USA > Maryland > An historical view of the government of Maryland : from its colonization to the present day > Part 12
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100
THE CIVIL DIVISIONS
[Intro.
up by the succeeding Act of 1791, chap. 62, and continued until 1795, when by the Act of 1795, chap. 73, the district system was adopted, and the State divided into ten districts ; of which St. Mary's, Charles and Calvert, formed the Ist :- Prince George's and Montgomery, the 2d :- Frederick, the 3d :- Washington and Alleghany, the 4th :- Baltimore town and Anne Arundel in- eluding the city of Annapolis, the 5th :- Baltimore county exclusive, and Har- ford, the 6th :- Cecil and Kent, the 7th :- Queen Anne's and Talbot, the 8th: -Caroline and Dorchester, the 9th :--- and Somerset and Worcester, the 10th. Under the gerrymandering division of the Act of 1805, chap. 97, sect. 3d, adapted to the increase under the apportionment of 1802, the State was divi- ded into nine districts; of which the 5th, 6th, 7th, 8th and 9th, were the same as under the existing Act of 1826; and the rest different either in number or the manner in which composed. Under the Act of 1805, the 1st district. con- sisted of St. Mary's, Charles, and first election district of Prince George's- the 2d, of Calvert county; the remainder of Prince George's; and the 3d and 4th election districts, of Montgomery county-the 3d of the remainder of Montgomery, Anne Arundel, including Annapolis, and Baltimore city, and the 4th was the same as the third under the Act of 1826.
Many attempts have been made in Maryland to bring back this clection to the general ticket system ; but without success. It is the only system which will ever give to the State her proper weight in the election of a President. Under the present system, she seldom tells more than one or two clear votes in favour of any candidate; and her influence upon the election is, therefore, about equal to that of Delaware. The large states, in general, make a better use of their power; and perhaps Maryland would have been more careful in pre- serving her integral influence, had that influence been greater. Yet small as it may be, in contrast, there may be occasions on which her entire vote, cast one way or the other, will decide the election. The attempts to introduce the general ticket system have generally been made under circumstances which ensure their defeat. No party, on the eve of an election, can be ex- pected to assent to a change, which deprives them of what are considered cer- tain votes in some of the districts; and to stake the whole upon a general elec- tion, when they believe that the majority of the State is against them, or even when they fear it. In Maryland, the parties have generally divided its popu- lation so equally, that cach is trembling for the result until the election closes; and with such apprehensions, it requires strong nerves to stake the whole upon a single cast. They generally calculate, also, on the advantage of having certain districts which excite no apprehensions, require no efforts, and enable them to direct'the whole of their attention to the debateable districts, upon which the whole power and influence of the two parties is concentrated on the eve of an election. The result of this concentration is obviously the in- creased exercise of corrupting influences, whose capacity is enlarged by con- tracting the sphere within which they are to'operate.' It is therefore believed that not only would the relative influence of the State be increased, but also
101
1
Chap. I.] OF THE STATE OF MARYLAND.
the purity of these elections promoted, by introducing the general ticket sys- 1 tem; but such change ought to be made in the absence of party excitement, and not with a view to any particular election.
CHAPTER III.
OF THE SOURCES OF MARYLAND LAW.
" Non ingens solum sed perpetuis humeris sustinendum," was the strong and expressive language of Sir Henry Spelman, when he attempted to describe the aspect which the study and profession of the English law wore to him on his first approach to its intri- cacies. It was the natural exclamation of an ingenuous and in- experienced youth, approaching with proper self-distrust the ac- cumulated experience and learning of ages, and animated with the determination to obtain the entire mastery of the studies to which he had devoted himself. Three hundred years have rolled by, since the antiquarian drew this lively picture of the extent and variety of the science of the law, and of the unceasing toils that await all who aspire to its highest walks. Since that period, the rights of property have been modified in endless varieties; a thousand new sources of litigation have been opened; and all that learning could collect, talent invent, or wisdom apply, have been assiduously employed in rearing a system of jurisprudence adapted to the ever-varying wants and enterprises of industry, wealth and refinement, and accommodated to the new principles of civil and political liberty, which have since started into exist- ence. The comparatively rude and barbarous science of that day, which he contemplated with wonder, lies scattered in frag- ments around the base of our modern system of jurisprudence, like the ruins of some rude, yet venerable structure of antiquity, around some splendid edifice of modern days, to heighten its beauty and symmetry, by lending to it all the colouring of con- trast. Yet with all the advances which this system has made to maturity, and with all the efforts which have been made to give to it the rank of a science, and to impart to it proportion and symmetry, by reducing its arbitrary doctrines to general and con- necting principles, the labour of the student has been increased at every step. The decisions which define and illustrate thesc principles, in all their various applications, have now become so
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1
103
Chap. III.]
