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And, America’s first Bill of Rights
As Maryland colonists tried to establish the laws which would govern the colony, one of the biggest divisions was the issue of Church and state. The Jesuits wanted to see a very traditional interpretation of Church privilege, whereas some of the colonists felt that all religious activities should be firmly under state control. The set of laws sent to Baltimore by the colonists was accompanied by three letters stating various points of view, and the most detailed came from Jesuit Father Thomas Copley, who made a good argument that this set of laws would destroy Maryland, and the Catholic Church within Maryland. Baltimore rejected that group of laws, but allowed colonists the power to draft legislation, reserving only veto power for himself. The colonists then created a new set of laws, which took the form of a bill of rights, and established the colony’s courts and institutions within that framework.
Transcript
In June of 1638, Baltimore received a copy of the 41 laws the colonists had passed after rejecting his own laws, as well as three letters discussing the proceedings of the colony’s Second Assembly, and I think that examining them is a good way to talk about what was going on in Maryland at that time, and in particular, the legal and political debates in the colony. The laws Baltimore had sent the Colonists don’t exist anymore, and neither do the laws the Colonists sent Baltimore, so this is also the only real way to investigate the contents of those proposals.
Introduction
All too often, it’s extremely difficult to get a balanced view of the debates of these early colonies. Jamestown was unique in that all the debates were recorded as different factions tried to justify themselves to the Virginia Company, and to the Crown. We get unmistakable evidence that there were major disputes in Plymouth, but we almost never get both sides of the story there. In Massachusetts, we at least get both sides of the story in some of the major, more central debates, though not for all of them, but now in Maryland, we’ve entered a situation where everything was done extremely informally. This means that a lot of stuff just wasn’t documented, and then a lot of documentation was lost. Add to that the fact that Maryland colonists really did seem to be civil to each other a lot of the time, and we don’t often get the chance to examine the actual practical problems and ideological differences which had emerged in the colony. Just like in every colony, colonists had risked and sacrificed a huge amount to relocate to America, and just like in every colony, though they might have been united on some issues, none of them shared the exact same vision of what an ideal society looked like. They were all extremely invested in the outcome, but they didn’t share the same ultimate vision.
So, let’s get into these letters:
One came from Baltimore’s brother, Governor Leonard Calvert. Calvert told Baltimore that he’d tried to get the Assembly to pass the laws he’d sent over, but that there had been so many provisions which went against the people’s good that it was absolutely impossible to get them to ratify it. He also said he was working to procure profitable commodities for his brother from Maryland.
And that brings us to the first point of discussion, which is that Baltimore’s finances had taken a serious hit thanks to his establishment of Maryland, and the legal battles surrounding it. In fact, he’d moved in with his father-in-law, the Earl of Arundel, in an attempt to help minimize expenses. He’d paid for the whole voyage of the Ark and Dove himself, and how he’d been forced to stay in England and deal with years of court cases, and he was feeling the financial strain. Calvert wasn’t alone in his attempts to suggest ways his brother could start to recoup some of the losses. It seems to have been a major source of discussion in the colony at the time.
The other point of interest in Calvert’s letter was that Calvert expressed reservations about Jerome Hawley, who he said may have willingly allowed the situation in Kent Island to deteriorate so that he could trade there himself, and who had tried to dissuade Calvert from the Kent Island expedition to arrest Smith and Butler. Calvert had a strong preference for John Lewger. Lewger had been the only other person in the colony willing to accept the Proprietor’s proposed laws.
The second letter came from Cornwallis.
Simplest thing first, Calvert had recommended to Baltimore that only he, Baltimore and Cornwallis share in the profit from trading ventures. And, in his letter, Cornwallis asked Baltimore to implement this policy. At first, that sounds self serving, but these were people putting a huge amount of their personal time and personal money into Maryland. If they had to rely on tobacco cultivation to survive financially, Cornwallis in particular would be forced to leave Maryland. He had actually been paying for public works out of his own pocket, things like a grist mill for public use, and had nearly exhausted his inheritance. Add to that the fact that he frequently acted as governor, led armed troops in conflict with Kent Island and in case of Indian attack, and he just couldn’t survive exclusively as a cultivator of the land. Instead of increased taxation, New England style, the proposed economic help he needed would come in the form of exclusive shares in trade. Baltimore agreed to this petition.
