USA > Maryland > An historical view of the government of Maryland : from its colonization to the present day > Part 16
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The charter of Maryland was in a great measure free from the elements of strife, which entered into most of the other pro- Advantages re- prietary governments, and which commencing to grant ef Mary- operate with their first organization soon occasioned sulung from the
v. land to a single proprietary. their downfall. Under the former the grant was made but to a single proprietary, whilst in the latter there were several grantees; and in some instances, as in the grant to the London and Plymouth Companies, they were very numerous. The advantages of the former over the latter in this respect are evident. When the ownership and government were deposited · in one hand, there was generally an unity of purpose and action, and a freedom from all those dissensions which ever arise when common and undivided rights and interests are to be administer- ed by several proprietors. In such cases as the latter, the views of the several proprietors will differ : and each will endeavor, not only to give effect to his own views, but also to administer the common interests with a view to his peculiar benefit. This was not only the tendency, but also the actual experience of these governments, when allotted to several proprietors; and this re- sult is nowhere more conspicuous than in the short career of the proprietary government of New Jersey. And although the har- mony and unity of purpose incident to such governments, having but a single proprietary at their head, might seem to have fac ili- tated, and to have given a steadiness and energy to their designs
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upon the liberties of those subject to them ; yet when the propri- etary governments were administered with the spirit of rapacity and misrule, it was always found, that the people were more op- pressed by them when they were under the direction of seve- ral proprietaries. In their operation, the force of the old maxim, " that one tyrant is better than many," was felt in all its truth.
The governments of Maryland and Pennsylvania, with all their imperfections, were yet singularly free, mild, and beneficent in These advanta- their operation, when contrasted with the other Pes illustrated in the histories of proprietary governments. Much of this was, no Maryland
Pennsylvania. doubt, due to the liberal views and benevolent pur- poses of their founders, and to the cautions and securities against oppression embodied in their charters : but some of it is properly attributable to the consideration that they were always vested in one hand or in one family. These provinces becoming thus the patrimony of these families, their honor and interests were identi- fied with those of their proprietaries. The proprietaries stood to them in the relation of a "pater-familias," and could not but feel interested in the growth and prosperity of their respective pro- vinces, which were not only to illustrate and perpetuate their names, but also to swell the consequence and wealth of their families. The same feeling did not and could not exist to the same degree, where there were several co-proprietors of different families. Their views were not only different, but they were also more circumscribed by their immediate wants and interests ; and they did not feel and act for posterity, under the same gene- rous pride which animated those, who held their province as exclu- sively the patrimony of their families, and upon whose name and character its wealth and prosperity were to be reflected.
The history of these governments sustains these views. For the contrast, it is not necessary to go back to the administration of i General fate of the proprietary government of Virginia, under the the proprietary governmentof's London Company, when, it may be said, the princi- different descrip- tion. ples of colonial government were but little under- stood. Those of New Jersey and of Carolina, which were erect- ed after that of Maryland, and but shortly before the grant to Penn, and which were distinguished from the grants of Pennsylvania and Maryland in being granted to several co-proprietors, were " characterised by dissensions amongst the proprietors, and by an
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THE PROPRIETARY
[Hist. View.
administration at war with the feelings of the people and the true and permanent interests of the colonies. The unfortunate ten- dencies of such a short-sighted policy, as to the interests of all concerned, were soon followed by correspondent results. The proprietary charter of New Jersey was surrendered to the crown as early as 1702; and that of Carolina, after struggling through a proprietary existence of about half a century, which was marked by continual outrage and oppression on the part of the proprietors, and by general, constant, and increasing dissatisfaction amongst the colonists, was at length formally repudiated and shaken off by the latter, and the colony, by its voluntary act, placed under the immmediate government of the crown.
Whilst therefore the charter of Maryland, from the manner of its grant, tended to promote the proper administration of its government, and the permanent interests and prosperity of the colony ; its comparatively liberal provisions in favor of the colo- nists were admirably calculated to second this tendency. This will be apparent from the view of its general features, as illustra- ted and modified in the progress of the government. The legisla- tive power of the province, under the charter, extended generally to all the objects of legislation within it, subject only to the re- Extent and dis- striction : "That the laws enacted should be con- tribution of the
legislative power sonant to reason and not repugnant nor contrary to under the charter of Maryland. but (as far as conveniently might be) agreeable to the laws, statutes, customs and rights of the kingdom of England :" and to all persons being within the limits of the province or under its government. The laws were to be enacted, by the proprieta- ry, "by and with the advice, assent and approbation of the majority of the freemen of the province or of their delegates or deputies." The participation of the people in the legislation of the province being thus secured, the assemblage of them for the purpose of legislation, was left under the charter to be regulated, as to its time and manner, exclusively by the proprietary. As soon as the government was organized, and an assembly of the freemen con- vened, differences arose in the construction of the charter, as to the relative rights of the proprietary and the people. The pro- prietary seems to have held, that the power of originating and pro- pounding laws resided exclusively with him ; and that the assem- bly had nothing more than the simple power of assent or dissent.
