THE MARYLAND PALATINATE.

On the southwestern coast of Ireland, not far from Cape Clear, the steamship on its way from New York to Liverpool passes within sight of a small promontory crowned by an ancient village bearing the Gaelic name of Baltimore, which signifies "large townlands."[122] The events which transferred this Irish name to the banks of the Patapsco River make an interesting chapter of history.

George Calvert, son of a wealthy Yorkshire farmer of Flemish descent, was born about 1580. After taking his degree at Oxford and travelling for some time on the Continent, he was employed as an under-secretary in the state department by Sir Robert Cecil, after whom he named his eldest son Cecilius. His warm advocacy of the Spanish marriage made him a great favourite of James I., so that in 1617 he was knighted and in 1619 was appointed secretary of state. He seems always to have had a leaning toward the Roman Church. Whether he was converted in 1624, or simply made public profession of a faith long cherished in secret, is matter of doubt. At all events, he resigned his secretaryship at that time. The next year one of the last things done by James, a few days before his death, was to raise Calvert to the Irish peerage as Baron Baltimore.

The son of Mary Stuart had a liberal way of dealing with his favourites. In March, 1623, he granted the great southeastern promontory in Newfoundland—the region now known as Ferryland, between Trinity and Placentia bays—to George Calvert, to be held by him and his heirs forever. The government was to be a "palatinate," a statement which calls for a somewhat detailed explanation.

When that great and far-sighted ruler William the Conqueror arranged the affairs of England after the battle of Hastings, he sought to prevent such evils as those against which the newly founded Capetian monarchy in France was struggling for life, evils arising from the imperfect subordination of the great feudal lords. To this end he made it a rule not to grant large contiguous estates to the same lord, and in every county he provided that the king's officer, the sheriff, should be clothed with powers overriding those of the local manorial officers. He also obliged the tenants of the barons to swear fealty directly to the crown. This shrewd and wholesome policy, as developed under his able son Henry I. and his still abler great-grandson Henry II., has profoundly affected the political career of the English race. But to this general policy William admitted one class of exceptions. In the border counties, which were never quite free from the fear of invasion, and where lawlessness was apt to be more or less prevalent in time of peace, it was desirable to make the local rulers more powerful. Considerations of this sort prevailed throughout mediÆval Europe. Universally, the ruler of a march or border county, the count or graf or earl placed in such a responsible position, acquired additional power and dignity, and came to be distinguished by a grander title, as margrave, marquis, or count of the marches. In accordance with this general principle, William the Conqueror granted exceptional powers and consolidation of authority to three counties, to Durham on the Scotch border, to Chester on the border of Wales, and to Kent, where an invader from the Continent might with least difficulty effect a landing. Local administration in those counties was concentrated in the hands of the county ruler; they were made exceptionally strong to serve as buffers for the rest of the kingdom, and they were called "palatinates" or "counties palatine," implying that within their boundaries the rulers had quasi-regal rights as complete as those which the king had in his palace. They appointed the officers of justice, they could pardon treasons and felonies, forfeitures at common law accrued to them, and legal writs ran in their name instead of the king's. The title of "count palatine" carries us back to the times of the Merovingian kings in Gaul, when it belonged to one of the highest officers in the royal household, who took judicial cognizance of all pleas of the crown. Hence the title came to be applied to other officers endowed with quasi-regal powers. Such were the counts palatine of the Rhine and Bavaria, who in the course of the thirteenth century became electoral princes of the Holy Roman Empire. One of their domains, the Rhenish Palatinate, of which Heidelberg in its peerless beauty is the crown and glory, has contributed, as we shall hereafter see, an element of no small importance to the population of the United States.

