USA > Maryland > An historical view of the government of Maryland : from its colonization to the present day > Part 14
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Upon the restoration of the proprietary in 1715, the old mo- tives for dissension were revived, and soon produced an open
(9) Amongst these may be particularly mentioned the cases in 1707, upon the stat. 7th, Wm. 3d, regulating trials for high treason, and those in 1711, upon the stat. 21st, Jac. Ist, relative to the murder of bastard children.
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conflict. The proprietary was unwilling that the statutes should be introduced in mass, because he regarded their introduction as inconsistent with his right under the charter, co-equal with that of the freemen of the province, to participate in the enactment or introduction of laws. The people on the other hand, were unwilling to restrict themselves by any particular enumeration of the statutes which they deemed applicable, and preferred either
adopting them in mass, or leaving to the courts an unlimited power of introducing them in all cases where they were consis- tent with the good of the province. Such an enumeration might not only have precluded or drawn into question the operation of some of the statutes which they prized most highly ; but it would al- so, probably, have put a stop to the introduction, from time to time, of such statutes as might be subsequently passed. They preferred, therefore, to leave the door open for their introduction, when- ever the occasion might demonstrate that they were for the ad- vantage of the colony ; and, in adopting this course, they pur- sued the discreet plan of the English parliament for the preserva- tion of their privileges, by keeping them indefinite, as a security against the encroachments of the crown.
The controversy on this subject, between the proprietary and the people, was opened by the passage of an act at October ses- sion, 1722, entitled " an act for the limitation of actions of trespass and ejectment;" and the direct cause of the controversy was as to the extension of the English statute, 21st. Jac. Ist chap. 16th, the existence of which in the province had been denied by two de- cisions in the provincial court, . (one in 1712, and the other in 1714,) but was recognised by this act of 1722. At this session the Lower House also adopted a series of resolves, vindicatory of their liberties, and exposing the grounds upon which they claimed the benefit of the English statutes. These resolves are couched in forcible and manly language, and breathe that spirit of free- dom, and that determination to maintain their liberties, for which the Commons of Maryland were ever remarkable. They show us in the bud the same free and fearless spirit which bloomed in the times of the revolution; and they, in common with the rest of our colonial history, teach us that that revolution did not origi- nate but merely vindicated our liberties ; and that our land has always been freedom's favoured soil. By these resolves, the committee of
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aggrievances, (as it was called,) was clothed with the character of a committee of courts of justice ; and, as such, was required to examine the commissions issued to the judges and justices of the several courts, for the purpose of ascertaining what alterations had been made in them, and particularly in that part of them which required the judges and justices to hear and determine cases be- fore them, according to the laws, statutes, ordinances, and rea- sonable customs of England, and this province, and to report such alterations, if any, to the House. They declared also " that the province was not to be regarded as a conquered country, but as a colony planted by English subjects, who had not by their removal forfeited any part of their English liber- ties : that the inhabitants of the province had always enjoyed the common law, and such general statutes of England as are not re- strained by words of local limitation, and such acts of Assembly as tere made in the province to suit its particular constitution as the rule and standard of its government and judicature ; such statutes and acts being subject to the like rules of common law, or equitable construction, as are used by the judges in construing statutes in Eng- land ; and that all who advised the proprietary to govern by any other rules of government were eril councilors, ill-wishers to the pro- priciary and to their present happy constitution, and intended there- by to infringe the English liberties of the province, and to frustrate, in a great measure, the intent of the crown in granting it to the pro- prietary." For the purpose of preventing all misapprehensions as to the character of these resolves, and of presenting them in a manner calculated to conciliate the proprietary, they further declar- ed, " that they were not occasioned by any apprehension that the proprietary had ever infringed, or intended to infringe, the liber- ties or the privileges of the people, or to govern otherwise than according to the usage and custom of the country since its first settlement ; but were intended merely to assert their rights and li- berties, and to transmit their sense thereof, and of the nature of their . constitution, to posterity."
