USA > Maryland > An historical view of the government of Maryland : from its colonization to the present day > Part 19
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172
THE PROPRIETARY
[Hist. View.
lected from the existing debt books, it appears that, in the year 1770, their gross amount was about £8,400 sterling, and the net revenue of the proprietary from them, after deducting the expen- ses of collection, upwards of £7,500 sterling. This estimate is at least sufficiently accurate to give us a general notion of their value then and during the intermediate period.
The sagacity of the wise and benevolent Cecilius, the first Caution money.
proprietary of Maryland, is conspicuous in the po- licy pursued by him, in granting the lands of the province. The first wish of his heart was to see its popula- tion increase and its commerce prosper. Looking to the fu- ture beyond the petty ambitions and interests of the moment, he saw that his reputation and permanent interests were iden- tified with the prosperity of the colony; and with the sagacity to perceive, and the heart to feel this, he made his rights of property in the province minister to its advancement. His lands were offered as premiums for emigration. Adventurers were en- couraged to come into the province, and to bring their servants and dependants with them. Every person transporting himself into 'it, was entitled to a certain quantity of land, without pay- ing any caution or purchase money, and the land granted was charged only with a moderate quit rent. If he brought others with him, he was allowed for their transportation a further quan- tity, which was proportioned to the numbers, age and sex of the persons transported, the highest premiums being given in some of the earliest conditions of plantation, for the transporta- tion of males between 15 and 60, and of females between 14 and 43. These land rights were prescribed by various proclamations, issued from time to time by the proprietary, which were famil- inrly called, " The Conditions of Plantation." They were fre- quently varied, according to the necessity for inducements to cmigration, or to promote the establishment of settlements in particular portions of the State; and it would be an idle labor to detail the various conditions which they proposed. The curious reader will find them at large in Mr. Kilty's Landholders' Assist- ant. They were all predicated upon the wise and liberal policy to which we have adverted, and which alone it is now our pur- pose to describe. These plantation rights are the only modes of acquiring lands recognized in the conditions of plantation :
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173
GOVERNMENT OF MARYLAND.
Chap. I.
but besides these, there were land rights acquired under warrants for land granted by the proprietary to particular individuals. The system of purchase upon payment of the caution money, with which we are now familiar, was not known in the first years of the colony. The lands were not open to all who might choose to purchase them, upon payment of a defined amount of caution money. The special warrants were granted entirely in the dis- cretion of the proprietary, and were inconsiderable in the amount of land affected by them, when compared with the settlement rights acquired under the conditions of plantation : and the lat- ter remained the principal mode of acquiring titles to the un- granted lands, during the life of the first proprietary, and for some years after his death. The population and resources of the co- lony, at the death of the first proprietary, had increased to such a degree, as to render unnecessary these inducements to settlers ; and this general mode of acquiring lands under plantation rights, which had in the first instance admirably answered the purposes of its institution, was now becoming productive of extortion and abuses. It was therefore entirely abolished by the new proprie- tary in 1683: and a new system was then adopted, under which all persons were permitted to sue out warrants for lands upon payment of a definitive amount of purchase money, which was called " caution money," because no warrant could issue until it was paid or secured. (9) Thus was fully introduced the system of granting, lands which has prevailed here until this day. The amount of the caution money was regulated from time to time by the proprietary's proclamations and instructions; and although of small amount, at some periods it must have produced a consi- derable revenue. . Yet there are no records of the province, nor documents within our reach, which enable us to state what was the amount received under it by the proprietary at any time.
(9) This proclamation of 15th May, 1683, may be seen at large in Kilty's Landholders' Assistant, 124. It relates : "that whereas the taking up of lands, by rights, in the province, hath proved not only grievous and burthen- some to the inhabitants, as well for want of such rights upon their occasions as for paying for the same extravagant and extortious rates when to be pro- cured ; but also very injurious and prejudicial to ourself by undue and unjust probate made of such rights as we have seen and been informed, therefore, &c." This recital illustrates the cause of the change above mentioned.
