USA > Maryland > An historical view of the government of Maryland : from its colonization to the present day > Part 18
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(4) This act of 1650, chap. 26, was also confirmed amongst the perpetual laws, by the act of 1676, chap. 3d.
(5) The successive acts on this subject were the acts of 1661, chap. 8. 1676, chap. 8. 1678, chap. 2. 1631, chap. 1. 1692, chap. 83. 1699, chap. 47. 1704, chap. 87 -- and lastly, the act of 1715, chap. 43, which, with its supple- ments of 1722, chap. 15. 1733, chap. 7, and 1748, chap. 1, constituted the militia law of the province until the revolution.
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THE PROPRIETARY
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ment, under its indifference and neglect. It extended its provident care to them, when they had wealth to be taxed, commerce to be monopolised, and power to be directed. Hence, the early char- ters, granted when colonization was an experiment, and the be- nefits of colonial commerce in embryo and scarcely a matter of calculation, are very lavish in their grants of commercial power and privilege. ,Several of these charters were sought and obtain- ed solely for commercial purposes : and under all of them, the security and benefits of commerce were necessary to stimulate enterprise and invite emigration. It was necessary to establish and nurture their commerce in its infancy, by liberal grants of privilege : for unless so nurtured, there would be nothing upon which the exactions of the mother country could operate. There is, indeed, in this respect, a striking contrast between the bene- ficial provisions of the early charters, and the narrow, selfish and enslaving policy, subsequently adopted by the government of En- gland, with reference to the commerce of these colonies. Her adulating writers, whose object was, or is, to depress our nation- al character, by exalting her conduct towards these States when colonies, may remind us of the parental liberality of these carly grants: but when we stand in view of this contrast, we remember the kindness that fattens for the slaughter.
The early policy of that govern- ment illustrated in the commer- cial privileges granted by the charter of Mary- land. The charter of Maryland was exalted above every other by its commercial privileges and exemptions. All commodities were permitted to be imported into the province, except such as were specially prohib- ited, upon payment of the ordinary customs. (6) The colonists were permitted to export from it all articles whatsoever, of its growth or produce, to any of the ports of England or Ireland, subject only to the customs and impositions paid in similar cases by the inhabitants of England : and if they did not deem it pro- per there to dispose of them, they might store them, and within one year computed from the time of unlading, they were permit- ted to relade and export them to any part of the English dominions, or of the dominions of any foreign power in amity with England, subject, as upon their import, only to the customs paid in similar cases by the people of England. (7) Full and absolute
(6) Charter of Maryland, art. 11.
(7) Charter, article 15.
Chap. I.]
GOVERNMENT OF MARYLAND. 163
power was given to the proprietary, to establish the ports of en- try and discharge for the commerce of the province, and to invest them with such rights and privileges as he deemed expedient. The proprietary, by the assent of the colony, was permitted to impose customs upon the exports and imports of the province, and was entitled to the avails of those customs to the exclusion of the crown : and the kings of England, by the express cove nant of the 20th article, were prohibited " from imposing or caus- ing to be imposed, any impositions, customs, or other taxations, quotas or contributions whatsoever, upon the persons or proper- ty of the inhabitants being within the province; or upon any merchandise whatsoever within the province, or whilst being laden or unladen in its ports." (S)
Similar exemptions of the commerce of a colony were granted for short periods, by some of the other charters: but under this charter, the privilege was perpetual. It was manifestly intended to operate to the entire exclusion of the taxation of England from the province, and was afterwards found to be one of the most insuperable objections, in argument, to the exercise over Maryland of the power of inter- nal taxation claimed by the British Parliament. It
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Peculiar nature and efficacy of the charter ex- emption of its commerce froin the taxation of the English gov- ernicut.
gave the inhabitants of this colony a peculiar claim to exemption beyond that of the other colonies, which they relied upon with great confidence in their opposition to the stamp and tea taxes. Mr. Chalmers, whose work was written for the express purpose of demonstrating that the parliament possessed this power, frankly admits that this exemption gave peculiar strength to the Maryland claim. At the same time he considers it as an exemption, which neither was intended to operate, nor could operate against the powers of parliament. His objection to this application of it rests upon the assumption, that the government of England, at the period when this charter was granted, was a limited monarchy, under which the king could neither strip par- liament of its powers, nor rightfully exercise the power of taxa- tion except by its consent : and that this exemption of the char- ter, was in fact nothing more than the principle asserted and maintained by the House of Commons against the royal preroga-
(8) Charter, articles 17 and 20.