These resolves, so characteristic of the firm and manly spirit. of the people of Maryland, became " the Magna Charta" of the province. Although they sprang from this contest about the statutes, they did not cease with the occasion which gave them rise. Not only were they re-adopted by the Lower House, from
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„time to time throughout the pendency of this contest; but also at many sessions of Assembly subsequent to its termination, even down to the period of the revolution. On all after occasions- which drow into question what they conceived to be their consti- tational rights and privileges, or involved them in conflicts with the proprietary, because of the exercise, by him or his officers, of powers incompatible with their English liberties, the Provin- e Al Assemblies substantially adopted them as the exposition of their rights, and of the principles on which they maintained them. They were, however, of too bold and decided a character to re- ceive, at once, the sanction of the Upper House of Assembly, which, from its very constitution, inclined to the side of the proprietary : and, therefore, at this session of 1722, this House declined acting on them. At the session of September, 1723, the proprietary's dissent to the above mentioned act of 1722, was communicated to the Lower House. This dissent, which bears date the 19th March 1722, (old style) assigns as the reason for the rejection of the act, that it was not only explanatory of an English act not in force in the province, but that it also seemed, by implication, to intro- duce English statutes which had always been held not to extend to the plantations, unless by express words located there. "You are not only (says the proprietary in his instructions to the governor) not to permit any such practice to take place in Maryland, but even to discountenance any doubts concerning the same ; and when any of the English statute laws are found convenient, and adapted to your circumstances, you ought specially to enact such of them as you may deem useful, and not by an act of the province intro- duce them in the lump."
The proprietary and the Lower House were now fairly at issue upon this important question; and a contest ensued, which en- dured for nearly ten years. In the progress of it, the inhabitants of the province were divided into two parties, the one called " the court party," consisting of the immediate retainers and adherents of the proprietary, and the other " the country party," consisting of the Lower House, and the great body of the people of the province. The papers emanating from the Lower House during this period, in relation to this subject, are characterised by great ability and research ; and the talents of the province were all enlisted on the side of the people. Some of these papers are from the pen of
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the elder Daniel Dulany; a name which seems to have carried talent with it in every generation. It would, perhaps, be difficult to sustain the positions taken by the Lower House, upon the generally received doctrine as to the extension of the statutes of a mother country to its colonies, or upon any other ground than that of the long received practice and rule of judicature of the province. The people of Maryland did not intend to recognize the, right of Parliament 'to bind them by laws, to which they had not assented. They studiously denied this on all occasions when that right was to be exercised in the im- position of burdens. They did not rely upon the right of par- jament to enact; but upon their own right to adopt and make their own, all such of the English statutes as might be found be- neficial; or protective of their liberties. The proprietary's dis- sent having put the Lower House fairly in the lists against him, that house at once appointed a committee to inspect the ancient re- cords of the province, and to examine how far the laws and gen- eral statutes of England had been received in the courts of the province. At that session, a very elaborate report was made by this committee, after a full examination of the parliamentary and judicial records of the province, which sustains to the full ex- tent the right claimed by the Lower House. They report, " that in the earliest times, there were as many instances of decisions by the general statutes of England, (without any objection or opposi- tion,) as there were cases that could be affected by them, and a continuation of such decisions until the government was taken into the hands of William and Mary ; and that all the time the government continued immediately under the crown, as many cases both criminal and civil, as came within the province of the statutes, were determined by them; which course has been continued ever since, to the restoration of the government to the proprietary, except in some particular cases when the circumstan- ces of this province rendered the form of proceedings prescribed by some acts of parliament impracticable, and where they have been altered by act of Assembly; the people always claiming and in- sisting on the rights and privileges of English subjects, and the laws of their mother country, as their indisputable right, and as agrecable to the charter.". The report then sets forth a series of abstracts from the records, to evince the truth of its representations as to
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the constant course of judicature in the province ; upon which it remarks, " that, although many of the records were lost, in the time of the revolution, in removing the records from St. Mary's, and when the State House was burned, yet the collections which they have made are sufficient to show, that both the governors and the people governed, within the province; since its first set- tlement, or at least since there are any traces of Assemblies and judicial proceedings, have always deemed the general statutes of England to have the force of laws in Maryland." (10) Upon this report, an address to the proprietary was adopted by the Lower House, (October 21st, 1723,) in which they broadly asserted that the statute of limitations was in force in the province, because it was a general statute, without words of restriction, and therefore extended to all his Majesty's dominions, and because of the words of the charter securative of their English liberties. They allege, also, "that such statutes have always been held to extend to the province, and that persons have even been convicted and executed under them; and that if their right to them were de- pendent upon their re-enactment in the province, they would then hold them by the precarious tenure of his pleasure, in yield- ing or withholding his assent." At the session of 1724, the Upper House, not yet having acted upon the resolves of 1722, their at- tention was called to them by a message of the Lower House, which reminded them; in sneering terms, of their default, and in- formed them that inasmuch as the oaths lately taken by some of the judges did not conform to those resolves, they had directed the Attorney General (he being a member of their House) to pre- pare a proper form of such oath. This form was accordingly prepared and transmitted to the Upper House for their adoption.
