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Maryland: 62: Orders Devised and Published by the House of Assembly to be Observed During the Assembly - Donald S. Lutz, Colonial Origins of the American Constitution: A Documentary History [1998]

Edition used:

Colonial Origins of the American Constitution: A Documentary History, ed. Donald S. Lutz (Indianapolis: Liberty Fund 1998).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


62

Orders Devised and Published by the House of Assembly to be Observed During the Assembly

The text is complete and with the spelling found in W. H. Browne et al., eds., Archives of Maryland: Vol. i, Proceedings and Acts of the General Assembly of Maryland, January, 1637/8–September, 1664 (Baltimore: Maryland Historical Society, 1883), 32–33.

February 25, 1638

One of the core commitments in American political thought is to a political process that is highly deliberative. To a certain extent the English commitment to rule of law lay behind colonial decision making processes, as well as the pragmatic belief that several heads are better than one; however, the extraordinary care the colonists took in this regard (see Fundamental Articles of New Haven [46] for a good example) also resulted from another influence. The theological perspective dominant in the American colonies held that as a result of original sin humans could see only “as through a glass darkly,” because sinful pride and self-interest tended to cloud individual judgment. The belief in a fallen human nature plus the commitment to seeking the common good led colonists to rely more heavily than most peoples on public discussions structured so as to minimize passion, self-interest, and incomplete information. The inclination toward open public records, as well as toward open political gatherings, is a reflection of the colonial commitment to a deliberative process. The document below is one of several examples surviving from seventeenth-century colonial America that illustrate the concern for calm, open, fair, and orderly processes during collective decision making. It is perhaps no accident that the behavior elicited tended to resemble that found in church.

The Lieutenant General shall be called President of the Assembly and shall appoint & direct all things that Concern Form and decency to be used in the house and shall Command Observance thereof as he shall see Cause upon pain of imprisonment or fine as the house shall take Precedence according to this Order.

When any one of the house is to speak to any Bill he shall stand up and be Bareheaded and direct his speech to the President only and if two or more stand up together the President shall appoint who shall speak.

No man shall stand up to speak to any Bill until the party that last spake have sat down nor shall any One refute another with any nipping or vncivill terms nor shall name another but by some Circumloquation as the Gentleman or Burgess that spake last or that argued for or against this Bill or the Bill

The house shall sit every day holy days excepted unless it be adjourned at eight of the Clock in the morning at the furthest and at two of the Clock in the afternoon & if any Gentlemen or Burgess not appearing upon call at such time as the President is set at or after either of the said hours shall be amerced 20lb of Tobacco to be forthwth paid to the use of the house

After any Bill hath been once read in the house the Bill shall be read ingrossed or utterly rejected and upon any day or day appointed for a Session all Bills engrossed shall be put to the question and such as are assented to by the Greater part of the house and if the Votes be equal that shall be judged the Greater part which hath the Consent of the Lieutenant General shall be undersigned by the Secretary in these words [“]the freemen have assented[”] and after that the President shall be demanded his assent in the name of the Lord proprietary and if his assent be to the Bill, the Bill shall be undersigned by the said Secretary in these words [“]the Lord Proprietary willeth that this be a Law[”]

63

Act for Establishing the House of Assembly and the Laws to Be Made Therein

Text, complete and with the original spelling, taken from Browne, Archives of Maryland: Vol. i, 81–82.

1638

There had been an assembly of some sort in Maryland since 1635, but this document begins the recorded history of representative government in the colony. The proprietary government in Maryland was much like that in Pennsylvania, which is to say the governor representing the proprietor had almost unlimited power. The charters for both colonies, however, required that the proprietor pass laws with the advice and approbation of the freemen. In Pennsylvania William Penn took this part of the charter seriously, whereas in Maryland the absentee proprietor did not. His appointed governor, called Lieutenant General, essentially used the legislature created by this document as a rubber stamp. It is emblematic in the document below that certain specific individuals were invited to the Assembly by the Lieutenant General, while the freemen at large were not called but instead allowed to show up as they wished. Nevertheless, the mere existence of the legislature and the realities of colonial existence led the freemen to demand more and more real power. Gradually the legislature evolved into a true representative body, beginning with an act of the assembly that defined more clearly the relationship between the governor and the Assembly and laid out an orderly, systematic electoral process (see An Act Concerning the Calling of General Assemblies [66]).

