fit that the said Region and Islands be erected into a PROVINCE, as out of the plenitude of our royal power and prerogative, WE do ... ERECT and INCORPORATE the same into a PROVINCE, and nominate the same MARYLAND, by which name WE will that it shall from henceforth be called.
VII.—And forasmuch as WE have above made and ordained the aforesaid now Baron of BALTIMORE, the true Lord and Proprietary of the whole Province aforesaid, KNOW YE therefore further, that WE ... do grant unto the said now Baron, (in whose Fidelity, Prudence, Justice, and provident Circumspection of Mind, WE repose the greatest Confidence) and to his Heirs, for the good and happy Government of the said PROVINCE, free, full, and absolute Power, by the tenor of these Presents, to Ordain, Make, and Enact LAWS, of what kind soever, according to their sound Discretions, whether relating to the Public State of the said PROVINCE, or the private Utility of Individuals, of and with the Advice, Assent, and Approbation of the Free-Men of the same PROVINCE, or of the greater Part of them, or of their Delegates or Deputies, whom WE will shall be called togther for the framing of LAWS, when, and as often as Need shall require, by the aforesaid now Baron of BALTIMORE, and his Heirs, and in the Form which shall seem best to him or them, and the same to publish under the Seal of the aforesaid now Baron of BALTIMORE, and his Heirs, and duly to execute the same upon all Persons, for the Time being, within the aforesaid PROVINCE, and the Limits thereof, or under his or their Government and Power, in Sailing towards MARYLAND, on thence Returning, Outward-bound, either to England, or elsewhere, whether to any other Part of Our, or of any foreign Dominions, wheresoever established, by the Imposition of Fines, Imprisonment, and other Punishment whatsoever; even if it be necessary, and the Quality of the Offence require it, by Privation of Member, or Life, by him the aforesaid now Baron of BALTIMORE, and his Heirs, or by his or their Deputy, Lieutenant, Judges, Justices, Magistrates, Officers, and Ministers, to be constituted and appointed according to the Tenor and true Intent of these Presents, and to constitute and ordain Judges, Justices, Magistrates, and Officers, of what Kind, for what Cause, and with what Power soever, within that Land, and the Sea of those Parts, and in such Form as to the said now Baron of BALTIMORE, or his Heirs, shall seem most fitting: And also to Remit, Release, Pardon, and Abolish, all Crimes and Offences whatsoever against such Laws, whether before, or after Judgment passed; and to do all and singular other Things belonging to the Completion of Justice, and to Courts, Prætorian Judicatories, and Tribunals, judicial Forms and Modes of Proceeding, although express Mention thereof in these Presents be not made; and, by Judges by them delegated, to award Process, hold Pleas, and determine in those Courts, Prætorian Judicatories, and Tribunals, in all Actions, Suits, Causes, and Matters whatsoever, as well Criminal as Personal, Real and Mixed, and Prætorian: ... So Nevertheless, that the Laws aforesaid be consonant to Reason and be not repugnant or contrary, but (so far as conveniently may be) agreeable to the Laws, Statutes, Customs and Rights of this Our Kingdom of England.
VIII.—And Forasmuch as, in the Government of so great a PROVINCE, sudden Accidents may frequently happen, to which it will be necessary to apply a Remedy before the Freeholders of the said Province, their Delegates, or Deputies, can be called together for the framing of Laws; neither will it be fit that so great a Number of People should immediately, on such emergent Occasion, be called together, WE THEREFORE, for the better Government of so great a PROVINCE, ... do grant ... that the aforesaid now Baron of BALTIMORE; and his Heirs, by themselves, or by their Magistrates and Officers, thereunto duly to be constituted as aforesaid, may, and can make and constitute fit and wholesom Ordinances from Time to Time, to be kept and observed within the PROVINCE aforesaid, as well for the Conservation of the Peace, as for the better Government of the People inhabiting therein, and publickly to notify the same to all Persons whom the same in any wise do or may affect ...: so that the same Ordinances do not, in any Sort, extend to oblige, bind, change, or take away the Right or Interest of any Person or Persons, of or in Member, Life, Freehold, Goods or Chattels.
