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 5
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The question was agitated on several occasions prior to the period of royal government under William and Mary, always with- out result. The latter part of the regime of Charles had been so arbitrary and illadvised that the people clung more tenaciously than ever to the fundamental English law. With the institution of royal government it immediately became the established and unquestioned practice to administer justice according to the laws of England where the laws of Maryland were silent. All commissions to justices of the courts read to that effect. Therefore when Charles, 5th Lord Baltimore, seven years after the restoration of the province, held that no English laws extended to Maryland unless the domin- ions were expressly mentioned, the members of the Lower House were aroused over the possibility of losing what they considered essential guarantees of liberty. They thereupon adressed a protest to the Lord Proprietor, stating that the colonists in coming to the colony had forfeited none of their rights as free Englishmen, that the "province hath always hitherto had the common law and such general statutes of England as are not restrained by words of local limitation, and such acts of Assembly as were made in the Province to suit its particular constitution, as the rule and standard of its government and judicature." Anyone who held the contrary, intended to "infringe our English liberties, and to frustrate the intent of the crown in the original grant of this province." : Standing resolutions to this effect were then inscribed upon the books of the Lower House and remained until the Revolution of 1776.
Daniel Dulany, Sr., attorney general and member of the Lower House drafted a bill during this session (1722) designed to define the relationship of the English law to the province. It provided
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' Ibid., 1666 to 1676, pages 347-349, 374 on.
' Lower House Journal, October 22, 1722.
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that all judges in taking their oath of office should swear to ad- minister justice "according to the laws, statutes, and reasonable customs of England and the acts of assembly and constitution of this province and passed by both houses of assembly." But the law was vetoed, and similar laws enacted in 1727, 1728 and 1730 met the same fate. Each veto intensified the people's fears and their determination to secure the passage of such a law. The year 1731 again saw the failure of a similar bill. The following year a conference between the two Houses of Assembly resulted in the drafting of a bill for judges to take oath to administer justice "according to the laws, customs, and directions of the acts of Assembly of this province so far forth as they provide, and where they are silent according to the laws, statutes, and reasonable customs of England as used in the province." This law was passed and received the Lord Proprietor's assent.
The Lower House and the people were in holiday mood over this success, yet the Proprietor had in reality sustained his original contention and the English law in gross had not been introduced into the province. Nor did he allow any bill to pass which would bring abut such a condition. On the other hand, the Assembly from time to time declared certain especially desired statutes as being in effect in the province.
During this controversy, crime had been in many cases al- lowed to go insufficiently punished, as the judges had no fixed guide to go by and as a natural result, the lack of severity and rigor in its suppression brought about an increase of lawlessness.
In general the chief controversies centered upon financial questions. During the early history of the province there was little friction either as to the imposition of taxes, their collection, or the manner of expenditure, but the end of royal government and the newly restored proprietary government in 1715 brought many controversies, which grew continually more acute. As the province grew the people began to question more and more the reasons for furnishing livelihood and income to men who were imposed on the colony from above and were designed to protect the interests of the proprietor as opposed to the people's.
All duties, fees, taxes and revenues from whatever source had practically from the beginning been collected with the approval
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of the Lower House. Already in 1650 an act of Assembly was passed prohibiting the imposition of any tax or duty without the consent of the people or their representatives. This policy was insisted upon at all times. But the efforts of the Lower House were not merely limited to passive defense of this point of view but to the influencing of legislation which would extend its power at the expense of the Proprietor's.
One of the chief disputes related to a duty levied to provide revenue for carrying on the Maryland government. In 1671, the Assembly, in return for the Proprietor's agreement to accept pay- ment of his quit-rents at 2 pence as the equivalent of a pound of tobacco, passed an act providing for this rate and for the im- position of a duty of 2 shillings on every hogshead of tobacco exported, 12 pence of which were to be paid the Proprietor for the support of government. This arrangement was to remain in effect during the lifetime of Cecilius, but was continued under his son Charles, even during the period of royal government. In 1704 the portion of the bill relating to the payment of the 12 pence duty was made perpetual.