2.
5.
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tives in their petition of right in 1628. The revolution has an- swered his argument, and the reply to it would now be idle dis- cussion. It would not be difficult to show that the limited mon- archy, of which he speaks as existing for centuries, and as then only rescued from the grasp of prerogative, was before that pe- riod a mere legal fiction, scarcely known, and never respected in the operation of the government; and that as to the colonies, the power of the crown was supreme and uncontrolled. It granted charters with what privileges it pleased in derogation of the sov- creignty of England ; and its power to do this was not then ques- tioned even by parliament. As to the colonies, it was then con- sidered as the depositary of the sovereignty of England; and the parliament sat by in silence and saw it exercise that sovereignty or grant away portions of it at pleasure. The grantees under the charters regarded it as such, relied upon their privileges as the grants of the English government, and colonised their provinces under that reliance. Under such circumstances, the claim of par- liament to jurisdiction, in direct opposition to the grants of the charter, had neither reason nor justice to sustain it : and if valid at all, it placed the whole charter at its mercy. Those, who vin- dicate the conduct of the English government, may make their choice of the alternatives. Either she did not possess the power, or her assumption of it, after the colonies had been planted and reared to maturity solely by individual means and enterprise and in reliance upon the privileges which the charter purported to con- vey, was an act of rank deception and injustice.
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The colony of Maryland, with all her peculiar claims, soon shared the fate of the other colonies. Her commerce was left entirely to her own regulation, until it became sufficiently valua- ble to attract the grasp of England; and then it was taken into The system of guardianship. A system of monopoly was soon es- restrictions upon the commerce of the colonies in- troduced and ex. tabitabed during the reign
tablished, which endured until the American revo- lution. The full and final establishment of this sys- of tem was reserved for the reign of Charles II. It Charles 1. began with the statute of 12th, Charles II. chap. 18, which limited the carriage of the imports or exports of the colo- nies to vessels belonging to and navigated by English subjects, and prohibited the exportation of tobacco and certain other enumerated commodities, to any place without the dominions of
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GOVERNMENT OF MARYLAND.
Chap. I.]
England, under the penalty of forfeiture. The next step was to provide, that the imports of European commodities should reach the colonies only through the mother country : and this was ef- fected by the statute 15th Charles 2d, chap. 7th ; which required, that every commodity of the growth or manufacture of Europe, about to be imported into the colonies, should be shipped in En- gland, and carried thence to the colonies, only in vessels owned and navigated by English subjects. From these restrictions upon direct importation, were excepted a few articles of necessity, which it is not necessary to specify. Still the commerce in the enume- rated commodities, although it could not be carried on without the English dominions, was yet open to every part of them; and it now became a grievance in the eyes of the English parliament, that the trade in these articles was carried on between her own colonies without any immediate revenue to England. Taxa- tion of colonial commerce was the next remedy, and a new statute was now passed, 25th, Charles II, chap. 7th, which provided, that if bond were not given to secure the exportation of the enu- merated commodities directly to England in the first instance, then certain duties should be paid to the crown upon their export to other parts of the English dominions. Places were to be de- signated, and officers to be appointed for the collection of these duties in the colonies, and thus was fully introduced the restric- tive system of England, which made her ever afterwards the car- rier, the manufacturer, the vendor, and the purchaser for the colonies. This restrictive system subsequently underwent many occasional changes and enlargements ; but from this period we may date the full establishment of that supremacy over colonial commerce, which England exercised without scruple, and often to the op- pression of the colonies, until the approach of the American re- volution.
