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1 Ibid, pp. 332-350. 2 Archives (Cl. Pro. 1692) pp. 3-36.
There were also large tracts laid out on the Eastern Shore, for the Choptank and Nanticoke Indians (Kilty, pp. 351-355)-these tribes were the remnants of the Kuskarawoaks, once famous as the great makers of peake and roanoke (Indian money.) Peake was more valuable than roanoke, but they both consisted of shell-the former of the conch, the latter of the coekle-wrought into the shape of beads .- Day Star, p. III. 8 Section 14.
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which, with the others sent, was rejected), was a "Bill for Baronies". It is, however, also true that after the bill which was subsequently passed, substantially as prepared by him,1 he vetoed,2 either from political reasons, growing out of the claim he was at that time making that he, and not the Assem- bly, had the right to initiate legislation, or from prudential motives which prompted a reconsideration of his original plan of founding "Baronies" in the Province.
Be this as it may, it is highly probable that the "Bill for Baronies", as introduced by him, was a proposition, not for an order of nobility, but for the creation of political subdivi- sions, such as are still known in Ireland as "Baronies", and where Baltimore was then engaged in the enterprise of coloni- zation.3
At the session of 1639, two bills were introduced, but not passed, constituting the lords of manors a privileged class ; the one providing, that they should only be tried by a jury composed of lords of manors, if so many could be procured, and, if condemned to capital punishment, they were, unlike the body of people, to be executed by being beheaded, and not by hanging; the other, that lords of manors should be eligible, like members of the Council, to seats in the Assembly without election by the people,4 but it nowhere appears that Baltimore was interested in the passage of either of them, or responsible for their introduction.
Yet, whatever his intention may have been as to the crea- tion of an order of nobility in Maryland, certain it is, that a genuine aristocracy did spring up and develop into a promi- nent feature of the colony, as the natural evolution of his land system. Nothing could have contributed more, indirectly, to the development of an aristocracy, as well as in moulding the character and habits of the people, than the land tenure of Colonial Maryland. Under its influences, both economic and
1 The Foundation of Maryland, p. 40.
2 Ibid; Bozman, II, p. 67.
3 Bozman, II, p. 67; The Foundation of Maryland, p. 42.
4 Archives (Ass. Pro. 1639) pp. 51-74.
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THE LAND TENURE
political, land soon came to be esteemed the highest source of wealth in the Province, and, a little later, its ownership became a mark of distinction and an element of power.
In early Maryland there was a property qualification for voters, the right of the elective franchise being restricted to. freemen who had not less than fifty acres of land, or a "visi- ble personal estate of £40 sterling within the County"; the. same qualification being required of delegates to the Assem- bly,1 and only the landlords and employing classes were sub- ject to taxation, which was rated according to the number of productive persons under their care-a system, purely aristo- cratic both in its intention and tendency.
From the class recognized as gentlemen, the County Court Judges, High Sheriffs, and Upper Magistrates, and, indeed, State and County officials generally, were selected, and as rural life was then esteemed the most honorable, those of this class were all expected to be owners of landed estates. They were entitled to be addressed as Esquires, the small freeholder and tenant being called Master or Mr.2
These, among other distinctions, between the freeholders and those who were landless, and between small landlords and the great landed proprietors of the Province; the importance attached to the lords of manors, by reason of their vast possessions and judicial powers, and the strong support which the system received from the law of primogeniture and entail- ment, were powerful elements in the development of an aris- tocracy.
The isolation, too, of those vast estates, separated as they were, by such wide distances, and the solitary life of the planters who resided on them, necessarily made their proprie- tors rely on their own resources for entertainment, and made it also essential that each manor or plantation-being a com- munity within itself-should be wholly self-sustaining, and wholly independent-a condition they shortly attained.
Co-operation was not an element of such a society, and the absence of this deprived the body of the people of the
1 McMahon, pp. 445, 449.
2 Scharf, II, p. 50; Day Star, p. 116.
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facilities for education which that closer community of feeling and association of interests-prevailing in some of the New England colonies-afforded, and which, for more than a cen- tury, practically restricted education to the sons and daugh- ters of the wealthy planters, who could resort to colleges and seminaries. This condition intensified the consciousness of inferiority in the former class, while it excited in the latter, a sense of increased pride in their possessions, and a feeling of superiority in their surroundings and station of life.