IX, X—[Permission to English subjects to emigrate to Maryland, and X, to enjoy (with their descendants) the rights of Englishmen at home.]
XI.—[Certain exemptions from export duties, as in earlier charters.]
XII.—[Authorization for the proprietor or his officers to make war, if needful, upon savages and pirates or other invaders.]
XIII.-[Authorization for martial law, under, the usual restrictions.]
XIV.—[Authority for Baltimore to confer titles of nobility (not such as in England), to incorporate towns, etc.]
XV-XVI.—[Regulations regarding ports and temporary exemptions from English custom duties.]
XVII.—Moreover, We will, appoint, and ordain, and by these Presents, for US, our Heirs and Successors, do grant unto the aforesaid now Baron of BALTIMORE, his Heirs and Assigns, that the same Baron of BALTIMORE, his Heirs and Assigns, from Time to Time, for ever, shall have, and enjoy the Taxes and Subsidies payable, or arising within the Ports, Harbours, and other Creeks and Places aforesaid, within the Province aforesaid, for Wares bought and sold, and Things there to be laden, or unladen, to be reasonably assessed by them on emergent Occasion, and the People there as aforesaid; to whom WE grant Power by these Presents, for US, our Heirs and Successors, to assess and impose the said Taxes and Subsidies there, upon just Cause, and in due Proportion.
XVIII.—And furthermore ..., WE ... do give ... unto the aforesaid now Baron of BALTIMORE, his Heirs and Assigns, full and absolute License, Power, and Authority ... [to] assign, alien, grant, demise, or enfeoff so many, such, and proportionate Parts and Parcels of the Premises, to any Person or Persons willing to purchase the same, as they shall think convenient, to have and to hold ... in Fee-simple, or Fee-tail, or for Term of Life, Lives, or Years; to hold of the aforesaid now Baron of BALTIMORE, his Heirs and Assigns, by ... such ... Services, Customs and Rents OF THIS KIND, as to the same now Baron of BALTIMORE, his Heirs and Assigns, shall seem fit and agreeable, and not immediately of US ... [notwithstanding the English law Quia Emptores or other statutes to the contrary].
XIX.—We also, ... do ... grant Licence to the same Baron of BALTIMORE, and to his Heirs, to erect any Parcels of Land within the Province aforesaid, 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 Stewards, 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.
XX.—And further We will, and do ... grant ... that we, our heirs and successors, at no time hereafter, will impose any impositions, customs, or other taxations ... whatever, in or upon the residents ... of the province, for their goods, lands, or tenements ... or in or upon any goods or merchandizes within the province or within the ports or harbors of the said province [this declaration to be a sufficient quittance to all English officers].
XXI.—[Maryland not to be reputed a part of Virginia but to be immediately dependent upon the crown.]
XXII.—[Baltimore and his heirs to be entitled to the most generous interpretation of any indefinite clause in the charter] "provided always that no interpretation be made thereof whereby God's holy and true Christian religion, nor the allegiance due to us ... may in any wise suffer ... prejudice or diminution."
38. Comment on the Avalon Charter of 1623
With the addition of two of its sections, with the necessary changes of names, and with three or four other slight modifications, the Maryland Charter of 1632 is an exact transcript of the Charter of Avalon, given in 1623 by James I to George Calvert (afterward, the first Lord Baltimore). The Avalon Charter has been printed, the editor believes, only in Scharf's Maryland (I, 34 ff.).
The sections of the two documents correspond up to XVIII. Sections XVIII and XIX of the Maryland Charter (relating to subinfeudation and manorial courts) are not found in the earlier document. Sections XVIII-XX of the Avalon Charter correspond to XX-XXII of the Maryland patent.