The bulk of his letter, though, is a firm rebuke. It’s not detailed in content, though he does assure the Lord Proprietor of Hawley’s loyalty, but he tells Baltimore that he must reject the group of laws the colonists have sent over, period, end of story. In one of the more interesting quotes, he says, “I should be as confident to see this same a happy commonwealth as I am now of the contrary if your lordship be not more wary in confirming than we have been wise in proposing.”
Cornwallis was worried about the damage the laws would do to ordinary colonists, but he was frantic about the damage the laws would do to the Church. In fact, he thought that if the colony was willing to pass laws that damaging to the Church, then nothing should ever be allowed to pass unless wise clergymen first determined that it wouldn’t harm the Church. They’d come all this way, not to get rich, but to follow their Catholic faith, but this set of laws would destroy the Church in the colony.
So, clearly, on the subject of the new legislation, it was Calvert and Lewger against Cornwallis and Hawley. In a way, that actually makes it more notable that Calvert would recommend him to share in exclusive trade privileges, and to keep him as one of the most trusted men in the colony. But, Cornwallis and Hawley had been on the losing side.
That brings us to the third letter, and by far the most detailed, from one of the Jesuit priests, named Thomas Copley. And in fact, we should briefly introduce Copley, himself. Copley was from a family which had pretty much remained in exile since the reign of Queen Elizabeth. His grandfather had gone into exile in 1570, but frequently written to the Queen, who had strongly favored him when he was a Protestant, as well as William Cecil and other ministers asking to be pardoned so he could return home. They’d refused, and the family had been in exile pretty much ever since. Father Copley had been born in Madrid, become a Jesuit, and in 1637, gone to Maryland under the alias of Philip Fisher. There, he quickly showed organizational skill and soon took over the administration of the mission, hence, why he’s the person writing to Baltimore here.
And unlike the other two letter-writers, Copley criticized Baltimore directly, insinuating that all Baltimore wanted from Maryland was profit from trade, and saying it was unreasonable for Baltimore to hope for a return so quickly. This was evidently provoked by the set of laws Baltimore had proposed, which Copley said even Calvert and Lewger had admitted weren’t fit for the colony. He hadn’t seen Baltimore’s laws, and he’d only been given the briefest glimpse of the laws the colonists had passed, but he said he’d read enough to know that the laws which had been sent to Baltimore for approval would destroy the colony, as well as the Church within the colony.
To start with, the laws would require every manor to have at least 20 men, and to employ 15 trained soldiers, and to plant two acres of corn for every person living there, as well as to lay out glebe lands, which would be lands that the colony’s clergy would use to grow corn. Plus, as they were faced with this increased obligation, they would also lose any portion of the beaver and corn trade.
This would make the burden and risk of trying to move to America overwhelming, and it would force people who had moved there to leave. Even one of the original planters had already told Copley that he would have to leave if the laws passed. “Certainly, I conceave that your lordship would rather think it fit to nourish and support young sprigs than to depress them, and to go about to gather fruit before it be planted.”
The new laws would also force the priests to spend all their time planting corn and tobacco, and not, you know, doing priest things. According to the new laws, every manor would have to plant two acres of corn per person living there, plus pay taxes in corn and tobacco, and to make matters worse, it wasn’t clear whether the priests would be cultivating their own land, which was already too great a distraction from their mission, or scattered plots on all the manors in Maryland. They’d been buying corn from the Indians to use while they died the work of priests, and if they were forced to spend all their time planting corn, plus losing the right to buy corn from the Indians, the priest would need to leave the colony.
