USA > Maryland > An historical view of the government of Maryland : from its colonization to the present day > Part 9
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(84) Acts of Assembly of Virginia at December session, 1821, chap. 14th, passed 28th February, 1822. .
(85) The commissioners who acted on this occasion, on the part of Mary- land, were Ezekiel Chambers and James Boyle, Esquires. Chancellor John-
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THE GRANT AND TERRITORIAL LIMITS
[Intro.
their assemblage, it was discovered that the positive instructions to the Virginia commissioners would operate as a bar to all fur- ther proceedings. The Maryland commissioners came instruct- ed to locate the western line from the most western source of that branch, whilst those on the part of Virginia were limited to Fairfax's location, without regard to the inquiry : "whether it was . or was not so located." Fairfax's stone is not in fact planted at the extreme western source : and even had it been so situate, it was scarcely consistent with the rights and dignity of Maryland to have entered into an adjustment with commissioners who were thus restricted without regard to the question of right. Maryland having by her Act offered to relinquish all claim to the territory south of the north branch, it was not to be expected after this concession, that she should adopt as the source of that branch, a point determined as such, by her interested adversaries, during the progress of the controversy. The spirit of amity and conces- sion, which had characterised all her proceedings in her repeated efforts to close this controversy, had been met at every step, by one of obstinate adherence, on the part of Virginia, to the full extent of her pretended claims: and it did not become her digni- ty as a State, to submit herself implicitly to any terms which the latter might dictate. Her commissioners therefore properly in- sisted, that the whole question, as to the true source of the north branch, should be thrown open for investigation; and this being declined, the negotiation ended.
So rests the controversy even to this day: and the proffer of Maryland to confine herself to the north branch, as contained in her Act of ISIS, being thus rejected by Virginia, she is remitted Present policy of to her original rights. Hitherto the course of this Maryland .. State has never contemplated aught but an amicable adjustment: and she has already made every advance towards this, except that of unqualified submission to the demands of Virginia. Every effort has failed : and the inhabitants of our western borders begin to feel more sensibly every day, the con-
son, who was joined with them in the commission, died when on his journey to the place of assemblage, to the deep regret of his fellow-citizens, amongst whom he was conspicuous for his abilities as a lawyer, and his worth as a man. !
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Chap. I.]
OF THE STATE OF MARYLAND. 69
sequences of this protracted contest. It is a matter of reproach to the two States, that this boundary so extensive and important, should be unsettled to this day; and to Maryland it especially belongs to redeem herself from this reproach, by adopting on the instant, some decisive measures, to bring about its adjustment. If she is prepared to surrender all' her claims, and to adopt the location of Virginia, her border citizens may well say : "If it were done, when 'tis done, then it were well it were done quickly.". If, on the other hand, she intends no such surrender, it is full time to rise in vindication of her rights. In the progress of this contest, the conduct of Virginia towards her, has not been characterised by that generous and liberal spirit which has been so conspicuous in her other transactions. Our citizens would deeply regret the necessity of an adversary proceeding against a sister State, which has held so high a place in our affections: yet in reviewing the conduct of our State, they will find no cause for censure. As to the chartered extent of Maryland, there can be little room for doubt. " The first fountain of the Potomac" is evidently a de- scriptive term intended to designate the most westerly source, and applies to the south branch, the source of which lies con- siderably west of that of the north branch. The extent of terri- tory lying between the two branches, is estimated at half a mil- lion of acres, including some of the most fertile lands of Virginia. In the event of an adversary proceeding, the claims of Maryland will of course extend to her chartered limits; and the sovereign- ty over this extensive country ; will be the high prize for the vic- tor. The citizens of our sister State, will perhaps smile at pre- tensions so extensive : yet that they were once well founded can scarcely be doubted, and if so, it will be difficult to show in what way they have been lost. If this be admitted, Virginia can rest her claims only upon prior occupancy and long continued posses- sion; and these will avail her but little in such a Case as the present.
