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ALLEN COUNTY PUBLIC LIBRARY 3 1833 02263 6267
Gc 975.2 M365B BROWN, GEORGE WILLIAM, 1812- 1890. THE ORIGIN AND GROWTH OF CIVIL LIBERTY IN MARYLAND
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THE ORIGIN AND GROWTH OF CIVIL LIBERTY IN MARYLAND.
A DISCOURSE
DELIVERED BY
GEO. WM. BROWN,
BEFORE THE
Alarpland historical Society,
Baltimore, April 12, 1850,
BEING THE
FIFTH ANNUAL ADDRESS TO THAT ASSOCIATION.
HISTO!
LAND
CRESCITTI
SOCIE
O
BALTIMORE: PRINTED BY JOHN D. TOY, Corner of Market and St. Paul-sts.
1850.
Allen County Public Library 900 Webster Street PO Box 2270 Fort Wayne, IN 46801-2270
DISCOURSE.
MR. PRESIDENT AND
GENTLEMEN OF THE HISTORICAL SOCIETY :
IN this age and country we do not much love to contemplate the past. The legends and time-honored traditions which form so large a part of the intellectual store of many nations have no place in our literature. Society is so constituted that most of us seek and therefore find little leisure for rest or recreation, and still less for looking back ward. Every hour brings with it so much engrossing labor, or such a variety of pur- suits and cares, and the age is so crowded with startling events, that the transactions of the present time only, seem to be worthy of our serious attention, and, contrasted with them, those of the past fade into insignifi- cance as if they were mere shadows and unrealities.
Twice a day the never resting press spreads before our eyes the cur- rent history of the whole civilized world. Not a battle is fought, nor a dynasty subverted, nor does any other event of real or supposed im- portance happen any where within the outermost boundaries of civiliza- tion, but the account speeds back to us faster than the winds can waft it, borne aloft over land and ocean by the mighty arm of steam, or shot through the wires of the telegraph with a rapidity so great that it defies calculation. As the sun in the short cycle of twenty-four hours looks down upon the inhabitants of the whole earth, making one and the same solar day for all, so we, by the wonderful agency of steam and magnetism, may be almost said to live on the same actual day in the midst of events which occur among other people and in distant lands. A happy effect of this wonderful circulation of thought and intelligence is, doubtless, to expand our views beyond the narrow confines of our own homes and country, and to enlarge our sympathies so as to enable us to embrace within them the interests of the whole human family,
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but its effect also is, to concentrate our thoughts still more intensely upon the occurrences of the present time to the exclusion of the past.
The existence of this Society and of associations of a similar kind, which have recently been established in many of the States, and the encouragement which they have received, amounting to something more than a permission to live, may be regarded as a favorable omen. They not only embody in themselves a protest against the practical and utilita- rian spirit of the times, but are an evidence of a reverent desire on the part of their members to do justice to the memory of our forefathers who have left us so largely their debtors.
No people are connected with the past by stronger and more en- dearing tics than ourselves, although, at first sight, it might seem to be otherwise. We justly attribute to the free institutions of our country the extraordinary prosperity which as a nation we have always en- joyed ;- but whence came those institutions? The distinctive character which they possess was impressed upon them at a recent period, but their origin lies hid in the distant past, and they were developed slowly and gradually by the events of many centuries. It may be said of them as has been said with reference to the intellectual treasures which we pos- sess, that we who now live,
" Are the heirs of all the ages, In the foremost ranks of time."
All history shows that few things are of slower growth than civil liberty, and that it is easier either for individuals or nations to submit to be ruled by others, than to learn to control themselves. In some measure we, as a people, have learned the duties of self-government, and to practice them, under the favorable circumstances in which we are placed, seems to be so easy, that we can hardly comprehend that the habit was acquired by slow degrees and a transmitted experience. If we had attempted the experiment for ourselves, without the benefit of the instruction which we have derived from those who preceded us, we should have failed signally as others have done.
