USA > Maryland > Chronicles of colonial Maryland, with illustrations > Part 13
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It is true, there was established during the protectorate in Maryland, and that it remained a permanent institution, the tribunal known as the Court of Appeals, presided over by the Governor and Council, and which was given exclusive juris- diction over appeals from the High Court of Chancery ; but its common law jurisdiction was limited to appeals from the Provincial Court, when sitting as a court of first instance, and in which the amount involved exceeded £50 sterling, or 10,000 lbs. of tobacco, and as the County Courts appear to have been the active nisi prius courts of the Province particularly after the enlargement of their jurisdiction from time to time, for civil, and the Assize Courts for criminal business, and over
Archives (Ass. Pro. 1692) p. 447. 2 Act, 1714, C. 4.
3 Act, 1773, C. I.
4 Act, 1713, C. 4; Act, 1721, C. 14.
5 Act, 1713, C. 4.
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the decisions of which Courts the Provincial Court alone had appellate jurisdiction, the common law appeals before the Court of Appeals were necessarily limited in number.
It is here worthy of note, that the fact that the Court of Appeals, whose terms were February, May, July, September, and October,1 heard cases during the sessions of the General Assembly, has led to the impression that the Legislature of Maryland also possessed appellate judicial powers, but this is an error, growing perhaps, out of the fact that the Governor and Council constituted both the Upper House of Assembly and the Court of Appeals, and that when the terms of the two conflicted, the business of the Court was transacted during the term of the Assembly.2
The proceedings of the Provincial Court, as reported in the two volumes of the Maryland Archives, entitled "Provincial Court, 1636 to 1658", were cases which were before it as a court of first instance only, the latter date being the period at which it commenced to exercise its appellate jurisdiction, its proceedings as such having been largely reported in the first and fourth volumes of Harris and McHenry's Maryland
1 Ist and 4th H. & McH. Maryland Reports.
2 The early records also furnish a few instances in which there was a further appeal to the King in Council, but while this right clearly ex- isted by virtue both of Act of Assembly and proclamation, only a few cases are to be found in which it was exercised, owing, perhaps, to the complex rules governing such appeals and the costs incident thereto. This right was limited in civil causes to those in which the amount involved exceeded £300 sterling, and, in criminal cases, to those in which the fine imposed was above £200 sterling. The mode of ascertain- ing the value of the thing in controversy was regulated by rules estab- lished by the King. The appeal could only be from the court of last resort, and had to be taken within fourteen days and prosecuted within a year after the judgment or decree was rendered. A bond had, also, to be given to pay costs and damages in case the decision should be affirmed. On all reaching the English Court, the case was referred to the "Committee on Appeals from the Plantations," who appointed the time and place of hearing, and reported its decision to the King in Council, by whom it was formally ratified .- Bland, I, p. 570, note; Ist H. & McH. Maryland Reports, pp. 57, 91 ; 2d Ibid, pp. 324, 346.
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Reports. And in this connection, it should also be noted that to Maryland belongs the distinction of possessing the most ancient series of reported cases on this side of the Atlantic, the next oldest being Jefferson's Virginia Reports, Dallas' Pennsylvania, and Quincey's Massachusetts Reports, and which begin, respectively, in 1730, 1754, and 1763.
The earliest Act relating to appeals in Maryland, was in 1642, under which the right of appeal was without limitation, the appellant being simply required to give security to prosecute the appeal and to abide by the decision of the superior court.1 It did not, however, seem to encourage the exercise of the right, since the Court could award "double damages" to the party aggrieved, if it found "no cause of appeal"," though no cases are of record in which such damages were awarded.
The next, was the Act of 1678, and which required the appellant to first file a bond in double the amount of the judgment, not only to prosecute the appeal, but to pay the judgment, if affirmed, together with such damages as the Court should award for the delay.ª The bond served the further pur- pose of staying the execution pending the appeal. This Act provided the easy execution of appeal by a simple transcript of the record, under the hand of the Clerk and Seal of the Court -the one in practice · in Maryland to-day-as contradistin- guished from the more complex system by writ of error, though the latter method was also allowed.
