CLAIMS TO THE ISLE OF KENT.

293

formally discussed by the Council of Virginia. The immediate occasion of debate was an application from Clayborne. He had been summoned by the Governor of Maryland to relinquish all dependence on Virginia, and to consider himself a member of the new colony. What course, he asked, should he pursue? The Council resolved that the Isle of Kent was in no way to be distinguished from the rest of the territory of Virginia, and that they would maintain their right to it, at the same time obeying the king's request by preserving friendly relations with Maryland. Soon after, the matter came before the notice of the Committee of the Privy Council for the Plantations. Their answer, though not quite explicit, since it neither named Maryland nor the Isle of Kent, was yet in tone favorable to Virginia. It declared that the corporate interests of that colony were not to be disregarded, and it definitely authorized the Governor and Council to dispose by grant of all lands which had been legally under their control before 1625.1

Action of the crown.

In the next month Clayborne's case was formally laid before the king, not by Clayborne himself, but his partners in the trading venture at Kent Island. They set forth Clayborne's purchase of that place from the natives, and his labors in establishing a factory there. Their petition met with a favorable hearing. An injunction was sent by the king to the Governor and Council of Virginia and to all other colonial Governors to assist Clayborne and the planters in Kent Island, and in particular forbidding Baltimore and his agents to do them violence.3 This, however, was accompanied by a special injunction from the king to Harvey, desiring him to support Baltimore, and to protect him against Clayborne's malicious practices. No better commentary could be found on the unsatisfactory condition of our colonial government than the confused and contradictory policy adopted in dealing with this dispute.

4

The assertion of Clayborne's claim soon led to hostilities. In the spring of 1634, even while the question was still before the Privy Council, there seem to have been petty conflicts in which the Marylanders harassed the inhabitants of the island and interrupted their trade with the Indians.5 Early in the next year Clayborne took steps which were virtually a declaration of war. He sent out a pinnace with fourteen men, giving them instructions to attack and capture any boats belonging to Maryland.

1 Colonial Papers, 1634, July 22. Ib., 1634, September 18, 27.

2 lb., 1634, October. 3 lb., 1634, October 8. 5 This is evident from the above papers.

294

Calvert met this by arming two small vessels under the command of Cornwallis. The vessels met: the Virginians, it is said, opened fire, and a fight followed in which three Virginians and one Marylander were killed.1

All hopes of a friendly settlement were now at an end. Clayborne retreated to Virginia. The government of Maryland atSuccess of tempted to obtain possession of his person as a crimMaryland. inal by an application to the Virginian government. This was refused, and Clayborne, either of his own accord, or by order of Harvey, went to England with the necessary witnesses, to lay his case before the Privy Council. Meanwhile, the immediate fruit of victory appeared to rest with the Marylanders. One Captain Evelyn was specially appointed Governor, or, as he was styled, Commander of the Isle of Kent, with a Council of six assistants. With their advice he was to try petty cases, civil and criminal. He was also empowered to appoint civil officers and generally to preserve the peace of the island. In the following spring a writ was issued by the Governor, summoning Evelyn himself to the Assembly, and ordering him to call together the freemen, to persuade as many of them as should think fit to appear personally at the Assembly, and to explain to the rest that they had liberty to attend there either in person or by deputy as they pleased. This summons is interesting in more ways than one. It shows that Baltimore, or at least his representative, Calvert, intended to treat the Isle of Kent, not as an outlying dependency, but as an integral part of the colony. At the same time it throws light on the curious mixture of a primary and a representative Assembly, and shows how loosely and freely the power of summoning special members was used when it could be delegated without any restraint to the commander of a dis

trict.

It was easier to treat the Isle of Kent as a part of the colony in theory than to make it so in practice. The inhabitants refused to recognize their new rulers, resisted Calvert's judgments, both in civil and criminal cases, rescued prisoners from the hands of his officers, and, it was even alleged, conspired with the Indians against the safety of the colony. So serious was the state of affairs that Calvert left St. Mary's during the session of the Assembly, deputing his authority to Sawyer, and sailed to the Isle of Kent, there to deal with the offend

Difficulties
with the
Isle of
Kent.

1 Bozman, vol. ii. pp. 35, 61. In the latter passage the indictments are quoted verbatim. Ib., vol. ii. p. 47

CLAYBORNE'S TRADING PROJECT.

295

ers by martial law. Of the results of this expedition we know nothing. On the return of the Governor, criminal proceedings were instituted against Clayborne and one of his chief supporters for the murder of the Marylander who had fallen in the skirmish at the island. Clayborne in his absence was proceeded against by attainder, his follower Smith by a formal trial before the Assembly as the chief criminal court, and both were found guilty. At the same time the Assembly instituted an inquiry into the deaths of the Virginians who had fallen, and acquitted Cornwallis and his supporters as having acted in self-defense. Of Smith's fate we hear nothing.

new

at court.