In order to establish a republic, much more is required than to set men free from the bonds of despotism, and to put the reins of authority in their own hands. Nor is it enough that the true interest of all re- quires that law and order should be the unvarying rule, nor even that a liberal and wise written constitution should be solemnly adopted. Our sister republics on this continent, if indeed such travesties of free
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governments can be called republics, furnish an instructive lesson on this subject. Spain, while they remained her colonies, endeavored to trample out every spark of freedom, and, now that they have thrown off her yoke, they are not fitted for the new duties which they have assumed.
Nor is the case much better in enlightened Europe. Within a short space of time the old dynasties there have been shaken to their founda- tions. A veil has fallen from the eyes of men. The divine riglit of kings to govern, and the heaven-appointed duty of the people to sub- mit to be governed without reference to the general welfare, have come to be regarded as impostures too gross to be seriously maintained out of Russia and Turkey. Even fortifications and standing armies, with which monarchs have been accustomed to hedge themselves round, have, in times of trial, proved, like the rest, a delusion. Late events have shown that in most of the countries of Europe there are destruc- tive agencies at work, quite sufficient to subvert the old governments which have so long elevated the few at the expense of the inany. They are permitted to stand, not through their own strength, but because there is not sufficient constructive power in the people to rebuild after a revo- lution. Men must learn self-control, self-government, before they are prepared to be republicans. True liberty is the farthest thing possible from anarchy and licentiousness. Those who have grown up in bond- age can hardly be made to assume the port, and practice the moderation of men educated in the habits of regulated freedom.
Only two of all the men of Israel, who, in Egypt, had been hewers of wood and drawers of water for their tyrannical task-masters, were permitted to assist in laying the foundations of the Jewish common- wealth. Slaves they had been, and had been taught to submit and obey, but self-control, self-denial they could not learn, even from the teaching of their inspired lawgiver. The privations which their new freedom imposed, soon made them pine for their former slavery, and it was not until the old generation had died completely out, and a new and brave race, composed of those who had left Egypt in their youth and those who were born and nurtured in the free air of the desert, had taken its place, that the chosen people were permitted to enter and take posses- sion of the promised land.
The men who laid the foundations of civil liberty, broad and deep, in this their land of promise, were the early colonists and their immediate successors, and they are worthy of all honor from us who have entered
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into their labors. They were not fully aware of the consequences des- tiued to result from the work in which they were engaged, but our gratitude is not the less due to them on that account. The real benefits which mankind were to derive from the discovery of a new continent, were not, as was at first supposed, in a large increase of wealth, nor even in finding an outlet for the crowded population of Europe. They were to spring from the new order of things, socially and politically, which has here been developed, aud which is fast modifying the civili- zation of the world. More precious seeds were never sown in the fal- low field of time than the English colonies which, in the seventeenth century, were planted along the eastern coast of North America. As the child is the father of the man, as the acorn enfolds within its shell the future oak, as the bubbling fountain gives birth and direction to the mighty river, so those insignificant colonies, the work mainly of indi- vidual enterprise, feeble in numbers, neglected in their infancy, strug- gling for existence against Indian foes, diseases, hardships and priva- tions, contained within themselves principles of liberty, which in their development, naturally produced the free institutions under which we live and which we justly prize as the most valuable of our possessions.
But I pass from these general considerations to the subject to which I desire more especially to call your attention, the origin and growth of civil liberty in Maryland. It is a theme which I cannot hope to make generally interesting, for it will necessarily carry me into somewhat minute details, and, unfortunately, the early records of our State are not only few and scanty in themselves, but are barren of striking and ro- mantic incidents, which are essential to render the pages of history ani- mated and attractive.