THE SOURCES OF MARYLAND LAW.
numerous, that but few can or will pursue rigidly the precept of Lord Coke, by tracing them with all their modifications to their fountain head. The age of digests amd abridgments has arrived; and these, which were intended as mere guides for the student, hare become in his hands what the itinerary often is in the hands of the traveller. Both of them too often put a stop to inquiry and research, at the very point at which these ought to begin ; and by their aid the student relies upon decisions which he never read, and the traveller describes countries which he never saw.
There are many causes which will always conspire to prevent the laws of any country from taking the rank of a science, and to render the study of them rather an exercise of memory, than an effort of reason in the application of general principles to parti- cular cases. The want of certain fixed and (if we may be par- doned the expression) mathematical truths in legislation, and the constant necessity of varying and modifying the laws of any coun- try so as to accommodate them to the various states of society, their different degrees of civilization and refinement, and their various exigencies, may be named amongst the most prominent causes of those discordant rules and principles, which disfigure every known system of laws. Men, in view of a present evil or an impending danger, lose sight of every thing else, in their ef- forts to escape it : and so it is with communities in their legisla- tion. If their laws either produce or fail to correct any particu- lar evil, of which they are made sensible by its actual operation upon them; or if they find them inconvenient or oppressive in their effects upon any particular district or portion of the com- munity, their whole aim is directed to and limited by the correc- tion of the evil actually felt. In applying the remedy, they look not beyond the present evil; not even to the similar cases which must, in the course of events, require the application of a similar remedy : and they do not even pause to contemplate the conse- quences of the change they introduce. Their course of correc- tion, on such occasions, is like that of the musician, who tunes a particular key without sounding it in consonance with the rest, so as to produce harmony amongst the whole. The result is, that their legislation is continually deformed by local or partial enact- ments, which are at war with the symmetry of the whole system, and which oftentimes in the effort to amend, "like the new piece
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104
OF THE SOURCES
[Intro.
of cloth put into an old garment, only serve to make the rent worse." The modern systems of codification may obviate this for a time ;. but these ever operating causes soon destroy their uniformity, and call for the renewal of the process.
In proportion as the law's of any country become a mere collec- tion of arbitrary and unconnected rules and maxims, so will the study of them be rendered difficult and disheartening. When these are arbitrary and conventional, it is difficult to obtain com- plete mastery over them, even if within view and reach ; but the difficulty is much enhanced, when the sources from which they are to be drawn are various, their origin is involved in obscurity, and their common application to the same subject draus them into con- flict. 2
There is scarcely any state in the Union, in which the latter causes of difficulty and embarrassment exist to so great a de- gree as in Maryland. Its laws consist of the emanations from three distinct systems: The usages and laws of England, the mother country : The usages and laws of the provincial or ante-revolutionary government of Maryland, and the laws of its present state government. And these, too, are subject to certain modifications and restrictions, flowing from the eminent dominion of the Constitution of the United States. The difficul- ties do not consist merely in collating these, and in determining the result of their common operation. This labour would be comparatively light .. But when we come to the application of the usages and laws of England, we find that even where they have not been superseded by provincial or state legislation, there are yet many of them, which, from their very nature, and as ac- commodated to a state of society unknown to the colonists of Maryland, are wholly inapplicable ; and others, which although · applicable, have never been expressly or impliedly adopted. Hence, before this application can be made, it becomes necessa- ry to determine, by enquiry into the usages of the people of Ma- ryland, the decisions and practice of our Courts of Justice, the provisions of our Constitution and Declaration of Rights, and the acts of our Provincial and State Legislatures,-"what portions of the common and statute law of England are in force in this State."
