USA > Maryland > An historical view of the government of Maryland : from its colonization to the present day > Part 13
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Chap. III.]
scarcely a year has passed without some extensive amendment of the laws relating to it, for the purpose of preventing and punish- ing evasions of it, in the sale of tickets emanating from other. systems. Symbols, tokens and devices have been invented in every variety, as substitutes for the prohibited tickets ; and sup- plement upon supplement has been passed to reach each new mode of being ; yet, proteus-like, the device has taken some new form, and the statute has fallen powerless. The error of most of these statutes has consisted in defining and describing the intent to evade these laws, by the modes in which the intent is accomplished, which modes, as has already been remarked, have no necessary connexion with the intent. The common law, in such a case, would have given a general, searching, and all-pervading definition of the intent, which would have power to insinuate itself into any disguise the latter might put on; and this is the judicious course pursued by the recent act.
With such advantages and capacities belonging to the com- mon law, it may well be questioned whether we should gain by the substitution of a code. The principles of the former are sim- ple and intelligible ; and in their past application to all the various concerns and transactions of society, they have been moulded into consistence with its exigencies, and into harmony with each other. The treatises and decisions which illustrate them, " with all their lights and shades," may indeed be voluminous ; but the commentaries upon a written code, when its principles had been as extensively applied, would not be less so. Nor can any argu- ment against the former be properly collected from their occa- sional jarring and inconsistency. The system, which would be free from this, whilst applying any but mathematical truths, could not be the product of the human mind. So various are its ope- rations in different persons under different circumstances, that the same premises very frequently conduct them to directly opposite conclusions ; and without the aid of precedent to direct and keep in conformity, different tribunals, in the application of the same general principles to new cases, would soon erect very different systems of jurisprudence. Inconsistency may have crept into the precedents and binding decisions which we have ; but to them we owe all the certainty which we enjoy, and the ex- emption of our decisions generally from a state of chaotic confu-
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sion. Their general consistency with each other, through a series of ages, is truly remarkable ; and is but the consequence of a pro- per respect for precedent. It has given to our laws that degree of certainty in their administration, which lifts them up above all the improper feelings and influences that may surround any par- ticular case, which binds down the improper inclinations of the tribunal that may administer them by the fetters of impartial pre- cedent, and which makes the expositors of justice on the judg- ment-seat, as they should be, blind to all but the influences and authority of the law. Every age has proved the truth of the max- im, "ubi jus ragum, ibi misera servitus";" and the freeman has always found that the safety of his rights and liberties, consists in the certainty of the law which is over them.
.. At the period of the Colonization of Maryland, the common low, and the various statutes which were declaratory of it, were regarded as the bulwark of English liberties ; and it was therefore natural that the colonists should jealously cling to them as the most cherished portion of their rights. Hence, we find that they were received and acted upon in the colony, from its very infan- cy., It is true, that in the first assembly of whose proceedings there is any record, viz. that of 1637, a discussion took place upon the question, " by what laws the colony should be governed," in the course of which the laws of England were proposed as the laws of the province, until some could be agreed upon by the pro- prietary and the colonists ; but it is evident from the causes and character of the discussion, that this question had relation only to high criminal offences. The proprietary in exercise of a power of originating and propounding laws, then claimed by him, had transmitted from England a body of laws for the adoption of the Assembly. These were rejected by the Assembly ; and the pro- vince was thus left without any laws of its own enactment. In this situation, the question was propounded ; and upon the laws of England being proposed, the governor, who was president of the Assembly, replied that he had power by his commission to pro- ceed in civil causes according to those laws, and also in all crimi- nal cases except those which extended to life or member. His reply shews, in part, what was the true rule of judicature in the province, and to what extent the common law was adopted for several years after the first settlement. Upon an examination
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Chap. III.]