The charter of Maryland bears date on the 20th of June, 1632. It was drawn in the lifetime of George Calvert, the first Lord Baltimore, for whose benefit it was designed, but he having died about two months before its execution, it was granted by Charles the First to Cecilius, the eldest son of George Calvert, to whom the title and fortune of his father had descended. Very different views have been taken and earnestly maintained of the true meaning of this instrument. It has been de- scribed by some as embodying a scheme of the strongest government known throughout the American Colonies, and has been praised by others as being not only liberal but even democratic in its character, and as making ample provision for the rights of the settlers. This dif- ference of opinion has arisen from the ambiguity of some of its provi-
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sions, but I think that it is not difficult to shew that the charter was designed to establish a government resembling that of England in the days of James the First, in which still more extensive powers were vested in the rulers than were claimed by the English executive, and fewer rights were secured to the people, than were then enjoyed in the parent country; and, indeed, it would be strange if it were other- wise, if we consider the source from which it originated. It is gene- rally admitted either to have been the work of the first Lord Balti- more himself, or to have been prepared under his immediate direc- tion, and it bears, in all its parts, the strongest intrinsic evidence that such was its origin. He was first knighted, and afterwards created Baron of Baltimore, by James the First, for about six years was one of his secretaries of state, and, through the life of that arbitrary and capri- cious monarch, continued to be a favorite. He was twice returned to parliament, in which body he was known as a supporter of the royal prerogative, and as a member of the court party as opposed to the country party. He is universally conceded to have been an able and conscientious man, but it is no reproach to him to say, that his sym- pathies and opinions, so far as they are known to us, all inclined him to favor a strong rather than a popular government.
The charter conveys, according to specified boundaries, which after- wards and for a long time were the source of much trouble and litiga- tion, "a certain region," " in a country hitherto uncultivated in the parts of America." It was a compact between the sovereign and the proprie- . tary, in which the latter undoubtedly had the best of the bargain, but as the former voluntarily parted with that which to him was of little value, and to which, at best, he had but small right, he certainly had no cause to complain. The grantee and his heirs were made true and ab- solute lords and proprietaries of the soil, and all that the sovereign re- served to himself was two Indian arrows of the country, to be deliv- ered at the castle of Windsor every year, on Tuesday of Easter week, in token of allegiance, and the fifth part of the gold and silver-the latter, as it proved, a barren right.
The laws and institutions of the province were not required to be submitted to the crown for its approbation, and the right of taxation by . it was expressly and forever abandoned. This last was a remarkable provision, and greatly strengthened the popular cause in the subsequent controversy with England, growing out of the right which it asserted of taxing the colonics.
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Thus a government almost independent of the parent country, was created by the charter itself.
Maryland was, in the quaint language of the instrument, to be " emi- nently distinguished above all regions of that territory, and decorated with more ample titles." And to carry out this purpose, the proprietary was clothed with powers almost royal in their character and extent. He was to be the fountain of honor, and was permitted to adorn well de- serving subjects inhabiting within the province, with whatsoever titles and dignities he should appoint, provided only that they were not to be such as were then used in England. There doubtless glittered before the imagination of the proprietary a long line of transatlantic nobility, of which he was to be the acknowledged head and founder. Their func- tions are not designated in the charter, but we must suppose that they were designed to be appropriate to elevated rank. The proprietary, if he so willed, had the power of establishing the feudal system perfect in all its parts. Express provision was made for manors, lords of manors and manorial-courts.' Various manors were in fact granted, and in one or two cases, manor-courts appear to have been held, but this is the extent to which this feature of the charter was in practice preserved. It is, however, doing no injustice to the proprietary to suppose that he de- signed to create a new and vigorous aristocracy, who would sit as an upper house in the future parliaments which he intended to assemble, would fill the most important offices of the State, and by their wealth, power and dignity would form the surest support and brightest orna- ment of the vice-royal court, which he and his descendants were au- thorized to hold in the fair province of Maryland.
The proprietary had the power of creating ports of entry, of erect- ing towns into boroughs, and boroughs into cities, with such privileges and immunities as he might deem expedient, of pardoning offences, of taking command in chief of the forces, with as full and unrestrained power as any captain general of any army ever had, of declaring mar- tial law, and of granting lands on such terms and tenure, as he thought proper.
He was the source of justice. He had the power of establishing courts, of abolishing them at will, and of determining their jurisdiction and manner of proceeding ; and all process from them ran in his name and not in that of the king.
He was not only the head of the executive branch of the govern- ment, but he had the power of appointing officers of every description, and of creating and abolishing the offices themselves at his own pleasure.
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He was the head of the church. That is, he had the power of erect- ing and founding churches, and was entitled to the patronage and advowsons appertaining to them.
He had also in certain cases and to a limited extent, the dangerous power of promulgating ordinances which were to have the force of laws; and he also claimed as a part of his prerogative, and occa- sionally practised, the equally dangerous power of dispensing with laws actually existing.
