USA > Maryland > An historical view of the government of Maryland : from its colonization to the present day > Part 17
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53 | Part 54
Origin nature &
extent of the pa- Lancaster, have been fully examined and illustrated
latinate jurisdic- tion attached to in other works. It will be sufficient to remark, that it. these peculiar jurisdictions were erected in these counties of England, at a period when they were border counties, and, as such, were relied upon to guard the frontiers. They were continually exposed to predatory incursions from Scotland or Wales, which in those days of baronial strength and turbulence, were very frequent, easily concerted, and speedily accomplished. At that period, when garrisoned fortifications and standing armies did not make a part of the strength of the nation, such border incursions could gather head, and discharge their whole force upon the bordering counties, before the aid of the kingdom could be effectually called in. The crown was therefore compelled to rely, for the protection of the frontiers, upon the power and ener- gies of the borderers: and as their situation required constant vigilance and attendance at home, and the existence and pre- sence amongst them of an authority adequate to the exigencies of the moment, these palatinate jurisdictions were created to meet that necessity. The earl of Chester, the duke of Lancaster, and the bishop of Durham, who were at the head of these palati- nate governments, were therefore invested with powers and pre- rogatives which fell little short of those of royalty itself. They appointed all officers within the counties. The courts of jus- tice were emphatically their courts: for all process which was issued out of them, ran in their names, instead of that of the king's ; and all offences were held and charged in indictments, as offences against them, and not against the king. They had power to pardon all offences whatsoever committed within their respective jurisdictions. The lands lying within their provinces, were deemed to be holden of them; and they were therefore en- titled to escheats, wardships, and the other fruits of the feudal
-
153
GOVERNMENT OF MARYLAND.
Chap. I.}
tenures, which fell to the lord of the fee. They had the right of levying forces and waging war for the defence of their provinces, and of pursuing invaders even beyond the limits of the kingdom. (1) By some of the old writers they were said to have "full royal power" in all respects: but these general expressions must be received "sub modo." Their powers were indeed as ample as those of royalty, for all the purposes of their establishment : yet they did not carry with them sovereignty or its peculiar preroga- tives. The eminent dominion and control of the crown prevailed, as to the rights of war and peace, as fully over these counties as over the other portions of the kingdom. The allegiance of their inhabitants was due to the crown, and not to the head of the pa- latinate government: and it seems to be the better opinion, that although these palatinate chiefs were permitted, without waiting for the direction or sanction of the crown, to carry on a mere de- fensive war for the protection of the borders; yet they had not the general right of declaring war or concluding peace. Such a right, existing independently of the crown, might have brought them into a direct conflict with its sovereignty.
The objects and necessity of this extensive grant of power and jurisdiction to the proprietary of Maryland, are easily perceived. Policy of the English govern- ment in its exten- sive grants of ju- The policy of the English government at that day, in the establishment of its colonies, was uniformly risdiction to the to leave the conduct and settlement of the colonies colonial govern- ment. to individual enterprise and resources. It gave no boon but the privilege of occupying and peopling the wilderness : and granting this with the reservation of its sovereignty, it cast the enterprising individuals or corporations to whom the grants were made, entirely upon their own means and energies for the estab- lishment and sustension of their settlements. If they succeeded, its dominions were enlarged, new channels opened for its com- merce, and its revenue increased. If they failed, the crown lost nothing but an empty grant of kingdoms it had never held, and powers it had never enjoyed. In accordance with this neutral policy as to schemes of colonization, it became necessary to dele- gate to the grantees all the powers of government which were
(1) For the nature and extent of these palatinate jurisdictions, see 6th Viners' Abridgment, 573 to 583, 2d Bacon, 188 to 192, and the case of Russell's lessee rs. Baker, in which the extent of these jurisdictions was much discussed.
20
154
THE PROPRIETARY
[Hist. View.
-€
requisite for their protection or the internal administration of their colonies. Hence arose all the various forms of charter and pro- prietary governments, which, in their origin, were in fact intended to relieve the crown from the cares and responsibilities incident to the administration of an infant settlement : and which became objects of jealousy to it, only when they had reared their settlements to wealth and power. . Whilst they were contending against the dangers and difficulties of their establishment, the English gov- ernment, with all the indifference of epicurean philosophy, looked calmly and unconcernedly upon their situation, and left them to their struggles. . When they had surmounted these, then it was she remembered they were her children, and then only to make them know and respect the authority of a parent. Her desire to rule and protect the colonies, and to substitute her own immedi- ate administration for that of their peculiar colonial governments, increased precisely in proportion to the ability of the colonies to rule and protect themselves.
