USA > Maryland > The origin and growth of civil liberty in Maryland : a discourse > Part 2
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were admitted to their seats as legislators, although the last had already voted for a regularly appointed delegate.
It is fortunate, perhaps, that political aspirants, even at this en- lightened day, find it not quite so easy to obtain seats in the legislature of the State, either for themselves or their favorite candidates.
The house being at length organized, proceeded to business, and most pressing business it had on hand. For three years the colony had been struggling on in the midst of difficulties. Clayborne, who has been called the evil genius of Maryland, had not only set up a claim to the Isle of Kent, but is charged with having instigated the Indians to hos- tilities. The colonists were increasing in number, and were gradually extending themselves beyond the settlement at St. Mary's. There was urgent need of laws. They were surrounded by new circumstances, a new social relation, that of slavery unfortunately had, probably even then, sprung up among them, their dangerous Indian neighbors seemed to threaten them, their infant agriculture, commerce and institutions were all sadly in want of laws adapted to their situation. And a greater want in a community cannot well exist. Those who live under a sys- tem of just laws duly enforced do not, until deprived of them, appre- ciate the benefits which they confer. Like the common blessings of water and sunshine, they come to be regarded as things of course, for which no gratitude is due. But if they were suspended for a sin- gle day, we should then learn to estimate, more correctly, their im- portance. The laws, in truth, surround us like the atmosphere, they attend our steps when we walk abroad, and shield our homes from harm when we are absent; by a thousand unseen and unfelt influences, they minister to our comfort, protection and happiness. They are the embodied wisdom of the age which enacts them, its sense of justice speaking in enduring words.
But a serious difficulty stood in the way of the colonists. They had already, two years before, passed a series of laws which in mass had been rejected by the proprietary, and now, in his turn, he had prepared in England, a Code for their government, which they were assembled to ratify and adopt. The question was, would they do it, and important consequences for many years hung upon their decision. It does not appear that the laws proposed were, in themselves, objectionable. The proprietary had at heart the good of the colony, on which he had lav- ished large sums of money, and it was, doubtless, his desire to pro- mote the welfare of the inhabitants while he protected what he deemed
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his own rights." The colonists, on their part, manifested for him, on various occasions, a high degree of respect and affection. But an im- portant principle was involved. If they yielded to him the privilege of originating all laws, and reserved to themselves a mere negative on such as he might choose to propose, they surrendered, so long as the charter should endure, the dearest and most important right of freemen.
If, on the other hand, they rejected the Code, they must be prepared not only to engage in a serious controversy with their beneficent patron, but to forego the advantages of all legislation for an indefinite period. The matter is very briefly stated, but it is clear from the record, that the sturdy Marylanders did not hesitate for a moment. They could endure, if need were, to go without laws, but not to have laws made for them by another. When the question was taken, the Code of the proprie- tary was promptly rejected, but two of the members present voting for it, and those two were Governor Calvert himself, and Mr. Lewger, his Secretary. It is true that the two increased their vote by the proxies which they held; but I speak of the votes of the members present. Thus early was fought and won, the first battle for civil liberty in Ma- ryland. The head of the popular movement appears to have been Cap- tain 'Thomas Cornwaleys, one of the Governor's Council, and for a long time a man of note in the colony, and its military leader. It is to be lamented that a more full memorial of this brave soldier and patriot has not come down to us.
The house soon afterwards procceded to pass laws for itself, but as the bills had not been matured in committee, the Governor proposed an adjournment, in order that the members might attend to their other bu- siness, while the bills were preparing. This was opposed by Corn- waleys, who replied significantly, that, "they could not spend their time in any business, better than in this for the country's good."
