Causes of the Maryland Revolution of 1689. A dissertation, etc

Front matter

Causes of the Maryland Revolution of 1639 A D; cion Pkes to the Board of University 6,3 Hopkins Univebsitt for es of Doctor of Philosophy BY Edgar Sparks, A. B BALTIMORE Causes of the Maryland Revolution of Causes of the Maryland Revolution of 1689 A Dissertation Presented to the Board of University Studies of the Johns Hopkins University for the Degree of Doctor of Philosophy BY Francis Edgar Sparks, A. B. BALTIMORE COPYRIGHT, 1396, BT THE JOHNS HOPKINS PBESS. THE FBIEDENWALD CO., PRINTERS, BALTIMORE. CONTENTS. TAGS Chapter I. Introduction 7 Chapter II. The Constitution of Maryland, 1658 .... 10 Introductory 10 The Proprietor 11 The Governor . 12 The Council 14 The Assembly 15 The Judicial System 17 Land 18 Taxation 21 The Currency 23 The Militia 23 Religion 24 The Secretary 24 The Surveyor General 25 The Muster Master General 25 The Sheriff 25 The Constable 26 The Coroner 26 Chapter III.

The Maryland Palatinate 27 Chapter IV. Constitutional History of Maryland, 1658-1689 30 The Restoration of the Proprietary Government and Fendall's Rebellion 30 The Period of Resistance, 1660-1670 35 The Period of Submission, 1670-1676 50 The Rebellion of 1676 64 The Struggle between the Proprietor and the Assemblies, 1676-1684 75 The Calm before the Storm, 1684-1689 93 The Revolution of 1689 99 Bibliography CAUSES OF THE MARYLAND REVOLUTION OF 1689.

Chapter I

Introduction. The Maryland Revolution of 1689 has always been the source of much trouble to Maryland historians. They are at a loss to explain how it was possible for a few men to upset the Proprietary government with such ease when, as they maintain, that government was universally beloved by the people. With (according to their statements) no serious disorders for thirty years, good and efficient administration, a popular Proprietor, religious liberty and good laws, it is puzzling to see why Maryland should have rebelled against the Proprietary government. But it is not true that such a happy condition of affairs existed either in 1689 or in the thirty years preceding. It is the truth of this statement that it is our intention to prove. What then were the causes of the revolution? It is usu ally said that the people were deceived by a few men into a belief of a plot by the Catholics to massacre the Prot estants by means of a pre-arranged Indian invasion.

The alarm caused by this rumor occasioned an armed uprising under these men, and they used the power thus acquired to overthrow the Proprietary government that they might aid their personal ambitions and interests. The fault of this explanation is that it does not explain. If the great mass of the people were devotedly attached to the Proprietor, and that Proprietor's government was so pros perous and happy, it is difficult to believe that a handful of men of no reputation could overthrow that government by an Indian scare and with but little resistance. The Maryland Revolution of 1689. 8 The real causes of the revolution lie deeper than this. They are the outgrowth of the thirty years preceding 1689, and are to be traced in the history of that period, which has never been given the proper amount of attention; its con stitutional side has been almost entirely neglected.

The whole interval has been disposed of in a very few pages. This is the happiest period of Maryland's colonial history, it is said, and as " those nations are happiest that have the least history," the uneventful nature of the period is sup posed to be fully explained. The Proprietor's residence in the colony during much of this period is cited as a reason of the colony's tranquillity and happiness. The actual residence of the Proprietor in the province was indeed a test of the Palatinate organization of the government. That it was such a successful test is quite another matter and cannot be so freely affirmed. This period was that of the most thorough organization of the Palatinate system ever attempted in America, and here, as in the Carolinas and New Jersey, the system seems not to have been what the people desired.

Indeed it is this system that is attacked by the revolution more than anything else. The Palatinate form of government — taxation, the inter ference of the Proprietor in the election of the Assembly and his forcing legislation and disregard of the same, the filling of administrative, judicial and legislative offices by the same persons, the favoritism shown to relatives of the Proprietor, his attempts to regulate fees, and harsh treatment of those in opposition — were complained of by the colonists, as will be shown. That the immediate cause alleged, namely, the op position of the Proprietary government to the claims of William of Orange and its support of James II., was true, there can scarcely be a doubt The attempt will also be made to show that Maryland has been greatly influenced by the events occurring in Vir ginia and England.