He was invested with all the royal rights which the Bishop of Durham enjoyed within the County Palatine of Durham, and this among other things gave him the right to all the game within the province.
In the end of the instrument, there is a sweeping clause, that in case any doubt shall arise as to the true meaning of any word of the char- ter, an interpretation was to be put upon it most beneficial, profitable and favorable to Lord Baltimore, his heirs and assigns.
Amid this imposing array of powers conferred on the proprietary, those granted to the people were neither numerous nor explicit. The most important right secured to them, was that the laws were to be enacted by the proprietary, with the advice and approbation of the free- men, or more properly freeholders of the province, or of their deputies .* The proprietary understood this clause to mean that he had the right of originating all laws, and that the people had nothing to do but accept cr reject those which he might choose to propose.
But whatever may be the true meaning of the charter in this respect, it is clear that the legislative assemblies were to be called together at such times only as the proprietary might prescribe and in such form as he might think best, and he had the power of adjourning and dissolving them at pleasure. Thus their organization was left as indefinite as their functions.
It is a fact worthy of notice, as illustrative of the character of those
* The charter is in Latin, and it has been a matter of doubt whether the expres- sions " Liberi Homines " and " Liberi tenentes," which are therein used to indi- cate the same class persons, should be translated Free-men or Freeholders. As, however, the proprietary, by his ordinance of 1681, restricted the elective franchise to persons who were either freeholders or had a given amount of visible personal estate, and as this ordinance was always acquiesced in and became the settled policy of Maryland, it would seem to have been the established construction that all free. men were not as such entitled, by virtue of the charter, to vote for delegates to the General Assembly. If they had been so entitled, none could have been excluded for want of property .- Charter of Maryland, 55 7 and 8; 2 Bo=man's Hist. of Md. 47 note ; McMahon's Hist. of Md. 413, note 1.
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times in which political rights were comparatively little discussed, that amid all the various and tempting allurements, held out by Lord Balti- more to induce the adventurous to enlist in the enterprise of planting the colony of Maryland, not a word is said of the form of govern- ment intended to be established. The conversion of the Indians was presented as a primary object. The land was described as being white unto the harvest, prepared to receive into its fruitful bosom the seed of the Gospel. The air was represented as mild and serene, of a medium temperature between the cold of New England and the burning heat of Florida. The bays and rivers were extolled as abounding in delicious fish, innumerable, the forests as swarming with game, the swine and deer as so abundant that they were troublesome rather than advantage- ous, and the soil so fertile that it afforded three harvests of Indian corn, or King's corn, as it was then called, in one year. But whether those who were invited to occupy this Western Paradise were to participate in the affairs of government, or to be ruled wholly by others, it was not considered material to communicate .*
If the view of the charter which I have given be correct, the people of Maryland are not mainly indebted to it for the freedom which they have always enjoyed.
We must look elsewhere for an explanation of the fact, and we find it in the character of the men who planted the colony, and the circum- stances by which they were surrounded. The colonists consisted of some two hundred, for the most part Roman Catholics. They brought with them stout English hearts, in which were cherished fundamental principles of liberty, learned in a land where four hundred years before, magna charta had been extorted by the sturdy barons from the fears of King John, where parliaments met, and where trial by jury was es- tablished. They spoke the language in which Shakspeare had written. They belonged to the same period which produced a John Milton, whose "Speech for the liberty of unlicensed printing," rings even now in our ears like the voice of a trumpet. They were part of the same generation which a few years afterwards, appalled all Europe by a spectacle never before seen, the trial, condemnation and execution of an anointed king, for a violation of the rights of his subjects. It mattered little to such men whether their rights were more or less definitely settled by the parchnient title under which the land was acquired. The
* See the Report of Maryland prefixed to Father White's narrative.