It is manifest, that, at the time of the colonization of Mary- „ land, there were many portions of the laws of England, which
105
MARYLAND LAW.
Chap. ill.]
were wholly inapplicable to the condition of the colonists. Thus, as all the lands in the State were held in free and common socage, the numerous rules relative to the rights and incidents of the other species of tenure, were wholly inapplicable ; as there were no established orders of nobility, all the laws relating to their pe- culiar rights and immunities, were also inoperative; and, as the commerce of the colonists was very limited, there were many commercial and revenue regulations, which were wholly unsuit- ed to their condition. To these, might be added many other in- stances of the absurdity of introducing, in mass, the laws of the mother country as the laws of the colony. As has been justly observed by Chief Justice Buchanan, in delivering the opinion of our Court of Appeals in the case of the State vs. Buchanan and others, "They were in the predicament of a people dis- covering and planting an uninhabited country; and as they brought with them the rights and privileges of native Englishmen, they consequently brought with them all the laws of England, which were necessary to the preservation and protection of those rights and privileges. And hence, it cannot be questioned, that they brought with them all the laws of the mother country, so far as they were applicable to their situation and the condition of an infant colony." (1) Such is the rule of right reason, and the doctrine of the English law, as to its colonies generally, (2) which, in the particular instance, were sustained and enforced by the provisions of the charter, under which Maryland was colo- nized. (3) Although this is the common principle which sanc- tions the introduction, both of the common and statute law, yet the tests of their applicability are somewhat different, and we shall therefore consider severally the question of their application.
(1) 5th Harris and Johnson's Reports, 356.
(2) 1st Blackstone's Comm. 107, 2 P. Wms. 75, 2d Salk. 411.
(3) The 10th section of the charter of Maryland declares, that all the subjects of the English crown transplanted to the province and their descendants in any degree, born within the province, shall be esteemed natives, and liegemen of the king, as of his kingdom of England and Ireland; and shall in all things be held, reputed and treated, as the liegemen of the king born within the king- dom of England; and shall have and enjoy all privileges, franchises and lib- erties of the kingdom of England in the same manner as its liege subjects born within said kingdom, without the hindrance or molestation of the crown. This provision, which placed the colonists in point of liberty and privilege
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106
THE SOURCES OF
[Intro.
(1) Of the introduction and present operation of the Common Law.
The sources and character of the English common law have" been already fully illustrated in the thousand treatises and deci- sions of the last two centuries. It has had its apologists and its accusers, arrogating to it every excellence, or denying it all merit. By some, it has been styled, " the perfection of the reason," and considered as the thirty-nine articles of the law, which it were heresy to doubt. Others have denounced it as a system of harsh and arbi- trary rules and technical refinements, originating in a barbarous age, which sits like a straight-jacket upon the enlightened and cx- panding reason of modern days. And there are those who as- pire to the privilege " of shooting folly as it flies," who ridicule its technicalities and unbending rules, as if they were not insepara- ble from a science, and as if they were mere jargon and mystery, serving, like Mokanna's veil, to cloak deformity. Whatever may have been the origin of those rules and principles, which consti- tute what is called " the common law," whether they were the em- anations of some system of positive laws long since lost, or were built up by the judicial legislation of ages, introducing and adapt- ing principles to the cases as they arose, they are to be admired for some of the very reasons which have been urged against them. Unlike the statute law, they do not limit and restrict their opera- tion by defined cases, beyond which they must not go even when a similar evil calls thein. They are a collection of principles unrestricted by cases, except where the restriction of the case is itself the restriction of the principle. The statute law is a defini- tion of cases : the common law, when properly applied, a defini- tion of principles. In the former, the cases enumerated limit the remedy ; in the latter, however new in instance the case may be, the old principles, if appropriate, will apply themselves. With the common law lawyer, " the ancient ways and land marks," upon which it is his pride to stand, are the long received and well-as-
upon the most favoured footing of the native subject, was relied upon in all their after controversies with the proprietary and his governors, as entitling them, not only to the benefit of all such English statutes, as they found condu- cive to their welfare, and protective of their rights; but also to the full ad- vantage of all those privileges and securities, which the English constitution and laws threw around the people of England, for the protection of their liber- ties.
