security to property and of freedom of religion, granting in absolute fee fifty acres of land to every emigrant; establishing Christianity agreeably to the old common law, of which it is a part, without allowing pre-eminence to any particular sect. The wisdom of his choice soon converted a dreary wilderness into a prosperous colony." It is certainly very honorable to the liberality and public spirit of the proprietary, that he should have introduced into his fundamental policy the doctrine of general toleration and equality among Christian sects (for he does not appear to have gone further); and have thus given the earliest example of a legislator inviting his subjects to the free indulgence of religious opinion. This was anterior to the settlement of Rhode Island; and therefore merits the enviable rank of being the first recognition among the colonists of the glorious and indefeasible rights of conscience. Rhode Island seems, without any apparent consciousness of co-operation, to have gone further, and to have protected an universal freedom of religious opinion in Jew and Gentile, in Christian and Pagan, without any distinction to be found in its legislation.2 § 107. The first legislative assembly of Maryland, held by the freemen at large, was in 1634-1635; but little of their proceedings is known. No acts appear to have been adopted until 16381639, (a) when provision was made, in consequence of an increase of the colonists, for a representative assembly, called the House of Assembly, chosen by the freemen; and the laws passed by the assembly, and approved by the proprietary or his lieutenant, were to be of full force. The assembly was afterwards divided into an upper and lower house. At the same session, an act, which may be considered as in some sort a Magna Charta, was passed, declaring, among other things, that "Holy Church within this province shall have all her rights and prerogatives;" "that the inhabitants shall have all their rights and liberties according to the great charter of England;" and that the goods of debtors, 11 Chalm. Annals, 213, 218, 219, 363. (a) That is to say, none were agreed upon by the assembly and the proprietary; but acts appear to have been passed by the assembly which were rejected by the proprietary, and others were proposed by the proprietary which the assembly refused to adopt. See Bozman, History of 2 Walsh's Appeal, 429, Note B. Maryland, 295, 300-318. This author conjectures, though the records are silent on the subject, that the difficulty between the proprietary and the assembly was that each claimed the right to originate the laws. if not sufficient to pay their debts, shall be sold and distributed. pro rata, saving debts to the proprietary. In 1649 an act was passed, punishing blasphemy or denying the Holy Trinity with death and confiscation of goods and lands; 2 and, strangely enough after such a provision, in the same act, after a preamble, reciting that the confining of conscience in matters of religion hath frequently fallen out to be of dangerous consequence, it is enacted that no person "professing to believe in Jesus Christ" shall be molested for or in respect to his religion, or the free exercise thereof, nor any way compelled to the belief or exercise of any other religion. It seems not to have been even imagined that a belief in the divine mission of Jesus Christ could, in the eyes of any sect of Christians, be quite consistent with the denial of the Trinity. This act was confirmed among the perpetual laws in 1676. § 108. The legislation of Maryland does not, indeed, appear to have afforded an uniform protection in respect to religion, such as the original policy of the founder would seem to indicate. Under the protectorate of Cromwell, Roman Catholics were expressly denied any protection in the Province; and all others, "who profess faith in God by Jesus Christ, though differing in judgment from the doctrine, worship, or discipline publicly held forth," were not to be restrained from the exercise of their religion. In 1696 the Church of England was established in the province; and in 1702, the liturgy and rites and ceremonies of the Church of England were required to be pursued in all the churches, with such toleration for dissenters, however, as was provided for in the act of 1 William and Mary. And the introduction of the test and abjuration acts, in 1716, excluded all Roman Catholics from office. § 109. It appears to have been a policy adopted at no great distance of time after the settlement of the colony to provide for 1 Bacon's Laws of Maryland, ch. 2, of 1638; 1650, ch. 1; 1 Marsh. Colon. &c. ch. 2, p. 73; 1 Chalm. Annals, 213, 219, 220, 223. 21 Chalm. Annals, 223, 365: Bacon's Laws of Maryland, 1649. 3 Bacon's Laws of Maryland, 1649, ch. 1; 1 Chalm. Annals, 218, 219, 235. 4 Bacon's Laws of Maryland, 1654, ch. 4; Marsh. Colon. ch. 2, p. 75; Chalm. Ann. 218, 235. 5 Bacon's Laws of Maryland, 1702, ch. 1. 