The influence of Virginia is especially marked. Bacon's Rebellion, the arbitrary government in Virginia, the rumors of Papist plots, the resistance to Introduction. 9 the introduction of Roman Catholicism in both England and Virginia, the famous English Popish Plot, and the Eng lish Revolution of 1688, all affected the course of events in Maryland. The period extending from 1658 to 1689 is the object of our consideration. It is necessary to inquire first what was the constitution of Maryland in 1658 before proceeding further.

Chapter II

The Constitution of Maryland, 1658. Introductory. — The era of Maryland history extending from its settlement to 1658 was one of continual change and experiment. The constitution of the Assembly and Council, the powers of the Governor and other officers, were never fixed, and the constitutional structure varied continually. The colony had fallen on evil days. The great contest of Crown and Parliament was on the eve of breaking out in England when the foundations of the Maryland colony were laid. Until 1658 this contest was the cause of frequent disturbances in Maryland. The disturbances caused by Claiborne and Ingle, the jealousy of Virginia, the weakness of the colony, and its disputed title, had all been disturbing factors. In 1650 the Virginia Puritans migrated to Mary land, and a few years later they overthrew the Proprietary government and established a government similar to the then existing English Commonwealth.

This revolutionary government lasted, however, but a few years, Lord Balti more having gained the good-will of Cromwell. In 1658 the government of Maryland was firmly established by Cromwell's directions, and the constitutional structure at last attained a point of stable equilibrium. At the beginning of the colony the Proprietor had pro posed a series of laws to be passed by the Assembly.1 The Assembly refused to accept these as laws;' but, from the character of the laws it did consent to pass, we may believe them to have embodied practically the ideas of the Pro prietor. The system of government established was that of the County Palatinate, having all that is characteristic of that system. Many of the provisions were never put into 1 1. Assem. 6. ' I. Assem. g. 1658. 11 effect, especially those creating differences in rank and priv ilege.

Twenty years of actual existence caused many modi fications. A certain governmental system gradually evolved. What was the constitution of the colony in 1658? The Proprietor. — By the terms of the charter granted to Lord Baltimore, the Proprietor was to hold the grant in free and common socage and with all the rights and privileges "as any Bishop of Durham in our kingdom of England ever heretofore had held, used or enjoyed, or of right ought or could have, use or enjoy." This made the Proprietor a Palatine — a subject to be treated later. The powers of the Proprietor at this period were the same as given him in the charter, with but few modifications. The most important of these was the resignation by the Proprietor of his right to initiate all legislation, but through the Council, or more directly, he presented the laws he wished to have passed.

The veto right was retained by him, and it could be exercised at any time after the passage of a law. He had also the control of elections and representation. He fixed the time and place of meeting, the time of adjourning and pro roguing the Assembly.1 He could make ordinances not affecting the rights of " freeholds, goods or chattels." No laws, however, could be contrary to reason, and all were to be as near as possible to the laws of England. The Proprietor could create and fill offices, incorporate towns and ports of entry, hold courts of justice, inflict pun ishment of life and limb, pardon offenses, set off counties and local divisions, collect customs duties if laid with consent of the Assembly, make war against Indians or other internal enemies by land or sea, raise and maintain troops, appoint officers for the militia, fortify his possessions, and declare martial law whenever he thought it necessary.

The Pro prietor could grant land in fee-simple, fee-tail, for life, lives, or years, to be held by such customs, rents or services as he chose. The statute of Quia Emptores,' which forbade sub infeudation in England, was not to apply in Maryland. 1 1. Assem. 259, 243, 369, etc. ' 18 Edward I. 1689. 12 All writs, mandates and proclamations were issued in, the Proprietor's name. Everything was the Proprietor's. He was more a sovereign in Maryland than the king was in England. Such privileges as granting " titles of honor not used in England " were not exercised, and attempts to create a class of Lords of Manors were only fairly successful. The Proprietor transmitted most of these powers, except his veto, to officers in the colony, but he always maintained an over sight of all that was done. The Governor. — The Governor was appointed by the Pro prietor and was his deputy, as shown by the tide " Lieuten ant-General," by which the Governor was usually called.1 As deputy he had the general powers of the Proprietor, having full executive powers in peace or war.