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GOVERNMENT OF MARYLAND.
Chap. I.]
Their participation in legislation, as then expounded by him, was analogous to that of the senate under our present constitution, in the passage of money bills. Acting under these views he rejected in mass the laws which were passed at the session of the first as- sembly held in the province ; and as substitutes for them, he caused to be prepared and transmitted from England, a body of laws for adoption by the next assembly. The colonists, on the other hand, considered their power "of advising, assenting to, and approving laws," as conferring upon them equal and co-ordinate rights with the proprietary ; and hence, at the next session of assembly, con- vened on the 25th January, 1637 (old style,) they returned the compliment, by rejecting in mass the laws which he had pro- pounded. The freemen were successful in their opposition to the exclusive right claimed by the proprietary ; for from that period their right to originate laws does not appear to have been seri- ously contested. But notwithstanding this concession, the pro- prietary, in the early years of the province, still claimed, and oc- casionally exercised similar rights, as a co-ordinate branch of the legislature; but these occasions were very rare, and in the ordi- nary course of the legislation of the province, his powers were in practice limited to his veto upon the acts of the assembly. Throughout the proprietary government, the full veto power was always retained in the person of the proprietary. The commis- sions and instructions to the governors of the province, gave them, in general, the right of assenting to or rejecting laws; but this assent, when given, never concluded the proprietary, except in cases where he had specially authorised the governor to assent in his name to a particular law. The only effect of the gover- nor's assent was to give efficacy to the laws so assented to, until the proprietary's dissent was declared, and when this was declar- ed, they ceased to operate. The governor had the general pow- er of giving to laws this partially operative assent, subject only to such modifications and restrictions as were specially imposed by his commission and instructions. The limitations, which were from time to time imposed by these, will appear, when we come to treat of the particular organization of the provincial legislature. The general views here given suffice to shew the actual distribu- tion of the legislative power, and the ordinary modes in which it was exercised.
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THIE PROPRIETARY
[Ilist. View.
The charter having referred to the proprietary the exclusive right to convene assemblies, and to determine the time and man- ner of convention, the power of convening, adjourn- Control' of the proprietary over the form and ex- ing, proroguing, and dissolving the assemblies at istence of the As- semblies and how his pleasure, always belonged to the proprietary,
modified. , and was delegated to, and exercised by the govern- ors of the province, throughout the whole period of the govern- ment. This general right carried with it another power, the im- proper exercise of which might have been attended with very dan- gerous consequences to the co-ordinate rights of the people. The 'proprietary under it possessed, and for a long time exercised, the exclusive right of determining the manner in which the assembly should be constituted. The warrants for convening the assem- blies issued by the governors during this period, determined whe- ther they should be convened in person or by deputies ; or, if by deputies, the number of deputies to which they should be entitled, and the manner in which these should be elected. If vacancies occurred, the propriety and mode of filling them up were deter- mined by the same discretion. The people's participation in le- gislation might have been rendered of but little avail by this un- limited discretion, on the part of the proprietary and his govern- ors, to regulate the manner in which the assembly should be con- stituted. But the usage of the governors, and the legislation of the province, soon restrained this discretion, or corrected its ten- dencies. The operation of these upon the particular organiza- tion of the legislature, at every period of the proprietary govern- ment, will appear hereafter. For the purposes of this general view it is sufficient to remark, that from the convention of the first as- sembly of the province until the government passed into the hands of Cromwell's commissioners, there was no determinate and uni- form mode of convening assemblies. The freemen were sum- moned to attend, sometimes in person or by proxy, sometimes in person or by proxy or by deputies, sometimes by delegates or deputies only, and sometimes by a general direction to attend without prescribing the mode of appearance. These were the various modes of convening the freemen generally ; but through- out this period there were always writs of summons, which were specially directed, in the discretion of the governor, to the coun- cillors and other high officers of the province, and also on some
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Chap. I.]