The Act of 1692 imposed the first limitation upon the right of appeal, and which restricted it to cases in which the amount involved was equal to, or exceeded 1200 lbs. of tobacco.4 In 1713, provision was made for the first time for appeal from the Provincial Court, in the exercise of its original jurisdiction, to the Court of Appeals. The Act provided for the right of appeal from the County Courts to the Provincial Court, where the debt or damages amounted to £6 sterling, and from the Provincial Court to the Court of Appeals, where
2 Ibid.
1Act, 1642, C. 6.
3 Archives (Ass. Pro. 1678) p. 71.
‘ Archives (Ass. Pro. 1692) p. 444.
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the debt or damages amounted to £50 sterling.1 This Act of 1713, and which continued in force until the Revolution, re- pealed all former Acts regulating appeals from the courts of common law, but reenacted the provisions contained in them relating to the method of appeal and the appeal bond. But these, it was held, did not apply to criminal causes, which could only be reviewed by the Superior Court upon the common law writ of error, except that bills of exception were allowed in appeals from the Assize Courts, for which provision was ex- pressly made.ª The time in which an appeal could be taken was, presumably, fixed by rule of court, the Acts of Assembly being silent upon the subject.
Under the Constitution of 1776, the Provincial Court was abolished, and the Court known as the General Court, and presided over by three Judges of "integrity and sound judg- ment in law"," the terms of which were April and September, for the Eastern, and May and October, for the Western Shore,5 was established in its stead.
The General Court was, in turn, abolished in 1805, when, upon the reorganization of the courts of the State, the County Courts were given its original, and the Court of Appeals, its appellate jurisdiction.®
Thus was swept away, by the waves of Revolution, that ancient monument of Maryland's Colonial Judicial System. For more than a century and a quarter, the Provincial Court was the chief judicial tribunal of the Province, and which, amid all the political fermentations and religious turmoils of its time steadily went on in the even pathway of duty, per- forming the high functions committed to it, without fear and without reproach, exploring and marking throughout its do- main in the new world, the great highways of the law, and building up a code of jurisprudence as a bulwark of security to Maryland and her people, both as a colony and as a State.
1 Act, 1713, C. 4.
2 5th H. & J. Maryland Reports, pp. 234, 329; 9th G. & J., p. 76. 4 Const., Art. 56.
3 Ist H. & McH. p. 83; Act, 1766, C. 5. 5 Act, 1777, C. 15.
6 Act, 1805, C. 16.
·
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This treatise cannot be better concluded than by subjoin- ing the following extracts from the admirable paper of the Honorable Charles E. Phelps, Judge of the Supreme Bench of Baltimore City, read before the State Bar Association, in 1897, entitled "Some Characteristics of the Provincial Judiciary":
Perhaps the first impression made upon the mind of the lawyer who looks through the old (Maryland) reports is the entire absence of anything like judicial reasoning. The con- clusion reached by the court is uniformly expressed in the briefest formula, with no attempt at what is called an opinion. This remark is applicable not only to the cases decided by the Provincial Court, but also to cases in the Court of Appeals, and to the few probate cases appealed from the Commissary General or Prerogative Court to the Court of Delegates. This absence of judicial reasoning leads to the suspicion that the judges of that day were not lawyers by profession.