Acquainted with this her policy and the sources of her jealousy towards the colonial governments, we are but little surprised at The jurisdiction conferred upon the proprietary of Maryland pe- cultily exten- sive. the extensive grants of power and jurisdiction con- ferred by the early charters; and still less so as to those given by the charter of Maryland, when we recur to the circumstances under which that charter was granted. These have already been unfolded. It was a grant to a favorite, by a monarch whose partialities were as un- bounded as they were capricious: and there is reason to believe, that it was framed under the dictation of that favorite. Thus in- dulged, lord Baltimore adopted, as the general model for his pro- prietaryship, the palatinate jurisdictions in their original form and extent ; which approached more nearly to sovereignty than any other of the subordinate governments known to the laws of Eng- land. The powers originally incident to these in the border coun- ties, were soon found to be too extensive to be reposed with safe- ty in the hands of the subject ; and they were therefore much re- duced and restricted, at the period when this charter was granted : but to the proprietary of Maryland they were granted in all the extent in which they ever had existed. The charter did not stop here. It contains special grants of power and privilege, which not only cover the ground of the general grant of palatinate juris-
1
-
155
GOVERNMENT OF MARYLAND.
Chap. 1.]
diction, but extend considerably beyond it, and render the grant of Maryland the most ample and sovereign in its character that ever emanated from the English crown. The power to call as- semblies and enact laws by their assent, and the extensive opera- tion given to the legislation of the province, did not belong to the palatinate governments : and they constitute a very peculiar feature of this charter, when we look at the spirit of the crown, and the prevailing temper amongst the nobles, at the period when it was granted. The proprietary might, doubtless, have as casily obtained a grant of legislative power, to be exercised solely by himself, and quite as extensive : and the admission of the colonists to participation in it, at once evinces his sagacity, and reflects lustre on his character. It was this exalted privilege, which en- deared his government to the people of Maryland : and had they not possessed it, his dominion would soon have been marked by the same arbitrary character, and have shared the same fate with that of the London company. There was another very peculiar feature in the grant of legislative power. The sovereignty of the mother country was reserved in terms, but the proprietary was under no obligation to transmit the laws of the province to the king, for allowance or disallowance. Thus the vigilance of the crown, in guarding its own prerogatives against silent and gradual encroachments, was in a great measure excluded; and the reservation, except in cases of direct conflict, became a mere " brutum fulmen." In examining the special grants of executive privilege and power, we shall in general find the same latitude. Classified according to their objects, these were either civil, mili- tary, ecclesiastical or commercial.'
As the supreme executive under this government, the proprie- tary had the sole right of creating the offices of the province, and The mere civil powers: and first- ly, those relating to the creation of the offices, and the appointment of the officers of the province. determining their form and functions, and of ap- pointing all judges, justices, and other officers what- soever within it. He had the power to establish courts, and determine their jurisdiction and manner of proceeding; and all the process from these courts ran in his name and not in that of the king. These sole powers the proprietary possessed, not only as palatinate powers, but also under the express grants of the seventh section of the charter: and although competent of himself to their exercise, he might, and in
1
156
THIE PROPRIETARY
[Ilist. View.
some respects did submit them, to the regulations and restriction" of the, laws of the province. The courts were always held, and the process always ran in his name: and the organization of - the courts was in general determined by the commissions of the proprietary or his governors. But the time, place, and manner of holding the courts, the limits of their respective jurisdictions, and the manner of proceeding in them, were the constant subjects of legislation. The general power of appointing the officers of the province, was, however, one of such consequence, that it was retained by the proprietary as his sole power, in full vigor and nearly all its original extent, throughout the proprietary gor- ernment. It was retained not only as to all the State offices, but also all the county offices, except.one or two of a very inferior nature: and the exercise of it was, with a few exceptions, con- fided to the governors of the province. (2) Under this unlimit-
(2) Upon the establishment of the royal government, the appointing power of the proprietary, in all its plenitude, devolved upon the crown : and during the continuance of that government, some very salutary restrictions were im- posed upon this hitherto unlimited power, by the act of December, 1704, ch. 92, entitled "An Act for the advancement of the natives and residents of the province." It rendered all persons incapable of holding or enjoying any office of profit or trust in the province, either in person, or by deputy, who had not resided in the province at least three years : and the only exceptions to this incapacity were, in the cases of persons holding offices by commission immediately from the crown, and of persons holding such offices at the time of the act passed. All officers of the crown within the province, having the power of appointing to any office within it, were required, without exception, to con- form to this rule : and as persons holding offices by immediate commission from the crown were exempt from it, they were required, by this act, to re- tide in the province, and to exercise their offices in person, and not by depu- ty, in all cases where this was not specially dispensed with by the crown. The strict letter of this act relates exclusively to the exercise of the appoint- ing power under the royal government : but being a high remedial statute, aimed at abuses equally likely toexist, and equally requiring correction under the proprietary government, its operation does not appear to have ceased with the royal government. By the equity of the statute, it applied as fully to the officers under the proprietary, as to officers under the crown : nor was it any invasion of the proprietary rights under the charter, as it did not apply to appointments coming directly from the proprietary, except in requiring residence in the province, and a personal exercise of these offices by those so appointed ; and even these requisites might be dispensed with, by the special
-
-
1
157
GOVERNMENT OF MARYLAND.
