USA > Maryland > An historical view of the government of Maryland : from its colonization to the present day > Part 15
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(17) In the case of Dashiell rs. the Attorney General, 5th Harris and Johnson, 403, Buchanan, C. J. delivering the opinion of the Court of Appeals remarks, " This view of the third section of the bill of rights raises the question, which of the statutes existing at the time of the first emigration had by experience been found applicable ? The only evidence to be found on that subject is fur- nished by Kilty's report of the statutes, in which the statute of 43 Elizabeth, ch. 4, is classed amongst those which are said not to have been found applicable. That book icas compiled, printed and distributed, under the sanction of the State, for the use of its officers, and is a safe guide in exploring an otherwise very dubious path." Upon the authority of this report the Court of Appeals therefore decided that this statute was not in force. See also the case of Koones ts. . Mador, ed Harris and Gill, 106.
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MARYLAND LAW.
Chap. III.]
. The preceding remarks relate solely to that introduction or adoption of the English statutes in this State, which rests for its sanction exclusively upon the practice of the colony or its courts, in - contradistinction to that which carried with it the sanction of express law. Many of the English statutes were enacted expressly for the co- lonies, or expressly extended to them: and in such cases the sta- tutes were received and respected as laws of the colony, except when they entrenched upon the right of internal taxation, which was claimed by the colonies generally for sometime before the revo- lution, as their exclusive right. . Others of the statutes were ex- pressly adopted by acts of the Assembly. These cases of legisla- tire extension or introduction of the English statutes are free from all doubt or difficulty: but those in which the statute acquired the force of law by mere practice upon it, demanded a full exami- nation of the origin and character of that practice. The English statutes thus introduced by colonial usage, and resting upon it alone for their efficacy even at this day, may truly be called " the common law of Maryland :" and the history of their adoption, whilst it illustrates their present existence, is at the same time a proud memorial of the firmness with which the colonists of Maryland always asserted and vindicated their liberties.
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HISTORICAL VIEW
. OF THE
GOVERNMENT OF MARYLAND.
CHAPTER I.
OF THE PROPRIETARY GOVERNMENT OF MARYLAND.
The Proprietary Government, under which the colony of Mary- land was established and grew up, and from which it passed to its present rank of a free and independent State, is known to
the people of Maryland in general, if at all, but by
Connection of the
colonial history of Maryland with its
. present govern- ment and condi-
its name. They have heard of its existence, as we hear of that of Prester John, or the wandering tion. Jew : and they listen to the story of its being, as if it were a tale' by-gone times, which to them, has nothing to excite interest, or even tempt curiosity. And yet it was the go- vernment under which a feeble and destitute colony of two hundred persons, planted in the wilderness at the mercy of the savage, has become the prosperous, powerful, and independent State, where peuce, plenty, and cultivation, are on every border, and there is scarcely a trace or tradition to tell, that it was once the red man's soil.' Our citizens know not, nor do they in general seek to know, the structure and tendencies, of the institutions associa- ted with that government : and yet they were the mould in which our present state institutions have, for the most part, been fashion- ed, and from which they have derived many of those peculiar fea- tures, that give them excellence in our eyes at this day. They pause not to enquire into the origin of those principles of civil and political liberty, under the influence of which, at the aera that gave independence to their State, their ancestors rose as one man in vindication of their rights as freemen, and staked upon the issue which involved their liberties, their lives and fortunes also.
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THE PROPRIETARY
[IIIst. View.
And yet if we look back to the history of that proprietary govern- ment, we find in it the very seeds of those principles which anima- ted the fathers of the revolution in our State in the hour of danger and difficulty : and in the frec institutions which were established under it, we recognize the school in which they imbibed their just notions, of the true object and proper extent of government, of their rights as individuals, and of their degree of dependence as a colony. In fine, all that relates to the colonial existence and condition of Maryland is intimately connected with the present : and if we would know the causes which so speedily converted her infant colony into a prosperous people, diffused over her whole surface, and in quiet possession of her soil with scarcely a single act of rapine or bloodshed to stain its acquisition, we must look for them not merely in the character and temper of her peo- ple, nor in the fertility of her soil. . We must look beyond these, to the free nature of the government and its institutions, and to their gentle and benign administration, which invited popula- tion, and stimulated industry, by securing the civil and religious rights of the citizen, and freeing the products of his labor from the burdens and exactions of arbitrary power.