In 1715 after the short proprietorship of Benedick Leonard and the succession of the 2nd Charles, the perpetual law was tem- porarily superseded by another act for the support of government. This continued until 1733. The feeling had been growing that the quitrents were burdensome and the law was therefore not renewed in 1733. But immediately on its expiration the perpetual law of 1704 relating to the 12 pence duty went into effect. But there was no law lowering the rates of quit-rents and the Lower House was impotent to effect such a change without an act of Assembly assented to by the Proprietor, and this the latter refused to agree to. The Lower House therefore made an effort to find some flaw in the original law.
Under the royal government one quarter of the 12 pence duty had been used for military purposes, though there was no express provision for it. But the Lower House now advanced the argument that this should be the practice still, and if it were not the entire original law was invalid. On that theory a bill was introduced by the Lower House in 1739 for continuing the duty of 12 pence, £ 1000 of which were to be used for the purchase
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of arms and ammunitions for the defence of the colony. But the Proprietor, unassailable from a legal point of view in the act of Assembly of 1704, withheld his assent. The question was, brought up at various times thereafter but always with the same result. From 1750 the Lower House adopted a standing resolution declar- ing the duty illegal, unless one quarter were applied to purposes of defense as under the royal government.
The members of the Lower House sought to have an act of Assembly passed for the appointment of an agent to present the case to the crown, knowing full well that the Proprietor would not give his assent. They were in reality quite conscious of the weakness of their case, and the perfect legality of the Proprietor's position, but used his refusal to give the impression that he feared to expose the case to the light.
Prior to 1739 all fines and forfeitures imposed by the pro- vince's penal laws were made payable to the Lord Proprietor. No accounting of these monies was made to the Lower House for a century. After 1739 it refused, to pass bills for fines of any · sort, the proceeds of which should go to the Proprietor, but in- sisted that such impositions should go to defray expenses of the government. But though they could thus block any new imposi- tions, they were powerless to change the law then in force. But they found another way of exerting pressure. From 1745 the Lower House declined to allow claims for certain expenditures on the plea that the money arising from fines and forfeitures should be used for such purposes. Gov. Sharpe was refused £ 120 that he had advanced for the carrying of letters during wartime, on this ground, and the salary of the clerk of the Coun- cil was likewise refused, for the same reason.
The governor's council had been paid from 1671 to 1689 from the 12 d duty for support of government, and during the period of royal government from poll taxes. But there was no specific provision for their salaries as members of the Council, whereas their pay as members of the Upper House was provided for by law. An incident brought this question to the attention of the Assembly and it quickly became a center of irritation. During the years 1709-1714 the province had been without a regular governor. During that time Edward Lloyd, the president of the
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Council, acted as governor. He drew one half pay as governor and full pay as councillor. The Lower House asserted that the drawing of salary as governor and councillor was a breach of law, and that Lloyd should therefore refund £ 52.13.6 and 29,580 pounds of tobacco, pay he had received as councillor during that time.1 Supported by the Council, he declined to comply. The Lower House did not succeed in securing the reimbursement of these funds. But after studying the question it concluded that the members of the Council were entitled to no salary as coun- cillors, there being no legal provision for it, but merely precedent. They asserted further that is was contrary to reason to tax people to pay men hostile to their interests. As a consequence the Lower House refused to make provision for the Council from 1725-1735. In the latter year the Upper House refused to pass the journal of accounts unless their salaries as members of the Council were provided for.2 The Lower House, thus checkmated reluctantly provided for the salaries of the Council. This continued until 1747. The following year, when the Upper House pursued the same tactics, the Lower House preferred to forego its own salary, rather than to appropriate anything for the Council, and no ac- counts were passed until 1756 when the Upper House yielded. Thereafter it never urged its own pay.