Memorandum That at the first meeting of the Assembly on the 25th day of February 1638 was Enacted and ordeined one Act as followeth

An Act For the Establishing the house of Assembly and the Laws to be made therein

Whereas the Kings Majestie by his Letters pattents hath given and granted full free and absolute power and authority to the Lord Proprietary of this province to make and ordeine any laws apperteining to the state of this Province by and with the advice assent and approbation of the freemen of the same or of the greater part of them or of their Deligates or deputies in such sort and forme as to the said Lord proprietarie should seem best. By Vertue Whereof Severall writts or Summons have been directed to certain Gentlemen to appear personally at this Assembly and to the rest of the free men inhabiting within the Severall hundreds of this Colony and the Isle of Kent to elect their delegates or deputies in their names and steeds to be present at the same and accordingly all the freemen of the said severall hundreds and of the Isle of Kent (some few excepted) have elected certain persons to that end and the same their Election have subscribed and returned upon record and their said Dellegates and Deputies are now assembled accordingly. Be it therefore Enacted and ordeined by the said Lord Proprietarie of and with the advice assent and approbation of the Freemen and of the delegates and deputies assembled at this present Assembly that the said Severall Persons so elected and returned as aforesaid shall be and be called Burgesses and shall supply the places of all the freemen consenting or subscribing to such their election in the same manner and to all the same intents and purposes as the Burgesses of any burrough in England in the Parliament of England useth to Supply the place of the Inhabitants of the Burroughe whereof he is Elected Burges and that the said Gentlemen and Burgesses and such other Freemen (not having Consented to any the Elections as aforesaid) as now are or shall be at any time Assembled or any twelve or more of them whereof the Lieutenant Generall and Secretary of the Province to be allwaies two shall be called the house of Assembly; and that all Acts and ordinances assented unto and approved by the said house or by the Major part of the Persons assembled and afterward assented unto by the Lieutenant Generall in the name of the said Lord proprietarie and shall be adjudged and established for laws to all the same force and effect as if the said Lord proprietary and all the freemen of this Province were personally present and did assent to and approve of the same ...

[Approved by the freemen, and the Lieutenant General in behalf of the Lord Proprietor, March 12, 1638.]

64

An Act for Church Liberties

Text complete as found in Browne, Archives of Maryland: Vol. i, 40.

1638

One of the first colonial statements on religious freedom, this act is notable for extending the principle to Catholics. Later in the century a Protestant majority would temporarily rescind the right for Catholics but a few years later would include them again. In 1638, because the proprietor, Lord Calvert, was a Catholic, the Assembly had no choice but to include Catholics.

Be it enacted by the Lord Proprietarie of this Province by and with the Advice and approbation of the ffreemen of the same that Holy Church within this Province shall have all her rights liberties and immunities safe whole and inviolable in all things This act to continue till the end of the next Generall Assembly and then with the Consent of the Lord Proprietarie to be perpetuall.

65

An Act for Swearing Allegeance

The complete text, with original spelling, is from Browne, Archives of Maryland: Vol. i, 40–41.

1638

The problem of political obligation was handily solved in this era not by some formal theory of consent but rather by the expedient of having all inhabitants take an oath if they wished to remain inhabitants. Colonists were supposedly required to take an oath of fidelity to the king of England, a requirement that engendered some controversy among the colonists. The source of the controversy lay not in swearing allegiance to the king but in the genesis of such oaths, which were instituted originally to recognize the monarch as head of the Church. The Catholics in Maryland were no less hesitant about such matters than the radical Protestant dissenters in New England, who had left England primarily to escape the established Church. This oath should be compared with those contained in documents 4, 9, 15, and 47. Comparison with oaths internal to longer documents, such as the Pilgrim Code of Law [20], should also prove instructive.