So, there was a flip side to this giving of Baltimore, Calvert and Cornwallis exclusive trading privileges. The Jesuits also relied on this trade, partially because of the money it brought in, but mostly because trade with the Indians had been their exclusive source of corn. They didn’t grow it, they bought it so they could spend their time on the work they’d come to Maryland to do – and they were shorthanded enough as it was. Copley insisted that the Jesuits only needed to be allowed to trade with one small boat. They didn’t need much. They just needed some.
Worst of all, though, one of the laws had required the redistributing of manor lands. Everyone was to give up their land, and cast lots to determine their new manor properties, and they had included the priests in this. It didn’t matter what they’d built on the land, how much they’d invested in the land, or how they’d improved the land, they were supposed to give it up, and be re-assigned land at random. Evidently, the people who had arrived in Maryland after the initial settling had felt that the original settlers had gotten all the good land, and so they’d voted for this law to even out land ownership. It was absolutely insane, but at this point in time the new arrivals were starting to outnumber the original settlers, not to mention the indentured servants who were getting their freedom. Given their support for the proposed laws, it seems that Calvert and Lewger – himself a newer arrival – were willing to let this issue go, while Cornwallis and Hawley strongly opposed this.
Copley also opposed it, and not just because of its application against the priests. He told Baltimore that if the Assembly could do that, then no one could ever be secure in their private rights, because the majority could just come and take from the minority anytime it wanted to. And if that were the case, then no one in their right mind would ever go build something in Maryland, because as soon as they built something nice, someone would just use the legislature to take it away from them. And, in a section of the letter written after the main body of the letter, Copley says that in the time since he’d written the rest of the letter, Lewger had publicly defended the idea that the Assembly could take anyone’s land it wanted.
Copley was also upset about implications which specifically affected the Church, though. Firstly, this was just one example of the laws’ reduction of Church privilege. Lewger’s faction seemed to be trying to put all Church rights, even the commonly accepted ones, under state supremacy. Maryland’s protestant sheriff had even issued an arrest warrant against one of the priests’ servants. There was a new law which required unmarried women to forfeit their lands to their next of kin, something which pretty much only affected the colony’s two nuns, who had arrived with their brother the previous year. About that, Copley said, “to what purpose this ole law is maid your lordship will perhaps see better than I, for my part I see great difficulties, but to what purpose I well see not.” Another law would punish anyone who exercised authority without commission derived from the Lord Proprietary, something Copley noted would “hang any Catholic bishop that should come hither, and also any priest, if the exercise of his functions be interpreted jurisdiction or authority.”
The law which redistributed land also redefined the priests’ land to be the land of normal taxpayers, though, which meant the priests would be forced to pay taxes as normal people, and in addition, they were taxed 1500 pounds of tobacco in that session, which would force them to divert their energies toward corn and tobacco production. Again, they couldn’t trade with the Indians to get the amount necessary to pay those taxes. They would have to do everything themselves. They barely had enough people to fill their priestly duties, but now they’d have to spend a huge amount of their time growing corn and tobacco. Plus, there was a provision in the new law system to create glebe lands on each manor’s property, so each manor would have a section of land set aside for the priests to grow corn and tobacco. So a huge percent of their land would be scattered – while creating an increased imposition on the other colonists – and in order to grow that tobacco and corn they’d have to travel or send their servants all over the colony.
And, there was another aspect of the land redistribution which specifically affected the priests.
Everyone else in the colony had been granted land by Baltimore proportionally to how many people they’d brought, and paid the Lord Proprietor a quit-rent in exchange for the land they were living on. This actually wasn’t true of the priests, who had brought only minimal help from England, some of whom had died, though they’d bought and hired more servants and indentured servants in Maryland. They’d been given a little bit of land, but the vast majority of their land had been given to them by local tribes. Many of the converted tribes had given the priests a portion of the land they owned. Most notably, the Patuxents had given them land called St. Mattapany, which was on the river, enabling them to travel more quickly and more easily to the different tribes and settlers of the region. Boats were the main mode of transportation in the Chesapeake. Of course this made it valuable for everyone, not just the priests. All the most valuable land in Virginia and Maryland lay on the rivers. But, after being given St. Mattapany, the priests had built a missionary station and storehouse there, including their biggest building, Gerard’s Manor, and like everyone else, they’d built it out of their own funds.