Chap. 1.]
ed power of appointment, the offices of the province were held at
the pleasure of the proprietary: and herein consisted
Tendencies of this proprietary the greatest defect in the goverment. Its tendency
power: and how
restrained and was to render these officers the dependants and corrected. satellites of the proprietary or his governor, and to convert their offices, which were instituted for the benefit of the people, into so many weapons of offence against them, on all occasions of conflict with the government. The dependence which it entailed, was utterly incompatible with the exalted duties of the judiciary; and although less repugnant to the nature of the mere ministerial offices, it erred in rendering them solely responsible to those who appointed them, and were naturally inclined to sustain their acts, whatever they might be; and wholly irresponsible to those for whose benefit these offices existed, and upon whom their misdemeanors in office were to operate. Yet the tendencies of this dependant state were in a great degree counteracted by the control of the Assembly of the province over its revenues generally, and over the fees of office. The officers were principally sustained by fees and perquisites, the right to and quantum of which, were generally and properly regulated only by acts of Assembly. The proprietary's revenues arising from the province, except those accruing from the grant of lands and common law fines and forfeitures, were derived from the same source : and they were given to him, and enjoyed by him for his personal emolument, and were not sufficient to enable him to endow the offices with salaries. The value of the offices to the incumbents, depended upon the fees of office attached to them by acts of Assembly. Those acts regulating fees, were not only subject to alteration or repcal, but they were also tempo- rary, and passed for short periods ; at the expiration of which they expired by their own limitation, if not sooner repealed, and could not be revivedjexcept by the assent of the Assembly. Thus the Assembly always retained its control over the fees of office, and its check upon the officers. The proprietary gave
1
permission of the proprietary. The provisions of this act merely imposed salutary restrictions upon the exercise of the appointing power by sub-officers, equally proper, and therefore equally applicable, under both governments : and so they were considered by Bacon, who has published them at large in his edition of the laws, as operative under the proprietary government.
-
1
1
--
:
158
THE PROPRIETARY
[Hist. View.
offices, but the acts of the Assembly alone gavo thein value ; and if it chose to reduce or withhold the fees, the incumbent might truly say,-" You take my office, when you do take the fees whereby I live." Seeing this, we understand at once the constant and vigorous opposition of the Assembly to every attempt of the governor to establish these fees by proclamation. Their vehe- mence was fully justified, by the consideration of the dangerous consequences which might have flowed from the admission of this power, under any circumstances. If once sanctioned by the people even as an interim power, it would have been fatal to this policy. The governor would have assented to no future act, but would have continued to regulate the fees by proclama- tion; and thus the officers would have been rendered entirely independent of the people. The sagacity of the people per- ceived this, and hence their unyielding opposition.
The powers of erecting towns and cities, and conferring titles and dignities, fall properly under this head. Under the fourteenth article of the charter, the proprietary had the general power of erecting and incorpora-
Mly. The pow. ris of erecting towns and cities, and conferring dignhave and ti- tles of honor. ting towns into boroughs, and boroughs into cities, with such privileges and immunities as he might deem expe- dient. His power to confer dignities and titles of honor, which was given by the same article, was subject to the restriction that they should not be such as were then used in England; and this restriction rendered the power a mere nullity. Titles of honor, to carry with them any peculiar respect or consequence, without regard to the merits of the possessor, must be consecrated by their long association with ideas of wealth and privilege. New titles, given for the mere purpose of conferring honor, are gene- rally as ridiculous. as were those incorporated by Mr. Locke into the constitution of Carolina. The first proprietary, in some of his carly instructions, appears to have cherished the design of con- ferring dignities as enduring personal distinctions; but fortunately for the colony, the design never was carried into effect. The existence of a titled gentry throughout the colonies, would have proved a serious obstacle to the accomplishment of their liberties. The great body of the aristocracy, which they formed, would always have been found on the side of prerogative, warring against the principles of republicanism. Distinction by title,
-
4
159
GOVERNMENT OF MARYLAND.
Chap. 1.]
however it may in some rare instances be controlled by the virtue of its possessor, is the natural enemy of principles which know and respect no distinctions amongst freemen, except those of intrinsic merit.