And thus it was that the great landlords of the Province -political powers of the land and the educated element of the community-living upon their vast estates, independent and within themselves, possessing wealth without riches, dispens- ing that abounding hospitality, and cherishing that spirit of self-reliance and invincible independence, for which the society, the soldiery, and the statesmanship of Maryland became renowned.
CHAPTER VIII The Judicial System of Colonial Maryland
T HE Palatinate jurisdiction conferred on the Baron of Bal- timore, over the Province of Maryland, as well as the powers expressly given by the seventh section of the Pro- vincial Charter, are the corner-stones of the judicial system of Colonial Maryland. These accorded to him the full and sole authority to ordain judges, establish courts, and define their jurisdiction, and the manner and form of their proceed- ings.
This right he first exercised by commission, the earliest one extant being that of April 15th, 1637, by which he ap- pointed Governor Leonard Calvert, Chief Justice and Chan- cellor of the Province, and invested him with full power to award process, hold pleas, and to hear and finally determine all civil actions, suits, and demands, both in law and equity, as well as all criminal causes, except that where a life, mem- ber, or freehold were involved, at least two members of the Privy Council were to sit with him.1 Causes were determined by the common law of England, except where superseded by a provincial statute, and except, also, where life, member, or freehold were concerned, which could only be taken away by an express law of the Province." This, in 1642, was extended to persons who were outlawed or fined more than 1000 lbs. of tobacco.ª
Baltimore, however, soon submitted the General Assem- bly to regulate the perfunctory matters appertaining to the administration of justice in Maryland, such as the time, place,
1 Archives (Cl. Pro. 1637) p. 49.
2 McMahon, p. 113; Act, 1642, C. 4; Act, 1646, C. 2.
3 Archives (Ass. Pro. 1642) p. 184.
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and manner of holding courts, and also to define their juris- diction and the compensation of their judges, but the right to appoint the judges he always retained and exercised himself, or through his representative, the acting Governor; and he also required that all courts should be held, and that all process should issue and run in his name, and not in the name of the King or of the Province.1
The first exercise of this privilege by the Assembly, was in 1638, O. S., when an Act was passed vesting jurisdic- tion throughout the Province, in all civil, as well as criminal causes, in the Governor; in the Commander of the Isle of Kent (within that Island), and in the Privy Council, in cases in which the Governor was a party; except that in crimes extending to life or member, the offender was first to be indicted and then tried by at least twelve freemen.2
Successive Acts were, from time to time, passed,3 under which the judicial system was gradually developed, and which will be noticed in detail, under the head of the several courts of the Province.
The first judicial officers appointed for Maryland, except the commission to the Governor and Council of 1637, before referred to, were Justices of the Peace.4
As early as January, 1637, O. S., one was commissioned for Saint Mary's County, and in February of the same year, three were commissioned for Kent." The jurisdiction of these Justices was defined by their commissions, and was more com- prehensive than that given to those subsequently appointed
1 McMahon, pp. 156, 157. 2 Archives (Ass. Pro. 1638) p. 83.
3 In 1638, an Act was introduced providing for a specific arrange- ment of the judicial system of the Province, but it did not reach its third reading, and was not passed .- (Archives, Ass. Pro. 1638, p. 39.) Bozman, however, devotes much space in explaining the tenor of this Act, which is misleading unless critically read, as the courts therein named were not established.
4 The Court of Piepoudre, or market court, authorized by the char- ters of the cities of Saint Mary's and Annapolis, while a part of the system of Maryland jurisprudence, yet, being so circumscribed in terri- torial jurisdiction, are not treated here. For a brief notice of these courts, see Chapters; The First Capital of Maryland.
5 Archives (C1. Pro. 1637) pp. 60, 62.
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who were only constituted conservators of the peace, and with the powers and duties incident to the office of justice of the peace in England.1
In 1715, they were given jurisdiction, concurrently with the County Court, in all civil causes within their respective bailiwicks, in which "the real debt or damage doth not exceed 400 1bs. of tobacco, or 33 s. and 4 d. in money"," but this, apparently, did not apply to controversies with the Indians, as two years later an Act was passed, in which, after reciting the inconvenience of having such matters brought before the Governor and Council, Justices of the Peace were authorized to try and determine disputes between the "English and In- dians", not exceeding 20 s. sterling.ª
The first time Justices of the Peace were given jurisdiction exclusive of the County Courts, was in 1753, and at that time it was also increased to 600 1bs. of tobacco or 50 s. currency.ª From their decision an appeal would lie to the County Court, which at first applied to all cases, but in 1763, the right of appeal was limited to cases in which the amount involved exceeded 400 lbs. of tobacco, or 33 s. and 6 d. in money, and to stay execution pending the appeal, a bond had to be filed in double the amount of the judgment." The constables were the executive officers of the Justice's Court.6
Two Justices of the Peace could take the acknowledgment of deeds,' and a single Justice could take the probate of any account,8 and administer the oath of office to all government officials® and public inspectors.10
Justices of the Peace were appointed by the Governor, were usually the leading men of the county, and constituted, with those known as Justices of the Quorum, the County Court.