There exists direct evidence to this effect in the observa- tions of the celebrated Daniel Dulany, upon the judgment of the Provincial Court, in the case of West vs. Stigar, I H. & Mc. H., 247 (1767). The dissatisfied counsel in that case, pending, or in anticipation of a writ of error, applied to Mr. Dulany, the great oracle of the day, for his opinion, and elicited a very full one, beginning as follows:
"On perusing the record, I am strongly of the opinion that the judgment of the Provincial Court ought to be reversed, but what may be the opinion of the Court of Appeals I should be more confident in predicting, if the judges were lawyers by profession, than I am on consideration that they are not." *
From the circumstance which indirectly suggested this digression, the non-professional character of the provincial judges, it might be inferred that their decisions upon general principles have not been regarded as entitled to the same authority as those upon the construction of provincial statutes or customs. The same was the case in Virginia, where, as we learn from Mr. Jefferson, in the preface to his reports, the General Court consisted of the "King's Privy Counsellors only, chosen from among the gentlemen of the country for
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their wealth and standing, without any regard to legal knowl- edge". He remarks that their decisions on English law were not as authoritative as those on the peculiar laws of Virginia. "As precedents," he adds, "they established the construction of our own enactments, and gave them shape and meaning under which our property has ever since been transmitted, and is regulated and held to this day." *
A less attractive feature of the provincial judiciary than even their want of legal learning, was their lack of official inde- pendence. Like all other provincial incumbents, the provincial judges, from the highest to the lowest, held their positions at the pleasure of the appointing power, the Proprietor, or his deputy, the Governor, for the time being. They were, con- sequently, looked upon as his creatures, or as Mr. McMahon expresses it, as his "satellites", "the mere breath of his nostrils".1 In all controversies in which the interests of the Proprietor, or even the private interests of his dependents or favorites were involved, they occupied a weak and most unfortunate position. Whether justly or not, they were always liable to the suspicion of influence and favoritism.
This habitual and suspected attitude of the Provincial Judges as minions of power could not fail to make a deep and lasting impression upon Maryland public opinion. All eyes were naturally turned to the jury as the real bulwark of public and private rights. Although summoned by sheriffs, who were themselves also removable at pleasure, jurors naturally shared the sentiments and reflected the opinions of the mass of the community from which they were drawn, and into which they were speedily to dissolve. Traditional confidence in the jury and jealousy of the court has in Maryland found organic expression in the provision, in sharp contrast with the federal jurisprudence of the United States, that "in the trial of all criminal cases the jury shall be the judges of law, as well as of fact" .?
1 McMahon, pp. 157, 309-311; Calvert vs. Eden, 2 H. & McH. pp. 345-360.
2 Constitution, Art. 15, Sec. 5.
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It has left other deep and permanent traces upon the daily practice in all our courts. The usage which prevails in Eng- land and in many of these States, both in civil and criminal cases, of a summing up of the evidence in a charge by the court has no existence in Maryland, where anything in the nature of a judicial balancing of evidence, or comment upon the weight of the testimony or the credibility of witnesses is scrupulously avoided. In criminal cases the court, as a rule, does not undertake to instruct the jury as to the law at all, even at the request of counsel, and when the court does advise the jury, at their own request, such opinion is always carefully guarded by some expression to show that it is not to be taken as binding, but as advisory only.
Considering the length of time it has been under fire, and the storm of abuse which for many ages it has provoked from defeated litigants, the venerable palladium not only still lives, but may be congratulated on presenting a remarkably healthy and robust appearance.
While to the lessons of provincial experience can be dis- tinctly traced, the tread of public opinion in Maryland, in securing the independence of the jury from the possible undue influence of the court, account is to be taken of the same provincial tradition, as a factor in the development of the peculiar sensitiveness of our people, as respects the independ- ence of their judges from undue influence of power. In no State is the popular nerve more acute, or the popular instinct more alert to the danger and disaster incident to the possible prostitution of such delicate and far-reaching functions, as those necessarily confided to the courts of law and equity.
The two negative characteristics of the Provincial Judici- ary that have been referred to, their want both of professional training and of official independence, have left an affirmative stamp upon the organic law of Maryland in two well known provisions respecting the qualifications of judges.1
In like manner the provisions in the Declaration of Rights (Art. 8) requiring the separation of the three departments of
1 Declaration of Rights, Art. xxxiii; Constitution, Art. 14, Sec. 2.
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government, stands in sharp contrast with the fundamental policy of the provincial organism. Here we find a curious state of things, from the modern standpoint, powers legisla- tive, executive, and judicial, confounded together and massed in the same man, or set of men.