To return to William the Conqueror: in an age when the organization of society was so imperfect, and action at a distance so slow and difficult, the possession of quasi-regal powers by the rulers of the palatine counties made it much easier for them to summon quickly their feudal forces in case of sudden invasion. In view of the frequency of quarrels and raids on the border, the quasi-regal authority was liable at any moment to be needed to prevent war from breaking out, and the proper administration of justice demanded a short shrift and a sharp doom for evil-doers. The powers granted by William to the palatine counties resembled those wielded by the French dukedoms of the same period, but with admirable forethought he appointed to rule them priests who could not marry and found feudal families. Durham and for a time Chester were ruled by their bishops, and over Kent as a secular jurisdiction William placed his own brother, Odo, Bishop of Bayeux. In course of time many changes occurred. Kent soon lost its palatine privileges, while those of Chester were exercised by its earls until the reign of Henry III., when the earldom lapsed to the crown. After the conquest of Wales the county of Pembroke on its southwestern coast was made a palatinate, but its privileges were withdrawn by Henry VIII. For a time such privileges were enjoyed by Hexhamshire, between Durham and Northumberland, but under Elizabeth that little county was absorbed in Northumberland. One other northern shire, the duchy of Lancaster, was made a palatinate by Edward III., but that came to an end in 1399, when the Duke of Lancaster ascended the throne of England as Henry IV. Traces of its old palatinate jurisdiction, however, still survive. Until the Judicature Act of 1873 Lancaster and Durham had each its own distinct and independent court of common pleas, and the duchy of Lancaster has still its own chancellor and chancery court outside of the jurisdiction of the lord chancellor. As for the palatine authority of the bishops of Durham, it was vested in the crown in the year preceding the accession of Victoria.

From this survey it appears that by the end of the sixteenth century the bishopric of Durham was left as the only complete instance of a palatinate, or kingdom within the kingdom. In the northern marches the need for such a buffer was longer felt than elsewhere, and the old political structure remained very much as it had been created by William I., with the mitred bishop at its head. The great Norman cathedral, in its position of unequalled grandeur,

still rears its towers in the blue sky to remind us of the stern days when tartan-clad thousands came swarming across the Tweed, to fall in heaps before the longbow at Halidon Hill and Neville's Cross and on many another field of blood. When the king of Scots came to be king of England, this principality of Durham afforded an instance of a dominion thoroughly English yet semi-independent, unimpeachable for loyalty but distinct in its administration. It was not strange, therefore, that it should have served as a pattern for colonial governments to be set up in the New World. For such governments virtual independence combined with hearty allegiance was the chief desideratum, a fact which in later days George III. unfortunately forgot. From the merely military point of view a colony in the American wilderness stood in at least as much need of palatine authority as any frontier district in the Old World. Accordingly, when it was decided to entrust the work of founding an American colony to a nobleman with his clientage of followers, an example of the needful organization was already furnished by the great northern bishopric. Calvert's province in Newfoundland, which received the name of Avalon,[123] was to be modelled after the palatinate of Durham, and the powers granted to its lord proprietor were perhaps the most extensive ever bestowed by the English crown upon any subject.

A party of colonists went at once to Newfoundland in 1623, but various affairs detained Lord Baltimore at home until 1627, when he came with his wife and children to dwell in this New World paradise of Avalon. The trail of the serpent was already there. A French fleet came to attack the colony, meditating revenge for Argall's treatment of the French at Mount Desert and Port Royal, but Baltimore's ships were heavily armed and well handled, and the Frenchmen got the worst of it. Then a party of Puritans came to Avalon, and these unbidden guests were horrified at what they saw. The Rev. Erasmus Stourton returned to England with a shocking story of how Lord Baltimore not only had the mass performed every Sunday, but had even allowed a Presbyterian child to be baptized by a Romish priest. Then the climate of Avalon proved to be anything but what had been expected. One Captain Richard Whitbourne had published an enthusiastic book in which he recorded his memories of June days in Newfoundland, with their delicious wild strawberries and cherries, the soft air redolent with the fragrance of red and white roses, the woods vocal with thrushes and other songsters that rivalled the nightingale; of wild beasts there were none that were harmful, and "in St. John's harbour he once saw a mermaid."[124] Lord Baltimore learned that it was not always June in Avalon. He wrote to Charles I. in August, 1629, as follows: "I have met with difficulties and encumbrances here which in this place are no longer to be resisted, but enforce me presently to quit my residence and to shift to some other warmer climate of this New World, where the winters be shorter and less rigorous. For here your Majesty may please to understand that I have found by too dear-bought experience, which other men for their private interests always concealed from me, that from the middle of October to the middle of May there is a sad fare of winter upon all this land; both sea and land so frozen for the greater part of the time as they are not penetrable, no plant or vegetable thing appearing out of the earth until the beginning of May, nor fish in the sea; beside the air so intolerable cold as it is hardly to be endured. By means whereof, and of much salt meat, my house hath been an hospital all this winter; of a hundred persons fifty sick at a time, myself being one, and nine or ten of them died. Hereupon I have had strong temptations to leave all proceedings in plantations, and being much decayed in my strength, to retire myself to my former quiet; but my inclination carrying me naturally to these kind of works, and not knowing how better to employ the poor remainder of my days than ... to further, the best I may, the enlarging your Majesty's empire in this part of the world, I am determined to commit this place to fishermen that are able to encounter storms and hard weather, and to remove myself with some forty 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 ... was pleased to grant me here, I shall endeavour to the utmost of my power, to deserve it."[125]