It became now with England the established doctrine, that First reception she was the heart through which the whole com- and final estab- lishment of this merce of her colonies must pulsate. It was not es- restrictive sys- tem within the tablished without opposition. The colonies evaded, colony of Mary- land. entreated, and resisted, to a degree which kept Charles in a state of continual irritation throughout his whole reign. The proprietary came in for a full share of his rebukes. The navigation act had for a time operated very oppressively
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[Hist. View.
upon Maryland. Its inhabitants, devoted almost exclusively 10 planting, had no shipping of their own, and relied entirely upon others for the exportation of their produce. It appears from their revenue acts and their other Assembly transactions, that the Dutch, at the passage of this act, were the principal carriers of the trade of the province. These being excluded, it required the operation of the act for some time, so to enlarge the shipping of England, as to give the colonists the same facilities of trans- portation, which they had previously enjoyed, when the shipping of the whole world was open to them. . Being speedily followed by the acts relative to the export of the enumerated commodities, it soon involved the proprietary in difficulties with the crown. One of these enumerated articles was Tobacco, which was the principal, if not the sole export of the colony; and these acts in effect reached their whole commerce. The proprietary's situation would not permit him to take the broad ground of entire exemp- tion under his charter ; but he maintained, that his subjects were not bound to export their tobacco to England or Ireland, or to give bond for that purpose, if they paid the duty. The collectors were soon drawn into very angry contests with him, in which they were sustained by the crown; and the proprietary was warned . to look to it, lest he might be stripped of his charter. These dissensions continued in some degree, until the Protestant revo- Jution in 1699, when the proprietary was stripped of his govern- ment by his own subjects; and his very defence of the commerce of his colony against the oppressions of the crown collectors, was made a substantive charge against him by his own people. 'Thus, by the excitement of the moment, the colonists themselves were ranged on the side of the restrictive system. From that period it was rivetted upon the colony, and its general validity does not seem to have been questioned. Acknowledged and sustained by the colony, as predicated upon a mere power to regulate com- merce, it was considered as the limit of the supremacy of England, and was distinguished from the power of internal taxation for the purpose of revenue.
Under the fifth article of the charter, the proprietary was en- titled to the patronages and advowsons of all churches within Ecclesiastical pow. the province. He was also licensed to found era of the proprie- churches, chapels, and places of worship within tary.
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GOVERNMENT OF MARYLAND.
Chap. I.]
it, and to cause the same to be dedicated and consecrated ac- cording to the ecclesiastical laws of England. These powers require no comment.
Passing from this general view of the proprietary government, Personal nahte and of the character, extent, and exercise of its con-
and tevennes of stituent powers, we propose to consider briefly the the proprietary. personal rights and revenues of the proprietary flowing from it.
Of these, the first in order and importance were those, which arose from the ownership of the soil of the province. Under the charter, the proprietary was both the ruler of the
Nature and ten-
ure of the pro- province and the owner of its soil; and the pecu-
prietery's inter- est in the soil of liar powers possessed by him, therefore fall properly the province.
under two general classes, having reference to these distinct rights of soil and jurisdiction. Although blended in the grant, they were yet distinct and independent; and hence during the long interval from 1689 to 1716, when the proprietary government was suspended, and the province under the imme- diate administration of the crown, the proprietary, although stripped of his rights of jurisdiction, was left in possession of his rights as the owner of the soil. The grant and tenure of the province, as held by the proprietary of the crown, were deter- mined by the third, fourth and fifth articles of the charter. The limits of the grant have already been described. The limitation of the grant was to Cecilius, baron of Baltimore, his heirs and assigns; and the ownership of the province was therefore assignable. The proprietary and his heirs were constituted "the true and absolute lords and proprietaries of the province," reserving only the alle- giance due to the crown, and its sovereign dominion. The pro-" vince was held of the kings of England, as of their castle of Windsor in the county of Berks, in free and common socage, by fealty only for all services, and not in capite nor by knights ser- vice; and the render by the proprietary to the crown, in acknow- ledgment of the tenure, was "two Indian arrows of the pro- vince, to be delivered annually at the castle of Windsor, and the fifth part of all gold and silver ore discovered within it."