Possessing such great powers, the Governor was generally a member of the Calvert family, as indeed were many other high officers of the colony, although occasionally some prominent resident of the colony was chosen Governor, as in the case of 1658. Up to this period the Proprietor had not, for any con siderable time, played the role of absolute Governor. The earlier commissions to the Governors stated in the fullest manner their powers and duties.2 It was now stated that the appointed Lieutenant General was to have all the powers and privileges that the Lieutenant General preceding him had enjoyed." The commission was read in the Council and recorded by the Secretary, who then took the Governor's oath of allegiance to the Proprietor.' The commission created him Lieutenant General, Chief Governor, Admiral, Chief Captain and Commander on land and sea, Chancellor, Chief Justice and Chief Magistrate."

He could veto any law, and his assent was necessary to make a law valid.' He could not assent to any law repealing a law already, or to be enacted by the Assembly and to which 1 1. Council, 49, 109, 152, 160, 202, 323. * I. Council, 49, 151, 201 ' I. Council, 323. * I. Council, 209, 330. 5 1. Council, 202, 203. « I. Council, 203. 1658. 13 the Proprietor had assented, nor to any law establishing or changing any officer.1 He could not give his assent to any law imposing fines, forfeitures or confiscations to be paid to any but the Proprietor, nor to any law concerning religion, the establishment of parishes, payment of tithes, oaths to be taken by the people, treasons, matters of judicature, or anything which might infringe upon or prejudice the rights or prerogatives of the Proprietor.2 Any such laws required a special warrant from the Proprietor.8 The Governor presided as Chief Justice over the Pro vincial Court and could grant pardon for any offense except treason.* He was empowered by his commission to pro pound and prepare wholesome laws and ordinances for the Assembly, and also to issue in the Proprietor's name " ordinances, edicts and proclamations," with penalties not ex tending to loss of life, limb or property.5 He also pub lished all laws.8 He designated the public ports and the officers there to be employed, as also the places and dates for the holding of markets and fairs.7 He was keeper of the Great Seal, and granted all writs, processes and com missions for the execution of justice, the dividing and bounding of lands, licenses, and all public deeds and acts whatsoever.8 He could nominate two or three councillors, subject, however, to the confirmation of the Proprietor.' Nearly all of the subordinate officials were appointed directly by him.

He was commander-in-chief of the militia, and as such appointed all subordinate military officers. The Gov ernor held his office at the pleasure of the Proprietor and could be superseded by another appointee at any time.10 He could appoint an acting Governor whenever he was absent or dying. Such appointments often occurred.11 If the Gov ernor died or withdrew from the colony without naming an 1 1. Council, 203. ' I. Council, 203, 204. 8 1. Council, 204. 1 1. Council, 203, 205, 206, 207. * I. Council, 203, 205. ' I. Council, 204. T I. Council, 205. 8 1. Council, 205. ' I. Council, 208, 323. 10 1. Council, 202, 323. 11 1. Council, 160, 207, 241, 255, and many others. 1689. 14 acting Governor, the Council could elect such an officer, but he must be a member of the Council and reside in Maryland.1 This point had once been the cause of some contention.2 The salary of the Governor appears to have been paid by the Proprietor.' The amount cannot be stated, nor do we know just how it was paid.

Sometimes the Assembly made an especial gift or grant to the Gov ernor.* Usually in this early period he was given a large grant of land by the Proprietor. The Council. — The members of the Council were ap pointed by the Proprietor and held office at his pleasure." The Secretary was a member ex ofhcio, and so was the Gov ernor, who presided. The Surveyor General was usually a member. The number of the Council at this date (1658) was about ten, although previously it varied from six to ten and was never fixed. New commissions to councillors were generally issued whenever a new commission was issued to a Governor. The oath of allegiance to the Proprietor was administered to the Council by the Governor in a formal meeting.' All meetings were subject to the call of the Governor. The Council was advisory, legislative and judicial.