of the instructions from the proprietary to his brother Leonard Calvert, the lieutenant governor, as contained in his several commissions of 1637, 1612, and 1614, and of the rule of judica- ture as prescribed by the, successive acts of 1638, chap. 2d, 1641, chap. 4th, 1612, chap. 4th,, and 1646, chap. 2d, it ap- pears that the common law; as far as it was applicable, was in full force, and was , adopted and acted upon, during the con- tinuance of these commissions and acts, in all cases, except where its operation extended to the deprivation of life, member or freehold. Life, member, or freehold could not be taken away, ex- cept by some express law of the province; but in all other cases, the common law, when not superseded by the laws of the pro- vince, was to be applied by the judges, so far as they found no in- convenience in its application to the colony. The act of 1662, chap. 3d, which took the place of the act of 1646, directed that when the laws of the province were silent, justice should be ad- ministered according to the laws and statutes of England, if pleaded and produced, "and that all courts should judge of the right pleading and inconsistency of the said laws with the good of the province, according to the best of their judgment, skill and cun- ning." Before the passage of this act, the institutions of the pro- vince, the process of its courts, and the forms of proceeding therein, were modelled upon the rules of the common law ; and it was already interwoven with all that related to the rights and liberties of the colonists. This act of 1662, whilst it still left it to the courts to apply the English law according to the wants and convenience of the province, dispensed with the exceptions of "the antecedent acts, and made the existing common law the ul- timate guide in all cases : and it thus engrafted upon the juris- prudence of the province, the common law in mass, so far as it was applicable. This act soon ceased, and the rule of judicature, contained in it, was not long established by express law of the province ; but from that moment, the commissions issued to the judges sanctioned it as a rule of judicature, and the common law became and continued to be a component part of the laws of the province, until the overthrow of the proprietary govern- ment, and the adoption of our present state constitution. It does not appear, from an examination of all the subsequent con- tests between the proprietary and the people of the province 15
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about the extension of the English statutes, that these controver- sies ever drew into question the operation of the common law, or of the statutes which were merely declaratory of it. Some of the arguments urged, in the course of the discussions growing out of it, by the proprietary and the court party, (as his adherents were called,) if pushed to their full extent, would have justified even the exclusion of the common law. The colonists were likened to a conquered people, who were not entitled to the benefit of the laws of the conquering country, except so far as they were expressly extended to them. But these arguments were confined in their application, to the adoption of the statutes ; and the operation of the common law seems to have been conceded on all sides. (5)
Upon the adoption of our present state government, the 3d article of our Declaration of Rights, expressly declared, "That the inhabitants of Maryland were entitled to the common law of England and the trial by jury, according to the course of that law."-Thus it exists in Maryland in full force, in all cases where it has not been superseded or repealed by statute, and is applica- ble to the character of our government, and our condition as a people. In the case of the State rs. Buchanan, above adverted to, the effect of this general declaration was much discussed. That case was a prosecution for a conspiracy, in the progress of which it was contended for the defence, that even if the law of conspiracy were admitted to be the creature of the common law,
(5) The remarks in the text are justified by a thorough examination of all the discussions connected with the controversy between the proprietary and the Assembly, about the extension of the English statutes, which commenced in 1722, and was not terminated until 1732. A full history of the causes and results of this controversy is given in the conclusion of this chapter, from which it will appear that the proprietary's objections related solely to the statutes. In all the addresses and messages which passed between him and the Assembly, we find that the operation of the common law is not only not denied, and therefore impliedly admitted ; but also that its admitted existence is relied upon as furnishing analogies to sustain the extension of the statutes. A single extract from the address of the lower house to the proprietary, adopt- ed at October session, 1725, evinces its universally admitted existence : " But since (says that message) we mention the common law, we beg leave to observe con- corning it, that we do not apprehend your lordship denies us the benefit of it, as being [by the common-received opinions of the best lawyers] allowed to be our right ; but 'tis the statutes only you deny us." And relying upon this admission, the mes- sage then founds upon it an argument in favour of the extension of the statutes.
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it could not be sustained in the extent necessary for that prosecu- tion, by a resort to the law of conspiracy, as understood and illus- trated by the decisions of the English courts at the time of the colonization of Maryland: that the decisions of the English courts, since that period, which had gone to the extent of the present prosecution, were expansions of the common law, new both in instance and in principle; that the common law, as intro- duced and adopted by the colonists, was the common law as ex- plained and defined at the time of the colonization, and not as it has since been expanded in England by judicial decisions ; that the common law, in general, was not adopted in Maryland, ex- cept so far as it was applicable to the condition of the province or state; that the proper test of its applicability was to be found in the fact of its having been used or practised upon in the province or state ; and that in the particular instance before the court, as there was no precedent of any such prosecution in the provincial or state courts, it could not therefore be sustained. The prose- cution was, notwithstanding, sustained by the Court of Appeals, in a very elaborate opinion, which furnishes the proper and existing rule as to the operation of the common law. In the course of it, and in remarking upon the argument, that the later decisions were expansions of the common law, the court "say, "It is a mistake to suppose that the decisions, subsequent to the charter, are expansions of the common law, which is a system of princi. ples not capable of expansion, but always existing and attaching to whatever particular circumstances may arise and come within one or the other of them," and in adrerting to the argument from non-user, they reply, " that as to the common law, unlike a positive or statute law, (the occasion or necessity for which may have long since passed by,) if there has been no necessity before for instituting such a prosecution as the present, no argument can be drawn from the non-user, for resting on principles which cannot become obsolete, it has always potentially existed, to be applied as occasion should arise," and, in conclusion, they pro- nounce the existing rule of application under the bill of rights, which cannot be better stated than in the words of the opinion." " The language of the 3d section of the Bills of Rights, (says the opinion,) in declaring the people of Maryland entitled to the common law, has no reference to adjudications in England anterior to the
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colonization, or to judicial adoptions here of any part of the common law during the continuance of the colonial government : but to the common law in mass, as it existed here either potentially or practical- ly, and as it prevailed in England at the time ; except such portions of it as are inconsistent with the spirit of our present government, and the nature of our new political institutions." (6)
(2) Of the introduction and operation of the English statutes under the proprietary government.