By some the opinion is' maintained, that as between inde- pendent states or nations, one cannot acquire a title to the do- Extent of her main of the other merely by prior occupancy. In present righty. the letter of Mr. Cooke above given, it will be seen that he adopts this doctrine, and asserts broadly, "that if the claim of the State be well founded in its origin, no lapse of time
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THE GRANT AND TERRITORIAL LIMITS
[Intro.
nor continuance of possession on the part of Virginia can bar that claim." The contrary opinion is maintained by Vattel : and is probably the correct doctrine as there, explained and restricted. (86) The doctrine of prescription can only apply to a case of clear and unequivocal abandonment of possession, on the one part, sustained by proof of long, undisputed and uninterrupted adversary possession by the other: and this has never been the character of the Virginia possession. The claim was disputed from its very origin, and the territory was occupied under circumstances from which no inference of acquiescence, on the part of the proprietary of Mary- land,.can fairly be drawn. From the year 1753 to the revolution, the proprietary and his government continued to assert the Mary- land claim, and were restrained from making grants of the disputed territory, only through apprehension of the interference of the crown, and because of the adjustment between the crown and Lord Fairfax. And if any doubts could arise from the possession of Fairfax, anterior to the revolution, they are all removed by the constitution of Virginia adopted in 1776, which in its 21st Arti- cle, after making certain reservations as to the navigation and use of the Potomac and Pocomoke, &c. expressly cedes and con- firms to the State of Maryland: "all the territory contained with- in its charter, with all the rights of property, jurisdiction and go- vernment, and all other rights whatsoever, which may at any time heretofore have been claimed by Virginia." Thus then at the revolution, by the express concession of the State of Virginia, the claims of Maryland to her charter limits existed in their full force; and are sustained by an express surrender of all counter claims which Virginia might have. The reservations made by her, have all been gratified by the compact of 1785: and the claims of Maryland, so far as they rest upon her charter, are there- fore doubly armed. From that period to the present, it will be apparent, from the review of the transactions of the two States already presented, that the claim of Maryland has never been re- laxed, except by an offer to compromise, which was not accepted, and therefore cannot in any wise affect her right: and that there is nothing in the character of the Virginia possession, from which an abandonment of this claim can reasonably be presumed.
(86) Vattel, Bk. 2d, chap. 11th, sec. 147 to 151.
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Chap. J.]
If, then, her rights under the charter retain their original vigour, unimpaired by the lapse of time or the occupancy of Virginia, the Remedies open Constitution of the United States appears to present to her. remedies, by which the extent of those rights can be readily determined. The claim of Maryland, as the successor to the proprietary rights, extends both to the right of soil and the ju- risdiction : and it seems to be now well settled, that where there is a controversy between States 'involving the right of soil, the Supreme Court of the United States has original jurisdiction over it, and one State may in that court enforce such a right against another State of the Union. (87) It has been doubted whether upon such a right as that of mere sovereignty or jurisdiction, a State could proceed at law : but even in such a case, it has been held that there is at least an equitable remedy by bill praying to be quiet- ed as to the disputed boundaries. (88) Besides this direct mode of bringing the question to an issue, there is also an indirect mode of producing a decision of it, which would eventually be equally as efficacious. It is but necessary for the State of Maryland to make a grant within the disputed territory, upon which a suit could immediately be instituted against those claiming it under a Virginia grant; and the question of superior right to grant would at once come up. It being then a case of conflicting claims under grants of different States, it might be at once transla- ted to the proper Circuit Court of the United States; and thence (if of sufficient value,) to the Supreme Court for final determina- tion. (89) These are the modes of proceeding open to Maryland, and if she still retains, and intends to adhere to her original claim, she should be prompt in the prosecution of it. All further hopes of obtaining it by concession are at an end : and whatever course she may resolve to adopt, should be at once determined upon. What the boundary line may be; is not a matter of such moment to her citizens, as that it should be definite and undisputed. In any issue of the contest, it would be the duty of Maryland to con- firm all the anterior grants from the proprietaries of the neck. No attempt would be made to disturb titles so derived: and the
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(87) 3d Dallas, 412. 4th Dallas, 3.
(88) Same.
(89) Constitution of the United States, Article 3d, section 20, and Act of September 24th, 1789, section 12th.
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THE GRANT AND TERRITORIAL LIMITS [Intre.
contest would be mainly for the sovereignty of the territory. Thus respecting and protecting private rights, her claim would be stripped of all its harshness : and, if successful, whilst it en- larged and enriched her territory, would be a monument of her justice.