As an ad visory body it assisted the Governor in the execution of the laws, the appointment of officers, and on questions of war and peace. It was virtually the cabinet of the Governor. As a legislative body it acted from this time as an Upper House, and its consent was necessary to every law. Prior to 1650 the members of the Council had been also members of the Assembly, which, with the exception of the session of 1646, had only one house. The united opposi tion of the Council to any bill might not prevent its pas sage nor insure the veto of the Governor. The Puritans had only one house during their term of power, but the Assembly in 1658 returned to the division into two houses, which has never since been changed. 1 1. Council, 207. * I. Council, 188. * I. Assem. 416. * I. Assem. 296. * I. Council, an, 212. ' I. Council, 213. 1658. 15 With the Governor, the Council, without the assent of the Assembly, could pass ordinances not affecting the life, liberty or property of freemen.

By this power the Council established counties * and hundreds, imposed embargoes and remodeled public offices. As a judicial body the Council at first dealt with all legal questions, but by this time it considered, in the first instance, only the more important cases, as the Provincial Court, of which the Governor was ex ofEcio chancellor. It also sat as a Court of Appeals, where all cases of importance were sure to come. It also sat as a Court of Chancery and as a Court of Admiralty. The Council, with the Governor, levied assessments on the colonists in accordance with acts passed by the Assembly. The Assembly. — The Assembly until 1650 had been uni cameral, although an Upper House is mentioned in 1646/ Except during this session, the Governor, the Council, and the freemen, or their representatives, had sat in one house until 1650, when the Assembly was divided into two houses.5 Under the rule of the Puritan Commissioners, the Assembly had been composed solely of the representatives of the free men, for there was neither Proprietor nor a Proprietor's Council during this period.

When the Proprietor regained his power, his Council was restored and resumed its position as the Upper House of the Assembly. The division of the Assembly may, therefore, in one sense be regarded as con tinuous from 1650, although it was not fully established until 1658. The Assembly had three branches — the Gov ernor, the Council, and the representatives of the freemen. The Governor summoned the Assembly whenever he thought fit, although triennial Assemblies had early been desired,* and the Puritans had passed a law to that effect.' Writs for the election of members were issued by the Gov ernor " by the advice and consent of the Council." ' These 1 1. Council, 308. 4 1. Assem. 75. ' I. Assem. 209. 8 1. Assem. 341. 8 1. Assem. 272. 'I. Assem. 381. 1689. 16 writs were addressed to the sheriffs of the different counties,1 directing them to assemble their respective freemen and elect burgesses for the Assembly, and by a fixed time make return of writs to the Secretary's office.2 The Governor then issued a proclamation summoning the Assembly to meet at a certain time and place.

The members of the Upper House were summoned by special writs addressed to each member. When the Assembly met and organized, a Speaker was chosen by the Lower House,8 and he was approved by the Governor. The Clerk and other officers of the Lower House were appointed by the Governor. The Secretary was the Clerk of the Upper House. In the early Assemblies (for example those of 1638, 1640, 1642) the quorum had been fixed at ten members,* but now it was a majority of the members chosen. Any member absenting himself without giving sufficient reasons for so doing was fined." As far as possible the procedure and customs of the English House of Commons were followed by the Lower House in Maryland. In the Upper House the Governor presided. It was composed of the Secretary, the Surveyor General, and the councillors summoned by special writ.' The Proprietor had relinquished his claim to initiate all legislation, but he still presented laws to the Assembly for its approval,7 and they were often passed.

The Proprietor could withhold his assent from an act indefinitely, or he could veto any act. He was thus able to nullify legislation whenever it pleased him. The Governor could prorogue and dissolve the Assembly, though it had once declared that it should only be prorogued or adjourned by its own consent,5 and on another occasion had protested against the exercise of these powers by the Governor." When the Pro prietor was present he exercised all the powers of the Gov ernor. He presided in the Upper House, and forced the 1 1. Assem. 260, 369. ' I. Assem. 381. * I. Assem. 261. 4 1. Assem. 91. ' I. Assem. 274. ' I. Assem. 202, 381. 'I. Assem. 275, 278. 'I. Assem. 117. 'I. Assem. 180. 1658. 17 passage of such legislation as he wished, or defeated any measure displeasing to him. The Upper House was com posed of the Proprietor's creatures and did whatever he wished.