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(10) It is much to be regretted, that the abstracts from the records, which made a part of this report, are not to be found ; the journals of 1723 are lost, and the only record which we have of them is to be found in a printed collection of the material parts of them, made under an order of the Lower House in 1724. This collection omits that part of this report, for which it re- fers the reader to the Journal. It contains, however, a report made, October 19th, 1724, as to the Commissions from 1692 down to that period, which evidences that during all that period, although the legislative rule of judica- ture was withdrawn, the commissions to the judges until just before the commencement of the controversy directed them to judge according to the laws of England, where the laws of the province were silent.
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It directed that the rule of judicature should be, according to the laws, statutes, and reasonable customs of England, and the" acts of Assembly, and the usage of the province. It was ob- jected to by the Upper House, as permitting to the judges the ar- bidrary introduction of the statutes, without regard to the conve- nience of the province; and various messages were interchanged between the two Houses, in one of which the Lower House re- marks: " we have never yet heard of any inconvenience arising from doubts as to the extension of the statutes: nor did we ever hear of different judgments concerning the extension of any " English statute, unless in one case concerning the statute of lim- . itations, when one of your honors was one of the judges that filled the provincial bench; and we cannot think that instance deserves your notice, since the opinion was grounded on no pre- cedent, and was manifestly contrary to the whole course of judi- " cature in the province, and well known to be against the charter, and inconsistent with our constitution." The rest of this mes- sage, and the other messages of the Lower House in connexion with it, are couched in the same bold and expostulating language : $ and they ultimately led to an agreement between the two Houses, that the clause in the oath, a's to the rule of judicature, should direct the judges to determine according to the laws, statutes, and reasonable customs of England, and the acts of Assembly, usages and constitution of the province.
At the session of October, 1725, the address of the governor, in sustention of the proprietary's views, cited as illustrations of his doctrine the habeas corpus act, the statutes of usury, and the statute of frauds and perjuries, which, says he, have often been held not to extend to the plantations, and yet they are gene- ral laws. ' This elicited a reply from the Lower House, in which they entered at large into the general question, and into the consi- deration of the particular instances cited by him: and another act of Assembly was now passed in conformity with their original views. This act of 1725, chap. Ist, and the succeeding act of 1727, chap. Ist, were both dissented from by the proprietary ; and at length, at the session of October, 178, a form of a judge or justice's oath was transmitted by the proprietary to the province, and under his instructions submitted by the governor. This form directed that justice should be administered according to the acts and
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customs of the province ; and, when these were silent, " accord- ing to the laws, statutes and customs of England, as have been used and practised in the province :" and was unanimously re- jected by the Lower House, because it would exclude them from the advantage of future beneficial statutes, and would lead to endless disputes as to what statutes had been used and practised upon. The question would be, says the report adopted by the House, " whether the act had been used or (which is the same thing,) whether any judgment given upon it: and such questions could not be determined in many cases, even when the statutes have been the foundation of the decisions ; since in many of them the reasons or arguments do not appear, nor is it customary to mention general statutes in pleadings, although the judgment of the court is founded on them." (11) Still adhering to their origi- nal views with some slight alterations to meet the views of the Upper House, another act was passed at this session, ascertaining. the form of the oath, viz. the act of 1728, chap. Ist. This, also, was dissented from by the proprietary; and a new attempt was made at a compromise by the succeeding act of 1730, chap. Ist, which rendered operative the reasonable customs of England, and the statutes thereof, then or thereafter to be enacted, agreeably to the usage or constitution of the province. The, proprietary re- jected this act also; and a form was at last determined by the act of 1732, chap. 5th, which received his assent. This act, which prescribed the form of the oath of a judge or justice, as it continued from that period until the revolution, made the acts and usages of the province the primary guide ; and when these were silent, the rule of judicature then was, according to the laws, statutes, aad reasonable customs of England, as used and prac- tised within the province.
The controversy thus terminated in partial submission to the will of the proprietary ; but the Lower House had accomplished all their purposes. They had not only brought about a recognition of their right to such of the statutes as had been adopted in the practice of the province; but they had also couched this recog- nition in such general terms, as to permit the future introduction of English statutes. The words "as used and practised" in this
(11) This report and the address which followed it, are from the pen of the elder Daniel Dulany.
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act, might relate either to what had been the usage and practice of the province in adopting English statutes, as a practice sanctioned and to be continued, or to the previous use and practice of these statutes as the test of their applicability : and even if the latter construction were adopted, the practice which was to give them efficacy, was not by the express terms of the act, a practice anterior to its passage but only to the time of the application of the statute as a rule of judicature. This sub- terfuge accomplished all its purposes : for from that period until the revolution, the courts continued to exercise the power of adopting and giving effect to such of the statutes as were accom- modated to the condition of the province without regard to the enquiry, whether they had been practised upon or enacted pre- viously to the act of 1732.