Another important branch of the powers falling under this' 3dly. The power head, was the pardoning power. This power, as
to pardon offences. given by the seventh section of the charter, was commensurate with the proprietary government itself .. Under that section, the proprietary was empowered to "remit and pardon . all crimes and offences whatsoever against the laws of the province, whether before or after judgment passed;" but his power to pardon appears to have extended beyond this special grant. The offences which were committed within the counties palatine of England, were defined, and their punishment pre- scribed by the laws of England, although they were charged and proceeded against, as offences against the lord's palatine; and because of their general jurisdiction over all offences committed within their limits, the lord's palatine had also the power to pardon them, not excepting even treason. It would seem, therefore, that the proprietary had the power of pardoning all offences committed within the province, even if they arose under English statutes operating here, as well as if under the positive laws of the province, to which the seventh section, by its context, refers.
The military powers of this government, as defined by the charter, appear, as well as those of the palatinate government, to have been given solely for the purposes of defence. The pro- prietary was clothed with all the powers of a captain Military powers general, in summoning and arraying for the defence
of the proprieta- ry under the char. ler. of the province all its inhabitants, and in waging war against, and pursuing even beyond the limits of the province- and taking captive all enemies invading or infesting it by land or sea. The captives taken, he was empowered either to put to death or otherwise to dispose of at his pleasure. He might also declare and exercise martial law, in all cases of rebellion, sudden . tumult, or sedition in the province; and against all persons within the province, guilty of sedition, refusing to submit to his government, or to render military duty, deserting to the enemy, or otherwise offending against the rules and discipline of war.
-
1
160
THE PROPRIETARY
[Hist. View,
The restrictions of the statutes of fugitives were also dispensed with, and the inhabitants of the province were authorised, under the assent and direction of the proprietary, to build and fortify castles, forts, and other places of strength within the province, either for their own or the public defence. Such was the charter- extent of the military powers incident to this government; and * the palatinate powers appear not to have extended further. It was not consistent with their subordination to the kingdom of England, to extend these powers beyond the means and opera- tions of defensive war. The unlimited rights of war and peace .
are the highest attributes of sovereignty; and the full exercise of them is compatible only with the supreme power. They made a part of the eminent dominion of the mother country, with which their full exercise by the colonies would manifestly have conflicted. The foreign relations of the parent country would thus have been placed at the mercy of the colonies. By decla- ring war against those with whom she was at peace, they would either have drawn her into the contest, or have entailed upon her the responsibility of their offensive measures; and by putting themselves in an attitude of peace as to those with whom she was at war, they would have withdrawn themselves from their allegiance. Their powers were therefore very properly limited to the protection of the province, and were given merely to meet a state of actual hostility to it, arising either from rebellion, invasion, or warlike array against it. Of this nature were the various acts from time to time passed for carrying on warlike expeditions against the Indians, which were always predicated upon some actual or expected hostilities on the part of the latter. These military powers, although conferred solely upon the pro- prietary, did not carry with them the right of raising the revenue necessary for their exercise. The Assembly alone
Restrictions im- przed upon these held the purse strings of the provincial revenue. military pow .rs by the legislation of the province. No subsidies, aids, customs, taxes or impositions of any kind, could be levied for any purpose whatso- ever, upon the persons or property of the freemen of the province, without the consent and approbation of the General Assembly. (3) By their acts alone, could a revenue be raised from the province
(3) Act of 1650, chap. 25, confirmed amongst the perpetual laws by the Act of 1676, chap. 2d.
161
GOVERNMENT OF MARYLAND.
Chap. I.]
to defray the expenses of military expeditions. And besides this general dependance upon the province for the means of their ex- ercise, these powers were subject to the restrictions imposed by the permanent act of 1650, chap. 26. (4) Under these, if war was waged by the proprietary or his governor, without the limits of the prosince, and without the approbation of the General Assembly, the freemen of the province could not be required to aid in the prosecution of it, either in their persons or by their property : and martial law could not be exercised within the province, "except in time of camp or garrison, and only within such camp or garrison," i. e.in time of actual service, and upon those in actual service. The general charter power of the proprietary to call out and array the inhabitants of the province for its defence, was also, from a very early period, modified and regulated by Acts of Assembly, prescribing the manner of organizing, arming, and disciplining the militia. (5) The systems of internal defence, which were es- tablished by these acts, will hereafter be considered in conjunc- tion with that which now prevails in the State. We are now only considering the purposes and manner of their establishment : and from the view which has been taken, it will be seen that the Assembly soon obtained over this, as well as over the other sole powers of the proprietary, a wholesome control which facilitated their proper exercise, and prevented their abuse.
General course of the English government as to the commerce of the American colonies. The neutral policy of the English government, in reference to the establishment of her carly colonies on this continent, is nowhere more conspicuous than in her conduct as to their commerce. The leading traits of that policy have already been described. It left to unassisted and individual enterprise, all the expense, hazard, and difficulty of establishing these colonies. It permitted them to grow up through all the perils and difficulties of their first settle-
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.