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occasions to other persons of trust and distinction. Yet although there was no uniform mode of convening assemblies generally, the manner adopted for the formation of any particular assembly, was uniform, and impartial in its operation. The particular form adopted for the organization of any assembly, applied to the in- habitants of the province generally, who were thus placed upon an equal footing in point of privilege. After the restoration of the government to the proprietary, in 1658, by the protector's commissioners, the right of appearing in person or by proxy wholly ceased. From that period the distinct organization, and independent existence, of the Upper and Lower Houses of As- sembly, which had been established pro huc rice at the session of 1650, became permanent: and under this permanent establishment, which endured by usage or law until the American revolution, the Upper House consisted of the councillors to the governor, and the Lower House of delegates, elected by the people of the several counties. Under this system of county representation for the Lower House, which superseded the old system of represen- tation by hundreds, the manner of election, and the number of delegates to be elected by cach county, continued to be regulated from 1658 until 1681, by the warrants of election issued for each assembly. But throughout this period, with a single exception, the warrants uniformly authorised each county to elect two, three, or four delegates; and after such election notified to the gover- nor, it was usual to summon the persons elected by special writ. The proprietary's ordinance of 6th September, 1681, reduced the number of delegates to two for each county ; and prescri- bed a permanent and uniform rule as to the qualification of the voters and the manner of election. The proprietary har- ing been divested of the government of the province in 1689, (which shortly afterwards fell directly under the immediate administration of the crown, as other royal governments) the organization of the Lower House was settled by the act of 1692, chap. 76, and continued to be regulated by law, until the adoption of our present government, by the succeeding acts of 1704, chap. 35, 170-, chap. 5th, 1715, chap 42, and 1716, chap. 11. Under these acts, (which all agree in this respect,) the same equal and uniform right of county representation, which now exists, was permanently established. Each county was entitled
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THE PROPRIETARY
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to elect four delegates : and the qualifications of voters and dele- gates were established by a permanent and uniform rule.
From this summary view of the organization of the provincial legislature, it will appear, that their right under the charter to par- ticipate in legislation, was at all times enjoyed by the inhabitants General results of the province: and that the several systems of re- of the legislative power. presentation, which prevailed in the colony, were as full of liberty and privilege to the subject, as those of the mother country, or of the greater part of the colonies. They had indeed their alloy. The existence of the Upper House as a co-ordinate branch of the legislature, constituted one of their most objection- able, features. It had all the disadvantages without the advanita- ges of the House of Peers. The latter, if it is independent of the people, is also independent of the crown : but the Upper House of the province, consisting of councillors, appointed by the proprietary or under his commissions, and dependent for their offices upon his pleasure, was, from its very organization, an aris- tocracy of the worst possible kind, an aristocracy wholly indepen- dent of and irresponsible to the people, and at the same time the mere creature and dependant of the proprietary. With a consti- tution so antagonist to public liberty, it is truly surprising that the transactions of this House should have displayed as much re- gard for the rights and liberties of the colonists, as they frequently did. The power to convene, prorogue, or dissolve the assemblies at pleasure, had also a tendency to diminish their independence; but the abuse of this power for the purpose of checking or put- ting down any of the favorite measures of the people, was always followed by consequences which rendered it harmless. Instead of driving the people from the ground which they had taken, its effect was only to rally them more effectually and firmly for the accomplishment of their views, to which they generally succeed- ed in bending the will of the proprietary, or his governor. The legislative records of Maryland furnish us with several instances, in which this executive right appears to have been used for this purpose ; but the people's firmness generally frustrated this de- sign. The executive veto sustained, by its control over the exis- tence of the assemblies, and by the subserviency of the Upper House, at times militated against the views and interests of the colonists at large; but it was never enabled to prostrate these
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GOVERNMENT OF MARYLAND.
Chap. I.]
through the instrumentality of legislation. The constitution of the Lower House always interposed an effectual bar to the legis- lative oppression of the province. In it the people of the pro- vince always found a faithful guardian and ready asserter of their rights.
It is somewhat remarkable that throughout the whole colonial existence of Maryland, the history of its legislation does not ex- hibit a single instance of treacherous or timid abandonment, by this House, of the rights and interests of the colony. Pursuing, in the general tenor of their conduct, the happy medium between the arrogance of power and the servility of submission, they were the vestal preservers of liberty in every age of the colony. The consequence was, that this uniform yet temperate adherence to their rights, even whilst it encountered the resistance, seldom pro- voked the serious indignation of the proprietary: and the good correspondence between the government and the people being thus preserved, the colonial history of Maryland exhibits one of the finest specimens of colonial administration. Alike the other colonies, it had its moments of discontent, its internal dissensions, and even its revolutions, which for a time prostrated the proprie- tary dominion : yet these were of but short duration, when com- pared with the long intervals of tranquillity and contented pros- perity. The legislative acts and addresses of the colony, at al- most every period of its existence, abound with expressions of their attachment to the proprietary government, and with grate- ful acknowledgments for the gentleness of its sway, and its con- stant endeavors to promote their interests. When separated from it, they soon looked back to it and sighed for its restoration : and its return was received with every demonstration of general joy.