The first County Court held in Maryland, of which there
1 Ibid, 1661, p. 422.
3 Act, 1717, C. 14.
5 Act, 1716, C. 5.
7 Act, 1715, C. 15.
º Act, 1729, C. 20.
2 Act, 1715, C. 12.
4 Act, 1753, C. 13.
6 Act, 1763, C. 21.
8 Act, 1715, C. 47.
10 Act, 1763, C. 18.
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is any record, met at Saint Mary's, on the 12th day of Feb- ruary, 1637, O. S. It was presided over by the Governor and two members of Council. A grand jury of twenty-four freemen was impaneled and sworn, and several indictments found,1 but by a singular coincidence they were for offenses which the Court, by the express terms of its commission, could only determine by a statute of the Province for such cases made and provided, and Baltimore having vetoed all Acts passed by the Assembly up to that time, the Court found itself in the unique position of having before it, prisoners arraigned and no laws by which to try them.2
But the General Assembly, which was then in session, did not propose to let the offenders go unwhipt of justice, and believing itself equal to the emergency, and not bound by the restrictions imposed upon the Governor and Council in their judicial capacity, resolved itself into a high court of justice. assumed jurisdiction of the cases, and, with the acting Attor- ney General, John Lewger, tried and convicted the prisoners of murder, the crime for which they were indicted.3
This Court, however, while called a County Court, was not such, as they were subsequently organized, but was the Provincial Court, sitting as a County Court, which it con- tinued to do for the County of Saint Mary's until the new coun- ties were erected, and which had, until its limits were thus curtailed, embraced the whole of the western shore, as distin- guished from Kent, on the eastern shore. For the latter, a special Court was at first instituted, with a Chief Judge and two Associates, and with jurisdiction over civil causes to the extent of 1200 1bs. of tobacco, and over all crimes and offenses not punishable with loss of life or member.4
The earliest reference to a County Court, among the legislative proceedings in Maryland, was in 1638, when an Act was introduced, but not passed, "for the erecting of a
1 Archives (Pro. Ct. 1637) p. 21. 2 Ibid ; Bozman, pp. 60, 575.
3 Archives (Ass. Pro. 1637) pp. 16, 17, 18.
4 Archives (Cl. Pro. 1637) p. 62.
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THE JUDICIAL SYSTEM
County Court".1 The next, is the Act of 1642, which refers to them as existing tribunals, from which it may be inferred that the Proprietary had, in the meantime, instituted them. This Act fixed the terms of court, and provided the oath for the Justices, the order of trials, method of appeal, and the manner of drawing the jury, and of selecting the Sheriff,2 the latter being done by the Court placing three suitable persons in nomination, from whom the Chief Judge appointed the Sheriff of the County for the ensuing year.ª This method of selecting the Sheriffs of the several counties, continued until 1662, when, upon the nomination of three persons by the County Court, the Governor, and not the Chief Judge, made the appointment.“
In 1676, the right to nominate the Sheriffs was taken away from the County Courts by the repeal of the Act of 1642,6 after which the power of appointment was exercised by the Governor alone. In 1692, their term of office was ex- tended to two years, and in 1699, to three years, on which basis it continued until the Revolution.®
The Clerks of the County Courts were appointed by the Secretary of the Province,' this being one of the prerogatives belonging to that office. In 1691, the question of depriving the Secretary of this privilege was agitated, but it resulted in no change, the decision, however, being that the office "ought not to be sold," but, as the Secretary had to give security for
1 Archives (Ass. Pro. 1638) p. 47. 2 Ibid, 1642, pp. 147-152.
3 Ibid.
" Bacon, Act, 1676, C. 2.
" Ibid, 1662, p. 45.