Other changes, aside from names, etc., are:
1.—(Section IV.) In the granting of advowsons and other ecclesiastical powers, there is no reference in the Avalon Charter to the "ecclesiastical laws of the kingdom of England." This phrase is added in the Maryland Charter, since Baltimore has now (1624) been converted to Catholicism, probably as a safeguard.
2.—Baltimore's tenure in Avalon (§ 5) is to be "in Capite, by Knight's Service" [not so, but in free socage, in Maryland], "yielding therefor ... a white horse, so often as we or our successors shall come into the said region," together with the usual "fifth part of gold and silver ore."
3.—The Avalon Charter does not refer directly to representative government. The authorization to Baltimore to publish laws runs,—"with the advice, assent, and approbation of the Freeholders of the said Province, or the greater part of them," while the Maryland Charter says the assent of "the Free Men of the said Province, or the greater part of them, or their delegates, or deputies"; but the earlier like the later charter leaves it to the proprietor to assemble the people "in such form as to him shall seem best," and this probably looked to a representative gathering.
4.—(XVII.) The Avalon Charter does not mention the participation of the popular assembly in granting taxes. Given such an assembly, however, and the renunciation by the English government (Section XVIII) of that power, then the possession of the power by the Assembly would inevitably follow. In the Maryland Charter it is expressed.
The Avalon Charter then, is the first royal patent to give to settlers in America political rights, in addition to the private common-law privileges. It is followed (as to sections VII and VIII) in exact detail by the Heath Charter for Carolina (1629), the Baltimore Charter (1632), and the Plowden Charter for New Albion (1634).[27]
Of the four grants just mentioned, that of Maryland in 1632 was the only one under which a successful colony was established, but the others help to show that that document was no prodigy. The student may like to notice here one of the rare slips of Dr. Channing (History of the United States, I, 245), when he ascribes the likeness between the charters of 1629, 1632, and 1634 to Sir Robert Heath's influence in that of 1629, instead of to the earlier Avalon Charter of 1623.
39. Excursus: Charters for New Albion and Maine
The "governing" clauses only are given,—for comparison with corresponding parts of the Maryland and Avalon grants.
a. Grant of Charles I to Edmund Plowden, Earl Palatine of Albion, of the Province of New Albion in America
Hazard's State Papers (Washington, 1792), I, 162 ff. New Albion was to lie north of Maryland. No settlement was effected.
... And forasmuch, as We have above made and ordained the before-named Edmund Plowden, Knight, true lord and proprietor of all the province aforesaid. Therefore further know ye, that We, for Us, our heirs, and successours, to the same Edmund, (of whose fidelity, prudence, justice and providence, and circumspection of mind, we have full confidence) and to his heirs, for the good and happy government of the said province, [grant power to make, ordain, and establish] whatsoever laws, whether concerning the public estate of the same province, or the private utility of individuals, according to their wise discretions, and with the council, approbation, and assents of the free tenants of the same province, or the major part of them who shall be called together by the aforesaid Edmund Plowden, and his heirs, to make laws when, and as often as there shall be occasion, in such form as to him or them shall seem best. ... And because, in so large a province it may often happen, that there will be a necessity to provide a remedy in a number of cases, before the free tenants of the said province can be assembled to make laws, nor will it be proper to delay in a case of emergency, until so many people can be called together. Therefore, for the better government of the said province, we will, and ordain, and by these presents, for Us, our heirs, and successors, grant unto the before-named Edmund Plowden, and to his heirs, that the aforesaid Edmund Plowden, and his heirs, by themselves, or by magistrates and officers in that behalf, to be duly constituted as aforesaid, fit and wholesome ordinations from time to time, shall and may be able to make and constitute, to be kept and preferred within the province aforesaid, as well for keeping the peace as for the better government of the people there living or inhabiting, and to give public notice of them to all persons whom the same doth or may concern; which said ordinations We will, shall be inviolably observed within the said province, under the penalties in the same expressed. So that the same ordinances be consonant to reason, and be not repugnant nor contrary, but as much agreeable as may be to the laws, statutes, and rights of our kingdoms of England and Ireland. And so as that the same ordinances do not extend themselves to the right or interest of any person or persons, of, or in free tenements, or the taking, distraining, binding, or charging any of their goods or chattles....
b. Grant of Charles I to Sir Ferdinando Gorges for the Province of Maine, 1639
Hazard's State Papers (1792), I, 442-455.