The Governor disputed the right of the Lower House to expel any of its members.1 The expenses of the delegates were generally levied upon their respective counties.2 St. Mary's City was the usual place of meeting. The Judicial System. — This comprised the Provincial Court, the Court of Chancery, the Admiralty Court, the Council as a Court of Appeals, and the County Courts. These courts, with the exception of the County Courts, which had small powers, were composed of nearly the same members. The Provincial Court, sitting also sometimes as a Court of Chancery and sometimes as an Admiralty Court, is the court here to be considered. The members belonged to the Council, which included all the chief officials of the provincial government. Thus the Council, itself the crea tion of the Proprietor, combined the executive, judicial and a large part of the legislative functions.

The Governor presided over this court as chief justice, chancellor, or admiral. In his absence the councillor next in commission presided. Before this court nearly all cases came, either in the first instance or on appeal from the county courts. For the county and city of St. Mary's, it was the court of first instance for all causes, civil, criminal and testamentary; and for the rest of the province for all causes testamentary, all the more serious criminal offenses, and all civil actions involving property to the value of 1200 pounds of tobacco. All other causes could be appealed to it from the county courts. The judges were sworn to give judgment according to the laws of the province. Where these were silent, the laws of Eng land were supposed to be followed. From this court, appeals could be taken to the Council, sitting as the Upper House of Assembly, upon writs of error.

This was often done. It often heard charges against citizens for sedition and bound 1 1. Assem. 271. ■I. Assem. 1689. them over to the Provincial Court. Charges of misconduct of officials were heard, and a great number of cases, especially those concerning land, came before it in the form of petitions for final settlement. The county courts had very limited powers. Civil causes not amounting in value to 1200 pounds of tobacco, and criminal causes not extending to life or member, were tried by them, but appeals could be always taken to the Provincial Court. The County Justices, or County Com missioners, as they were often called, were appointed by the Governor. The County Commissioners still exist, but they have lost nearly all their judicial power, while retaining the numerous administrative duties with which the county courts were burdened at this early period.

A distinction was made between justices of the quorum and the other justices, in the commission appointing them, some of the quorum justices being obliged to be present at a meeting of the court to make it a legal session. The sittings of these courts were regulated by acts of Assembly.1 Each had a clerk,2 and all were courts of record. The Attorney General was appointed by the Governor and sometimes acted as Receiver General." From this time on the county courts were used more and more for administrative purposes, thus depriving the sheriff of much of his importance. Land. — The land question was always important. Al though granted to Lord Baltimore, the original rights to the land had belonged to the Indians. The Proprietor recognized this in at least a few instances.* Indeed, the set tlers made many purchases from the Indians until forbidden by an act of Assembly, which declared that such purchases infringed upon the rights of the Proprietor."

The Proprietor granted the land to the adventurers according to so-called Conditions of Plantation, several of which had been issued by this time. . By these conditions 1 1. Assem. 149, 184, 232. ' I. Assem. 148, 149, 157, 162. *I. Council, 261, 266. * Kilty's Landholder's Assistant, 14. 'Kilty's Landholder's Assistant, 15; I. Assem. 248. 1658. 19 the fee remained to the Proprietor, while the use was granted in consideration of a small yearly quit-rent. The method of granting the land was simple. The settlers entitled to land by the Conditions of Plantation, or by special warrant of the Proprietor, first had these rights recorded at the office of the Secretary. Warrants of survey were then demanded for the quantity of land to which applicants were entitled, and were issued by the Governor, or the Secretary under his direction.

These warrants, signed by the Governor, were directed to the Surveyor General, who, after making the survey himself or by his deputies, returned certificates of survey to the Secretary's office addressed to the " Lieuten ant General." Grants or patents were then issued under the Great Seal, signed by the Governor, and endorsed by the Secretary and Surveyor General.1 The quit-rent was one shilling sterling for each fifty acres granted, and could be paid in tobacco if the Proprietor was pleased to accept it in lieu of money.2 The Proprietor had the right to establish whatever rents he chose. No land could be held con trary to the English statutes of mortmain,' and Maryland still follows this good old rule. Besides the ordinary grants, many manorial grants were made, Lord Baltimore being freed by the charter from the action of the statute Quia Emptores (18 Edw.