To this letter the king returned a gracious reply, in which he advised Lord Baltimore, for the sake of his own comfort and peace of mind, to give up such arduous kind of work and return to England; but before this reply reached Avalon, its proprietor had sailed for Virginia, with Lady Baltimore and the children, and a small retinue of servants and followers. He wished to see that country with his own eyes and learn if it were really fit for his purposes. On the first day of October, 1629, he arrived at Jamestown, where he found the assembly in session. That versatile physician, Dr. Pott, so skilled in "epidemicals" and strong waters and afterward convicted of lifting cattle, was then acting as governor. The reception given to Lord Baltimore was anything but cordial. All good Virginians hated Papists, and this particular Papist was known to stand in high favour with the king, so that he might turn out to be dangerous. He had been one of the commissioners appointed by James I. to look into the affairs of Virginia; what if he were to persuade Charles I. to turn over the colony into his hands for safe-keeping? There was really not the slightest danger of such a thing. Baltimore's wish was not to take possession of a colony already established, but to found one himself in accordance with his own ideas. It was not his purpose to become lord over the Virginians, but their neighbour, who might dwell near them on amicable terms. But the Virginians did not wish to receive him in any capacity or on any terms, except as a transient guest. There was an obvious and easy device for getting rid of him. Dr. Pott and the council tendered to him the oath of supremacy, which of course he could not take. This oath was a sworn recognition of the English sovereign as the only supreme authority throughout the British dominions in all matters ecclesiastical and spiritual. No Catholic could take such an oath. Baltimore proposed an alternative declaration of allegiance to which he could swear, but such a compromise was of course refused. Even had Dr. Pott and the council felt authorized to assume such responsibility, accommodation was not what they desired, and the royal favourite was told that he must sail for England at once. It appears that he met with some very rude treatment at Jamestown, which does not seem to have been publicly rebuked until the arrival of the new royal governor, Sir John Harvey, in the following March; for on the records of the assembly for March 25, 1630, occurs the entry: "Thomas Tindall to be pilloried two hours, for giving my Lord Baltimore the lie and threatening to knock him down." It is evident, however, that such unseemly conduct could not have met with approval among respectable people at Jamestown, for when Baltimore sailed he left his wife and children there. It is clear that he intended soon to return, and wished to save them the discomforts and perils of the double voyage. He knew that Virginian hospitality could be relied on. His purpose of returning must have been well known, for the secretary of the colony, William Claiborne, was sent to London to keep an eye upon him and thwart his schemes as far as possible. After arriving in England, Lord Baltimore found so many hindrances to be reckoned with that he sent for his family and they followed him by a later ship.

Baltimore's first request was for a tract of territory lying south of James River as far as the mouth of the Chowan (or Passamagnus) River in Albemarle Sound. This province was to be called Carolina, either in honour of Charles I., or because the name had been given by the Huguenots in 1562 in honour of Charles IX. of France to a point farther south on that coast and was vaguely applicable to territory between Virginia and Florida. A charter conveying this land to Lord Baltimore had already been made out when Claiborne appeared with his objections, which were supported by other persons in London who were entertaining schemes for founding a sugar-planting colony in Carolina. The matter was discussed in the Privy Council, and Baltimore's attention was called to the fact that the Dutch were taking possession of the country between the Hudson and Delaware rivers; would it not therefore be desirable to found a colony north of the Potomac, and squeeze these unwelcome intruders into as narrow a space as possible? Baltimore accepted this suggestion, and a charter was drawn up, granting to him as lord proprietor the province which received the name of Maryland, after Charles's Catholic queen, Henriette Marie, in England commonly called Queen Mary. The charter, which Baltimore drew up with his own hand, was in the main a copy of the Avalon charter; but before it had received the royal seal he died, in April, 1632. In June the charter was issued to his eldest son Cecilius Calvert, second baron of Baltimore.