The members of the Plymouth Council surrendered the charter of 1620 back to the King in 1634, having first divided the territory among themselves. The King confirmed Gorges' allotment ("The Province of Maine") and gave him the usual proprietary jurisdiction in a lengthy charter (April 3/13, 1639), from which come the following clauses.
... And wee doe for us, our heirs and successors, give and graunte unto the saide Sir Ferdinando Gorges, his heirs and assignes, power and authoritie, with the assent of the greater parte of the freeholders of the said Province and premisses for the time being, when there shalbe any to be called therunto from time to time, when and as often as shall be requisite, to make and ordeyne and publish lawes, ordinances and constitucons, reasonable, and not repugnant and contrary, but agreable as nere as conveniently may bee, to the lawes of England, for the publique good of the said Province and premisses, and of the inhabitants thereof, by imposing of penalties, imprisonment or other corections, or, if the offence shall requier, by taking away of life or member; the said lawes and constitucons to extend aswell to such as shalbe passing unto or returning from the said Province or premisses as unto the inhabitants or residents of or within the same, and the same to be put into execucon by the said Sir Ferdinando Gorges, his heirs or assignes, or by his or there depputies, liftenants, judges, officers or ministers in that behalfe, lawfully authorized; and the same lawes ordinances and constitucons, or any of them, to alter, change, and revoke, or to make voide and to make new, not repugnant nor contrary, but agreable as nere as may bee, to the lawes of England, as the said Sir Ferdinando Gorges his heires and assignes, together with the said freeholders, or the greater part of them for the time being, shall from time to time thinke fitt and convenient:...
40. The Maryland Toleration Act of 1649
Maryland Archives, I, 244 ff.
For explanation, cf. American History and Government, § 43.
... Forasmuch as in a well governed and Christian Common Wealth, matters concerning Religion and the honor of God ought in the first place to bee taken into serious consederacion ... Be it therefore ordered and enacted by the Right Honorable Cecilius Lord Baron of Baltemore, absolute Lord and Proprietary of this Province, with the advise and consent of this Generall Assembly: That whatsoever person or persons within this Province and the Islands thereunto belonging shall from henceforth blaspheme God,—that is, Curse him,—or deny our Saviour Jesus Christ to bee the sonne of God, or shall deny the holy Trinity, the ffather sonne and holy Ghost, or the Godhead of any of the said Three persons of the Trinity, or the Unity of the Godhead, or shall use ... any reproachfull Speeches, ... concerning the said Holy Trinity, or any of the three persons thereof, shall be punished with death and confiscation of all his or her lands and goods ... And be it also Enacted ... That whatsoever person or persons shall from henceforth use ... any reproaching words or speeches concerning the blessed Virgin Mary, the Mother of our Saviour, or the Holy Apostles or Evangelists ... shall in such case for the first offence forfeit ... the summe of ffive pound sterling ... but in case such Offender or Offenders shall not then have goods and chattells sufficient for the satisfyeing of such forfeiture, or that the same bee not otherwise speedily satisfyed, that then such Offender or Offenders shalbe publiquely whipt and bee ymprisoned during the pleasure of the Lord Proprietary or ... chiefe Governor of this Province for the time being. And that every such Offender or Offenders for every second offence shall forfeit tenne pound sterling or the value thereof to bee levyed as aforesaid, or in case such offender or Offenders shall not then have goods and chattells within this Province sufficient for that purpose then to bee publiquely and severely whipt and imprisoned as before is expressed. And that every person or persons before mentioned offending herein the third time, shall for such third Offence forfeit all his lands and Goods and bee for ever banished and expelled out of this Province. And be it also further Enacted ... that whatsoever person or persons shall from henceforth uppon any occasion of Offence or otherwise in a reproachful manner or Way declare call or denominate any person or persons whatsoever ... an heritick, Scismatick, Idolator, puritan, Independant, Prespiterian, popish