An act of 1678 provided for the raising of a revenue by requiring hawkers, peddlers, inn - keepers, and tradesmen to purchase a license to ply their trade. Toward 1750 the value of revenue from this source was between £ 400 and £ 500. This money was given to the secretary of the province until 1689. During the period of royal government, the Lower House withheld such income from the royal secretary asserting that it should be expended for the public welfare, whereupon Sir Thomas Lawrence, the 1st royal secretary, appealed to the crown and had this money confirmed to his use. But ten years later the Assembly again withheld it, even in the presence of a royal order to the contrary.
Upon the restoration of the Proprietor in 1715 Charles, 5th Lord Baltimore gave the money to the two secretaries, requesting
I Lower House Journal, July 20, 1716.
2 Upper House Journal, May 4, 1736.
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the Assembly to confirm this by an act of Assembly. This the Assembly did. This system was continued until 1739. With the breaking out of the Third Colonial War the license money was used by order of the Assembly for redemption of the bills of credit issued to assist the crown in waging the war.
Frederick, who became Proprietor in 1751, complained of this last procedure and instructed the governor to assent to no further act of the kind. But when news of Washington's repulse at Long Meadow by the French arrived, Gov. Sharpe urged an appropriation, and the Assembly offered to devote the license money to this use, an arrangement which Sharpe accepted. After Braddock's defeat, the Proprietor assented to its use for military purposes against the French. This procedure continued without opposition until 1763.
Frederick then opposed its use for any purpose other than his own use. He sent instructions to the governor to countenance no bill depriving him of the sole right of granting licenses and receiving the income from that source. But the Upper House as well as the Lower felt that this was unjustified. As soon as this instruction was brought to their attention, the board of the Council appointed a committee, which reported that it found no justification for such a claim. It observed that in England anyone could follow any trade without a license from the crown, that the charter assuredly granted the Proprietor no higher prerogative than belonged to the crown, and if the Proprietor had a right, he doubtlessly had a remedy to enforce it. But no remedy was known to the committee. The governor transmitted the report to the crown, adding that any effort to enforce the Proprietor's view point would create untold friction and opposition. The Proprietor thereupon withdrew his objection and allowed the license money to be used for public purposes.
A further important source of revenue and contention was that of fees. Prior to 1650 the governor and Council had fixed the amount of fees except during the three years from 1639 to 1642. But beginning with the Assembly of 1650 fees to be paid the secretary and sheriffs were regulated by joint action of both Houses, and later, those of other officers. In 1669, charges by the Lower House that excessive fees were being collected, merely
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brought the response that it was the Lord Proprietor's right to fix fees, and the Lower House acquiesced in this point of view. However, in order to avoid the collection of extortinate fees, the Lower House in 1676 requested the Lord Proprietor to furnish the rates of fees fixed up to that time, whereupon it passed a bill fixing those rates as the maximum to be collected for the services in question.1
With the advent of Royal Government instructions from the Crown were issued to the governor instructing him to regulate fees in conjunction with the Council. But the Lower House in its first session protested energetically against such an arrangement and succeeded in securing the agreement of the governor to make no changes in fees without the concurrence of the Lower House.
A growing feeling in the Lower House and among the people that fees were excessive began to manifest itself during the later years of Royal Government. Agitation for a downward revision of fees was justified on the plea that the growth of population and the consequently greater receipts permitted such a change without reducing the incomes of officers to any point approxi- mating what they had been when the original scale of fees had been fixed. Several attemps during the latter period of Royal Government had no result other than to arouse bitter feeling between the two Houses. The members of the Upper House invariably urged that the incomes of officers were not out of proportion to services rendered and that their reduction would only result in lowering the dignity of the different offices.º After the passage of a bill providing for a 25% reduction of fees by the Lower House in 1719, which was promptly rejected by the Upper House, a conference between the two Houses was called. A compromise was then agreed upon, which left unchanged the fees of the chancellor, sheriffs, coroners, clerk of the court of appeals, and the criers of the provincial court and of the county courts, whereas the fees for the secretary, commissary general, surveyor general, and his deputies, the clerk of the Council, and
' Proceedings & Acts of the General Assembly, pages 498-499.