The proprietary's power to pass ordinances without the con- Nature of the Currence of the assembly, appears to have been re- proprietary pow-
er to pass ordi. garded by the charter, as a branch of the legislative nancea. power. The recitals, which precede its grant, seem to have contemplated the exercise of it, as an ad interim legisla- tive power : but the restrictions imposed upon it by the charter and the usages of the colony, gave it a very harmless and limited operation. Under it, the proprietary was authorised personally, or through his officers, " to make and constitute wholesome ordi-
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THE PROPRIETARY
[Hist. View
nances from time to time, (to be kept and observed within the province,) as well for the conservation of the peace as for the better government of the inhabitants, to be publicly notified to all who were to be affected by them : provided that these ordinances were consonant io reason and not repugnant nor contrary to but (as far as conveniently might be) agreeable to the laws, statutes or rights of the kingdom of England, and that they did not in any sort extend to oblige, bind, charge, or take away the right or inter- est of any person or persons, of, or in member, life, freehold, goods or chattles."
Thus restricted, it was nothing more than a mere police-power, stripped of the means of oppression to the subject, which never Extent of its ac could asurp the proper place or rank of legislation, tual exercise. and the exercise of it within the province was, in general, conformable to this, its restricted nature. It was, on one or two occasions, exercised as an embargo power: and it was frequently resorted to, in establishing or remodelling the offices of the province, under the general and exclusive charter-right of the proprietary, to create these and to prescribe their duties. But whenever the ordinances passed beyond this their legitimate sphere of action, and attempted to attach fees and emoluments to these offices, or to determine their quantum, they were always re- sisted by the colony as manifest usurpations. The only material or serious controversy which ever arose in the province about the exercise of this ordinance power, related to proclamations of the latter kind. The fees of the officers were generally regulated by acts of assembly : and it was always held by the Lower House of Assembly, that this was the only legitimate mode in which they could be given. On two occasions the fee-bill, as it was termed, was suffered to expire ; and during the intervals between the ex- piration of the old law, and the enactment of a new fee bill, the governor established the fees by proclamation, adopting as his general guide the rate of fees as established by the expired act. In both of these instances the ordinance power was used merely as an ad interim power. The acts of assembly regulating fees had ceased : and without its interposition, the officers would have been left without any fixed compensation for their services. The tendency of this state of things was, to throw open the door to extortion or corrupt practices on the part of the officer: and the
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Chap. I.]
proclamations, in correcting this, at the same time facilitated the transaction of business in the offices. They were not intended to usurp the place of legislation : for they were only to endure until a new act was passed. Yet with all these palliating circum- stances to excuse, if not to sustain these proclamations, they were always regarded and resisted by the Lower House as acts of gross usurpation and oppression. They were held not only to transcend the ordinance power as defined by the charter, but also to violate the exemption of the colonists from all taxes and impositions whatsoever, except those which were fixed by act of assembly. This exemption had been declared and confirmed by the early act of 1650, chap. 25; and was regarded as a right too sacred, to be drawn into question, or indirectly violated, even for benefi- cial purposes. The last of these proclamations, and that which gave rise to the most serious controversy, and to the most tho- rough examination of the power, was issued in 1770; and the his- tory of it, as well of that of 1733, which preceded it, is intimately connected with that of the revolutionary struggles of the province, and will be considered in conjunction with it. The discussions which grew out of it, were ably conducted on both sides; and they led to the full examination of the previous exercise of the ordinance power in general. The result of the investigation was, that it was found to have had in practice only the limited opera- tion which we have assigned to it : and that investigation is here adverted to, only for the purpose of illustrating the general re- mark, " that the ordinance power, under the charter, in its gen- cral exercise, conformed to its charter-restrictions, and was not in fact exercised in the colony, cither to subvert or usurp the place of legislation : and that Maryland, throughout her colonial existence, was not subject to, nor operated upon, by any legisla- tive power in the province, except that of the charter, in which her freemen participated, and by which they were protected."
The executive
The Executive powers, conferred by the charter upon the pro- prietary, were ample and efficient. They carried powers incident to the proprieta- ry government. with them all the jurisdiction that was compatible with the colonial dependence of the province, and was necessary for its security and internal administration. Bc- sides the rights, powers, and privileges specially granted, the pro- prietary was invested by the 4th section of the charter "with all
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THE PROPRIETARY.
[Hist. View.
the rights, jurisdictions, privileges, prerogatives, royalties, libet- ties, immunities, royal rights, and temporal franchises whatso. ever, which had ever been held or exercised by any bishop of Durham within the bishoprick or county palatine of Durham in England."
The origin, nature, and extent of these Palatinate Jurisdictions and privileges, as formerly exercised within the bishoprick of Durham and the counties palatine of Chester and
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