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171
THE PROPRIETARY
[Hist. View.
We can therefore only describe the caution system, and advert to it generally as a source of proprietary revenue.
Fines for alienation were the incidents of the feudal tenures Alienation fines. generally, as they originally existed in England. . They appear to have belonged as well to the socage tenure as to that in chivalry; and the same feudal reasons existed for their connexion with both. In their origin the feu- dal grants imposed mutual obligations upon the landlord and tenant to preserve unbroken the relation which they created, unless the change of it was authorised by the assent of both par- ties. They carried with them an implied contract; on the pari of the tenant that he would not alien the lands held by him without the consent of the lord of the fee, and thereby impose upon him a new tenant who was not in his contemplation at the time of the grant ; and on the part of the lord of the fee, that he would not transfer his seignory to a new landlord, and thereby subject the tenant to a service which he had never anticipated. Whilst these mutual obligations existed in full vigor, they constituted the most endearing feature and effectual preserver of the feudal relation. But the lords of the fee soon emancipated themselves from this restraint ; and the obligation, ceasing to be mutual, became a mere instrument of extortion from the tenant. The former, be- ing themselves under no restraint, would not grant to the latter the license to alien, without compensation ; and if they aliened without license, the land was forfeited. The abuses of this power were at length regulated in England by the statute Ist Edward 3d, chap. 12th, which fixed the fine to be paid by the tenant for the privilege of conveying away his lands at the one-third of their yearly value; and the forfeiture for alienation without license at the full yearly value. Such was the origin of fines for alienation, which existed in England as the incidents of the socage tenure, at the time when the charter of Maryland was granted. In Eng- land, having been suspended by the commonwealth dominion, they were at length utterly abolished in 1660, immediately after the restoration of Charles II. by the statute 12 Charles II. chap. 21. To the province of Maryland they were transplanted with the socage tenure ; and here, notwithstanding their abolition in the mother country, they continued to exist until the American revolution. It does not indeed appear that they were noticed
175
Chap. I.] . GOVERNMENT OF MARYLAND.
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in the early instructions or conditions of plantation ; or that they were collected in the first years of the colony. This may be, in some measure, accounted for by the nature of the plantation rights. Yet these fines were the incidents of the tenure, as it existed when established in the province; and they therefore followed it without express reservation. The first notice of them, which we find, is contained in the conditions of planta- tion of the 22d September, 1658, which directed, that in all grants issued thereafter upon plantation rights, there should be reserved upon the patent one years' rent for a fine, to be paid upon every alienation of the land granted, such rent being estimated by the rent reserved as quit rent. The officer issuing the patent was also directed to insert in it a condition, that the tenant should not alien the land without entering the alienation either upon the records of the provincial court or those of the county in which the land lay, and that the fine should be paid before ali- enation, or else the alienation to be void. Thus were they fully in- troduced, and thus they existed until the revolution. When the commutation for the quit rents was agreed upon and fixed by the act of 1671, chap. 11, the alienation fines were included in it, and also in that of the act of 1717, chap. 7, which was substituted for. the former. . The latter act having expired in 1733, these fines, as well as the quit rents, became payable in money, and continued thus payable until the revolution. Devises being a species of conveyance, alienation fines were charged upon these as upon alienation inter viros ; but after the fall of the commutation sys- tem, they were considered by the inhabitants of the province as a great grievance. At the session of Assembly, in 1739, a series of resolves, declaratory of the grievances of the province, were adopted by the lower house, one of which was particularly aimed at alienation fines on devises: and the proprietary at length yielding to their wishes in this particular, the fines on these were utterly abolished in 1742. (10)
The proprietary revenue flowing from other sources than his Proprietary re-
land rights, arose principally from the port or ton- venue arising nage duty, the tobacco duty, and the fines, forfeitures from other sour-
and amercements. From the year 1739 until the ces.
(10) They were abolished by governor Bladen's proclamation of 20th October, 1742.
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176
. THE PROPRIETARY
[Hist. View.