' Upper House Journal, June 29th-30th, 1714.
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the county court clerks, were reduced in accordance with the bill of the Lower House.1 When the bill came before the Lord Pro- prietor, though disapproving of it, he decided to take no action against it.
In 1728 the Lower House endeavored to effect a further reduction of fees, justifying their action on the grounds that the intention of the government to decrease by law the planting of tobacco during that year by one-third and thus increase its price, made it necessary. But on this occasion the Upper House would neither accept such an arrangement nor compromise. The law of 1719 therefore expired in 1725 and the colony had no table of fees. This situation was brought to the attention of the Lord Proprietor who in 1733, after another failure of the Assembly to provide a suitable bill the preceding year, issued a proclamation fixing the amount of fees at a level approximately the same as that of 1719. He had but recently come to the province and his presence there seems to have been sufficient to insure the quiet acceptance of his proclamation.
The regulation of fees and the state of the tobacco industry were intimately related. Tobacco was not only the principal crop and staple export, but from the beginning was the unit of value, being used as currency. But one fatal defect had been permitted to creep in. In the laws providing for the amounts of rents, fines, salaries and taxes to be paid, no reference was made as to the quality of tobacco to be paid. Consequently worthless tobacco was often mixed with the good, and a certain quantity did not represent a definite value. The same defect of variable quality obtained in the case of tobacco for export, a fact which severely prejudiced the value of Maryland tobacco in foreign markets. Overproduction further aggravated the situation and prices fell steadily. In 1639 tobacco had been worth 3 pence a pound, whereas by 1666 over-production combined with the plague in England and consequent interruption of the carrying trade had rendered tobacco practically worthless, and thereafter until 1747 it was rarely worth a penny a pound.
The combined evils of over-production, poor quality and a late market brought the industry to the verge of ruin toward
' Upper House Journal, June 6, 1719.
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the middle of the 18th century. The great obstacle to the regu- lation of the tobacco industry was the question of fees. The Lower House would not agree to a tobacco inspection act, as this would have increased the value of tobacco, and officers fees would then have been higher than ever. The Upper House on the other land, would not agree to a radical lessening of fees and a result- ant decrease of officers incomes.
In 1743 Daniel Dulany, Junior, in conjunction with the gov- ernor and the remainder of the Council, made a supreme effort to arrive at a solution of this question, explaining that it was to the interest of both Houses to yield. By 1745 an agreement between the two Houses was reached whereby fees were to be reduced 20% and tobacco was to be inspected and graded. But though it passed both Houses the governor rejected it, in retal- iation for the Assembly's failure to pass a suitable bill for the purchase of arms and ammunition for use in the Third Colonial War then in progress.
The tobacco industry was the basis of the prosperity of the colony and regulation of the tobacco industry and revision of officers fees were necessary, otherwise ruin was inevitable. By 1747 the opposing elements composed their differences and the Inspection Act of 1747 was passed and received the approval of the governor. It combined the reduction of fees agreed upon two years before with provisions for inspecting and grading tobacco. The desired effect was quickly arrived at and the improvement of the tobacco market was rapid. Moreover, the act worked no hardship on the officers as their income was in reality undimin- ished as increased value compensated for reduced quantity.
This act was renewed periodically until 1770, when the Lower House refused to continue it without a further reduction and classification of fees. But the Upper House would not agree, and though message followed message from one House to the other, neither would recede from its stand, whereupon the governor, after consultation with the Council, issued a proclamation con- tinuing the old table of fees.1
This set the Lower House in a turmoil of excitement. It asserted that the proclamation was an abuse of power, that it 1 Lower House Journal, October 17, 1771.