" The duties performed by the Sheriffs in early Maryland, were very similar to those incident to the office of Sheriff in England. Besides serving writs and processes, imprisoning criminals, and inflicting pun- ishments, it was also incumbent upon them to proclaim at the County Courts, the late Acts of the Assembly; to collect county and parish rates or dues; to supervise the return of taxables; and to perform such other duties as were incumbent upon the Sheriffs in England, and which the Governor, the Assembly, or the Courts might, from time to time, order and direct.
" Archives (C1. Pro. 1671) pp. 23, 136.
8 Act, 1692, C. 25; Act, 1699, C. 26.
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COLONIAL MARYLAND
the "good behavior" of the County Clerks, he was allowed to receive one-tenth of the fees and emoluments of the office.1 They were appointed at will, but generally held office during good behavior,2 and besides keeping the Court records, they were the keepers of the County Seal,3 and the records of all births, marriages, and deaths of white persons within their respective counties.4
Each County Court had a Crier and a Bailiff." The County Courts were presided over by Justices of the Peace or Commissioners, who were appointed by the Governor, and a reference to their names shows them to have been among the most prominent men in the Province. A distinction was made between the Justices of the Quorum, who were presumed to possess higher qualifications, and the other Justices in the Commission, the presence of one or more of the Quorum Justices being necessary at each session of the court to give it legality. The Justice of the Quorum first named in the Com- mission was the Chief Judge, and in his absence the one next named presided.®
The number of Justices varied in the several Counties from six to twelve, four of whom being necessary to constitute a legal session of the court." But to prevent a discontinuance of the court, two Justices, one being of the Quorum, could call and adjourn® it to a future day.º
The Justices of the County Courts were paid a per diem, each receiving 80 1b. of tobacco for each day of attendance,10 and in order to insure their presence, they were subject to a fine of 100 1bs. of tobacco for non-attendance, without good cause.11
The County Courts were Courts of Record,12 and in their
Archives (Cl. Pro. 1691) pp. 289, 293.
'Ibid, Sharpe, Cor. p. 6; Ibid, Cl. Pro. 1671, p. 136.
Archives (Ass. Pro. 1671) p. 294.
* Ibid, 1691, p. 529.
5 Act, 1763, C. 18. 6 Archives (Ass. Pro. 1642) p. 183.
7 Archives (Cl. Pro. 1661) pp. 422, 424; Ibid, 1675, pp. 65, 69.
8 A failure to meet or adjourn Court on the first day of the term, left its proceedings "without a return day"-a defect that could only be cured by Act of Assembly. See Archives, Act, 1794, p. 137.
9 Act, 1715, C. 14; 1756, C. 6. 10 Act, 1716, C. II.
11 Archives (Ass. Pro. 1663) p. 497. 12 Ibid, 1678, pp. 70, 71.
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earlier history they held six terms a year, consisting of the first six successive days of every alternate month, but later they were reduced to four terms a year. They began for the Counties of Talbot, Baltimore, Saint Mary's, and Worcester, the first Tuesday in March, June, August, and November ; for Dorchester, Cecil, Anne Arundel, and Charles, the second Tuesday ; for Calvert, Kent, Somerset, and Frederick, the third Tuesday, and for Prince George and Queen Anne, the fourth Tuesday of said months.1
In 1663 the County Courts were directed to provide a pillory, ducking-stool, whipping-post, stock, and branding- irons for their respective Counties,2 and in 1674, a Court house and Prison were ordered to be erected in each County, under the direction and supervision of the Justices of the several Counties, which order appears to have been promptly complied with.3 They were also required to make court rules," a copy of which had to be "kept sett up att the Court house doore," and to purchase Keeble's Abridgments of the statutes of England, and Dalton's Justice, for the use of the County Courts. Among the other administrative duties incumbent
1 Ibid, 1648, p. 232; Acts, 1715, C. 4; 1742, C. 19; 1748, C. 15.
2 Archives (Ass. Pro. 1663) p. 490.
3 Ibid, 1674, p. 413, Ibid, 1675, p. 447.
" The first regulation of the County Court of Cecil, of the year 1721 reads : "When the Justices meet together at the Court house, to hold a court, one of them shall order the Crier to stand at the Court house door and make three "Oyeses" and say, all manner of persons that have any business this day at his majesty's Court, draw near and give your attention, for the Court is now going to sit: "God save the King." Rule 7 reads : "the plaintiff's attorney standing up and direct himself to the court & then to the jury if any and open his client's case after the
clerk's reading the Declaration * and when done he to sitt down and then the Defendant's Attorney to stand up and answer him as aforesaid & not to speak both together in a confused manner or in- decently." Rule 9 prescribed that no one presume to keep his hat on in court except "any of the Gentlemen of his Majesty's Honerable Council."-Johnson's History of Cecil County, p. 244 & 246; Local In- stitutions in Maryland, p. 89.