Thus associated as the recollections of this departed govern- ment are, with all that exhibits our progress to maturity as a peo- ple and the development of our free institutions, with all that appeals to our pride and awakens our grati- tude, and with all that stimulates to the most jealous
Utility of the re- collection which belong to the his. tory of her pro- prietary govern- ment. - care of the liberties preserved and transmitted to us through the difficulties of colonial dependence, they proudly claim to be rescued from the oblivion to which they have seemed doom- ed. In presenting to our view a people springing up by their own energies, in the midst of the wilderness, to independence, wealth and power, they remind us that we can more truly boast than did the Athenian ; "we sprang from the carth we inhabit." In identifying their infant straggles, and the transactions which mark their advance to maturity, with the land in which we live, and the scenes with which we are familiar, they people that land with the creations of the past, for the delight and instruction of the present. Associating these with the objects that are around us, then it is that we find, " TONGUES IN TREES, BOOKS IN THE RUNNING BROOKS, AND SERMONS IN STONES." Such recollections
135
GOVERNMENT OF MARYLAND.
Chap. I.]
carry with them all the enkindling effects of the Pagan theology, which made all nature rife with divinity or its ministers, and gave to every hill, or grove, or stream, its tutelary spirit. They animate every scene around us into a companion. They awaken new feelings and beget new associations to bind our affections to our own country. The experience of every individual attests this. We love to look upon the places of our infancy, and to loiter amidst the scenes of our boyish recollections. The house in which we dwelt, the ground on which we sported, the plans of youthful enterprise, the objects of early affection, the very cradle in which we were rocked, all bring with them soft and mellow remembrances upon which memory pauses for instruction and delight. All things else may have faded to our eyes under the withering influence of time, but to us these "flourish in eternal green," and if they are also the records of improving intellect and expanding virtue and honor, how proudly do we recur to them, in manhood to incite us to further improvement, and in the decline of life to smooth the downward way. Why should it not be so with nations? To them the cradle of their liberties, the scenes of their infant struggles, the theatre of their youthful enterprises, and the history of their advancement to maturity, bring recollec- tions equally full of pleasure and instruction. 'And yet the en- quiry into these is but too often deemed an idle curiosity, and the explorer is sneeringly termed " an Antiquarian."
.
- a nations history upon its charac- ter.
There is a certain kind of national pride springing from a nation's history, which is essential to its dignity, and eminently useful in General effect of its advancement. 'Tis not the pride which springs upon the merit of the departed like the shoots of a certain fruit, where to use the language of another "all that is fruit is under ground." It is the pride which rests upon self respect, springing from the consciousness that we have preserved in all its purity and integrity the character transmitted to us by our ancestors, and inspiring us to a noble emulation of them by striving to give fresh lustre to the legacy. All who have observed the workings of such a feeling upon individuals and upon nations, have seen how it has animated them to deeds worthy of their sires. In ranging through the history of the most illustrious nations of ancient and modern times, and in tracing the causes of the achievements which have given them renown,
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136
THE PROPRIETARY
[Hist. View.
we find this proper national pride every where conspicuous. Whatever has illustrated and adorned the nation, becomes inter- woven with the national character; and the individuals of the nations, to a certain degree, feel and move as if they were clothed with that character. The bright examples of the past are before them, and under the recollections which belong to these, they act as if the spirits of their forefathers were hovering around them to behold their deeds. In moments of exigency they feel as he of old, when he exclaimed, "I am a Roman citizen :" and when they cease to feel thus, and the national character ceases to be respected and cherished, from that instant the national decline commences.
With such proofs of the efficacy of national recollections in purifying and advancing a nation's character, we see at once Preservation of the importance of treasuring up and preserving all its history a part of its nation- those portions of her history, which develope the al duties.
origin of her free and cherished institutions, and ex- hibit the causes of her advancement to wealth and power. These constitute her experience, by consulting which, and gathering from it the lessons of which it is fruitful, she may learn to avoid the errors whilst she follows the wise examples of the past. Then indeed history becomes : "philosophy teaching by example.". To rescue from oblivion any facts connected with her history, which elevate her character, or mark her progress in the true principles of government, should therefore be the first effort of a nation, if she desires to sustain that character, or to give perpetuity to her institutions resting upon those principles. Such facts carry with them illustrations of public virtue and liberty, teaching by exam- ples of all others the most persuasive, the examples of those whose honor is our boast. Interesting and instructive as such portions of a nation's history in general are, they are eminently so with Peculiar utility of reference to that of these United States. United the colomal his tory of these I'ni- ted States in ilhis- trating the origin and determining the proper char- acter of our Fed- cral Government. under one government which is intended to pre- serve the unity of the nation for all national purpo- ses, whilst it at the same time preserves the frec and independent existence and operation of the several state governments for all state purposes, the people of these United States, by this happy adaptation of the confederated system to the republics of the union, have accomplished, and carried into successful operation, a form of government which
Chap. I.]
GOVERNMENT OF MARYLAND.
