USA > Maryland > Maryland, 1633 to 1776 : being an account of the main currents in the political and religious development of Maryland as a proprietary province > Part 4
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The chief office created in the colony was that of governor. The individual appointed to this office also held the title of ad- miral and lieutenant-general. He was further made chancellor and entrusted with the Lord Proprietor's official seal which enabled him to issue, grants of land, commissions for office, pardons, proclamations and writs. As chief justice he was the dominant figure in the province's judicial administration. He was further empowered to appoint all officers necessary for the proper ad- ministration of justice and the enforcement of measures necessary for good government. Finally, he was empowered to convene the legislative assembly, prepare laws for its consideration, and agree to bills which it passed, and when necessary, to adjourn, prorogue or dissolve the assembly.
A Council was also provided for. Its members were theo- retically appointed by the Lord Proprietor, but in reality, the
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recommendation of the governor in this matter was the deter- mining influence. Its relation to the governor was to be similar to that between king and privy council. All important decisions were to be arrived at by the governor in consultation with the Council. The councillors were to assist the governor with advice and in administrative work, and were to keep secret all matter of state. They, as well as the governor, were bound by oath to defend and maintain the rights of the Lord Proprietor and were not to accept office except at his hands.1 Their term of office was to continue only during the pleasure of the Lord Proprietor. They were thus in every particular sworn to his ser- vice and dependent upon his will.
The Council was at first small, consisting of but three members in 1636. By 1681 it had been increased to nine; and after the establishment of royal government, twelve was the maximum, though there were rarely more than nine or ten. Changes in the Council rarely occured except by death or resignation.
In the beginning the duties of the Council, as is evident from its relation to the governor, touched every domain of government.
But with the growth of the power and pretensions of the legislative assembly, its activities were curtailed. After the Revo- lution of 1688 offices were created by act of Assembly, likewise the fixing of fees for government services, the imposition of taxes, and many minor activities which had formerly been regu- lated by the governor and Council.
Practically all the great offices of the province were con- centrated in the hands of members of the Council. Its members were justices of the principal court and members of the legis- lative assembly; after 1650, they composed the Upper House of Assembly. The positions of secretary of the province, commis- sary general, attorney general, judge of the land office and provincial treasurer, were held by members of the Council, as well as many minor offices. It frequently happened that they held more offices than they could administer personally and as a con-
1 Proceedings of the Council, 1636-1666, pages 209 - 214.
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sequence disposed of certain of their offices to deputies for a consideration, a practice which the Lower House protested against on a number of occasions but to no avail.'
Less than a year after the founding of St. Mary's Gov. Cal- vert, called an assembly of the freemen of the province,. which met February 26, 1634 -- 1635. This Assembly enacted a number of laws which were sent to the Lord Proprietor for his assent. But he refused to give it, as he desired to initiate legislation himself, as provided by the charter, which read that the Lord Proprietor should have "free, full and absolute power, ... to ordain, make and enact laws, ... of and with the advice, assent, and approbation of the freemen of the said province."
A second Assembly was called two years later and met January 25, 1737-1738. Personal writs of summons had been issued by the governor, to members of the Council and a few other persons. All freemen were likewise permitted to take their seats in the Assembly or send proxies .? At this Assembly a body of laws from the Lord Proprietor was presented for acceptance as a whole and without amendment.3 But these laws, which provided for a complicated system of government largely feudal in its nature were rejected by the Assembly. Such laws as the people felt were suitable were then taken from this body of laws and passed. This was contrary to instructions and the Lord Pro- prietor refused his assent when they were presented for his approval.