The bills were at length got ready and passed, forty-two in all, but, as the colonists probably anticipated, they shared the fate of their pre- decessors, and were in a body rejected by the proprietary. Their titles, however, have come down to us, and show that the fathers of Maryland set themselves in earnest to the great work of legislation. There is a bill providing for the probate of wills, another regulating the descent of land, another in restraint of liquors, and another for the liberties of the
* During the first two or three years of the colony, Cecilius Calvert, the proprie- tary, expended upon it upwards of £ 40,000 sterling .- McMahon, 197 ..
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people. The colonists being thus deprived of the power of making laws for themselves, neither gave up in despair, nor had recourse to lynch-law, but resorted to a better expedient than either. They claimed that they brought with them, and were to be governed by, all the laws of England which were applicable to their situation, and this claim they never relinquished although the proprietary opposed it, on the ground that a wholesale adoption of the laws of England would interfere with his legislative rights. From this difference of opinion, a controversy arose long afterwards, in the year 1722, which lasted for ten years. As the courts only could decide what laws of England were applicable and what were not, the people of Maryland were advocating a principle, the establishment of which would give a large and somewhat dangerous discretion to the judges, especially, as their appointment and tenure of office rested entirely with the proprietary, but the people greatly pre- ferred to encounter this danger and inconvenience rather than risk the liberties which were enjoyed in the mother country, by surrendering the protection of the laws under which those liberties had grown up. It is a note-worthy circumstance that the most serious controversy which ever arose between the proprietary and the people of Maryland, origi- nated in the assertion by them of their right as English subjects, to be governed by the laws of England. The fact is a high practical testi- monial to the substantial character of English liberty, which is the parent stock of our own.
At last both of these questions were determined in favor of the peo- ple. It was soon settled* that all legislation should originate in the le- gislature of the province, and not with the proprietary, but it was not settled until the year 1732, that in cases not otherwise provided for, " the rule of judicature was to be according to the laws, statutes, and reasonable customs of England as used and practised within the pro- vince."¡
Some time necessarily elapsed before the various departments of gov- ernment became fully organized, as is singularly illustrated by an anec- dote which is related of an early period of the colony. In 1618, a Miss Margaret Brent, on the death of Governor Leonard Calvert, was
* In 1639.
t McMahon, 127. From this period until the revolution, the courts continued to exercise the power of adopting and giving effect to such of the English Statutes as were accommodated to the condition of the province, without regard to the inquiry whether they had been practised upon, or enacted previously to 1732. 1b. 12s.
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appointed his administrator, and as the Governor had been the agent of his brother, the proprietary, under a power of attorney from him, it was judicially decided that Miss Brent was duly authorized to act as attorney in fact for the absent proprietary. She is described as having been pos- sessed of a "masculine understanding," and at least appears to have been addicted to masculine pursuits ; as she is said " to have been very ac- tively employed in taking up lands, and in affairs of all kinds relating to property." To her great credit it is related, that by her personal influ- ence and by a timely appropriation of a small sum from the estates of the proprietary, of which she had the management, she, on several oc- casions, pacified the soldiers in garrison at St. Inigoe's fort, who were ready to mutiny ou account of the non-payment of their wages. Armed thus with a double right, Miss Brent presented herself before the legis- lature of the province, which was then in session, and made her appli- cation to have two votes in the house, one for herself and another as his lordship's attorney. But although the merit of this remarkable lady and her public services, were on a subsequent occasion handsomely acknowledged by the legislature, yet they probably thought that by granting the request they would establish a precedent, dangerous even at that early day, in favor of female rights, for we are told that the appli- cation " was refused peremptorily by the Governor Greene, and that the lady protested in form against all the proceedings of that assembly, unless she might be present and vote as aforesaid." Mr. Bozman, the learned historian of Maryland, endeavors to justify this proceeding on the part of the legislature, but whether successfully or not, I shall not stop to consider. Our Maryland lady, he thinks, may in character be aptly compared to Queen Elizabeth ; if this be so, that fact may pro- bably have weighed as strongly with the assembly and governor in the peremptory refusal with which they met her request, as the reasons on which the historian relies in vindication of the ungallant decision .*
I shall not weary you by a detail of the various difficulties which beset the founders of our State, or of the intestine commotions by which they were harassed. The controversies in England between Charles I. and his people, and Cromwell and the parliament, were not without effect on the affairs of the colony, and although strife and com- motion were the immediate result, the progress of free principles in England undoubtedly gave an additional impulse to them here.