The whole province being thus held of the crown, the proprie- tary, his heirs and assigns, were empowered to make grants of
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THE PROPRIETARY
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Hir power to any estate or interest in its lands, to be holden , make sub-grants of the lande of the province, and the tenure . of those sub-grants. directly of them and not of the crown, by the same species of tenure under which they held the pro- vince of the crown: and the restrictions of the statute, 18 Edward Ist, chap. Ist,' commonly called " the statute of Quia Emptores," were expressly dispensed with. Hence the proprietary was at once the sole tenant of the crown, and the ex- clusive landlord of the province. It would be foreign to our pur- pose to dilate upon the nature and incidents of the tenure by free and common socage, which was common to the grant of the province and the sub-grants from the proprietary. These are fully described in various elementary treatises, which are within the reach of every reader, It is sufficient to remark, that the services rendered under it by the tenant to the landlord, in ac- knowledgment or consideration of the grant, were fixed and deter- minate, so that the tenant was above the reach of exaction; were of so free a character as not to degrade the tenant in the perform- ance of them; and were pacific in their nature, in contradistinc- tion to the military services which might be required under the tenure by knight's service. At the period when the charter of Maryland was granted, it was the most favored and beneficial species of tenure known to the laws of England. Its free, cer- tain, and pacific services, placing the tenant above the occasion- al exactions and oppressions of the landlord, gave it an ascen- dancy over every other tenure, which was at length consumma- ted in the mother country, during the reign of Charles II., by the entire abolition of the tenure by knight service. This socage te- nure having always been the exclusive tenure of the province, and having existed here in its most ameliorated form, it carried with it encouragements to emigration, and incentives to indus- try, which can scarcely be sufficiently appreciated by those whose experience has not made them familiar with the oppressions in- cident to the other tenures.
The manner and terms of his grants in conformity to this ten- ure, being thus left to the exclusive determination of the propric-
The manner in tary as to that of any private owner of lands, he re- which it was ex. tained and enjoyed his exclusive control over them, ercised. throughout the whole period of the proprietary gov-
ernment. This was a private and personal right, which he did
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Chap. I.] .. . GOVERNMENT OF MARYLAND.
not choose to submit to the legislature of the province; and as the holder of its soil in his own right and for his own benefit, he would have acted very unwisely in suffering his rights of owner- ship to be bound and controlled by public laws. His conditions of plantation, proclamation's and instructions, always prescribed the conditions on which the lands of the province should be granted, and the manner and terms of the grant. In the same manner were determined, the organization of the land office, and the powers and duties of the several offices appurtenant to 'it. All that relates to the history of the establishment and organiza- tion of the land office, and of the modes of proceeding from time to time adopted in it, belongs to the particular view of the past and present structure and operation of the land office, here- after to be presented.
The proprietary's revenue arising from his land grants, consisted Sourcesofthepro- in quit rents, caution money paid at the time of the prietary's land re-, venue. grant, and alienation fines, including fines upon devises. The profits arising from reliefs and primer seisins never existed, as incidents to the tenure of lands in the province.