A letter from the governor and secretary of the province assured him that his draft of laws was not suitable to the newly settled colony and advised his acceptance of the Assembly's laws. Cecilius then forwarded instructions to Gov. Calvert to assent to such laws as the Assembly should pass providing they were reasonable and not contrary to the laws of England, reserving to himself, however, the right of ultimate veto.4 The right of initiating legislation thus passed to the Assembly. This meant
1 Lower House Journal, November 2, 1709, July 1st, 1714, May 14, 1750.
2 Proceedings and Acts of the General Assembly, 1637-1638 to 1664, page 1 on.
' Proceedings of the Council, 1636-1667, page 51.
* Proceedings and Acts of the General Assembly, 1637-1638 to 1664, page 31.
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that the people should have a shaping influence upon legislation proposed, that bills could be introduced as circumstances required and that they might go into effect without unwarranted delay.
That the Lord Proprietor attached considerable importance to this point may be assumed from the fact that ten years later he sought to regain this right. At this time he sent out a body of sixteen laws, with the promise that if they were passed una- mended as perpetual laws, he would allow the province to collect and retain onehalf of the customs duties levied on tobacco ship- ped in Duch ships. The Assembly declined to pass this body of laws stating in reply: ,, We do humbly request your Lordship hereafter to send us no more such bodies of laws, which serve to little other end than to fill our heads with suspicious jealousies and dislikes of that which we verily know not." 1
After this failure the Lord Proprietor made no further effort to exercise his right but yielded it to the Assembly without further dispute.
In December 1638 writs of election were issued for the third Assembly. These were directed to each of the hundreds and to one manor. The former were instructed to each send two or more delegates, whereas no number was specified in the case of the manor. The members of the Council and three other individ- uals also received writs of summons.2
From 1641 to 1650 the governor summoned the freemen to appear at Assembly either in person, to send delegates or proxies. In 1650 the different hundreds decided to send delegates, varying from one to three, and from that time on, the representative sys- tem was in force in the province.
The General Assembly composed of governor, Council and freemen was unwieldy. In 1642 the delegates to the Assembly therefore requested that it be divided into two houses, the repre- sentatives of the people to form one and the governor and Council the other.3 Gov. Calvert refused to grant this request. However
1 Ibid., pages 240-243.
' Proceedings and Acts of the General Assembly, 1637-1638 to 1664, pages 27-28.
' Proccedings and Acts of the General Assembly, 1637-1638 to 1666, page 130.
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two years after his death (1647) Gov. Stone accepted such an arrangement and the first Assembly that met in 1650 passed an act providing for a system of two houses. The Lord Proprietor not only gave the act his approval but forbade its being changed. The same act further provided that no law could be enacted or repealed without the concurrence of both Houses. The impor- tance of this advance in development toward selfgovernment can- not be overestimated. It gave the representatives of the people control over an integral and vital part of the government, a con- cession which came to be the most powerful weapon for the pro- tection of their interests.
In 1654 the unit of representation became the county instead of the hundred. These two local divisions had at first been fixed by the Council. After 1689 they were fixed by acts of Assembly in the case of counties and by acts of the county courts in the case of hundreds. In 1670 the town of St. Mary's was given re- presentation in the Assembly, but her representatives were given to Annapolis in 1708, fifteen years after the latter had super- seded the former as capital of the province.
Prior to 1670 no qualification for voting or for becoming a delegate to the Assembly was necessary other than that of being a freeman. Considerable numbers of the colonists had come to the province as "redemptioners",-individuals who had had their way paid to the province and in discharge for this debt, were bound out to service for a term of years, generally from two to five. At the end of this period they became freemen. However in 1670 a property qualification of fifty acres of land or a visible state of __ 40 sterling was fixed as the necessary minimum for eligibility to vote or for election to the Assembly.1 An act of 1678 which continued this restriction was vetoed, but on the establishment of royal government, it again went into effect and remained with but minor changes during the whole proprietary period.
The same bill of 1670 provided for the election of four dele- gates from each county. But in spite of the law, Gov. Charles Calvert began the practice of summoning but half the delegates elected, on the plea of economy but in reality to exclude dele-
' Proceedings of the Council, 1667 to 1687-1688, page 77.