prest, Jesuite, Jesuited papist, Lutheran, Calvenist, Anabaptist, Brownist, Antinomian, Barrowist, Round-head, Seperatist, or any other name or terme in a reproachfull manner relating to matter of Religion shall for every such Offence forfeit and loose the some or [of] tenne shillings sterling or the value thereof, to bee levyed on the goods and chattells of every such Offender and Offenders, the one half thereof to be forfeited and paid unto the person and persons of whom such reproachfull words are or shalbe spoken or uttered, and the other half thereof to the Lord Proprietary and his heires Lords and Proprietaries of this Province. But if such person or persons who shall at any time utter or speake any such reproachfull words or Language shall not have Goods or Chattells sufficient and overt within this Province to bee taken to satisfie the penalty aforesaid, or that the same bee not otherwise speedily satisfyed, that then the person or persons soe offending shalbe publickly whipt, and shall suffer imprisomnt without baile or maineprise untill hee, shee, or they respectively shall satisfy the party soe offended or grieved by such reproachfull Language by asking him or her respectively forgivenes publiquely for such his Offence before the Magistrate or cheife Officer or Officers of the towne or place where such Offence shalbe given. And be it further likewise Enacted ... That every person and persons within this Province that shall at any time hereafter prophane the Sabbath or Lords day, called Sunday, by frequent swearing, drunkennes, or by any uncivill or disorderly recreacon, or by working on that day when absolute necessity doth not require it, shall for every such first offence forfeit 2[s.] 6[d.] sterling or the value thereof, and for the second offence 5[s.] sterling or the value thereof, and for the third offence and soe for every time he shall offend in like manner afterwards, 10[s.] sterling or the value thereof. And in case such offender and offenders shall not have sufficient goods or chattells within this Province to satisfy any of the said Penalties reecsptively hereby imposed ... That in Every such case the partie soe offending shall for the first and second offence in that kinde be imprisoned till hee or shee shall publickly in open Court before the cheife Commander Judge or Magistrate of that County Towne or precinct where such offence shalbe committed acknowledg the Scandall and offence he hath in that respect given against God and the good and civill Governmt of this Province; And for the third offence and for every time after, shall also bee publickly whipt. And whereas the inforceing of the conscience in matters of Religion hath frequently fallen out to be of dangerous Consequence in those commonwealthes where it hath been practised, And for the more quiett and peaceable governmt of this Province, and the better to preserve mutuall Love and amity amongst the Inhabitants thereof. Be it Therefore also by the Lord Proprietary with the advise and consent of this Assembly Ordeyned and enacted (except as in this present Act is before Declared and sett forth) that noe person or persons whatsoever within this Province, or the Islands, Parts, Harbors, Creekes, or havens thereunto belonging, professing to beleive in Jesus Christ, shall from henceforth bee any waies troubled, Molested or discountenanced for or in respect of his or her religion nor in the free exercise thereof within this Province or the Islands thereunto belonging nor any way compelled to the beleife or exercise of any other Religion against his or her consent, soe as they be not unfaithfull to the Lord Proprietary, or molest or conspire against the civill Government established or to bee established in this Province under him or his heires. And that all and every person and persons that shall presume Contrary to this Act and the true intent and meaning thereof directly or indirectly either in person or estate wilfully to wrong disturbe trouble or molest any person whatsoever within this Province professing to beleive in Jesus Christ for or in respect of his or her religion, or the free exercise thereof, within this Province ... that such person or persons soe offending shall be compelled to pay trebble damages to the party soe wronged ... and for every such offence shall also forfeit 20 s. sterling ... [or, in default of payment, shall make satisfaction by public whipping, and imprisonment during the pleasure of the Governor]....