The Governor and his Executive Council composed, at the same time, the Upper House of the General Assembly. They had, in addition, the exclusive legislative power in cer- tain cases. The Governor was (in the very early history of the Province) at the same time Chief Justice and Chancellor, as well as Lieutenant-General and Admiral. The members of the Council were at the same time judges of the Provincial Court, Judges of the Court of Appeals, and, in the infancy of the Province, Judges of the County Court of the oldest county. The Commissary General having, under the name of the Prerogative Court, probate jurisdiction with the appointment of a deputy in each county, was usually a councillor. From the councillors were generally appointed the Court of Delegates, a special and occasional Appellate Court of Probate. From the councillors were also commissioned in part, although not exclusively, the special and temporary Courts of Assize, of Oyer and Terminer, and General Gaol Delivery for the several counties. The Judges of the Land Office, when the tribunal was established, were often also councilors. In fact, above the rank of Justices of the Peace and County Commissioners, who held the County Courts, the whole body of the Provincial Judiciary served, at the same time, as Legislators and Execu- tive Councillors.
Nor did this remarkable blending of powers stop here. The most important and lucrative fiscal and administrative functions were engrossed by the same body. They furnished the principal officeholders of the Province. It was natural and it was customary that the Proprietor's relatives and friends should be provided for in this way. All officials were supported by fees. For instance, the Chancellor's fee for sealing every decree was at one time fixed at two pounds currency, or four hundred and eighty pounds tobacco, and
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half as much for every injunction. The Secretary, who acted as Registrar of the Court of Chancery, was allowed forty pounds of tobacco for every bill filed, and as much "for every court the same shall continue",1 and so on.
The custom of the Proprietor to increase his revenue by exacting a bonus from the holders of lucrative offices, caused a constant tendency to the imposition of excessive fees along the whole line. This became a standing subject of complaint, and of frequent struggle between the two houses. The Upper House, composed of the beneficiaries of extortion, resisted as long as possible, the efforts of the Burgesses to accomplish the definite legal regulation of fees. When established by law, but exceeded in practice, appeals to the courts for redress often failed, from the fact that the Judges were themselves either the offending parties or else closely allied with them.
Another grievance was found in the stubborn resistance, for some time interposed by the Upper House, to attempts at limiting a pecuniary minimum to the jurisdiction of the Pro- vincial Court, and conferring upon the County Courts exclu- sive original jurisdiction in petty cases. It was, naturally, felt to be an altogether needless and oppressive hardship, that in such small cases, parties and witnesses should be compelled to travel long distances to obtain justice. But the Upper House was composed of the Judges of the Court whose emolu- ments were in question, and the self-interest of a privileged class for a long time prevailed over the public welfare.
These and similar causes of dissatisfaction and friction furnished an object lesson in the science of government which contributed more than the abstract speculations of Montes- quieu, to the establishment, at the Revolution, of the whole- some principle which forbids the mischievous concentration in the same hands, of powers, in their nature, distinct and independent.
They also furnish a practical commentary upon that provision in the Declaration of Rights (Art. 33), which forbids a Judge from holding any other office, or receiving fees or perquisites.
1 Archives (Ass. Pro. 1676) pp. 532-534.
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It is as easy to trace these articles of the Declaration of Rights to the abuses mentioned, as it is to find in the peculiar Maryland prohibition of a poll-tax, (Art. 15) a direct origin in the exasperating provincial "forty per poll" levied for the support of the established church.
That these were serious defects in the scheme of govern- ment as practically worked out under the rule of the Proprie- tors, there can, of course, be no doubt. It was blemished by pluralism, by nepotism, by venality, by an undue susceptibility to influence in the administration of justice, by want of capacity in the judicial corps. These defects have received but scant notice from historians. They have been thrown into the shade by those far more familiar and fascinating features which have attracted so much admiring attention to early Provincial Maryland as the cradle of religious liberty, and to later Provincial Maryland as the nursery of civil liberty and of revolutionary heroes.
While, therefore, all proper weight is to be accorded to, and all necessary instruction derived from such criticism as may be well taken, no hasty judgment is to be pronounced upon the Proprietors. These faults were mainly those of the age, or those incident to the novel circumstances under which the experiment was made. The whole anomalous situation has been aptly summed up as an "aristocratic government overshadowing the sleeping germ of democracy".1
Candor compels the reluctant confession that the record of the Provincial Judiciary System, in one important detail. compares favorably with the practical administration of crim- inal justice in some parts of Maryland upon the eve of the twentieth century.