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CHAPTER II.
OF THE CIVIL DIVISIONS OF THE STATE OF MARYLAND.
AN Enquiry into the territorial limits, within which the powers of the government of Maryland may be exercised, enters neces- sarily into the. consideration of the extent and exercise of those powers. Hence the details of the preceding chapter were not only necessary (as a part of the history of the province of Maryland) to illustrate the causes of its grant, the circumstan- ces under which that grant was made, and the origin, progress and issue of the several contests, which have abridged it to its present limits ; but also to exhibit an accurate view of those abridged limits, to which the powers of government we are about to consider, must be confined in their exercise. The histo- ry of these controversies is wrapped up in musty records, to which but few of our citizens can have access, and which are in general too uninviting, to tempt even curiosity to explore that history through such channels. , Yet the reader would look in vain elsewhere, for a knowledge of the present limits of the State, or of the causes of their variance from the calls of the charter.
The view, which has been taken, would suffice for the conside- ration of those powers, which may be peculiarly called " State Powers," as being undivided and extended over the whole State, by the act of the same officer. These, however, form but a small part of the power of the State government. In order to the proper exercise of a great portion of it, it has been found extremely convenient in some instances, and absolutely necessary in others, to subdivide it, not only with reference to the objects over which it is to be exercised, but also to the extent of territory. It is not possible for one man to exercise, in person, the entire pow- crs of government over a country of any considerable extent, or to exercise, in person, any one entire branch of that power, where its objects are numerous, and call for the frequent and in- stant application of it. Nor is it the policy of a republican go-
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vernment, to weaken the responsibility of those, who actually ex- ercise its powers, by interposing between them and the govern- ment, and as their principals, great state officers, as deposita- ries of its powers, or entire branches of them, who, by their will and discretion, prescribe and regulate the subdivisions of power, and control the agent. Such subdivisions'should be made by the people themselves; and the officers, clothed with such fractions of State power, should come directly from, and be directly responsible to the people themselves, and not to one great state officer. Hence, in Maryland, not only are there numerous subdivisions of State pow- er with reference to its distinct objects, but nearly every branch of it is broken up into similar county or district powers correspond- ing, except as to the territory over which they are to be exercised.
The only subdivisions which are connected with the civil and political history of the state, are those of
1. Shores.
2. Counties.
3. Districts.
The subdivision of counties into hundreds, in this State, is cooval with the existence of counties; and, indeed, during the first year of the colony, each hundred of the county had its dis- tinct representation in the legislature, and in this respect bore the same relation to its county, which the counties now do to the State. But they are now of little, if any, utility; and the very traces of their limits have been obliterated, and are unknown in many of the counties. They have, in fact, in a great degrec, ceased to be subdivisions, because the subdivisions of power, for which they were created, are changed, although there are yet a few cases arising under our old statutes, in which it is necessary to recur to them. In most of their purposes, they have, however, been superseded by the election districts, which have taken their place even as to constables, who were so peculiarly the officers of the hundred, but are now appointed for election districts.
(1) Of the Shores.
The subdivision of shores arises from the intersection of the State by the Chesapeake bay, which divides it into eastern and western sections, respectively called, "the Eastern and Western Shores of the State." This natural division of the State has be-
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Chap. II.]
OF THE STATE OF MARYLAND.