2

The dispute now entered into a new phase. Clayborne on his return to England in 1637 laid his case before the king. From Clayborne's the favor with which his application was entertained, it scheme. has been thought that he had some influential patron This patron, it has been suspected, was Sir William Alexander, the king's Secretary for Scotland. He had begun life as a needy Scotch adventurer at the court of James I. There his nationality, his versatile genius, and a fair share of literary ability made him a leading figure, and his prosperity was continued under Charles I.3 One of his various projects was the formation of a settlement in Nova Scotia, dependent mainly on the fur trade, and it seems likely that he saw his way towards incorporating Clayborne's scheme with his own. It was probably in consequence of his support that Clayborne, not content with making good his claim to the Isle of Kent, tried to obtain the sanction of the king for fresh acquisitions. He had established a small settlement, probably a mere outlying factory for trade, near the head of the Chesapeake Bay. Here he hoped to create a fur trade with the Indians along the banks of the Susquehannah. To carry out this project he petitioned for a grant of land seventytwo miles in width, and extending the whole length of the river as far as the great lakes of Canada. For this he proposed to pay a quit-rent of a hundred pounds a year, fifty for the Isle of Kent and fifty for his new possession. This request was at first received favorably. The king referred it, with an expression of approval, to the Commissioners for Plantations. At the same time he sent

1 Bozman, vol. ii. p. 62.

2 Chalmers's American Annals.

Alexander's character and his career as a colonial adventurer are sketched in Kirke's Conquest of Canada.

This petition and the king's answer are given by Bozman in a note, vol. ii. p 583.

a letter to Baltimore advising him to leave Clayborne and his partners for the present unmolested. There was not in this latter proceeding anything more than a reasonable desire that hostilities should be stayed pendente lite. Nevertheless the favor which Clayborne's petition met with from the king is a good illustration of the recklessness with which the soil of America was dealt with by the English crown. Hitherto one principle had been always maintained: that important grants of land from the crown should have a fixed limit of sea-board with an unlimited right of extension inland between two parallel lines. Clayborne's petition, if granted, would have wholly destroyed this arrangement. It would have established a belt of trading stations along the western frontier of the other colonies, and would thus have placed their relations with the Indians at the mercy of a merchant company over which the colonists would have no control. Clayborne, however, had less influence with the Commissioners than with the crown. His petition was heard and refused. Baltimore was confirmed in his claim to the Isle of Kent, while, as on a previous occasion, the petitioners were left to seek their remedy at law.1

This might have been supposed to settle the matter between Maryland and Virginia. For a while all disputes seem to have been set at rest, and the claim of Baltimore to exercise his proprietary authority over the Isle of Kent was peaceably accepted. Clayborne's claim, however, was only dormant, not extinct, and the overthrow of the royal authority and the ascendency of the Parliament in Maryland at once served to reawaken it.

In the mean time the internal affairs of Maryland, and the dealings of the settlers with the Indians, require some notice. We have already seen how conspicuous a part the AsLegislative system. sembly of 1639 played in the constitutional history of Maryland. Over and above this, its legislative proceedings were in themselves of no small importance. In considering them we cannot fail to be struck with a difference which from the outset distinguished the legislation of Maryland from that of Virginia. The latter was conspicuous for what we may call its practical and hand-to-mouth character. Enactments were made as the need

for them arose. There was little idea of producing a continuous or symmetrical system. It is possible that the memory of that ferocious code under which the early settlers had suffered may

1 Colonial Papers, 1638, April 4.

LEGISLATION IN MARYLAND.

297

have had a share in determining their successors to cling to the common law of England, and to avoid any attempt at producing a code for themselves. In Maryland, on the contrary, we see something of that love for an unnecessarily elaborate code which is not uncommon in young communities, and of which the American colonies furnished more than one example. The Maryland laws of 1639 were evidently designed as a complete judicial and constitutional system, inasmuch as they were passed not as so many independent and separate Acts, but in a mass. They began with a somewhat vague declaration that "Holy Church within the province should have all her rights and liberties. This clause was probably borrowed from Magna Charta without any definite idea of its special application. The second clause was apparently intended to qualify any danger which might lurk in the first, and prescribed an oath of allegiance to the king. The third declared that the Lord Proprietor should have all his rights and prerogatives. The fourth claimed for the inhabitants all their rights and liberties according to the Great Charter of England. These four Acts must clearly be looked on as a sort of formal preamble, a declaration of the position of the crown, the Lord Proprietor, the Church, and the Commonalty. Having disposed of these, the Assembly went on to enact a criminal code, and to provide means for its execution.

Penal code.

There is not much in this penal code which demands our attention. In no marked respect did it differ, either for good or evil, from the ordinary legislative principles of that age. As regarded religious nonconformity and kindred offenses, the law was severe in appearance, probably mild in practice. Blasphemy, sacrilege, sorcery, and idolatry were all capital crimes. The mention of the last in a community founded by a Papist and in large part inhabited by Papists, must have sounded a strange piece of hypocrisy in the ears of Puritans. Such a code is wholly at variance with the true principles of religious liberty. Yet we may be sure that the Nonconformist was better off under the rule of Papists who were amenable to English law and in some degree to English public opinion, than he would have been in a strictly Anglican community.

The religious principles of the Assembly showed themselves, not by any original legislation, but by the somewhat ingenious expedient of formally re-enacting English statutes framed in earlier times and still unrepealed though obsolete.

Laws about religion.

1 Bozman, vol. ii. p. 107. Bacon's Laws of Maryland.