Upon the occurrence of the revolution, and the adoption of our present constitution, the third section of the bill of rights, accon- panying it, declared " that the inhabitants of Maryland were enti- tled to the benefit of such English statutes as cristed at the time of the first emigration, and were found applicable to their local and other circumstances ; and of such others as have since been intro- duced, used and practised upon in the courts of law and equity." This declaratory article, it will be perceived, has drawn a distinc- tion, between the statutes in existence at the time of the estab- lishment of the colony, and those subsequently enacted. The statutes of the first mentioned class, are declared to be in force so far as they had been found by experience applicable to the local and other circumstances of the colony; and those of the latter class, where they have been introduced, used and practised upon in our courts. However, both these tests of applicability consist in " the use of and practice upon the statutes." " It does not appear to the court (says the General Court in delivering its opinion in the case of Whittington es. Polk) that there can be any other safe criterion by which the applicability of statutes, existing anterior to the emigration to our local and other circumstances, can be ascertained and established, but that of having been used and prac- tised under in this State." (12) Yet this test appears to be more comprehensive, than that which determines the applicability of
(12) 1st Harris & Johnson, 250.
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statutes passed since the settlement of the colony. The latter is expressly restricted to use and practice in the courts : whilst the former consists in that use and practice generally, which constitu- ted the experience of the colony. The General Court indeed, scem- ed to have considered the rule applicable to statutes passed before the emigration, as substantially the same with that applicable to statutes passed subsequently ; and hence, in the case of Pancoast es. Addison, they decided that the statute 32d Henry 8th, chap. 2d, sect on 23, did not extend to Maryland, " the court not knowing, (say they,) of any judicial decision by which the same has been adopted and introduced into this State as the law thereof." (13) Yet there were many statutes of such a character, that they might have been used and practised under in the province without the intervention of courts of justice : and such use would manifestly be a part of the experience of the colony. Judicial decisions are merely the evidence of its experience. (14)
It is much to be regretted that the question as to the applica- bility of English statutes, should have been suffered to rest, until this day, upon the general tests of the bill of rights, without a full and definitive ascertainment of the statutes falling within the ope- ration of those tests. This condition of the question has given rise to doubts and controversies, which even now are not ex- hausted. To obviate these, in 1809 the legislature empowered the Chancellor and Judges of the Court of Appeals, to ascertain and report the English statutes which were applicable under the tests of the declaration of rights, designating particularly such parts of them as it might be proper to incorporate into the statute law of the State. (15) This duty was wholly performed by the late Chan- cellor Kilty, in a report which arranges the English statutes from Magna Charta to the year 1773, into three several classes, the first embracing the statutes not applicable, the second the statutes applicable but not proper to be incorporated, and the third those which were both applicable and proper to be incorporated. The object in calling for this report was to ascertain the latter statutes, so that they might at once be specifically adopted to the exclusion
(13) 1 Harris and Johnson, 356.
(14) Sce 2d Harris and Gill, 106, and 5 Harris and Johns. 402.
(15) A resolution of the same character was passed as early as 1794 : but from some unknown cause it was never carried into effect.
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of all other English statutes : but the report being made, this ob- ject was overlooked, and the Assembly contented itself with the publication and distribution of the report. (16) The only effect of this report has been, to collect from the colonial records, and the tradition of experienced lawyers, the evidences of practice upon the statutes : and as the repository of these, it is received and respected by our courts, and seems to be regarded by them as an authoritative guide in all cases of doubt. (17) Yet the exis- fence of a law should not even be a subject for doubt, and its en- actments should be accessible to all. The English statutes in force in this State, should therefore be definitely ascertained, and published at large under the authority of the State as a part of its statute law ; or they should be re-enacted, so as to give them a place in our ordinary statute book .. In the plan for a digest of the statute law of Maryland, which was adopted by the legislature a few years since, and which is being accomplished, the proprie- ty of incorporating these statutes into it, does not appear to have been considered. This defect in the plan may yet be remedied by enlarging the instructions to the commissioners, as no part of that plan has yet been perfected.
(16) Resolutions, 22d of November session, 1809, 20th of November ses- sion, 1810, 33d of November session, 1811, and 69th of December session, 1816. A chart of the statutes applicable and proper to be incorporated has been com- piled and published by Alcous B. Wolfe, Esq. of this city. This chart pre- sents this class of the English statutes in a natural and compendious form, which gives to the, student or practitioner great facilities in his reference to them ; and if Mr. Wolfe, in a new edition of this chart, would but attach to his notice of each applicable statute, a reference to all the decisions of our courts since the revolution, which expressly or impliedly admit or assert the existence of such statute, it would be rendered still more valuable.
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