And not only did the new laws propose to take that land, and make the priests draw lots for the land they’d permanently live on, they specifically prohibited the priests from accepting Indian gifts of lands.
And when I say that the priests would be forced to divert their attention from their priestly duties to cultivating corn and tobacco, it’s important to understand exactly what that meant in 1638 Maryland.
There were a small handful of priests by this point, about 5 that we know of, mostly recruited from the English exile seminary at Douay. At any given time, though, one or more of the priests could be sick, just like anyone else in the Chesapeake. By now, there were about 4-500 colonists spread over a 30+ mile square area. The priests took care of the sick, administered the sacraments, and administered the last rites anytime a Catholic was dying. Often this meant visiting people at their homes, which could be miles away, and they traveled mostly by boat or on foot.
They also worked to convert the Indians. This had actually helped the Marylanders, because Maryland became a colony which was surrounded by tribes who were close friends and allies based on a shared faith. And, by 1638, the priests had been given occasional permission to visit the tribes of the interior. This usually involved taking a small barge, with one priest, one lay Catholic and one interpreter, a bit of food, an altar table, Eucharist wine and holy water. They’d sail up a river, and if the wind failed, two would row the boat while the third steered, and when they reached their destination, two would hunt while the third built a fire. If the weather was good, they slept in a tent, and if it rained, they built themselves a small hunt, wrapped themselves in their blankets, and slept.
Copley also noted that the priests rendered their services to the colonists free of charge, and that the priests had not gotten involved in the colony’s political system because it wasn’t their place to do so. They hadn’t opposed the passage of Baltimore’s body of laws, and they hadn’t meddled with the Assembly. But, Copley was writing to Baltimore to ask him to uphold Church privileges, like keeping the Church and houses sanctuary, for the priests and their domestic servants and at least half of their planting servants to be free from taxes, for the government to maintain an informal stance of supporting the Church rather than harming it, and that the priests finally be allowed to go to visit and live among the Indians at will, so they could convert more. And, finally, he wanted the priests’ ecclesiastical privileges to be honored by the government, so that they could be the ones to decide what they relinquished.
So, now we have a pretty decent idea of the political debate which was going on. The colony’s leadership was split, with Calvert and Lewger on one side, and Hawley and Cornwallis on the other. Ideologically speaking, we’ve already seen that Lewger was less traditional than Maryland’s other leading Catholics in his relationship with the Roman Church. He had converted, though without accepting things like Papal supremacy, and it seems as if he soon converted back to Protestantism. He was also a newer arrival. The Calverts also embraced a less controversial version of Catholicism, though they seemed dedicated to the Church, and it’s somewhat surprising to see Leonard siding with Lewger. Lewger had supported Baltimore’s laws, though, and it’s possible that that forged an alliance with Calvert when it came to the second set of laws. It’s also possible that Calvert just didn’t want to go against the majority of the colony.
On the other side, Cornwallis and Hawley pretty consistently showed themselves to be more traditional Catholics. Weirdly, in the 19th Century some academics claimed to have found evidence that Cornwallis was a Protestant and a supporter of Parliament in the English Civil War, but the current debate seems to clearly show otherwise.
But, back on topic, there are some things we don’t know about the debate, like why the majority of burgesses supported these laws. As far as I can tell, we don’t know with a great degree of accuracy about the religious makeup of the colony at this point in time. But, there’s also the fact that in England, all the excesses of the Reformation had been justified by discussion, and at times outright lies, about how opulently the clergy lived. After 100 years of that kind of story, it’s quite possible that even pro-Catholic people weren’t convinced that the Jesuits’ interpretation of Church privilege were right. Much like going back to a feudalistic political structure, it seems completely possible that there was almost an instinctive rejection of such a notion in all but the edgiest of recusants, and these people weren’t that. The Jesuits had spent time in exile, though, and were part of a Catholic group with one of the most purist ideologies out there. So, they could easily have assumed the Church in Maryland would have the traditional privilege, and I mean, as we’ve discussed, they weren’t living a life of ease or luxury, whereas others looked at their getting one of the nicest pieces of land, and not growing corn or tobacco, and instinctively connected it to those Reformation critiques.