* 2 Bozman, 323.
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It is every where in this country recognized as a fundamental principle of government, that the legislative, executive and judicial functions should be kept separate and distinct, but this wholesome rule was wholly disregarded in the proprietary government of Maryland.
The governor was at first in the habit of summoning by special writs such persons as he thought proper, to sit in the legislative assembly. This was an arbitrary power, liable to great abuse, and it happened that in the session of 1642, the number thus summoned gave the governor a majority over the regularly elected burgesses, thus taking the whole legislation out of the hands of the people. To remedy this incon- venience, the burgesses demanded that the assembly should be divided into two bodies, of which they should constitute the lower house. This reasonable request was at first refused, but about the year 1659, the division was permanently effected. Subsequently to this, the lower house was composed of delegates regularly elected by the people, and the upper house of the governor and his council, and the right of each individual to appear in person or by proxy, wholly ceased. In 1681, the proprietary, by a positive ordinance, restricted the elective franchise to freemen having a small property qualification, and this restriction was continued down to the adoption of the State Constitution, and was incorporated in it .*
The judiciary was strangely blended with the executive, and never became properly independent of it. The governor and his council sat as the High Court of Appeals of the province, and the inferior judges who were appointed by the proprietary, were removable at his pleasure. Still they could on occasions act with firmness and independence, for, in 1765, we find Frederick County Court deciding the British stamp act to be unconstitutional and void, and proceeding in the transaction of business without paying the least regard to its pro- visions.
The governor was the chancellor of the province, although his pre- vious occupation might have been such, as, according to our notions, to have furnished a very unsuitable preparation for the performance of the responsible duties appertaining to the office. The last colonial governor, Robert Eden, a brother-in-law of the then Lord Baltimore, had previously been a lieutenant in the Coldstream Guards. f
* 2 Bozman, 216, 297 note ; McMahon, 419, note S. . t 1 Bland's Rep., 625, note.
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The main security for the liberties of the people was in the house of delegates, who alone of the public servants were elected by the people, and who took care so to exercise their powers, as constantly to strengthen the popular cause. They claimed the right of originating all money bills, and an equal rank in point of privilege with the English house of commons. One of the expedients to which they resorted to increase their power, was to pass important laws with a proviso that they were to continue only for short and limited periods, which made frequent sessions of the general assembly, and a constant resort to it for the enactment of indispensable laws, absolutely necessary.
The intention of the charter to establish in Maryland a mixed form of government, of which a hereditary nobility was to be a prominent feature, was overruled by circumstances. Such a class can be sus- tained only in a country where the ownership of the soil is mainly vested in them, and where the masses are reduced to the condition of tenants, dependent on the landholders for support." But in Maryland there were vast uncultivated tracts of land, lying in their primitive state, which the proprietary was more anxious to sell than the people were to purchase. Every man who chose, became a landholder, a pro- prietor in his own right. He had no occasion to look up to any other man for patronage, and still less for support or protection. Labor was the passport to independence and wealth. There was no place then for an aristocracy, for there was nothing to support it. Aristocracy is a plant which flourishes only in the sunshine of courts, here it was an exotic, and it died at once in the shade of our vast forests. So we find that the manors which were actually granted, subsisted only in name, and the lords of manors had, only for a short time, even that unsubstantial existence. The aristocratic provisions of the charter being thus inca- pable of being carried out in practice, were soon lost sight of by the proprietary, and excited no opposition on the part of the people; but in them the proprietary lost what would have been of material assist- tance in sustaining him in the exercise of the royal prerogatives with which he was clothed.