107
MARYLAND LAW.
Chap. III.]
certained doctrines which inform and animate the system, and describe the general character of the rights it gives, and the reme- dies by which it protects them. He refers to the treatises which are received as evidence of it, and to the decisions of the courts which record its application, not for the skeleton of the case, but for the vital principle which is embalmed in it.
Such a system of principles, if well defined and sufficiently ex- tensive, has in some respects evident advantages over one which rests upon positive regulations, applicable only to specific cases. It may have less certainty ; but even this objection ceases, when, as in the case of the common law, the applications of the princi- ples have been so frequent and diversified, as to assign them all their distinctive features. 'And whilst they are, in the general, sufficiently definite to prevent a misapplication of them, they bring within their operation every case, however new in its facts and circumstances, which in its nature and tendencies falls within their range. They make a kind of Linnaean system of prin- ciples, with all their generic and specific distinctions, as illustrated by their past application to the recorded cases : so that when any new case arises, we examine it, as we would a new plant, merely that we may discover these distinctions, if present, and classify it accordingly. Such a classification is a classification by attri- butes, whilst that of positive law is too frequently by facts and circumstances. Now the facts and circumstances, which surround human transactions, even when they spring from the same motives, or tend to the same end, may be infinitely diversified. They are but the dress of the intent, or the modes by which it acts itself out ; and they may take whatever form ingenuity or caprice may suggest. The modes, by which an intent is accomplished, have no necessary connexion with it; and therefore they cannot be relied upon as the characteristics of the intent. Defining an in- tent by the surrounding circumstances, is like describing a man by his dress, which he may change at pleasure. It is manifest, therefore, that all rules which are intended to operate upon, regu- late, or apply human intents, will best accomplish their purpose, by describing the intent, to which they relate by its inherent qualities and attributes ; whilst they leave the latter to be collected from the circumstances of any particular case, not as necessary ingredients of the definition of the intent, but as facts which may serve to display the existence of the defining qualities.
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108
THE SOURCES OF
[Intro
Such are the character and objects of the common law, when rightly understood; consisting of principles, which, although not properly susceptible of that expansion which works a change in the principle, are not restricted and tied down by the circumstan- ces of their prior application, but do admit of that expansion that merely displays the hitherto unapplied capacity of the principle. Such expansions are the mere unfolding of its coils. A few instan- ces will 'illustrate the nature of this capacity. Murder at the common law is defined to be, "the killing of any reasonable · creature in being and under the king's peace, (or the peace of the State,) with malice aforethought, either express or implied, by any person of sound memory and discretion." Now here the act of killing, the sanity of the agent, the malice aforethought with which the act is done, and the being of the party slain, when killed, under the protection of the king or state; are all that define the offence; and however novel the circumstances may be, if they display these, the definition attaches. No matter how the intent may act itself out, it cannot escape the grasp of the defini- tion. If the party be poisoned, or starved, or drowned; or by the wilful and unlawful act of the party charged subjected to any condition, of which death was the probable consequence, and which in fact results in death, the killing is imputed to the party. And therefore, when a son exposed his sick father to the air, against his will, in consequence of which he died; and the Har- lot exposed her child in an orchard, where it was killed by a bird of prey ; and in a more recent case, where a sick apprentice died from the wilful neglect and harsh treatment of his master, all these were held to be cases of murder. So in larceny, the in- gredients in the common law definition are : "the felonious tak- ing and carrying away of the goods of another, against his will, and with intent to convert them to the use of the taker." The felonious intent of the party is left to be collected from the circumstances of each case ; and if this intent exists, no matter what the mode in which the party may obtain the bare possession, it is held to be a taking. If he actually take it without the knowledge and consent of the owner ; or if the bare possession of it is actually delivered to him by the owner, under some trick or fraud practised by him upon the owner; or if the owner delivers him a qualified possession, i. e. for a special purpose; in all these cases, coupled with a felonious intent and conversion
109
MARYLAND LAW.