1 137
has outstripped even the speculations of the political philosophy of former days. The happy combination of checks and balances, by which the several state governments are made to revolve in harmony around the national government, and the whole around the common welfare, has commanded the admiration of the world. By these concentric systems of government, simple in the midst of all their seeming complexity, and uniform in their purposes and results in the midst of all their diversified move- ments, each State commands for itself the protection of the whole, whilst it still retains for its internal administration its entirety and independence and the power to maintain them. Alike most of the inventions or institutions which excite our wonder, this government was the creature of circumstances. It did not, like Minerva, spring full grown from the brain of some philosopher or scheming politician. It was not a system formed in the closet upon mere abstract speculations about government, and intend- ed to bend, and adapt to its theories, the character and condi- tion of the people for whom it was framed. It sprang from the wants and necessities of the moment, and it took its features and complexion from the character and exigencies of the state govern- ments at the time of its adoption. These gave it being: and an intimate acquaintance with these is necessary, both to give us an insight into the origin of our present federal government, and to furnish us with the principles by which it is to be construed and applied. The system of confederation, which preceded it, and under which the States achieved their independence, had paved the way to its adoption. Although the present constitution came to heal the defects of that system, yet the provisions and practical operation of the latter had familiarized the people to the necessity and advantages of an union of the States, had indicated the true purposes and extent of that union, and had taught the pro- per mode of accomplishing it without affecting the integrity of the States. The history of the old confederation is therefore the history of the present constitution; and that confederation was adopted by distinct and independent colonies in their common struggle for freedom. Those colonies were planted at different periods, and under different auspices. They were established, and grew up; under forms of government very various and in some instances essentially different. They were seated in different
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138
THE PROPRIETARY
[Hist. View.
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sections of a widely extended country, possessing very different resources, which at the same time rendered the pursuits and oc- cupations of these colonies very various and peculiar. This di- versity in the institutions and employments of the several colonies, impressed upon the inhabitants of each a peculiar character, which took its fashion from the former. , With these diversities, so well calculated to impart different notions of political rights, .to give different inclinations of feeling towards the mother coun- try, and to obstruct the adoption of a common government, we naturally ask " whence it was, that at one and the same moment, under the same claim of right and sense of duty, and with the same fearless spirit, they rose as one man against the oppressions of the mother country, and combined themselves for their common defence under one government, with as much ease and harmony as if union had always been familiar to them." The answer is to be found only in the history of the colonies. In the causes which led to their establishment, in their progress through all the privations and dangers of settlements remote from the parent and cast upon their own energies for protection and advancement, and in the general course and conduct of that parent towards them, without reference to their distinctions, is found the key to our union. Through a long period of colonial existence, they were trained to freedom and familiarised to union by circumstances. By the force of these, they were fitted for the government before it came : and hence, when it came, it sat lightly and familiarly upon them : and their conduct, in the first moments of its adoption, was characterised by none of that spirit of anarchy and licenti- ousness, which often marks the first moment of actual emancipa- tion. Thus identified, as the histories of these colonies are, with. that of our liberties and our government, as well as associa- ted with. our proudest recollections, to us and to our posterity they ought to carry an interest "beyond Grecian or Roman story," which should put to blush the sickly affectation for foreign models.
The limited nature and objects of the present work, so far as they relate to the History of the State of Maryland, have already Objects of this been disclosed. Pursuing these in the view which Chapter. we are about to take of the proprietary government, we shall, in this chapter, examine the general nature of that gov- ernment, and its prominent features and tendencies, as established
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Chap. 1.]
GOVERNMENT OF MARYLAND.
139
by the charter of Maryland, or as developed or modified by its ac- tual operation, before we enter into the history of the condition and transactions of the province.
The government of Maryland, as established by its charter," was called "a proprietary government," in contradistinction to The three gener. the other two general classes of colonial govern- al forins cf culo- Dial government ments, known by the distinctive appellations of
established with- in the English "charter governments," and "royal governments." colonies of North America. These were the three general forms of colonial government existing amongst the English colonies of North America. There were, of course, peculiarities in the applica- tion of these forms to each colony : and the same form, as ap- plied to different colonies, was more or less favorable to the liber- ties of the colonists. Yet the general features belonging to cach of these three classes, however differently they might be applied, indicated a manifest distinction in point of benefit and privilege to the colonists. The royal governments were so called, because the colonies subject to them were under the immediate rule and administration of the crown : and depending, as these colonies did, not only for the appointment and dispositions of their rulers, but also, at some times, for the very security and continuance of the form of government under which they lived, solely upon the will of the crown, this form of colonial government was therefore always esteemed the least favorable to the people. Nor was the experience of the colonies calculated to change their impres- sions as to the tendencies of this form : for the royal administra- tion was generally characterized by misrule and rapacity on the part of the governors, and by a steady and unremitting opposi- tion to the colonial interests and liberties whenever these came into conflict with the designs of the crown. The charter govern- ments proper were those, in which the internal administration was entirely in the hands of the colonists themselves. The charters of Rhode-Island and Connecticut are specimens of the pure char- ter government. They carried with them powers of self-govern- ment and internal regulation, which rendered them actual de- mocracies. The charter government of Massachusetts, especial- ly as modified by its charter of 1691, was of a more mixed char- acter : yet it belongs properly to this class. Its supreme execu- tive power was administered by a governor appointed by the
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140
THE PROPRIETARY
[Ilist. View.