The preceding remarks upon the introduction of the common law, have already exhibited the rule of judicature and the opera- tion of the English laws in general within the province, previous- ly to the passage of the act of 1662, chap. 3d. The instructions to the governors, and the antecedent acts of 1638, 1611, 1642 and 1616, drew no distinction between the common and statute law, nor even between the English statutes existing at the time of the omigration, and those subsequently enacted. Where they were to be resorted to, the English laws in general were adopted. The general rule as to civil cases was, that they were to be judged according to the laws and most general usage of the province;
" (6) 5 Harris and Johnson, 357 and 358 .- " The common law of England (says Chase, C. J. in delivering his separate opinion in that case) was adopted by the people of Maryland, as it was understood at the time of the declaration of rights, without restraint or modification. Whether particular parts of the common law are applicable to our local circumstances and situation, and our general code of laws and jurisprudence, is a question that comes within the province of the courts of justice, and is to be decided by them. The common law, like our acts of Assembly, is subject to the control and modification of the legislature, and may be abrogated, or changed, as the General Assembly may think most conducive to the general welfare : so that no great inconvenience, if any, can result from the power being deposited with the judiciary to decide what the common law is, and its applicability to the circumstances of the state, and what part has become obsolete from non-user or other cause, 5 Harr. and John. 365. And again in 5 Harr. S. John. 367, he further remarks : "I consider the adjudications of the courtsof England, prior to the era of the independence of America, as authority to shew what the common law of England was in the opinion of the judges of the tribunals of that country, and those since that time to be respected as the opinions of the enlightened judges of the jurispru- dence of England." The opinion of the Court of Appeals in the case of Dashiell vs. the Attorney General, 5 Harris and Johnson, 401, is to the same effect.
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Chap. Il.]
and if these were wanting, then according to equity and good conscience; not neglecting the rules of the English law in simi- lar eases, so far as the judges were informed of them, and found no. inconvenience in their application. Criminal cases, in general, were to be decided according to the laws of province, if any in existence and applicable ; and, if not, then by the laws or lauda- ble usages of England, in the same or similar cases. The excep- tions to these general rules were, that neither life, member nor free- hold were to be affected without some express law of the province.
The act of 1662, chap. 3d, directed that when the laws of the province were silent, justice should be administered according to the laws and statutes of England, if pleaded and produced; ard that the courts should judge of the right pleading and consistency of those statutes with the good of the province. Thus the laws of England, whether existing before or after the cmigration, were made the ultimate rule of decision, applicable to all cases what- soever, so far as they were consistent with the good of the pro- vince ; and the judges were invested with the dangerous discre- tion of determining whether they were so consistent, and of ad- mitting or rejecting them according to their own views; and thus was fully introduced and sanctioned that species of judicial legis- lation, to which we owe most of the English statutes now in force in our State. The power confided was not only dangerous, because of the discretion permitted to judges created by the proprietary, (whose views as to the statutes were generally antagonist to those of the people ;) but also because it made these statutes a rule of conduct to the colonists, to whom they were not published, and to whom they might be entirely unknown, until they were plead- ed and produced. . The general and constant anxiety, on the part of the colonists, to obtain the benefit of these statutes on any terms, and their willingness to confide any discretion which might contribute to the attainment of that purpose, evidence the high estimation in which they held the institutions of the parent coun- try, as conducive to the liberty and happiness of the subject. Its laws were a fountain from which they always wished to draw; and thence flowed to them those notions of civil and political - liberty, which they collected and preserved in every moment of emergency, both against the crown and the proprietary; and
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under whose nurturing influence their institutions ultimately ri- pened into the free and happy government under which we live.