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come a civil division from adventitious circumstances, which have principally passed away, but have left the division behind them, in many cases to answer no purpose, but to foster the un- reasonable jealousies, which, in some measure, gave it birth, and which, in its turn, it sustains, and is likely to perpetuate. . As a civil division, it has been established by our Constitution upon such a basis, and with such securities for its continuance, that it will probably never cease to exist but with the State; and such has been its tendency, whilst thus sanctioned and sustained, to create a difference in feeling, and a supposed difference in inter- est, that at present, by the force of law or custom, it enters into every state election. In its origin, it was the creature of con- venience. It was introduced for, and doubtless accomplished, useful purposes. The settlements on the two shores were remote from each other. . The facilities of intercourse, which we now enjoy, did not then exist; and the location of state offices, on both shores, was made for the accommodation of the settler. Yet, (as the reader will hereafter perceive, in examining the his- tory of the state offices as they existed before the revolution,) this division was extended to but few of them. It was not then known to the law, in the constitution of either branch of the legislature. It did not then exist in relation to the land office, or the institu- tions connected with it, as it does at this day. It was not then respected by the proprietary, in the selection of his governor and council, as it is by imperative custom at this day. Then it was not introduced, or used, as it has been since the adoption of our present constitution, as a mere preserver of the balance of politi- cal power between the two shores; and herein is the distinction between this civil division as it now exists, and as it existed before the revolution. Then its purposes were legitimate ; and its ob- ject, as to the offices to which it applied, was to subserve the con- venience of the citizen. Now it is a mere check to preserve the balance of power between the two shores, which, as to most of the offices, is not only not required by a regard to the convenience of persons transacting business through them, but is even inconsis- tent with it, and is a mere element of strife, which tends to merge our regard for our common state and its interests in mere shore jealousies. Yet by custom in many cases, and by law in others, the division has become very prominent, and it is therefore neces-
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THE CIVIL DIVISIONS
[Intro.
sary to notice the cases to which it is so extended. Where it exists by custom against or without law, it can scarcely be regard- ed as an authoritative distinction; yet that custom has become so inveterate, that the necessary precautions for its preservation are always observed; as, for instance, in elections by the legisla- ture, where some order preliminary to the election, is usually adopted, for the purpose of prescribing and regulating such elec- tions in conformity to the custom. This custom is also worthy of consideration, as a striking illustration of the tendency of our constitutional and other institutions as to the two shores, and of the spirit which they are calculated to engender. By a custom which is now never departed from, except in sudden revolutions of political power in the State, the Governor, who is elected an- nually, and is eligible only for three successive years, is taken al- ternately from the two shores. By a similar custom, his council, which consists of five persons, is always composed of two resi- dents of the Eastern, and three residents of the Western Shore. This is followed up even in the election of officers of the House of Delegates. Some regard is paid to it in the choice of speaker, although it has less influence upon this election, than upon that of any other officer of the House. If the clerk of the House be taken from one shore, it is the practice to take the reading clerk from the other; and in the election even of committee clerks, it is a practice equally as inveterate to elect two from the eastern, and three from the Western Shore.
Such being the customary respect paid to this subdivision, we are now to consider the purposes for which it is established as a . civil division by law ..
In the election of Senators to represent us in the Senate of the United States, our state laws require that one of the senators shall always be an inhabitant of the Eastern, and the other of the Wes- fern Shore. (1) This is a restriction imposed by state laws, which it is proper to respect, and which will probably always be respected. Yet state laws cannot attach this to the office of senator of the United States, as a necessary qualification. The Constitution of the United States requires only that the senator should be a resi- dent of the state for which he is chosen; and it gives the senate
(1) Act of 1809, chap. 22, November session.
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Chap. II.] . OF THE STATE OF MARYLAND.
the exclusive power of judging of the qualifications of its members. The Constitution of the United States can alone prescribe imper- atice qualifications; and the only power delegated to the states, is that of prescribing the time, place and manner of holding the election under and with respect to the qualifications so prescrib- ed; and even as to the time and manner of holding them, there is a power reserved to congress under that constitution to prescribe them by law, and so to alter or repeal all inconsistent state regula- . tions. (2) The state governments have no power to superinduce any new qualification for this office; and the restriction of the act of 1809, being a self imposed restriction, attaching a qualifi- cation not known to the Constitution of the United States, although entitled to all respect, is not so authoritative that the neglect to observe it would invalidate the election.
In the election of State Senators, our constitution requires, that of the fifteen members which compose it, nine shall be chosen from the Western, and six from the Eastern Shore. (3)*
In the organization of the Court of Appeals, the two shores also constitute two judicial districts; for although there be but one Court of Appeals, yet that court is required to hold distinct ses- sions on each shore, for the exercise of the appellate jurisdiction . of that shore, and there is a distinct office and clerk appurtenant to this court on each shore. (4)
So, also, there is a distinct organization of the land office for each shore, carrying with it in its train the offices of judge, register of the land office, and examiner. (5)
There is also a treasury office for each shore, established by the constitution, and a distinct treasurer for each. (6)
As we shall have occasion, hereafter, to enquire into the ori- gin and constitution of these several offices, it is sufficient for our present purposes to notice their existence, as predicated upon this subdivision. The brief view which has been given of the
(2) Constitution of the United States, Article 1st, section 4th.