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gates opposed to his plans. In 1676 a petition signed by the delegates and people requested that a fixed number of delegates be elected and summoned and that in case of a vacancy, a writ should be immediately issued so that the vacancy might be filled.1 Charles Calvert, who had become Lord Proprietor the preceding year agreed to this. During the session of 1678 an act of Assembly was passed providing for the election of four delegates from each county and two from the city of St. Mary's, all of whom were to appear at Assembly without the formality of individual sum- mons. When the session of 1681 was called, the message of the Lord Proprietor contained the veto of this aci, and directed that only two delegates be elected for the succeeding Assembly.2 But the Assembly then about to meet had eleven vacancies, and the Lower House brought this fact to the attention of the Lord Proprietor adding that they considered it proper that the warrants for filling the vacancies should be issued by their speaker as was the practice in the House of Commons.3
They declined to proceed to business until these vacancies were filled. After considerable delay the Lord Proprietor instructed the secretary of the province to issue writs for filling the vacancies, In this way each county was fully represented. However, only two delegates from each county were elected the following year in accordance with his instructions. Under the royal government, the first Assembly passed an act prescribing the election of four dele- gates, and thereafter four were regularly elected. At the same time, the Speaker of the Lower House was given the privilege of instructing the secretary to issue writs for filling vacancies in the Lower House. This privilege was confirmed by an act of Assembly of 1718. Thereafter there was never further debate over this question.
The Lower House sought more and more to model its pro- cedure upon that of the House of Commons. Thus the valuable rights secured by that body during the Revolution of 1688 awoke in Maryland the desire to have the same rights. The chief of
1 Proccedings and Acts of the General Assembly, 1667-1676, pages 507, 508.
' Proceedings of Council, 1671-1681, page 378 on.
' Proceedings and Acts of the General Assembly, 1678-1683, page 114.
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these was parliamentary control over the imposition of taxes and the expenditure of public monies. Acts of Parliament were neces- sary for both, and as it was the practice of that body to make appropriation for limited periods, it was necessary that it be regu- larly convened.
With the exception of the periods from 1666 to 1669, 1671- 1674, and 1681-1684, it was rare for a year to pass without a session of Assembly in the province. After the period of royal government, when annual assemblies had been the practice, there were but three years during the period from 1715-1775 that no Assembly met. Except during two periods of six years each (1671-1676 and 1676-1681) during the administration of the 3rd Lord Baltimore, elections took place at regular intervals of three years. In 1697, the Assembly was dissolved by Gov. Nicholson after a period of slightly less than three years. In doing this he stated that it was frobidden by law in England that the same Parliament should continue without a new election for more than three years and he considered it wise to follow the same rule in Maryland. This precedent was then regularly followed.1
Prior to the establishment of royal government, the governor and Council had at times expressed their disapproval of certain delegates in the Lower House and had thereby effected their unseating, but after that time, the Lower House admitted no such interference and considered itself the sole judge of the qualifi- cations and election of its members. In order to maintain its entire independence of the proprietor, it would allow none of its members to accept office at his hands, and as part of this policy expelled four of its members in 1734º and two in 1750 * for accepting office.
In accordance with English precedent financial bills originated in the popular house of Assembly. During the first century of the province's history financial disputes were regulated by mes- sages and conferences between the two Houses but after 1740 the Lower House refused to recognize the right of the Upper
' Lower House Journal, June 11, 1697.
2 Lower House Journal, March 25, 1734.
' Lower House Journal, May 8 and 9, 1750,
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House to amend financial bills and declined even to confer with it concerning financial matters.
Until 1681, Charles, 3rd Lord Baltimore recognized no time limit within which his veto of an act of Assembly should be given. But stormy protest growing out of his action in 1669 and again in 1671 when he vetoed acts of Assembly which had been in force several years,1 resulted in his agreement to approve or veto all acts passed by the Assembly before the end of the session, if in the province, and within eighteen months, if elsewhere.