5 Archives (Ass. Pro. 1678) p. 70.
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upon the County Court were, to levy county taxes,1 assess parish rates,2 and fix their boundaries,3 and to appoint the keepers of weights and measures,4 road supervisors,5 consta- bles, and press masters.®
The Sheriff selected and summoned the grand and petit jury for the County Court, which had to be done at least ten days before court convened." Those exempt from jury service were, delegates, magistrates, coroners, schoolmasters, over- seers of highways, and constables, and no one was eligible as å petit juror who had any cause pending for trial at that term of the court.8 The jury thus summoned were compelled to serve, unless excused, under penalty of 500 lbs. of tobacco.º The same penalty was attached to witnesses, summoned before the County Court, and not attending, besides being liable to damages to the party injured by the loss of their testimony.10
The compensation allowed grand jurors was within the discretion of the court, but could not exceed 500 1bs. of tobacco a piece per term, and was paid by the County.11 The petit jury received 15 lbs. of tobacco a piece for each day of attendance, out of the County levy and 120 ibs. of tobacco to the panel in every case in which they were sworn, to be taxed as a part of the costs of the case.12
The right, however, to trial by jury, was limited to crimes affecting the life or member, until 1642, when it was, for the first time in Maryland, extended to all cases, civil and criminal, the party demanding it giving security to pay the cost of the jury, except that in criminal cases affecting life or member, the demand could be made without furnishing such security.13
Witnesses before the County Court were entitled to 30 Ibs. of tobacco per day, to be taxed with the costs of the case. In criminal cases these fees, and indeed the fees of all the
1 Archives (Ass. Pro. 1671) p. 273; Acts, 1704, C. 34; 1748, C. 20.
2 Act, 1729, C. 7. 3 Act, 1713, C. 10.
.4Archives (Ass. Pro. 1671) p. 281. 5 Act, 1704, C. 21.
6 Act, 1715, C. 15 & 43- 7 Act, 1715, C. 37. 8 Ibid.
9 Ibid. 10 Ibid. 11 Ibid. 12 Act, 1719, C. 3.
13 Archives (Ass. Pro. 1642) p. 151.
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court officials, including the sheriff and jailer, were paid by the County, but only in case they could not be made out of the traveser, by way of execution or servitude.1
The jurisdiction of the earlier County Courts, the records do not clearly define, the reason for which, perhaps, being that until 1650, there were but two civil divisions in the Province, whose judicial affairs were administered as before stated.
In the proclamation erecting Charles County in 1658, the jurisdiction of the County Court for that County was limited in civil cases to 3000 lbs. of tobacco, and in criminal causes, to those not affecting life or member .? This, while applicable to a single County, serves to show the idea then entertained of the scope and character of their jurisdiction. Three years later, when justices of the County Courts were appointed, apparently for the first time for all of the Counties then erected, their jurisdiction was the same as that prescribed in 1658 for Charles County.3
1 Act, 1715, C. 26-37.
" Liber, P. C. R. p. 52, 54, Maryland Historical Society.
3 Cl. Pro. 1661, 422.
The oath administered to Judges, after the allegiance and fidelity clause, was as follows: "To none will I delay or deny right. Reward of none will I take for doing justice. But equal justice will I administer in all thing to my best skill, without fear, favor or malice, of any per- son, according to the laws of this Province, so help me God." Liber C. and W. H., p. 6.
The following curious oath was administered to Judges of the County Courts, during the reign of George Ist: "The subscriber, Do truly and sincerely acknowledge profess and testify and declare in my conscience before God and the world that our Sovereign Lord King George is Lawful and rightfull King of Great Brittain and all other the Dominions and Countries thereunto belonging and I Do Solemnly and sincerely Declare that I do believe in my conscience that the person Pretended to be Prince of Wales During the Life of the late King James and since his Decease pretending to be and taking upon himself the stile and title of King of England-by the name of James the third or of Scotland by ye name of James the eighth or the stile & title of King of Great Britain hath not any right or title whatsoever to the crown of the Realm of Great Britain or any other the Dominions thereunto belonging, and I do renounce, refuse, and abjure any allegiance or obedience to him and I do swear that I will bear faith and true allegiance to his Majesty
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