In obtaining this new grant of Maryland, the Calverts did not regard themselves as giving up their hold upon Newfoundland. Cecilius appointed a governor for Avalon as a fishing station, but in 1637, with characteristic recklessness, the king granted it to the Marquis of Hamilton and some other noblemen, on the ground that the charter had been forfeited by disuse. More or less controversy went on until 1663, when in consequence of a judgment in the courts pronouncing the Hamilton grant void, Avalon was surrendered to Cecilius. But his descendants really neglected it, until in 1754 the charter was again declared forfeited, and the crown resumed its rights over the whole of that large island.

It seems to have been the physical hardships sustained in Newfoundland that cut off the first Lord Baltimore prematurely in his fifty-third year and prevented his witnessing the success of the enterprise which he had so much at heart. His plan was to found in the New World a commonwealth where Catholics might find a welcome refuge from the oppressive legislation to which they were subjected in England. It was a plan that could be carried out only by adopting a policy of universal toleration utterly unknown in that age outside of the Netherlands. It called for the utmost sagacity and tact, and was likely to require on the part of the ruler all the well-nigh royal powers with which Lord Baltimore had been endowed. Though the scheme was left for the son to put into successful operation, it was devised by the father and stamps him as no ordinary man. It is right that he should be honoured as the first founder of Maryland. His portrait, painted for Lord Bacon by the illustrious Daniel Mytens, is now in the gallery of the Earl of Verulam, and there is a fine copy of it in the state-house at Annapolis. The face is courteous and amiable, albeit somewhat melancholy, and shows refinement and intelligence, as well as the honesty for which he was noted. George Calvert's integrity was such that throughout his public life men respected and trusted him without distinction of party. Of the sincerity of his religious feelings one gets a glimpse in such characteristic passages as the following, from a letter to his friend, the great Earl of Strafford: "All things, my lord, in this world pass away; wife, children, honours, wealth, friends, and what else is dear to flesh and blood. They are but lent us till God please to call for them back again, that we may not esteem anything our own, or set our hearts upon anything but Him alone, who only remains forever."[126]

Of the early life of the son, Cecilius Calvert, very little is known. He was born in 1606 and entered Trinity College, Oxford, in 1621, but there is no record of his having taken a degree. He was hardly more than eighteen years old when he became the husband of Lady Anne Arundel, whose name is left upon one of the counties of Maryland, and whose portrait by Vandyck, preserved in Wardour Castle, shows her to have been one of the most beautiful women of her time. An engraved portrait of Cecilius, made in 1657 and now in possession of the Maryland Historical Society, gives us the impression of great sagacity and power, with the repose that comes from undisturbed self-control. There is perhaps more astuteness than in the father's face, but the look is also frank, as well as lofty and refined. Through many difficulties the plan conceived by George Calvert was put into operation by Cecilius, who is to be regarded as preËminently the founder of Maryland. His strong personality is impressed upon the whole history of that interesting community; yet singularly enough, the second Lord Baltimore never visited the colony to which the labours of his long life were devoted. He cherished at first an intention of going out with the first party of colonists, but finding that London fairly swarmed with enemies to the enterprise, he found it most prudent to stay there and contend with them. This was only the beginning of long years of arduous work in which the right time for leaving England never came, and the Moses of this new migration and fresh departure in the way of founding states was at last gathered unto his fathers without ever having set foot in the Promised Land.