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very ambiguity of the instrument operated in their favor, for it opened wide the door to a construction which became more and more liberal, as their strength and numbers increased. All the circumstances by which they were surrounded, favored the growth of free principles. They had settled themselves in a wilderness, where the artificial dis- tinctions of life, must, to a great extent, be laid aside. The best man was he who was the bravest, the most useful, the most enterprising. All had to labor for subsistence, and nearly all with their own hands. The charter provided for nobles, but none were to be found, for nobles cannot live in a wilderness. There, stars and garters are out of place, and a coat of frieze is worth more than a coat of arms. The inhabitants consisted chiefly of planters, small farmers, mechanics, redemptioners, (or persons who were bound to render personal service for a term of years, to those who had paid the expenses of their emigration,) and a few official personages sent out by the proprietary. Some of them were persons of education and gentle birth, but the majority were doubtless such as usually compose the materials of which colonies are formed, men of little or no means, who go abroad in the hope of bettering their condition. They could not be called poor, for they had the means of comfortable subsistence in abundance around them, but their wealth consisted mainly in their capacity for labor .* The tendency of such men so situated was necessarily and inevitably towards the establishment of freer institutions than were contemplated by the charter. All that they needed was to be left free to work out their own destiny without foreign molestation, and this was secured to them for a considerable time, by the fact that the political and religious contest waged between the contending parties at home,
* The act of 1638, ch. 16, furnishes an illustration of the scanty means of the colo- nists. A water-mill having become necessary for the use of the people instead of the hand-mills which had previously sufficed to grind their corn, the Governor and Council were authorized to contract for its erection, provided the cost should not exceed 20,000 pounds of tobacco, or $333 33; cents, which was to be raised by gen- eral taxation in two years. McSherry's Hist. of Md. 56. 2 Bosman, 156. Education was not very extensively diffused among the settlers. The return of the election of a burgess for Mattapanient hundred, dated 14th of February, 1638, was signed by seven persons, of whom only one could write his name, the rest affixed their marks; and out of fifteen persons whose names were subscribed to the return for St. Mary's hundred, seven made their marks. On this Mr. Bozinan remarks : "This gross deficiency in literature among our colonists is not however to be imputed to their colonial state. These persons, for the most part, were born and bred in England, and had left their country after the common period of acquiring literary attainments. It was the defect of the age in which they lived." 2 Bosman, 99.
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left the British government little leisure to look after its remote and insignificant colonies.
For about a year after the colony was planted, the settlers were too busily occupied with building, planting, reaping, and the various other labors incident to their new situation, to find leisure for any thing else, but on the 26th of February, 1635, they were called together by the Governor for the purpose of making laws. Various bills were passed, but unfortunately no memorial of them remains, as most of the early records of the colony were seized and carried off to Virginia, in the outbreak known as Clayborne and Ingle's rebellion, where they were either lost or destroyed. But the bills passed never became laws, as the Proprietary refused his assent to them, for the reason, as is supposed, that they did not originate with himself.
The important business of legislation was thus put off for two years longer. In the year 1637 the second legislative assembly was sum- moned by the Governor, to meet at the little town of St. Mary's. It was a strangely constituted body. It met in one chamber. Governor Leonard Calvert, the brother of the Proprietary, presided, and his three councillors took their seats as members. All the freemen of the pro- vince, who chose to do so, were invited to attend in person, or to send delegates in their place, or to give their proxies to any individual of their own selection, authorizing him to vote for them. Thus was as near an approach made to a purely democratic body, as could well exist, and indeed from the condition of the colony it would not have been easy to form one of a different character. Some of the entries on the journal of the house sound strangely to us at this day. On the first day of their meeting, proclamation was made " that all freemen omitted in the writs of summons, that would claim a voice in the general assembly, should come and make their claim." Whereupon we read that " claim was made by John Robinson, carpenter, and was admitted." On the next day, "came Edward Bateman, of St. Mary's hundred, ship carpenter, and claimed a voice as a freeman, and made Mr. John Lewger, secretary, his proxy." "Also came Jolin Langford, of the Isle of Kent, gentleman, high constable of the said island, who had given a voice in the choice of Robert Philpot, gentleman, to be one of the burgesses for the freemen of that island, and desired to revoke his voice, and to be personally put in the assembly, and was admitted." And so, by this simple process, Edward Bateman, the ship carpenter, by his proxy, John Robinson, the carpenter, and John Langford, the high constable,
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