I.). These grants carried with them the rights to hold Court Baron and Court Leet, with view of the Frankpledge, and these rights were actually exercised." The quit-rent for the manors was the same as for other grants, though at one time previous to this it had been twice as large. The lords of the manors had other rights, for example, to stray cattle * and escheats of tenants' land upon non-payment of rent. Occasionally land was forfeited by tenants for rebellion.' Perhaps fines for alienation of manorial lands fell, during this early period, 1 Kilty's Landholder's Assistant, 65, 66. 2 1. Council, 223, 233. 8 1. Council, 227, 236. 'Johnson's Old Maryland Manors. "I. Assem. 271. ' Kilty's Landholder's Assistant, 28, 92, 103, 104. 1689. to the lords of the manors, for little is heard of alienation fines due the Proprietor previous to 1658.1 A large number of manors were surveyed for the Proprietor.

These Pro prietary manors were divided into leaseholds of terms of years at a small rent.2 A great quantity of land escheated to the Proprietor. The laws and rules of escheat were not those in use in England, but rested on the construction and pleasure of the Proprie tor. The term escheat was applied in a most sweeping way and embraced nearly all methods by which land might revert to the Proprietor. Want of legal owners, forfeiture by trea son or suicide, failure to pay the rent, seem to have been sufficient causes for escheat. The want of legal heirs was construed very broadly, so that the land of a man dying without heirs of the whole blood, in the direct descending line, was liable to escheat. The want of heirs was the most general cause of escheat. All these rules were very favorable to the Proprietor.

The escheats were found by juries of the neighborhood upon a mandamus issued from the Court of Chancery to the sheriff of the county in which the land was situated, and ordering the sitting of such a jury upon the land in question.' The inhabited portions of the province were divided into hundreds. The bounds of the hundreds were appointed by the Governor, and in the early period they were not only election districts, but also the bases of representation.* The militia was organized by these hundreds," and they were the bases of the collection of revenue. As soon as the amount of the population justified it, counties were established by the Governor, each embracing several hundreds. Each county had a sheriff and a county court. The assessments were levied upon the counties, and they were the bases of representation in the Assembly.' The county 1 McMahon's Maryland, 175. 1 Kilty's Landholder's Assistant, 219, 220. ' Kilty's Landholder's Assistant, 173, 174, 175, 176. 4 1.

Assem. 260. • I. Assem. 159, 193, 253. ' I. Assem. 284. 1658. 21 was also the basis of the poor relief.1 At this time the coun ties were just beginning to come into prominence. Taxation. — The expenses of the province were small. Almost all the officials were paid with fees. The expenses of the Assembly and the cost of wars with the Indians or internal dissensions were the main items of expenditure. In 1647 the Proprietor undertook to defray the whole charge of .the government in consideration of an " act for customs " passed by the Assembly. This act granted the Pro prietor a duty of ten shillings on each hogshead of tobacco exported from the province.2 But in 1650 an act was passed relating to the levying of war within the province.

By this act all the expenses of any such war were to be levied upon the inhabitants of the province.8 The " whole charge of the government " meant, evidently, the payment of the officials of the Proprietor and the costs of any wars or disturbances, for we find the expenses of the Assembly and other minor expenses levied upon the inhabitants.* The act of 1647 had caused much complaint' and had been the cause of an animated correspondence between the colonists and the Proprietor.' The Assembly of 1648 de clared that the previous Assembly was not a legal one and protested, against all the laws passed by it.7 The Assembly of 1649 passed an act limiting the ten shillings export duty to tobacco shipped on Dutch ships to other than British ports, provided that one-half of the duty should be used in satisfying claims arising from the defense of the Proprietor's rights in the recent rebellion (of Ingle).5 The Assembly of 1650 passed an act that no subsidies, aids, customs, taxes or impositions should thereafter be laid, assessed, levied or imposed upon the freemen of the province, or their goods or chattels, without the consent and ap probation of the freemen obtained in a General Assembly.' 1 1.