In two ways the founding of Maryland was a new departure in methods of colonization. In the first place, it introduced into America a new type of colonial government. The Spanish and French colonies were simple despotisms administered by viceroyal governors, sometimes with advisory councils, sometimes partly held in check by an officer called the intendant, who was himself a counter-despot. The government of Virginia after the suppression of the Company was called a crown government because the governor and council were appointed by the king; it was not a despotism, because there was an assembly elected by the people, without whose consent no taxes could be assessed or collected. The bond of connection with the mother country was loose but real. A contrast was afforded by Massachusetts, which under its first charter, from 1629 to 1684, was a true republic, with governor, council, and assembly all elected within the colony, so that the administration could move on quite independently of any action in England. In the proprietary governments, of which Maryland was the first example, the lord proprietor stepped into the place of the crown, while a charter, which might be forfeited in case of abuse, made it impossible for him to become an absolute monarch. The elective legislature of Maryland, which in point of seniority ranks third in America, next after Virginia and Massachusetts, was expressly provided for in the charter. The lord proprietor's sovereignty was limited by this elected assembly of freemen, but his dependence upon the king of England was little more than nominal. In token of allegiance and homage he was to send to the king each year two Indian arrows. His rent was to be one fifth part of all gold or silver mined in Maryland, but as no precious metals were found there, this rent amounted to nothing. Moreover, whenever it might seem necessary, the oath of allegiance might be administered to any of the inhabitants. Saving this formal recognition of his overlord, the lord proprietor was virtually king in Maryland. Laws passed by the assembly became valid as soon as he had signed them, and did not need to be seen by the king. In case the assembly could not conveniently be brought together in an emergency, he could issue ordinances by himself, analogous to the orders of the Privy Council. He could coin money and grant titles of nobility, he could create courts, appoint judges, and pardon criminals. It was moreover expressly stipulated that within the limits of Maryland no taxes could be either assessed or collected by any British government. Finally the lord proprietorship was vested in Cecilius Calvert and his heirs, and in point of fact was exercised by them with some interruptions for five generations; so that the government of colonial Maryland was really a hereditary constitutional monarchy.

Thus Lord Baltimore introduced into America a new and quite remarkable type of colonial government. But in the second place his attempt to inaugurate a policy of complete religious toleration was a still more memorable departure from familiar methods. Among the express provisions of the charter there was nothing that looked toward such complete toleration. Any express toleration of Catholics would have ruined the whole scheme at the start. The words of the charter were conveniently vague. In the original charter of Avalon the lord proprietor was entrusted with "the patronage 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 license 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 England." This Avalon grant of 1623 was made when Sir George Calvert was still a member of the English church; it empowered him to found Anglican churches, but did not expressly prohibit him from founding Romanist or Nonconformist places of worship along with the others if he should see fit. Now exactly the same words were repeated in the Maryland charter, although it was generally known that Lord Baltimore intended to make that colony an asylum for such English Catholics as wished to escape from their grievances at home. The fact that no prohibition was inserted shows that the king connived at Baltimore's scheme, perhaps through sympathy with his Catholic queen. None of the Stuarts were fierce Protestants, and it is worth noting that it was at the king's request that the colony was named Maryland. Mr. Gardiner's opinion seems well sustained, that "the phrases of the charter were intended to cover a secret understanding between Baltimore and the king."[127]

Starting with such a charter, religious toleration in Maryland was a happy product of circumstances. In view of the regal powers wielded by Lord Baltimore it was not easy for the Protestant settlers to oppress the Catholics; while, on the other hand, if the Catholic settlers had been allowed to annoy the Protestants, it would forthwith have raised such a storm in England as would have overwhelmed the lord proprietor and blasted his enterprise. The situation thus created was improved to the best advantage by the strong common-sense and unfailing tact of Cecilius Calvert. It is not likely that he had arrived at such advanced views of the entire separation of church and state as those which were set forth with such luminous cogency by Roger Williams, but there was a statesmanlike instinct in him that led him in a similar direction. In point of religious toleration Rhode Island unquestionably holds the foremost place among the colonies, while next after it come Quaker Pennsylvania, with New Netherland, which for its brief season maintained the wholesome Dutch traditions. There are some respects in which Maryland's record may vie with the brightest, but her success was not attained without struggles. We shall presently have occasion to see how curiously her beginnings were complicated with the affairs of her elder sister Virginia and with some phases of the Puritan revolution.

If Lord Baltimore felt obliged himself to stay in England, he was able to send excellent agents to America in the persons of his younger brothers, Leonard and George Calvert. The former he appointed governor of Maryland. The most important member of the council was Thomas Cornwallis, of an ancient and highly honourable London family, the same to which in later days belonged the Earl Cornwallis who surrendered an army to George Washington at Yorktown.[128] Leonard Calvert's ships were the Ark, of 300 tons burthen, with its attendant pinnace, the Dove, of 50 tons; and his company comprised 20 "gentlemen adventurers" with about 300 labourers. So alarmed were London people at the expedition that it took the ships a full month to get away from the Thames River. All kinds of rumours flew about. It was assumed that all Catholics must be in league with Spain and that these ships must be concerned in some foul conspiracy against the English colonies in America. At the last moment a great fuss was made in the Star Chamber, and Coke sent an order post-haste to Admiral Pennington commanding the channel fleet to stop the ships at Dover. The oath of supremacy was administered, and we hear of 128 persons taking it at one time. It is generally believed that the majority of the company were Protestants; the leaders were nearly all Catholics, including the amiable Jesuit, Father Andrew White, who has left us in quaint and very charming Latin a full narrative of the voyage.[129] The ships finally started on the 22d of November, 1633, stopped for a while in January at Barbadoes, and on the 27th of February reached Point Comfort, where a letter from the king ensured them courteous treatment at the hands of Governor Harvey. With a fresh stock of supplies they sailed up Chesapeake Bay and into the broad Potomac, and presently on a little wooded island which they called St. Clement's—since dwindled to the mere vestige of a sand-bank—they celebrated Mass for the first time in English America on the 25th of March, 1634.