Be it Enacted and ordeined by the Lord Proprietarie of this Province by and with the Consent and approbation of the ffreemen of the same that all and every person or persons of the age of eighteen years and upwards Inhabitants or that Shall come hereafter to Inhabite within this Province shall within one month next after this present Assembly shall be dissolved or within one month after such person or persons shall land or come into this Province take an oath to our Soveraigne Lord King Charles his heirs and Successors in these words following (I: A B doe truly acknowledge professe testifie and declare in my concience before God and the World that our Soveraigne Lord King Charles is lawfull and rightfull King of England and of all other his Majesties Dominions and Countries and I will bear true faith and allegeance to his Majestie his heirs and lawfull Successors and him and them will defend to the uttermost of my power against all conspiracies and such attempts whatsoever which shall be made against his or their Crowne or dignity and shall and will doe my best endeavour to disclose and make known to his Majestie his heirs and lawfull Successors all Treasons and traiterous consperacies which I shall know or heare to be intended against his Majestie his heirs and lawfull Successors And I doe make this recognition and acknowledgement heartily willingly and truely upon the faith of a Christian So help me God) And Be it further Enacted By the authority aforesaid that if any person or persons to whom the Said oaths Shall be tendred by Virtue of this present act Shall willfully refuse to take the same that then Upon such tender and refusall the said person or persons so refuseing to take the said Oath shall be imprisoned till the next County Court or hundred Court of Kent and if at such Court such partie shall upon the Second tender refuse again to take the said oath the partie or parties so refuseing shall forfeit and lose all his Lands goods and Chattells within this Province to the Lord Proprietarie and his heirs and Shall be banished the said Province for ever (except women covert who Shall be committed only to prison untill such time as they will take the same oath).

To which end Be it further Enacted by the authority aforesaid that the Lieutent Generall or other officer Governour or Governours (for the time being) of this Province or two of the Councill or the Secretary of the Province for the time being or any Judge sitting in Court or the Commander of the Isle of Kent for persons being or that Shall be in the Ile of Kent Shall have full power to administer the said oath in manner aforesaid according to the intention of this present act This Act to continue till the end of the next assembly

66

An Act What Persons Shall Be Called to Every General Assembly and an Act Concerning the Calling of General Assemblies

The text, complete and with the original spelling, is taken from Browne, Archives of Maryland: Vol. i, 74–75.

1638

This simple act comes close to defining the entire form of government in Maryland at the time. The nature and role of the legislature, the process of elections, the definition of the suffrage, the process of passing legislation—all are established here. The result is one of the earliest representative assemblies to be established in America, although as of 1638 the legislature was still essentially a rubber stamp for the proprietor’s appointed colonial representative, titled the Lieutenant General. For further discussion of the significance and historical context of this document, see the comments on Act for Establishing the House of Assembly [63].

Be it enacted by the Lord Proprietary of this province, of and with the advice and approbation of the freemen of the same, that, from henceforth, everyone being of the council of this province and any other gentlemen of able judgment and quality summoned by writ and the lord of every manor within this province after manors be erected shall or may have his voice, seat, and place in every General Assembly to be hereafter called in this province and shall be called by summons or writ unto the same. And also be it further enacted, by the authority aforesaid, that, from henceforth forever, after such time that any summons or writ shall issue for the calling or summoning a General Assembly of the freemen of this province, the commander or, in defect of a commander, the high constable of every hundred within this province or, in defect of a constable, the sheriff of the county, shall within every hundred summon all the freemen inhabiting within every hundred, as soon as conveniently may be, to assemble at a certain place and time to be by him appointed and prefixed. Which freemen so assembled, or the major part of them, shall elect and chose some one, two, or more able and sufficient men for the hundred, as the said freemen or the major part of them so assembled shall think good, to come to every such General Assembly at the time and place in such writ or summons limited and appointed, then and there, for him or themselves and all the freemen of the hundred and in their names and stead, to consult concerning the affairs of this province; and shall make a return in writing of the name or names of the persons so to be from time to time elected and chosen, and such person and persons so to be from time to time elected and chosen shall and may have a voice, place, and seat in every such General Assembly. And from henceforth such person or persons only so elected and chosen out of and for every hundred within this province, and such persons as shall be personally called by writ as afore, shall have a place, voice, and seat in all or any General Assembly hereafter to be held within this province. And every art and ordinance made in such General Assemblies by persons so called, elected, and chosen as aforsaid, or the major part of them, and assented to by the Lord Proprietary or his heirs, lords and proprietaries of this province, or by his or their lieutenant-general thereunto authorized by special warrant from the said Lord Proprietary or his heirs, shall be judged, deemed, and taken to be of as good force and strength and as effectual to all intents and purposes as if the Lord Proprietary himself and all the freemen within the said province had been personally present at such General Assemblies and had consented to and approved of the making and enacting of such laws and ordinances. Provided, that all acts approved by the freemen and by the Lieutenant-General in the name of the Lord Proprietary, as aforesaid, shall be of force until the Lord Proprietary shall signify his disassent to the same under the great seal, and no further or longer.