The judicial system as originally established was composed exclusively of appointees of the Lord Proprietor. , Gov. Leonard Calvert, was chief justice of the province and the members of Council were associate justices. The governor in addition had the privilege of creating such further minor offices as were neces- sary for the proper execution of justice. He also had the right to try and judge all cases, civil and criminal, except such as involved the loss of life, limb or freehold, when at least two members of the Council should take part in the trial.2
The- Assembly had tried all kinds of cases prior to its division into two Houses in 1650. Thereafter the Upper House became purely a court of appeals and after 1692 this jurisdiction was transferred to the governor and Council whereas the Lower House exercised no judicial power, other than the trying of minor of- ficers for failing to perform their duties properly.
In 1638 was constituted the county court known after 1642 as the provincial court, composed of the governor as chief justice and the members of the Council as associate justices.3 Next to the Upper House of the legislature this was the supreme court. But they were in reality one and the same thing, as both were composed of the governor and Council, though after 1675 the governor no longer formed part of the Upper House.4 There was scant likelihood of an appeal from one being reversed by
1 Proceedings and Acts of the General Assembly, 1666-1676, page 161.
" Proceedings of the Council, 1636-1667, page 53.
' Proceedings and Acts of the General Assembly, 1637-1539 to 1664, pages 47-49.
* Proceedings of the Council, 1671-1681, page 10.
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the other. The local county courts were likewise controlled in the beginning by these officers.
Until 1661 the governor was justice of the chancery court; from 1661 until 1689, Philip Calvert held that office. Until 1684 admiralty cases were handled by the provincial court, but in that year the admiralty court was separately constituted. In 1638-1639 an act of Assembly empowered the secretary of the province to act as judge of probate; this continued in force until 1763 when this office was transferred to the chancellor.
As so many offices were concentrated in the hands of a few officers appointed by the Lord Proprietor, during his pleasure and sworn to the defence of his interests, it was not to be won- dered at that the judicial system was regarded as the guarantee of privilege rather than as the bulwark of justice. The people took the same attitude toward the entire office holding class. The primary object of those who formed this class was personal enrich- ment. The permanent welfare of the colony was a minor conside- ration. Their idea was briefly: government for the governing class.
But the people had secured certain rights which were to be of immense value to them in extending their control over the Maryland government. Chief of these were the control over the Lower House of Assembly and the need of its agreement for the passage of any act. The control of this branch of the govern- ment was sufficient to insure success in the major controversies for popular liberty in spite of the fact that all other branches of the government were in the hands of the Lord Proprietor or his representatives.
During the seventeenth century the rural and detached life of the average Marylander who spent his live cultivating tobacco was not conducive to an intense political development. But with the steady growth of population increased by immigration from England and the strong tide of immigration of German Palatines in the 18th century a more active political life came into being.
The German Palatines were responsible for a large share of this development. They had been induced to come to the pro- vince by offers of land and exemption from all public levies.1
1 Lower House Journal, October 27, 1710.
101.
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As early as 1710 there were considerable numbers in the province. Later new settlers were offered two hundred acres of land if married, and if between the ages of fifteen and thirty and single, one hundred and fifty acres, free of charge and exempt from quit-rents for the first three years. By 1774 Frederick County had a population of fifty thousand, chiefly German Palatines-nearly one seventh of the population of the province. The motive lead- ing to the granting of such terms had been to secure the settle- ment of territory along the disputed Pennsylvania boundary.
These settlers, instead of concentrating on the cultivation of tobacco, planted wheat and corn and developed the iron and lumber industries of Maryland. In a short time tobacco no longer represented the entire export from the province ; wheat, corn, flour, pig iron, bar iron and lumber became important exports. With this development of commerce and intercourse a more active political life appeared, and with it a constantly increased effort toward restriction of the proprietary power. The indifference to and abuses of the real interests of the people by the office holding class, the fact that the holders of the most lucrative offices were in many cases relatives of the Proprietor, and the antipathy growing out of the difference of religion of the Roman Catholic office holding class and the Protestant population, in- evitably led to hostility toward the government.