On a bluff overlooking the deep and broad St. Mary's River the settlers found an Indian village, which they bought from its occupants with steel hatchets and hoes and pieces of cloth. These Indians were a tribe of Algonquins, who had been so persecuted by their terrible Iroquois neighbours, the Susquehannocks, that they were already intending to move away to some safer region; so they welcomed the white purchasers and the chance for buying steel hatchets. Leonard Calvert was as scrupulously just in his dealings with red men as William Penn in later days, and like Penn he was exceptionally favoured by the circumstances of his Indian neighbours. After the Algonquins had departed from St. Mary's, the fierce Susquehannocks to the northward were so hard pressed by their hostile kinsmen of the Five Nations, that they were only too glad to live on amicable terms with the settlers of Maryland. Thus one of the most formidable difficulties in the way of American colonization was removed at the start.

At St. Mary's, moreover, there was no Starving Time. The land had so long been cleared by the Indians for their own cornfields that Calvert's settlers at once began planting for themselves. Father White speaks with approval of two native dishes which the Indians call "pone" and "hominy," and from their squaws the English women soon learned how to bake and fry these viands to perfection. In the course of the very first autumn the Marylanders were able to export a shipload of corn to New England in exchange for a cargo of salted codfish.[130] Cattle and swine were obtained from Virginia, and soon the neighbourhood of St. Mary's was covered with thrifty and smiling farms. New colonists came quite steadily, and presently from St. Mary's the plantations spread about the shores of the Potomac River and Chesapeake Bay. The first assembly was convened and the first laws were enacted in 1635, and when Cecilius, Lord Baltimore, died, just forty years afterward, his Maryland had grown to be a prosperous community of 20,000 souls.

Some of the more important details of this growth will form part of our story. At present we have to consider somewhat more closely the nature of this palatinate government, and the modifications which it underwent in its transfer from England to America.

The Bishop of Durham was feudal landlord of the territory in his bishopric, and the most considerable part of his revenue came from rents.[131] Until 1660 he also received a fluctuating but not insignificant income from such feudal incidents as escheats, forfeitures, and wardships. The rents and feudal dues were collected by the bailiffs, each in his bailiwick, and were by them paid over to the receiver-general, who was superintendent of the palatinate's finances. As for Durham's share of the national taxes, Parliament simply determined the amount; the bishop's government decided how it should be raised and his constables collected it. The only taxes collected by the king's officers were the customs.

After 1536 the militia force of Durham, like that of other counties, was commanded by an officer known as lord lieutenant. Formerly the command of the militia and collecting and disbursing of revenue were concentrated in the hands of the high sheriff, who continued to be nominally the superior officer over the lord lieutenant and receiver-general, while his actual duties were restricted, like those of sheriffs in other counties, to enforcing the decisions of the courts. But whereas all other sheriffs were crown officers, the high sheriff of Durham was accountable only to the bishop.