American revolution, the proprietary claim to these revenues was the source of continual and embittered contests, between the lower house of Assembly and the governors of the pro- vince. The journals, throughout that period, abound with re- solves and addresses, denying the proprietary's right to them, and denouncing the collection of them as illegal and oppressive. Enduring until the close of the proprietary government, the levy- ing of them was always a part of the public grievances of the moment; and it even entered into the causes which produced the final overthrow of that government. Occupying, as they did, so large a space in the transactions of the colony, and constitu- ting important branches of revenue, we shall be pardoned for briefly adverting to the origin and history of these duties.
The Port or Tonnage duty originated in the act of 1646, l'ort, or Tonnage chap. ], entitled "An act for customs." This act Duty. was passed immediately after the disturbances oc- casioned by Clayborne and Ingle's rebellion, and gave to the proprietary a duty of ten shillings per hogshead on all exported tobacco, besides a small duty on wines and hot waters, (as they were called) to enable him to defray the expenses incident to that rebellion. It was found soon too oppressive in its effects upon the infant commerce of the colony, and its operation was therefore suspended by the proprietary, at the instance of the As- sembly, by whom a duty was granted, in lieu of it, of the same amount, on all tobacco exported in any Dutch vessels not bound to any of the English ports. (11) In 1658, and after the govern- ment had been recovered by the proprietary from the protector's commissioners, this suspending act of 1619, being a mere tempora- ry act, had expired ; and to prevent the revival of the act of 1616, a new agreement was made between the Assembly and the gov- craor, which led to the passage of the act of 1661, chap. 7. This act repealed that of 1616, and gave to the proprietary a port and anchorage duty of one half pound of powder and three pounds of shot, or their value, "on all vessels trading to the province and not owned in it, having a deck flush fore and aft." This act of 1661 was confirmed amongst the perpetual laws by the act of 1676, chap. 2d, and the discrimination made by it between foreign ves- sels and those owned in the province, rendered more definite by
(11) 1649, chap. 9.
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177
GOVERNMENT OF MARYLAND.
Chap. I.];
the act of 1682, chap. 4. The duty itself was soon commuted for a money duty of 14d. per ton. Upon the occurrence of the Protestant revolution, by which the proprietary was deprived for a considerable period of the government of the colony, the house of Assembly claimed the revenue under this act as a public fund, and passed an act appropriating it for the support of govern- ment. The crown, acting under the opinion of Trevor the soli- citor general, disallowed this act, and decided that this duty was a part of the personal and private revenues of the proprietary, which did not pass from him with the government. Under this decision, he was permitted to collect it until the restoration of his government in 1715; and after that restoration, it appears to have been received and enjoyed by him in his own right, without interruption or question, until the year 1739. The dissensions of that period brought it up amongst the public grievances; and from that moment until the proprietary power was ended, al- though it was still received and applied as the personal revenue of the proprietary, the lower house of Assembly waged against it an unceasing war of resolves and addresses. They returned to the allegation of the Assembly of 1692, "that it was, in its ori- gin, not a port but a fort duty, given to the proprietary for the de- fence of the province; and that being thus public in its nature and uses, it had been repealed by the general repealing act of 1701." Although their manifestoes had not the effect of re- moving the duty, or of procuring its appropriation to public uses, they were not without their benefits. They familiarised the people to the notion, that all taxes and impositions not sanctioned by their assent were illegal; and inculcated proper views of go- vernment, by continually presenting their rulers to their conside- ration as the mere trustees of the public. The only estimate which we have of the amount of this revenue is that of the lower house in 1765, which rates it at from 900 to £1200 sterling per annum. (12)
(12). The report of the committee of accounts, of 10th December, 1765, estimates the annual revenue from it at from 1000 to £1200 sterling. The message from the lower to the upper house, of 16th December, 1765, states the receipts to be upwards of 2900 sterling annually. 23
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178
THE PROPRIETARY
[Bist. View,
The Tobacco Duty, which is generally denominated, in the
proceedings of the Assembly, the 12d sterling per