The proprietary government established by the charter, lasted, with slight interruptions, down to the American revolution; but long before that event the proprietaries, one after another, had silently relinquished the exercise of those powers which, as set forth in the charter, seemed
* This subject is more fully discussed in Burnap's Life of Leonard Calvert, Chapter X.
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to threaten the liberties of the inhabitants. They usually resided in England, and in Maryland had no other means of enforcing their au- thority than through the agency of civil officers, who, although ap- pointed by them, were generally selected from among the people, and shared their feelings and opinions. The charter itself soon became an object of jealousy to the British government, in consequence of the extensive privileges which it lavished on a subject ; so that the proprie- taries frequently encountered opposition, and seldom received support from that quarter, while, in Maryland, the people opposed a steady re- sistance to the exercise of every thing approaching arbitrary power. They were uniformly quick in perceiving, and prompt and tenacious in resisting, the slightest infringement of what they considered their rights-which they claimed to be not only those which were conferred by the charter and laws of the province, but all those, in addition, which were enjoyed by English subjects at home. No right or privi- lege once acquired by them was ever relinquished, but, on the contrary, became a means of increasing their power in all future controversies. The consequence was, that although Maryland continued to have a hereditary executive, it became, in essential matters, republican, and instead of being subjected to an arbitrary government, enjoyed one of mild and equal laws. The people were protected in their persons and property, and the latter was so distributed, that few were found who were either very rich or very poor-a condition of things most favor- able to the growth and maintenance of civil liberty.
The discipline which they had undergone during the colonial period, was of incalculable service in the revolutionary struggle in which they were about to engage. They approached that great crisis not with the timid and hesitating steps of novices in public affairs, but with the reso- lute tread of men who from long experience in matters of government, and by the habit which they had acquired of resisting oppression from whatever quarter it came, and of weighing and judging of their rights, were fully prepared to engage in the fearful strife which awaited them, and, in the event of success, to lay wisely and well the foundations of a free commonwealth. No better proof can be adduced of the progress which the principles of true freedom had made among them, than the wisdom and moderation which they then exhibited.
In illustration of this, I shall for a short time ask your attention to a few of the events which occurred in the town of Baltimore previously to, and in the early part of, the revolutionary war. Although they are
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not in themselves of much magnitude or importance, they possess some degree of interest for us, both on account of the local associations con- nected with them, and because they carry us into the heart, as it were, of a great movement, and show, by the manner in which it was con -. ducted, the reason of the wide difference which exists between the American revolution and every similar occurrence of modern times. The time to which I refer embraces the critical and important period extending over rather more than two years, during which the commit- tee of observation for the town and county of Baltimore sat here, and performed many important functions which, in a regularly constituted government, devolve upon the tribunals and officers of the law .* The province was then in a transition state; for the colonial government had virtually ceased to exist, and another had not yet been established in its place. Society was therefore, in a great measure, resolved into its original elements, and temporary expedients had to be resorted to, until a permanent constitution could be adopted. At the commencement of this period, when, in the face of domestic disorganization, every energy of the people had to be called forth to meet the impending war with Great Britain, the committees of observation came into existence. They were regularly elected by the qualified voters of the province who as- sembled for the purpose at the different county towns, and were sus- tained throughout in all their proceedings by the force of public opinion.t
They were, in fact, revolutionary tribunals, acting with vast force and efficiency, and for a time were the main spring of the popular movement.
In common with most of the public servants at that day, they were clothed with large discretionary powers, but they acted under the pres- sure of a responsibility, which was relied on as a sufficient guarantee against the abuse of the confidence reposed in them. The exigency of the crisis demanded that confidence should be freely bestowed, although in some cases it was withiheld, or very reluctantly given. When, for instance, the assembly of South Carolina resolved to appoint deputies to attend the Continental Congress, a proposition was made to instruct heir delegates as to the point to which they might pledge the colony.