After receiving the letters, and possibly even being visited by Copley and Altham, themselves, Baltimore wrote to Lewger. Lewger was well aware of the Jesuits complaints, and had evidently even brought them up in a previous letter to Baltimore, but he stood by his position. He said he had never tried to encroach on the priests’ rights, but that the Jesuits expected rights that even More, who was the English Jesuit leader of the time, felt were unreasonable. Lewger emphasized his desire to grow the colony economically, and increase profit for Baltimore and the colonists.
Baltimore did reject this group of laws, but soon afterward granted colonists the exclusive right to write laws, reserving for himself only veto power, and he even said that laws would be implemented immediately after passing. They wouldn’t have to wait for his approval, but instead, they would simply stop being active if he vetoed them.
It’s actually pretty remarkable that he’d give up so much of his own power for the good of the colony. We don’t often see people voluntarily give up power. In addition to allowing the laws, Baltimore modified the rent so that it could be paid in wheat in addition to money, started collecting rent from Kent Island, and appointed Hawley, Cornwallis and Lewger to act as Council with the Governor, with the four sitting on all cases involving life, member or freehold. The governor should name a successor before dying or leaving the province, and if he failed to, the council would decide by majority vote. The Council would also sit as an upper house in a now bicameral legislature.
A month later, Father White sent one of his regular reports to Baltimore. He said how well the colony was going, and gave suggestions to promote the economic growth, as well as Baltimore’s own profit. He also urged Baltimore to give greater privileges to the first group of colonists, as well as to establish three trading posts, to trade with the Massawomecks, Susquehannocs and Nanticokes. White said he himself was losing his hearing, making it harder for him to hear confessions, not to mention to learn the Indian languages, and said he might need to temporarily travel to England for treatment. But, he said that would give him the chance to recruit more clergy to go to Maryland. Illness had struck hard, and White himself had nearly died twice in the past year, but he felt that he and the other priests had developed a more effective recovery regimen than the surgeon, Thomas Gerard, was currently using. In fact, he felt the priests could bring the recovery rate up close to 100%, but the problem was that they couldn’t reach individual people regularly enough to treat them properly. Therefore, he was hoping that the colony would soon establish a hospital, the first hospital in North America, to enable the priests to treat all the people who needed care.
And, when the colonists got Baltimore’s permission to pass their own legal code, Calvert scheduled an Assembly for February 1639. There, they passed the laws which did form the legal foundation of the colony. This was a very different document from the first set of 41 laws, and in fact, it took the form, more than anything, of a bill of rights. It didn’t lessen Church privilege, though that debate would continue.
It had four major provisions. It secured, first, the rights and franchises of the Church, second the prerogatives of the Lord Proprietor, third the liberties of the people in accordance with the Magna Carta, and fourth, allegiance to the king. Within this framework, they established a system of courts, framed oaths of office, regulated the planting of corn and tobacco, as well as fixing customs duties and providing for military discipline. They prioritized the building of a water mill to grind corn, and a public house to serve as a government building. They finalized the election system and fixed the quirk which allowed people to take a seat in the legislature if they hadn’t voted, and mandated triennial Assemblies, though, the governor could still summon people to take seats in the General Assembly. This meant the governor could easily, legally stack the court in his favor, but that never happened under the Calverts. The laws needed to pass three readings in the Assembly, though, and somewhat oddly, the Assembly had only conducted two readings before adjourning. They had delayed the third reading until the next session, and decided to continue operating under Common Law until then. But it did pass at the next Assembly, and Maryland’s legal system was founded.
And, just months after Nathaniel Ward drafted the document which would, in a few years, become the first Constitution-like government in America, Marylanders drafted the document which many scholars point to as America’s first bill of rights.