The Tobacco hogshcad, originated in the act of 1671, chap. 11. Duty, .This act imposed a duty of two shillings sterling per hogshead on all exported tobacco, of which the one half was given for the defence of the province and the support of govern- ment ; and the residue to the proprietary for his own use, in con- sideration of his agreement to receive tobacco for his quit rents and alienation fines, at the rate of 2d per pound. Its provisions, which were originally limited to the life of the first proprietary, were continued during the lives of Charles Calvert, and his in- fant son, Cecilius Calvert, by the subsequent acts of 1674, ch. 1, and 1676, chap. 3. Upon the occurrence of the Protestant re- volution, the proprietary's title to this branch of revenue was also drawn into question; but upon his signifying his willingness to adhere to the conditions of the grant, his title to the one half of . this duty, as his personal revenuc, was sustained by the crown; and during the interval of the royal government, the proprietary continued to collect it for his own use. The lives, during which these acts were to continue, having at length fallen, a further agreement for the commutation of his fines and quit rents was made in 1716; and finally in 1717, by the act of 1717, chap. 7, they were purchased out by the Assembly. This act of 1717, gave to the proprietary, for his own personal bene- fit, a duty of two shillings sterling per hogshead, or four pence sterling on every hundred weight of tobacco exported in box, case, chest or barrel, and so pro rata, in full discharge of his rents and fines : and being temporary, it was continued by various acts until October, 1732, when it was suffered to expire. The one half of the duty of two shillings sterling, which was originally given for the defence of the province and the sup- port of government, was all that now remained of it. This, as a public fund, the proprietary was divested of at the time of the Protestant revolution; and it was then applied to the support of the government. Under the last of the acts passed for its ap- propriation during the royal government, the act of 1701, chap. 42, this duty of 12d per hogshead was given to the Queen, her heirs and successors to the throne of England, for the support of their government, for the time being, over the province; and
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Chap: I.]
GOVERNMENT OF MARYLAND.
179
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was principally applied, under the direction of the crown, to the support of the royal governor. From the restoration of the pro- prietary in 1715 until 1733, the duty does not appear to have been collected, because of the enlarged revenue given to him by the temporary commutation, acts existing during that pe- riod; but upon the expirationof those acts, the tobacco duty wholly ceasing, and the proprietary being remitted to the col- lection of his rents and fines according to the tenor of his grants, the collection of the 12d duty under this act of 1704 was resumed. It appears to have been collected from that period until 1739, without any direct opposition on the part of the As- sembly. At this latter period, the propriety of its collection was drawn into question by the committee of aggrievances of the lower house, which then reported, that it was a duty applicable by its express terms only to the royal government, and as such became extinct by the restoration of the proprietary ; and that the collection of it was an assumption of the power of levying money under the pretence of prerogative, which was inhibited even to the kings of England. To evince that they were con- tending only for the principle, they agreed to secure to the go- vernor by law, the same amount of duty ; and they accordingly passed an act for that purpose, the preamble of which is worthy of preservation, as exhibiting the same sentiments in relation to the proper source of taxation, which were triumphantly main- tained at the era of the American revolution. "Your excel- lency (say they, in their message to the governor proposing this law,) is too well acquainted with the nature of the British con- stitution to be informed by us, that it is the peculiar right of his majesty's subjects not to be liable to any tax or other imposition but what is laid upon them by laws to which they themselves are r. party ; and we do with the greatest sincerity assure your excel- lency, that it is in pursuance of this, our undoubted right, and for no other cause, that we give you the trouble of this address." The preamble to the act itself sets out, "that it is not their in- tention to deprive the governor of an honorable support, but only to assert and maintain to themselves, their constituents, and posterity, that principal and most essential branch of liberty, to which they conceive themselves entitled, as subjects of Great Britain, of not be- ing liable to the payment of any money, tax, impost, or duty, ex-
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180
THE PROPRIETARY
[Hist. View.