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The Quit Rents were the annual rents, reserved by the propric- Quit Rents. tary in his grants, and to be perpetually paid from year to year by the owner of the land granted, in acknowledgment of the tenancy. They were rent charges, charged upon the land when it was first granted out by the pro- prietary, and they constituted the only revenue from land grants which was looked to in the first settlement of the colony. The quantum of the rent to be reserved was always regulated by the pro- prietary's proclamations or instructions, and it varied continually throughout the government with the varying value of the lands to be granted, and the views of the proprietary. In the earliest grants under the first conditions of plantation, the rent was made payable in wheat : but in general, with regard to the rights ac- quired after the year 1635, the rent was payable either in money alone, or in the commodities of the country, at the option of the proprietary and his officers. This right of the proprietary to re- quire payment of his rents in money, was attended with great in- convenience and oppression to the people ; and hence, as early as 1671, it was commuted for payment in tobacco. The act of 1671, chap. 11, which originated this commutation, imposed a
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duty of two shillings sterling on all exported tobacco, of which one half was given to the then proprietary for his own use, and the residue for the defence of the province, in consideration of his agreeing to receive tobacco for his quit rents and alienation fines, at the rate of two pence per pound. This mode of pay- ment was continued until the year 1717, by a variety of acts, which will be noticed in detail when we come to treat of the revenue arising from the tobacco duty. The system of commuta- tion, although it relicved the inhabitants from some of the griev- ances arising from the collection of quit rents, by opening to them an easy mode of payment, left them still subject to oppres- sion from the collectors. These petty officers, clad with brief au- thority, and scattered over the whole province, were continually vexing and harassing the people; and the Assembly at last. re- sorted to the expedient of buying out the rents and alienation fines, as the only effectual mode of relief. . A new law was there- fore passed in 1717, act of 1717, chap. 7th, which gave to the pro- prietary, for his own benefit, a duty on all exported tobacco, of two shillings sterling on every hogshead, and four pence sterling per hundred on all tobacco exported in box or case, &c. and so prorata, " in full discharge of his quit rents and alienation fines." This temporary law was continued by several acts until September, 1733, when it was suffered to expire : and from that period until the American revolution, there being no commutation, the quit rents were payable according to the requisition of the patents. During this interval, it appears that all the evils of the old system of collection returned in full force. Scarcely a session of Assembly elapsed, without some complaint of outrage or oppression on the part of the collectors of these rents : and every effort was made by the Assembly to induce the proprietary to accept an equivalent for them. Atthe session of 1735, they endeavoured to renew the com- mutation, and addressed the proprietary in person upon that sub- ject. In his reply to their proffers, which was laid before the As- sembly at the session of April, 1737, he declined them with the re- mark, that the Assembly were not apprised of the increased value of his rents, for if so they would not have deemed their offer an equivalent. To meet and to address their offer to this increased value, the Assembly, at the session of 1712, requested the governor to cause to be laid before them an account of the net annual revenue
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GOVERNMENT OF MARYLAND.
Chap. I.]
of the rents. This request, was not complied with ; and at the ses- sion of 1744, the Assembly, without ascertaining the value of the rents and fines, agreed to give the proprietary, in their stead, a duty of two shillings and sixpence sterling on all exported tobac- co. Wearied by the importunities of the Assembly, he at length authorised the governor to agree upon an equivalent: and at the session of August, 1745, the lower house sought, and obtained from the governor, an account of the then annual value of the rents. The governor then demanded for the proprietary, and the Assembly ultimately agreed to give &5000 sterling annually in lieu of the rents and fines; and an act was passed, appropri- ating this amount, and imposing duties on tobacco and several other articles, for the purpose of raising it. Yet, although it came up to the governor's proposition, he declined acting on it at that session : and from that period until the revolution, the hopes of commutation were abandoned. Of the value of these rents, throughout the proprietary government, it is difficult for us, at the present day, to speak with accuracy. They were the private property of the proprietary. They were collected exclusively un- der his directions: and the returns of the collecting officers made no part of the public records. From the transactions of the As- sembly, at the very period when they were negotiating for a com- mutation, it appears that they had no accurate knowledge of the amount of revenue derived from them. There are no data amongst the records of the province, from which we can form any estimate of their value, whilst the commutation system was kept up. After the return in 1733 to the old mode of money payments, a more re- gular system of collection was adopted: and from this period until the revolution, many of the debt books for the several counties have been preserved, and may now be found in the land office. These debt books, as they were termed, were the books placed in the hands of the collectors of the rents, which specified the rent due by each individual, and the lands on which it accrued: and evi- dencing, as they do, the possession of the lands specified by the individual charged, and generally noting the transfers, they are often relied upon to furnish a presumption of title. From the report made to the legislature, in 1745, it appears that the net amount then received by the proprietary from the quit rents, was £1563 15s. 4d .: and from the best estimate which can be col-
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