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In the next year, another act was passed of the same import - with the act of 1662, viz. the act of 1663, chap. 4th, which appears to have existed concurrently with the act of 1662. At this period, and for some years afterwards, many laws were passed, which were neither assented to, nor dissented from, by the proprietary; and although, in such cases, the laws endured until the proprietary's dissent was declared ; yet the Assembly, through abundant cau- tion, continued to re-enact them. The act of 1663 was at length dissented from by the proprietary, in 1669, and formally repealed by the general repealing act of 1676, chap. 2d. The proprietary was now personally present in the province; and as from the want of definitive assent to, or dissent from many of the laws, there was some uncertainty as to those which were operative, this general act of 1676 was passed, which saves the act of 1662, and repeals that of 1663. By the general repealing and confirm- ing act of 1678, chap. 16, the act of 1662 was repealed, and that of 1663 revived, excepting only that clause of it which gave the judges the power of judging of the consistency of the statutes with the good of the province : and thus they became positive, although secondary guides in the decisions of the courts. In this State, the rule of application was kept up, until 1684, by the successive acts of 1681, chap. 11th, and 1682, chap. 12th.
As early as 1674, an attempt had been made to determine, by law, what criminal statutes of England were in force in the province ; and the object being approved of by both Houses of Assembly, a joint committee was appointed to report a bill for that purpose. After the act had been prepared, the Lower House insisted, that it should extend to civil as well as criminal cases, and that it should contain a saving of all the laws of the pro- vince not repugnant to the laws of England. The Upper House then took the ground, that mischievous consequences would flow from a general introduction of the English statutes, without a reservation of the power to judge of their consistency with the convenience of the province ; and, in consequence of the disa- greement between the two Houses, the object of the conference was not accomplished. (7) The act of 1678 having accomplish-
(7) Upper House Proceedings, Liber FF, 220 and 245.
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ed the views of the Lower House, by introducing the statutes in mass, without any reservation as to their consistency, and the subsequent continuing acts, having kept up this rule until the session of 1681, this subject of disagreement was revived by an act relative to the rule of judicature, adopted by the Lower House at this session, which proposed to continue the rule as settled by the act of 1678, the proprietary, who was then in the province, now took his stand in favour of the old rule of exten- sion : and in his message to the Lower House opposing the general introduction of the statutes, he objected, that it was not safe to have justice administered according to the laws of Eng- land, when the laws of the province were silent, without due re- gard had to the constitution and present condition of the pro- vince : that it appeared to him unreasonable, whilst the freemen of the province possessed the powers of legislation conferred by the charter, that they should be concluded by such of the laws of England as might ruin them, or at least be greatly injurious : and that he was willing to assent to the general introduction of the statutes, if the judges were permitted to judge of their consisten- cy with the condition of the province, but not otherwise. The Lower House did not accord with him in his views, but main- tained the ground which they had originally taken; and the con- sequence was, that the previous acts were suffered to expire. (S)
In 1689, the government of the province was wrested from him by the Protestant Associators, and passed thence into the hands of the crown; and the government of Maryland then became and continued a royal government until 1715. During this abey- ance of the proprietary government, the act of 1692, chap. 36, revived the rule of the act of 1678; but this act, if it did not expire before, was repealed by the general repealing act of 1700, chap. S: and no further legislation upon the subject took place during the suspension of the proprietary government. Yet the act of 1662 had engrafted upon the jurisprudence of the province, the power of the courts to give efficacy to the English statutes, so far as they were consistent with the condition of the province ; and the exercise of this power was kept up under the sanctions of the commissions issued to the judges, although the legislative sanc-
(2) Upper House Proceedings, Liber FF, 709.
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tion was withdrawn. There was the less opposition to this, as the objections to the introduction of the statutes were personal to the proprietary, (who was unwilling to diminish the importance of his legislative ceto,) and had therefore passed away with his government. During this interval, there are several instances of the exercise of this power on the part of the courts, in giving operation as well to statutes passed after the emigration, as to those passed before. (9) We find this illustrated, not only by the proceedings of the courts, but also by the messages between the. two Houses, connected with the passage of the act of 1706, chap. 8th, expressly introducing the English statutes. of Ist James Ist, chap. Ilth, against bigamy, and the toleration act of . Ist William and Mary, chap. 18th, with all the penal acts therein mentioned. Before the passage of that act, the provincial re- cords shew several prosecutions for bigamy, predicated upon the statute of James ; and the message from the Upper to the Lower House, which gave rise to the act of 1706, sets forth that several persons had been presented in the provincial courts, and in Anne Arundel county court, for bigamy, and for suffering Quaker conventicles to be kept in their house; and that the justices were at a stand as to these prosecutions, as it appeared to them that the statutes on which they were founded, were wholly re- strained to his majesty's subjects residing in England. It there- fore recommended cither that these laws be declared to extend to the province, for the better satisfaction of the courts of justice, or that some laws be passed to restrain such offences. Towards the close of the royal rule, viz. in 1714, the subject was again mooted in a message from the Upper to the Lower House, in which they propose to ascertain the opinion of lawyers, as to the extension of the general statutes ; but no such enquiry appears to have been made, probably because, in a very short time after- wards, the proprietary government was restored, and the question as to the extension of the statutes thereby assumed a new com- plexion.
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