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was not only illegal but arbitrary and oppressive, and not even an English monarch had been known to regulate the salaries or fees of officers by proclamation. They then petitioned the governor to withdraw it, adding that even in the case that "the fees im- posed by this proclamation could be paid by the good people of this province with the utmost ease, and that they were the most exactly proportioned to the value of the officers' services, yet even in such a supposed case, this proclamation ought to be regarded with abhörrence; for who are a free people? Not those over whom government is reasonably and equitably exercised, but those who live under a government so constitutionally checked and controlled that proper provision is made against its being otherwise exercised. This act of power is founded on the de- struction of this constitutional security. If prerogative may rightly regulate the fees agreeable to the late inspection law, it has a right to fix any other quantums; if it has a right to regulate to one penny, it has a right to regulate to a million ; for where does its right stop? At any given point? To attempt to limit its right after granting it to exist at all is as contrary to reason as granting it to exist at all is contrary to justice; if it has any right to tax us, then whether our own money shall continue in our own pockets or not depends no longer on us but on the prerogative: there is nothing which we can call our own. The forefathers of the Americans did not leave their native country and subject themselves to every danger and distress to be reduced to a state of slavery." 1
But the governor remained obdurate. He held that in the Proprietor's chartered right to establish offices and appoint offi- cers was included the corollary right of fixing their salaries. He further cited precedent within the colony and insisted that it was necessary. for the prevention of confusion and extortion. Efforts to regulate the question in two succeeding sessions of Assembly were fruitless, the temper of the people meanwhile becoming more and more agitated.
An article appearing in the Maryland Gazette, the provincial newspaper, removed the main discussion of the question from
' Lower House Journal, November 30, 1771.
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the legislature to the public and brought the question to the attention of the entire province. This article was in the form of a dialogue between two citizens. - "The First Citizen" attacked the proclamation and "The Second Citizen" defended it, the latter point of view supposedly representing the legal and just one. Soon after a further article appeared and maintained that the "First Citizen's" view-point had been incompletely presented and that it was therefore necessary to supplement it with further facts.
Though the articies were anonymous they were recognized as the work of Daniel Dulany, Jr. who favored the proclamation and Charles Carrol of Carrolton, who represented the popular point of view. They had both been educated in Europe, - as was the case with a large number of the leading men in the province, - the former in England and the latter at the Jesuit College of St. Omar and then at the College of Louis XIV. in Paris, followed by seven years study of English law as a member of the Inner Temple.
Dulany, though enjoying great popularity a few years earlier because of his defence of the colonial view-point in the Stamp Act controversy had gradually lost influence with the people because of his own and his family's relationship to the Lord Proprietor. As secretary-general of the province he held the most profitable position of the colonial government, whereas his brother, as commissary-general held a position little less lucrative. In addition two other members of this family were members of the Council.
This was the point of attack in Charles Carrol's first article. 1 He wrote that the government was being perverted for the "selfish views of avarice and ambition", that the country was suffering for the lack of the Inspection Act whereas fees collected under that act were continued in order that certain officers of the Council should not have their incomes lessened. A fortnight later Dulany wrote a further article for the "Gazette" in defense of the procla- mation in which he maintained that the proclamation provided for the lowest table of fees that had been in effect in the colony
1 Md. "Gazette", February 4, 1773.
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and that it was therefore a guarantee against extortionate charges. Moreover, if it were illegal, it should be submitted to the courts for judgment.
Carrol rejected the idea of the courts deciding such a case, as the judges were interested parties. He added that the procla- mation was contrary to the spirit of the Maryland constitution and that if the courts pronounced it legal, it would be a violation of the Lower House's recognized rights to have a share in the imposition of taxes. He closed in stating that "One would imagine that a compromise, and a mutual departure from such points respectively contended for, would have been the most eligible way of ending the dispute; if a compromise was not to be effected, the matter had best been left undecided; time and necessity would have softened dissension and have reconciled jarring opinions and clashing interests; and then a regulation by law, of officers' fees, would have followed of course. What was done? The authority of the supreme magistrate interposed, and took the decision of this important question from the other branches of the legislature to itself; in a land of freedom this arbitrary exertion of prerogative will not, must not, be endured."
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