crown, who had also a veto upon its laws. The legislative pow- er was in the hands of the people : and they had a further check upon the governor in the executive council, which was elected by the assembly. The charter governments were therefore always regarded as the most favorable in point of political privi- lege and power; because they had all the sanction and security for their continuance, which a charter from the crown could give them; and because the forms of government so secured, were either such as had been previously adopted and acted under by the colonists themselves, or were framed in conformity to their own wishes and suggestions. Such were the charters of the New England settlements generally : and this their character, familiarising those subject to them to all the rights of self-govern- ment and the duties of self-dependance, acquainting them by actual enjoyment with the benefits of a free government, and in- spiring them with a freeman's spirit to maintain it, informs. us, why it was, that New England was the cradle of American liber- ties, and that in all the contests with the crown for the general rights of the colonies, she was amongst the first in the onset, and the last in the retreat.
The proprietary governments were those, in which the charter granting territory, conferred upon the grantees, the jurisdiction over the territory granted, and the right of governing the people settled within it : and they were therefore of a mixed nature, blending some of the advantages of the pure charter governments with some of the disadvantages of the royal governments. They had the security of the former against the aggressions of the crown : but, as in the lat- ter, the government emanated from a power distinct from, and in- dependent of, the people subject to it. Some of these proprietary charters of the more favourable kind, secured to the colonists a Peelir advanta- ges of the most participation in the government, which extended to favorable forms a full and free share in the legislation of the colony,
of proprietary government. and to exemption from all taxes and impositions not levied by their assent; and when this was their character, they were almost as beneficial in their operation as the charter govern- ments, and were more secure. The government under these charters being in the proprietary, the crown had no concern with the internal administration of the colony ; and did not necessarily become a party to the contests between the proprietary and the
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A
Chap. I.] *
GOVERNMENT OF MARYLAND.
141
people, about their respective rights and interests in that admin- istration. It was not identified with the rule of the proprietary ; as it was with that of its governors in the royal governments. The rights of the proprietary were entirely distinct from those of the crown, and did not necessarily involve the interests of the latter. On the other hand the jealousy of the crown was always excited against the proprietary powers and prerogatives, when they acquired rank and consequence from the growing wealth and population of the colonies over which they were exercised. As branches of royalty, which detached from the crown, and placed beyond its reach, the control of the government and reve- nue of the colony, they were, at some periods, looked upon with scarcely less aversion than the rights secured by the charter governments : and the government of England would, at times, have been willing to enlarge the privileges of the people as against the proprietary, that they might become instruments in the subversion of the powers of the latter, as those of the commons of England had been, in the hands of the king at an earlier day, for the prostration of the overweening arrogance and power of the barons. The attempts made to subvert these governments generally, to which we shall hereafter advert, however disguised, were but the offspring of this jealousy. Hence the contests con- pected with the internal administration of these governments, were, in general, conducted entirely between the people and the proprietary : and the influence and power of the crown were not brought to bear upon the interests and liberties of the people, ex- cept when they were supposed to entrench upon the eminent do- minion and reserved rights of the mother country, or to conflict with the colonial dependence which these entailed.
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The charter of Maryland exhibits to us the most favorable The proprietary form of proprietary government. The privileges government of Maryland of the which it conferred upon the colonists, and its benig- most favorable form. nant provisions for the security of their rights and liberties, account to ns at once for its continuance until the re- volution, for the high estimation in which it was always held by the people, and the care and anxiety with which they clung to it when its existence was endangered. It was one of the earliest charters emanating from the English crown, and surviving the : general wreck of the proprietary governments; although suspend-
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142
THE PROPRIETARY
[Ilist. View:
ed at two periods for a considerable time, it held on its existence until the American revolution, when of all the proprietary gov- ernments which were created before or after it, there existed with . it none but that of Pennsylvania. The similar governments es- tablished by the charters to the London and Plymouth Companies, were of short duration. That of Virginia was extinguished in 1624, before the grant of the charter of Maryland: and the Ply- mouth charter was surrendered in 1635. The proprietary gov- ernments subsequently established, with the exception of that of ม Pennsylvania, bad but a short career, and that characterised by continual dissensions between the people and the proprietaries, or amongst the proprietaries. themselves, which either led to a voluntary surrender of their charters by the latter, or to the revo- cation of them by the crown as productive of nothing but discord and misrule.
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