The people failed to understand why taxes should be collected for the benefit of the office holder and not in the interest of the . public. Further when officers who held more positions than they could administer properly, sold them to deputies the situation was aggravated further and the Lower House protested energetic- ally, stating that "The sale of offices, now open and avowed, obliges the purchaser, by every possible means in his power, to enhance his fees; this is contrary to law and leads directly to oppression." 1
The personalities of the later proprietors were not such as to inspire friendly relations, Charles, 5th Lord Baltimore neglected his province and executive authority waned perceptibly during his administration. Frederick, 6th Lord Baltimore, was inferior
1 Lower House Journal, December 20, 1769.
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mentally and degenerate in personal character. His sole interest in the colony lay in securing sufficient income to live in luxury, and to find profitable positions in the colony for his friends. His illegitimate son, Henry Harford, who inherited the province in 1771 had no real influence upon the colony, as greater events prevented his retaining it for any length of time.
Able men were found in the province to lead the movement for popular control. Though educational facilities there were hope- lessly inadequate, there were many well educated men in the province. The young men in many cases went to Virginia to study at the college of William and Mary or to the Academy in Phila- delphia, whereas the sons of the wealthier families often studied in England, at Oxford or Cambridge, and if Roman Catholics, at universities in France.
As a logical result of conditions in the colony, practically all these men chose the study of law. There was no future in the church. The school master had no opening. There was no army. On the other hand there was ample field for action in politics. The way to prominence and power was through election to the Lower House of Assembly. But for this it was necessary to serve the interests of the people or else lose their support. In this way the people found men who ably championed their cause. Thus, al- though the average of education of the common people was low, their political rights were skilfully maintained.
The 17th century had seen no intense political controversies. But conditions were such as to justify the desire of the people to effect such changes in the government as would make it more responsive to the common will. Moreover, they had acquired con- trol over sufficient governmental machinery to make it possible and the personalities needed to direct the movement were not lacking.
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CHAPTER V.
PEOPLE vs. PROPRIETOR.
The history of Maryland1 during the 17th century had been comparatively tranquil insofar as it related to direct struggles for power between proprietor and people. But following upon the restoration of the province to Charles, 5th Lord Baltimore, after twenty three years of royal government, a period of wrangling and controversy set in, that nothing save a fundamental change in government could terminate.
One of the chief early controversies centered upon the question of how far the English common and statute law extended to the province. During the first thirty years of the colony's existence, the tendency had been toward an independent criminal code. By the end of 1650 there were specific laws regulating judicial procedure in cases of drunkenness, adultery, profanity, perjury, mutiny, sedition and general resistance to the execution of the law, but in cases where the provincial law was silent, the individual judges were left to decide cases as they saw fit, their sole in- struction being to use their "sound discretion". In 1662 the Assembly enacted a bill providing for the administering of justice in accordance with the laws of England in cases where the pro- vincial law made no provision, the interpretation and application of such law being left to the judgment of the individual courts. 1 This system remained in effect until 1674, with the natural result that the law was variously applied, often to the complete prostitu- tion of justice.
In 1674 the Lower House sought to have the British law as a whole introduced into the province, but the Upper House would
' Proceedings and Acts of the General Assembly, 1637-1638 to 1664, pages 435, 436, 448.
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not agree to an arrangement which would thus nullify a large part of the Proprietor's privilege. The Lord Proprietor was willing that such parts as were suitable to the province be introduced as long as they did not contravene his proprietary rights. The people desired the whole or at least that the right of selection be left to the courts. The result of their differences was that nothing was done and the status of the law reverted to what it had been in 1650.1
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