There were, it is true, shortly after the original settle- ment, and before the regular tribunals were fairly in the saddle, some rather eccentric proceedings at old Saint Mary's resulting in capital executions for piracy and murder. But these were conducted in solemn form, before the Assembly of Freemen, constituting itself a court, pro hac vicc, and had
1 McSherry's, p. 177.
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none of the revolting marks of tumultuous and irresponsible mob violence. It is also true, that during the transition period of revolutionary overthrow of the Provincial Govern- ment, there did occur fierce political outbreaks which ceased however with the re-establishment of law and order under the Republic. * * *
The Provincial Judges, if not lawyers, were, as a rule, at least men of worth and probity, of standing and substance, and of more or less liberal education. If they belonged to a privileged class, they had at least the conscience, the generous impulses, and the self-respect of their class. We hear no charges of bald corruption even in the most excited manifestos of insurrectionary violence. For one hundred and forty years, through stormy vicissitudes in State and church, the long procession of provincial judges moved on, dispensing justice to successive generations, if not with conspicuous learning and ability, at least with humanity, moderation, and good sense.
Their deficiency in technical knowledge was to a con- siderable extent supplemented by the efforts of the professional gentlemen who practiced before them, and who have left not only traditional, but recorded evidence of their worthiness to head the long and illustrious line of the Maryland Bar. While the appointment of lay judges was the rule, the rule was not altogether without exceptions, as in the case of Lewger, Gerrard, Jenings, and of the two Dulanys, father and son. Such exceptional appointments have fortunately left a few brilliant names to illustrate the obscure annals of the Provin- cial Judiciary. If they handed down to the veneration of posterity no constellation of great names like those of Hale, Mansfield, Marshall, and Taney, the Maryland contemporaries of Scroggs and Jeffreys furnished at least no parallel to their bad fame. Their administration of individual justice appears to have been sufficiently impartial, and as between party and party, they may be assumed to have poised the scales with an even hand.
CHAPTER X
Some Characteristics of the Maryland Establishment1
THE history of the Protestant Episcopal Church and church law in Maryland, falls naturally into three divisions: First, from the settlement of the Province to the English Revolution, of 1688; second, from the English Revolution, of 1688, to the American Revolution, of 1776; and, third, from the American Revolution, of 1776, to the present day.
In the first of these periods there was almost no church in the Province. In 1642, it is said there was not one Protestant clergyman in Maryland.2 On May 25, 1676, the Rev. John Yeo, a clergyman of the Church of England, who had arrived in Maryland the year before, wrote his well-known letter to the Archbishop of Canterbury, complaining that there were then in the Province "but three Protestant ministers of
1 This Chapter consists principally of the brief filed by the author and his associates (who have courteously consented to its use in this connection), in the Court of Appeals of Maryland, in the case of Saint Matthew's Parish vs. Rev. F. S. Hipkins, and reported in vol. 75, Mary- land Reports, p. 5, etc. The associate council in the case, on the part of the parish, were the Honorable Henry E. Davis, Governor Wm. Pink- ney White, and Henry Wise Garnet, to each and all of whom the fullest recognition is accorded and acknowledgment made, and particu- larly to the indefatigable Davis, to whose profound learning and logic, as displayed in the preparation of the brief, special credit and honor are due. Though a large number of the briefs were printed at the time, the demand was in excess of the supply, and the reproduction here of the historic parts of it has been strongly urged.
2 Winsor's History of America, Vol. III, p. 531. Neill, the Founders of Maryland, pp. 96. 99, 100.
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us that are comformable to the doctrine and discipline of the Church of England".1
Yeo's letter was referred to the Bishop of London, who in turn, referred it to Lord Baltimore, with an application that some provision be made for a Protestant ministry. To this application Baltimore replied that the Act of 1649, con- cerning religion, tolerated and protected every sect, and added that four ministers of the Church of England were in posses- sion of plantations which offered them a decent subsistence, and that from the various religious tenets of the members of the assembly it would be extremely difficult, if not impossible to induce it to consent to a law that should oblige any sect to maintain other ministers than its own.2 The privy council, however, directed that some provision should be made for the ministry of the Church of England, but nothing was done, although Baltimore returned to Maryland in 1680.3
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