6 Bacon's Laws of Maryland, 1716, ch. 5; Walsh's Appeal, 49, 50; 1 Holmes's Annals, 476, 489. the public registration of conveyances of real estates.1 In the silence of the statute-book until 1715, it is to be presumed that the system of descents of intestate estates was that of the parent country. In that year an act passed,2 which made the estate partible among all the children; and the system thus introduced has, in its substance, never since been departed from. Maryland, too, like the other colonies, was early alive to the importance of possessing the sole power of internal taxation; and accordingly, in 1650,3 it was declared that no taxes should be levied without the consent of the general assembly. § 110. Upon the Revolution of 1688, the government of Maryland was seized into the hands of the crown, and was not again restored to the proprietary until 1716. From that period no interruption occurred until the American Revolution.* 1 Bacon's Laws of Maryland, 1674. 2 Bacon's Laws of Maryland, 1715, ch. 39. 8 Bacon's Laws of Maryland, 1650, ch. 25; 1 Chalm. Ann. 220. 4 Bacon's Laws of Maryland, 1692, 1716. CHAPTER X. NEW YORK. § 111. NEW YORK was originally settled by emigrants from Holland, at least as early as 1614.1 Trading-houses were established on Manhattan Island by them, under the auspices of the Dutch West India Company, about 1621.2 But the permanent establishment of a Dutch colony there does not appear to have been fixed until about 1629, when it seems to have acquired the name of the New Netherlands. But the English government seems at all times to have disputed the right of the Dutch to make any settlement in America; and the territory occupied by them was unquestionably within the chartered limits of New England granted to the council of Plymouth. Charles the Second, soon after his restoration, instigated as much by personal antipathy as by a regard for the interest of the crown, determined to maintain his right, and in March, 1664, granted a patent to his brother, the Duke of York and Albany, by which he conveyed to him the region extending from the western bank of the Connecticut to the eastern shore of the Delaware, together with Long Island, and conferred on him the powers of government, civil and military.5 Authority was given, among other things, to correct, punish, pardon, govern, and rule all subjects that should inhabit the territory, according to such laws, ordinances, &c., as the Duke should establish, so always that the same "were not contrary, but as near as might be agreeable to the laws and statutes and government of the realm of England," saving to the crown a right to hear and determine all appeals. The usual authority was also given to use and exercise martial law in cases of rebellion, insurrection, mutiny, and invasion.6 11 Chalmers's Annals, 567, 568, 2 Id. 570. 8 Ibid. 1 Chalmers's Annals, 568, 569, 570, 572; Marsh. Colon. ch. 5, p. 143; 2 Doug. Summ. 220, &c. 5 Smith's New Jersey, 35, 59; 1 Chalmers's Annals, 573; Smith's New York, p. 31 [10]; Smith's New Jersey, pp. 210 to 215. 6 I copy from the recital of it in Smith's History of New Jersey, in the surrender of 1702 of the provinces of East and West Jersey. A part of this tract was afterwards conveyed by the Duke, by deed of lease and release, in June of the same year, to Lord Berkeley and Sir George Carteret. By this latter grant they were entitled to all the tract adjacent to New England, lying westward of Long Island and bounded on the east by the main sea and partly by Hudson's River, and upon the west by Delaware Bay or River, and extending southward to the main ocean as far as Cape May at the mouth of Delaware Bay, and to the northward as far as the northernmost branch of Delaware Bay or River, which is 41 degrees 40 minutes latitude; which tract was to be called by the name of Nova Cæsarea, or New Jersey. So that the territory then claimed by the Dutch as the New Netherlands was divided into the colonies of New York and New Jersey. § 112. In September, 1664, the Dutch colony was surprised by a British armament which arrived on the coast, and was compelled to surrender to its authority. By the terms of the capitulation the inhabitants were to continue free denizens and to enjoy their property. The Dutch inhabitants were to enjoy the liberty of their conscience in divine worship and church discipline, and their own customs concerning their inheritances. 2 The government was instantly assumed by right of conquest in behalf of the Duke of York, the proprietary, and the territory was called New York. Liberty of conscience was granted to all settlers. No laws contrary to those of England were allowed; and taxes were to be levied by authority of a general assembly.3 The peace of Breda, in 1667, confirmed the title in the conquerors by the rule of uti possidetis. In the succeeding Dutch war the colony was reconquered; but it was restored to the Duke of York upon the succeeding peace of 1674.5 § 113. As the validity of the original grant to the Duke of York, while the Dutch were in quiet possession of the country, was deemed questionable, he thought it prudent to ask, and he accordingly obtained, a new grant from the crown in June, 1674.6 It confirmed the former grant, and empowered him to govern the 1 Smith's New York, 31, 32 [10, 11]; 1 Chalmers's Annals, 613. 2 Smith's New York, 44, 45 [19, 20]; 1 Chalmers's Ann. 574; Smith's New Jersey, 36, 43, 44; 2 Doug. Summ. 223. 8 1 Chalmers's Annals, 575, 577, 579, 597; Smith's New Jersey, 44, 48. 4 1 Chalmers's Annals, 578; 2 Doug. Summ. 223. 5 1 Chalmers's Annals, 579; 1 Holmes's Annals, 364, 366. 6 Smith's New York, 61 [32]; 1 Chalm. Annals, 579. |