* I have had the advantage of consulting the original records kept by the com- mittee, which have been kindly lent to me for the present occasion by their owner, . Peter Force, Esq., of Washington.
t See Appendix, note 1.
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John Rutledge, the eminent patriot and orator of South Carolina, warmly opposed the proposition. But what shall we do, asked its ad- vocates, if these delegates make a bad use of their power ? Hang them ! was his decided and impetuous reply. * John Rutledge was right, and it was somewhat in the spirit in which he spoke, that the people of Maryland acted, in the authority with which they invested the commit- tees of observation.
These committees originated in a resolve of the Continental Congress, which met at Philadelphia, in September, 1774, in pursuance of which the delegates acting for themselves and the inhabitants of the several colonies which they represented, entered into an association, the object of which, among other things, was to put a stop to all trade with Great Britain and its possessions, to discontinue the purchase and use of East India tea, to encourage frugality, agriculture, arts and manufactures, and to discourage every species of extravagance and dissipation, and espe- cially all kinds of gaming and expensive diversions and entertainments. As part of the plan to carry out this agreement, committees were to be chosen by the qualified voters in every county, city and town, whose . business it was attentively to observe the conduct of all persons touching the association, and the names of all persons who violated its articles were to be published in the newspapers, to the end that all such foes to the rights of British America might be publicly and universally con- temned as the enemies of American liberty, and that all dealings with such persons might be broken off.
Previously to this,j however, on the 27th of May, 1774, a public meeting had been called in Baltimore, at which the inhabitants had agreed to unite in an association of non-intercourse with Great Britain, had elected a committee to attend a general meeting of delegates from all parts of the province, to be held at Annapolis, and had appointed a committee of correspondence for the city and county of Baltimore.
But the resolve of Congress was intended to create a concert of action throughout the colonies, and the committees of observation thus established were, in Maryland, from time to time, clothed with such additional powers by the Provincial Convention at Annapolis, as were necessary to meet the emergency of the times.}
~ * 4 Graham's History of the United States, p. 370.
t See Purviance's Narrative, pp. 12 and 13.
# See the Proceedings of the Convention, published in 1836.
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They not only exercised all the authority requisite to carry out the measures agreed on by the articles of association established by Con- gress, but their permission was necessary in many cases before suits could be brought or executions issued. They were empowered to purchase arms and ammunition, and to raise money for that purpose, and others which were specified, by subscription, or in any other voluntary manner. They were authorized to enroll and equip troops, to impose fines not ex- ceeding ten pounds on all disaffected persons who refused to enlist, to disarm such persons, as well as all those who refused to subscribe certain articles of association of the Freemen of Maryland, promulgated by the Provincial Convention, and to exact from non-associators, as they were called, security for their good behavior.
They were required to see that traders did not monopolize goods, or exact unreasonable prices for them ; to hold up to public censure and odium those who, by acts or words, manifested hostility to the country, and to arrest, imprison and hand over to the council of safety, those who were guilty of offences calculated to disunite the inhabitants, or danger- ous to their liberties.
A part of their duty, was to appoint sub-committees of correspon- dence, by means of which, at a period when neither the press nor the mails circulated information as rapidly as they now do, intelligence was communicated to every part of the country. When, for example, the harbor of Boston was closed by the arbitrary edict of the British Parlia- ment, the committee of Philadelphia sent the news by express to Balti- more. It excited a determined spirit of resistance here, and the Baltimore committee of correspondence sped the alarming tidings onward to Annapolis, Alexandria, Norfolk, Portsmouth and Charleston .* It passed through the length and breadth of the land, like the fiery cross by which, on a sudden outbreak of war, the Scottish clans were in former times rallied around the banner of their chief; and with simi- lar results. A thrill of indignation and resentment pervaded the whole people, and thus gradually were their hearts prepared for the impending war.
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