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cept such as shall be warranted, raised, and assessed by the laws of the province." The act itself was not acceptable to the governor, because it was temporary. It failed: and from that period until the American revolution, the collection of this duty was continued in defiance of all the remonstrances of the lower house of As- sembly. That body, however, never yielded its opposition. The controversy was revived in 1750, and the lower house then adopted certain resolves, denouncing the levying of the duty as illegal, which became the standing resolves of the lower house, even down to its latest sessions under the proprietary govern- ment: (13) and on the frequent after occasions, when this house thwarted the views of the governor or his council, they continu- ally appealed to the levying of this duty as a part of their justifi- cation. 'The revenue arising from it was estimated by the lower house in 1765, at £1400 sterling per annum. (14) At the suc- cording session of May, 1766, under a call from the lower house, the actual receipts from this branch of revenue from the 29th September, 1759, to the 29th September, 1765, were reported to that house. From this report it appears, that during these six years it had yielded £9,263 1s. 43d. sterling ; and therefore the average annual amount was a little upwards of £1543 sterling.
(13) The following were the standing resolves alluded to in the text :
Resolved, That the levying and taking of the sum of 12d. sterling by the right honorable the lord proprietary of this province, on all tobacco export- ed out of the same, 'under pretence and color of the act of 1704, is not war- ranted by law ..
Resolved, That if the above act of 1704 had been in force from the restora- fion of the government by the crown to the lord proprietary, to this time, yet the sum of three pence sterling, part of the said sum of 12d sterling, agreca- ble to the plain construction of the above mentioned act of 1704, and her late majesty queen Anne's instructions to her governor here, when the said act was in force, ought to be applied towards the purchasing of arms and ammunition for the defence of the province.
They were re-adopted by the lower house, at many after sessions. See the journals of lower house, May 31, 1750. 8th June, 1751. 13th December, 1754. 30th September, 1757. 24th October, 1758. 17th March, 1762. 2d No- vember, 1765, and 3d October, 1771.
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(14) Report of committee of accounts of 10th December, 1765, and mes- sage of lower house of 16th December, 1765.
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Chap. I.]
GOVERNMENT OF MARYLAND.
181
The common law fines and forfeitures imposed in the courts of the province, enured to the proprietary, as the head of the government, and the fountain of justice in the colony. Being incident to his relation as governor of the pro -- The revenue from common law fines and forfeiture, and amerciaticuls vince: when he ceased of be such by the happen_ ing of the Protestant revolution, it was properly decided, that his right to them passed with his government to the crown. Upon his restoration, his title to them returned as its incident. There were also a great variety of fines impo- sed by acts of assembly, the whole or a portion of which were granted to the lord proprietary by the acts imposing them, cither for specific purposes, or generally without limiting their uses. The amerciaments were finally regulated under that government by the act of 1722, chap. 12, under which, those in the county courts were applied to the payment of the county charges; and those in the provincial courts, were to be disposed of as the gover- nor and council might direct. These fines and forfeitures at common law, or under acts of Assembly giving them to the pro- prietary without limiting their uses, and the provincial amercia- ments, were regarded and applied by the proprietary government,. as a proprietary fund, in which the public had no interest, and this disposition of them was for some time unquestioned. ' As the exigencies of the government increased, and new demands were made upon the people for supplies to meet those exigencies, the attention of the lower house of Assembly was at length directedto these sources of revenue, as proper to be called in aid of the pub- lic necessities. At the session of 1745, they solemnly deter- mined, that this revenue was a public fund; that the proprietary in receiving it, was a mere trustee for the public; and that, at all events, if it belonged to him personally, it was given to him in consideration of his support of the government, and relieved the people from the obligation to provide other means for that pur- pose. The controversy thus opened, the refusal to apply this fund to public uses became a standing complaint in the colony, which never ceased until it was merged in the revolution. (15) The
(15) There is a very able and elaborate report upon the subject of the proprie- tary title to these fines, forfeitures and amerciaments, which appears on the journal of the lower house in 1765. It was made by William Murdock, a delegate from Prince George's county, who was also very conspicuous at
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