(3) Constitution of Maryland, Articles 15 and 16.
(4) Constitution of Maryland, as amended by the Act of 1804, chap. 55, and carried into effect by the Acts of 1815, chap. 215, and 1816, chap. 151.
(5) Constitution of Maryland, Article 51, and Acts of November, 1781, chap. 20, section 3d, and 1795, chap. 61 sections 3d, and 5th.
(6) Constitution of Maryland, Art. 13th.
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[Intro.
extent to which this natural division of the State exists as a civil division, will at once show the truth of the remark : " That there is scarcely any State office, into the appointments to which it does not enter, and that at present our State is divided into two distinct sections, which are regarded as having as distinct portions of the political power of the State, as if they were distinct mem- - bers of a mere confederate government." These institutions thus impart to our state the character of a confederacy of the two shores; and the natural result of their distinct organization as quasi-confederates, is uncontrollable jealousy between them, in every question into which a supposed difference of interest may enter. The very fact that they are thus separated, begets a be- lief of the existence of distinct interests in many cases where they do not exist, as has been seen in many questions agitated in this State. Its tendency has been to induce us, each to regard the other, as strangers and aliens in our own land, and to cripple our state energies on every occasion which calls for their full exertion. Our citizens see, feel, and deplore this, yet they continue to give fresh vigour to this feeling, by extending it to every state operation. It has become manifest to all, that this division of state offices exists in many cases, where it is not only entirely unnecessary, but even prejudicial. This distinction may be worthy of preservation in the distribution of clementary political power, as in the organiza- tion of the legislature, and in the constitution of the supreme ex- ecutive power; yet it cannot be denied, that as to many of the minor offices, it is a mere sacrifice, of convenience and public economy at the shrine of shore jealousy. In passing from the consideration of this civil division, it must be remarked, that, wherever it is established by the constitution, every change of it, or of any part of the constitution which relates particularly to the Eastern Shore, must be made not only as other constitutional amendments, by a bill passed at one session of the General As- sembly, and, after publication to the people, confirmed at the next session of the Assembly after a new election; but such change must also be concurred in at both sessions, by two thirds of all the members of each house of Assembly. (7)
(7) Constitution of Maryland, Article 59.
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Chap, II.] , + OF THE STATE OF MARYLAND.
(2) Of the Counties.
The subdivisions called " Counties," as well as those of hun- dreds, were instituted in England about the commencement of the ninth century, by the illustrious king Alfred: and with their train of correspondent officers, such as sheriff's, coroners, justices, and constables, were borrowed by the colonists of Maryland from the institutions of the mother country. That of hundreds has in a great degree ceased to exist, but the counties still remain as . the principal civil divisions of the State; for even where divi- tions of a more extensive kind have been formed, they have been generally formed by the combination of counties. It is not, how- ever sufficient to refer to these, as existing civil divisions. Many of them were erected by orders in council, to which we must refer, not only for their origin and original extent, but in some instances even for their present limits. Of these orders, some are lost, and others are locked up in unpublished records. And even where they are determined by acts of Assembly, these ·are scattered over such a mass of legislation, that it is difficult to collect them ; and the sources whence they are to be collected are accessible to but few. Hence there are few subjects, about which the people of this State are so ignorant, as in reference to the manner in which, and the time at which the countie's of the State were erected, their original extent, and their gradual contraction or extension to their present limits. A striking illustration of this was furnished in the recent contests before the legislature, about the true location of the boundary line between Anne Arun- . del and Calvert counties., These counties were erected between the years 1650 and 1660, and the definition of their common boun- dary had been suffered to rest upon the vague and indefinite expressions of orders in council and acts of that period, until, at length, in 1822-23, when it was taken up for final adjustment, it had become unintelligible in its descriptive terms; so that the legislature found it necessary to establish a new line, as a line of compromise, running between the lines severally contended for by these counties. We will, . therefore, briefly notice the origin and limits of the several counties, as serving not only to prescribe the extent of mere county powers, but also, in some degree, to illustrate the progress of the settlements of the State.
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