The only officer of higher dignity than the high sheriff was the chancellor of temporalities, who exercised a twofold function. He was the bishop's chief minister and head of the civil government, and he presided over the bishop's high court of chancery. Below this high tribunal there were two kinds of courts. The one was like the ordinary courts of quarter sessions, composed of justices of the peace, save that these justices were appointed by the bishop and punished breaches not of the king's peace but of the bishop's peace. The other kind of court was one that could be held in any manor of the bishopric. It was the manorial court or "halmote," the most interesting of these ancient institutions of Durham. The business of the halmote courts was to adjust all questions relating to the tenure of land, rights or easements in land, and such other matters as intimately concerned the little agricultural community of tenants of the manor. They could also issue injunctions and inflict sundry penalties. These courts were held by the seneschal, an officer charged with the general supervision of manors, but all the tenants of the manor in question could attend the halmote, and could speak and vote there, so that it was like a town-meeting. When we add that it could enact by-laws, thus combining legislative with judicial functions, we see its ancestry disclosed. This halmote in Durham was a descendant of the ancient folkmote or primary assembly which our forefathers brought into Britain from their earlier home in the wilds of northern Germany. In this assembly the people of Durham preserved their self-government in matters of local concern. But the circumstances in which the palatinate grew up seem to have retarded the development of representative government. There was no shire-mote in Durham, attended by selected men from every manor or parish or township, as in the other counties of England. Instead of laws enacted by such a representative body, there were ordinances passed by the bishop in his council, which was composed of the principal magistrates already mentioned, and of such noblemen or other prominent persons as might choose to come or such as might be invited by the bishop. It thus resembled in miniature a witenagemote or house of lords. The bishops of Durham seem to have been in general responsive to public opinion in their little world, and it does not appear that the people fared worse than they would have done with a representative assembly. The bishop was not an autocrat, but a member of a great ecclesiastical body, and if he made himself unpopular it was quite possible to take steps that would lead to his removal.

The lack of representative institutions in Durham, coupled with its semi-independence, long retarded its participation in the work of national legislation. The bishop, of course, sat in the House of Lords, but not until the reign of Charles II. was this county palatine represented in the House of Commons. The change was inaugurated by Cromwell, under whose protectorship the palatine privileges were taken away, and Durham, reduced to the likeness of other counties, elected its members of Parliament. In 1660 the restored monarchy undid this change and replaced the bishop, although with his palatinate privileges slightly shorn. In 1675 Durham began to be regularly represented in the House of Commons, but that date was subsequent to the founding of the Maryland palatinate. At the time when Lord Baltimore's charter was issued, the bonds of connection between Durham and the rest of England were three: 1. the bishop was a tenant in capite of the crown, besides being an officer of the Church and a member of the House of Lords; 2. the county regularly paid its share of the national taxes; and 3. cases in litigation between the bishop and his subjects could be appealed to the Court of Exchequer in London. Saving these important limitations, Durham was independent. The only way in which the king could act within its limits was by addressing the bishop, who by way of climax to his many attributes of sovereignty was endowed with the powers of coining money, chartering towns, and exercising admiralty jurisdiction over his seacoast.

As I have already observed it was natural that in founding new governments in America, this familiar example of the Durham palatinate should be made to serve as a model. In point of fact not only Maryland, but every colony afterwards founded, except in New England, was at first a palatinate, with either a single lord proprietor or a board of proprietors at its head. Of the four colonies older than Maryland, three—English Virginia and Massachusetts, and Dutch New Netherland—were founded through the instrumentality of charters granted to joint-stock companies, organized really or ostensibly for commercial purposes; one, Plymouth, was founded by the people and ignored by the crown until finally suppressed by it. Of the four New England colonies younger than Maryland, all were founded by the people themselves, one of them, New Haven, was soon suppressed, another, New Hampshire, was turned into a royal province, the other two, Connecticut and Rhode Island, were for the most part let alone. The governments of all the other colonies began as proprietary governments. This was the case with New York and the two Jerseys after the English conquest of New Netherland; it was the case with Pennsylvania and Delaware, with the two Carolinas, and with Georgia. One and all of these were variations upon the theme first adopted in the founding of Maryland. All were based upon the palatinate principle, with divers modifications suggested by experience as likely to be more acceptable to the proprietors or to the crown. And just as the crown, for purposes of its own and without regard to the wishes of the people, changed the governments of Virginia and New Hampshire and extinguished those of New Haven and Plymouth; so in nearly every case we find the people becoming so dissatisfied with the proprietary governments that one after another they are overturned and the palatinates become transformed into royal provinces. We shall, therefore, find it profitable to trace the history of the palatinate principle in America through its initial theme and its subsequent variations.