an act concerning the calling of general assemblies, 1638

Be it enacted by the Lord Proprietary of this province, of and with the assent and approbation of the freemen of the same, that from and after this General Assembly shall be dissolved, a General Assembly of the freemen of this province shall be called and summoned once in every three years at the least to consult of the affairs and public good of this province and for the enacting of laws and ordinances for the better government of the same. And that the said freemen so assembled shall, from and after the summoning of such assembly and assemblies until the dissolution of the same, have the like power, privileges, authority, and jurisdiction in all causes and matters arising or to arise or happen within this province as the House of Commons within the realm of England at any time heretofore assembled in that kingdom have had, used, or enjoyed or of right ought to have, use, or enjoy in, about, or concerning any matters, things, and causes whatsoever which have at any time happened or risen within the realm of England. This act to continue till the end of the next General Assembly.

67

An Act for the Liberties of the People

Taken from Browne, Archives of Maryland: Vol. i, 41.

1638

Along with the Pilgrim Code of Law [20] and the Massachusetts Body of Liberties [22], this is one of the earliest attempts to specify and protect the rights of citizens inhabiting a colony as distinct from the rights of proprietors. Each of these three documents takes a different approach to the problem. The document below, as well as the others from colonial Maryland reproduced in this volume, is notable for placing a time limit on the duration of rights. The implication is quite straightforward that the rights being protected, far from being inalienable, result from action by the body politic and can be rescinded for reasons acceptable to the legislature.

Be it Enacted By the Lord Proprietarie of this Province of and with the advice and approbation of the ffreemen of the same that all the Inhabitants of this Province being Christians (Slaves excepted) Shall have and enjoy all such rights liberties immunities priviledges and free customs within this Province as any naturall born subject of England hath or ought to have or enjoy in the Realm of England by force or vertue of the common law or Statute Law of England (saveing in such Cases as the same are or may be altered or changed by the Laws and ordinances of this Province)

And Shall not be imprisoned nor disseissed or dispossessed of their freehold goods or Chattels or be out Lawed Exiled or otherwise destroyed fore judged or punished then according to the Laws of this province saveing to the Lord proprietarie and his heirs all his rights and prerogatives by reason of his domination and Seigniory over this Province and the people of the same. This Act to Continue till the end of the next Generall Assembly.

68

[Maryland Toleration Act]

Text, complete and with original spelling, taken from Browne, Archives of Maryland: Vol. i, 244–47.

April 21, 1649

Passed in accordance with instructions from Lord Baltimore, this document protected Maryland from the charge of intolerance toward Protestants. When the Protestants were in charge of the colony for a time after 1654, Catholics were not protected in their faith, but this document was reinstated with the restoration of Lord Baltimore as proprietor. The Maryland Toleration Act constitutes the broadest definition of religious freedom during the seventeenth century and was an important step toward true freedom of religion. It sounds strange to our ears that such a harshly worded document should be called a toleration act, but the breadth of toleration defended also required that the sensibilities of religious people not be offended regardless of denomination. Aside from prohibitions on the calling of names, the meat of the act is found near the end of the text—no one will be punished or disadvantaged because of his religious beliefs. In any case, the harsh blasphemy provisions were never enforced.

Acts and Orders of Assembly assented vnto Enacted and made at a Generall Sessions of the said Assembly held at St Maries on the one and twentieth day of Aprill Anno Domini 1649 as followeth viz:

an act concerning religion

fforasmuch as in a well governed and Xpian1 Common Weath2 matters concerning Religion and the honor of God ought in the first place to bee taken, into serious consideracion and endeavoured to bee settled. Be it therefore ordered and enacted by the Right Noble Cecilius Lord Baron of Baltemore absolute Lord and Proprietary of this Province with the advise and consent of this Generall Assembly. That whatsoever pson or psons 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 psons of the Trinity or the Vnity of this Godhead, or shall use or utter any reproachfull Speeches, words or language concerning the said Holy Trinity, or any of the said three psons thereof, shalbe punished with death and confiscation or forfeiture of all his or her lands and goods to the Lord Proprietary and his heires, And bee it also Enacted by the Authority and with the advise and assent aforesaid. That whatsoever pson or psons shall from henceforth use or utter any reproachfull words or Speeches concerning the blessed Virgin Mary the Mother of our Saviour or the holy Apostles or Evangelists or any of them shall in such case for the first offence forfeit to the said Lord Proprietary and his heirs Lords and Proprietaries of this Province the sume of ffive pound Sterling or the value thereof to be Levyed on the goods and chattells of every such pson soe offending, but in case such Offender or Offenders, shall not then have such 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 the Leivet3 or cheife 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 haue goods and chattells within this Province sufficient for that purpose then to be publiquely and severly whipt and imprisoned as before is expressed. And that every pson or psons 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 by the same authority advise and assent that whatsoever pson or psons shall from henceforth vppon any occasion or otherwise in a reproachful manner or Way declare call or denominate any pson or psons whatsoever inhabiting residing traffiqueing trading or comerceing within this Province or within any the Ports, Harbors, Creeks or Havens to the same belonging to an heritick, Scismatick, Idolator, Puritan, Independent, Prespiterian popish prest, Jesuite, Jesuited Papist, Lutheran, Calvenist, Anabaptist, Brownist, Antinomian, Barrowist, Roundhead, Sepatist, 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 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 vttered, and the other half thereof to the Lord Proprietary and his heires Lords and Proprietries of this Province, But if such pson or psons who shall at any time vtter or speake any such reproachful 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 satisfied, that then the pson or psons soe offending shalbe publickly whipt, and shall suffer imprisonmt without baile or maineprise vntill 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 chiefe Officer or Officers of the Towne or place where such Offence shalbe given. And be it further likewise Enacted by the Authority and consent aforesaid 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 recreacion, or by working on that day when absolute necessity doth not require it shall for every such first offence forfeit 2s. 6d 4 sterling or the value thereof, and for the second offence 5s sterling or the value thereof, and for the third offence and soe for every time as shall offend in like manner afterwards 10s sterling or the value thereof. And in case such offender and offenders shall not have sufficient goods or chattels within this Province to satisfy any of the said Penalties respectively hereby imposed for prophaning the Sabbath or Lords day called Sunday as aforesaid, 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 chiefe Commander Judge or Magistrate, or that County Towne or precinct where such offence shalbe committed acknowledge the Scandall and offence he hath in that respect given against God and the good and civill Govern[m]ent 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 government of this Province, and the better to preserve mutuall Love and amity amongst the Inhabitants thereof. Be it Therefore also by the Lo: Proprietary with the advise and consent of this Assembly Ordeyned & enacted (except as in this psent Act is before Declared and sett forth) that noe person or psons whatsoever within this Province, or the Islands, Ports, 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 not in the free exercise thereof within this Province or the Islands thereunto belonging nor any way compelled to the beliefe 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 Govern[m]ent established or to bee established in this Province vnder him or his heires. And that all & every pson and psons that shall presume contrary to this Act and the true intent and meaning thereof directly or indirectly either in person or estate willfully to wrong disturbe trouble or molest any person whatsoever within this Province professing to believe in Jesus Christ for or in respect of his or her religion or the free exercise thereof within this Province other than is provided for in this Act that such pson or psons soe offending, shalbe compelled to pay trebble damages to the party soe wronged or molested, and for every such offence shall also forfeit 20s sterling in money or the value thereof, half thereof for the vse of the Lo: Proprietary, and his heires Lords and Propietaries of this Province, and the other half for the vse of the party soe wronged or molested as aforesaid, Or if the ptie soe offending as aforesaid shall refuse or bee vnable to recompense the party soe wronged, or to satisfy such ffyne or forfeiture, then such Offender shalbe severely punished by publick whipping & imprisonmt during the pleasure of the Lord Proprietary, or his Leivetenant or cheife Governor of this Province for the tyme being without baile or maineprise And bee it further alsoe Enacted by the authority and consent aforesaid That the Sheriff or other Officer or Officers from time to time to bee appointed & authorized for that purpose, of the County Towne or precinct where every particular offence in this psent Act conteyned shall happen at any time to bee committed and wherevppon there is hereby a fforfeiture ffyne or penalty imposed shall from time to time distraine and seise the goods and estate of every such pson soe offending as aforesaid against this psent Act or any part thereof, and sell the same or any part thereof for the full satisfaccion of such forfeiture, ffine, or penalty as aforesaid, Restoring vnto the ptie soe offending the Remainder or overplus of the said goods or estate after such satisfaccion soe made as aforesaid

The freemen haue assented. Tho: Hatton

Enacted by Governor Wllm Stone

[1. ]Christian. An X followed by a subscript p was a common symbol for Christ.

[2. ]In the original text there was a line over the letter e. In the shorthand practice of the day, a line over a letter meant that one or more letters to follow have been omitted.

[3. ]Lieutenant.