Chap. III.]
there is in the contemplation of the common law a taking; and all the modern cases, which apply in such variety the doctrines of constructire taking, are but so many applications of the old princi- ple to the new modes, suggested by modern ingenuity, by which the felonious intent reaches the possession of the property, so as to convert it against the will of the owner. The borrowing, the ring-dropping, the false personation cases, are but so many new species of the old genus. To take but another illustration, bor- rowed from the rules of the common law, as applicable to civil cases, it is the rule of the common law, " that when any one prac- tises deceit upon another to his damage, the party injured shall have his action for such a damage." Here the deceit practised, and the injury to the party deceived resulting from it, constitute the cause of action. The deceit and the damage must both exist; and where they do concur, no matter in what shape the deceit may come, or through what devious paths it may be traced, or what the character and extent of the injury ; the remedy by action on the case applies. Hence, in the case of Pasley vs. Freeman, where the plaintiff being applied to for credit in mercantile trans- actions by a third person, the defendant represented to him that such third person might safely be trusted, he the defendant then knowing that he could not safely be credited, it was held by the court that the plaintiff, upon this general common law principle, might maintain his action against the defendant for such damages as he had sustained by reliance upon the latter's false and fraudu- lent representations. (4) Such actions are now very frequent; but that case, although decided as late as 1789, was then one " of the first impression." The fact, that no such action had ever been maintained, was strongly urged against its maintenance in that instance, and it was indeed held by one of the court to be novel, both in precedent and principle, because it did not appear that the defendant had any interest in the credit given, or colluded with the third person to obtain the credit for him ; and that, therefore, it was a mere false affirmation ; but the majority of the court held, that, as the deceit and damage concurred, it came within the gen- cral principle, without reference to the interest of the party falsely affirming.
(4) 3d Term Reports, 51.
110
THE SOURCES OF
[Intro.
The reader, whose mind is imbned with the principles of the common law, will at once recal numberless instances to carry on these illustrations; but what has been said, will suffice to elu- cidate the character of the system, and to obviate objections, amongst the uninformed, to what are often considered judicial expansions of the law. Judicial legislation will now and then creep in, to relieve these principles from the narrowness of prior decisions, and to give them a more expanded existence ; yet it is rarely applied so as to produce injustice in the particular in- stance; and the novel principle soon becomes incorporated with the general mass, and is rendered definite and certain, or if in- convenient or incompatible with the general symmetry of the system, is soon lopped off as an excresence. When new prin- ciples are thus intervoven with our laws, although they may be the offspring of usurpation, there is at least one advantage in this mode of adapting our laws to new circumstances, or extending them so as to reach new exigencies, which makes some atone- ment for the usurpation. The adaptation comes from the hands of one, who has some acquaintance with the system he thus fash- ions, and who can perceive both the direct and collateral conse- quences of the change he introduces; and this cannot always be said of the amendments of ordinary legislation. Considered as a system of principles, which, by their simple yet comprehensive definitions, can attach themselves to acts and intents, coming within the spirit of their provisions, whatever the new mode of being which such acts and intents may put on, the common flaw has, hitherto, in its efficacy presented a striking contrast to that of the statute law. The causes of the contrast will be principally found in the departure of the latter from the definition by general principles and intents, and the substitution for it of the definition by modes and circumstances. We cannot cite a better illustration of this, than that which is to be found in the history of the sta- tutes of Mortmain, the simple object of all of which was to pre- vent the alienation of lands to the all-absorbing clergy,"whose ingenuity, prompted by their avarice and thirst for dominion, for ages kept the statute law lagging behind them. And to come down to our own times, and our own State, we find one equally as striking in the history of our lottery laws. Since the adoption of the State Lottery system in 1817, until the present period,
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