That initial theme was mainly an echo of the Old World music, but the differences were not without importance. In administrative machinery there was a strong resemblance between Maryland and Durham. The governor of Maryland was Lord Baltimore's chief minister, the head of the civil administration of the colony. He also presided over its court of chancery, and in this double capacity he resembled the chancellor of temporalities. But, as befitted the head of a community planted in a hostile wilderness, he added to these functions those of the lord lieutenant and was commander-in-chief of the militia. Laws passed by the assembly required his signature to make them valid, and thus he possessed the power of veto; but he could not assent to a law repealing any law to which the lord proprietor had assented. Such matters had to be referred to the lord proprietor, whose prerogatives were jealously guarded, while the extensive powers accorded to the governor were such as convenience dictated in view of the fact that the lord proprietor was absent in England. An instance of the principle and its limits is furnished by the governor's pardoning power, which extended to all offences except treason.[132]

The personage next in importance to the governor was the secretary, who as receiver and disburser of revenues resembled the receiver-general of Durham, but to these functions he added those of recorder and judge of probate, and sometimes also those of attorney-general. Next came the surveyor-general, whose functions in determining metes and bounds and in supervising manorial affairs, resembled those of the Durham seneschal. Then there was a lieutenant commander of militia known as master-general of the muster. In each county there was a sheriff, who, in addition to such functions as we are familiar with, collected all taxes, held all elections, and made the returns. These four officers—the secretary, surveyor-general, muster master-general, and sheriff—were paid by fees, the amount of which was determined by the assembly, which thus exercised some control over them; but the governor received a salary from the lord proprietor, and was to that extent independent of the legislature.[133]

Of courts there was one in each county, but besides this a considerable number of manors were created, and each manor had its court baron and court leet for the transaction of local business. Small civil cases involving less than the worth of 1,200 pounds of tobacco, and criminal cases not involving the death penalty, were tried in the county courts. Above these was the provincial court, which dealt with common law, chancery, or admiralty, as the case might be. The judges of this court were all members of the council, to which the secretary and other chief executive officers belonged, while the governor presided alike over the provincial court and over the council. Appeals could be taken from the provincial court to the council sitting as the upper house in the assembly, after the analogy of the appellate jurisdiction of the House of Lords; but this virtually meant that a case once decided could be tried over again by the same judges with a few colleagues added.

The assembly, at the mention of which we have thus arrived, was the principal point of difference between the palatinate of Maryland and that of Durham. The governor of Maryland, like the bishop of Durham, had his council, consisting solely, as the other consisted chiefly, of high officials; but in Maryland there was popular representation, while in Durham there was not. At first, however, the popular house was not a representative but a primary assembly, and its sittings were not separate from those of the council. In the first assembly, which met at St. Mary's in February, 1635, all the freemen, or all who chose to come, were gathered in the same room with Leonard Calvert and his council. They drew up a body of laws and sent it to England for the lord proprietor's assent, which was refused. The ground of the refusal was far more than the mere technicality which on a hasty glance it might seem to be. Cecilius refused because the charter gave the lord proprietor the power of making laws with the assent of the freemen, but did not give such power to the freemen with the assent of the lord proprietor. In other words, the initiative in legislation must always come from above, not from below. Obviously there could be no higher authority than Cecilius as to what the charter really intended. But the assembly of Maryland insisted upon the right of initiating legislation, and Cecilius was wise enough to yield the point gracefully. He consented, in view of the length of time required for crossing the ocean, that laws enacted by the assembly should at once become operative and so remain unless vetoed by him. But he reserved to himself the right of veto without limitation in time. In other words, he could at any time annul a law, and this prerogative was one that might become dangerous.

In 1638 the primary assembly was abandoned as cumbrous. For purposes of the military levy the province was divided into hundreds, and each hundred sent a representative to the assembly at St. Mary's. At a later date the county came to be the basis of representation, as in Virginia. For some time the representatives sat with the council, as at first in Massachusetts and Virginia; but in 1650 the representatives began to sit as a lower house, while the council formed an upper house. As there was a tendency, which went on increasing, for the highest offices to be filled by Calverts and their kinsmen, the conditions were soon at hand for an interesting constitutional struggle between the two houses. It was to be seen whether the government was to be administered for the Calverts or for the people, and to the story of this struggle we shall presently come.

As a result of our survey it appears that Lord Baltimore occupied a far more independent position than any bishop of Durham. Not only was he exempt from imperial taxation, but in case of a controversy between himself and his subjects no appeal could be taken to any British court. His power seemed to approach more nearly to despotism than that of any king of England, save perhaps Henry VIII. The one qualifying feature was the representative assembly, the effects of which time was to show in unsuspected ways. From various circumstances mentioned in the course of the present chapter there resulted a strange series of adventures, which will next claim our attention.