Maryland as a proprietary province

Front matter

THE GIFT OF

Cornell University Library F 184 M55 Maryland as a proprietary.. Rroyince,. b;

arylar

Preface

Since the founding of Maryland, science has given man a wonderful mastery over the forces of nature, has so penetrated the crusts enveloping the religious thought of sects and nations, that man has been found to be the maker even of bibles ; and while thus causing him to see himself as the centre of the universe, man has demanded the right to govern himself. In no other place upon this American continent is there to be found so good an example of a people who, after a struggle of nearly a century and a half, made the transition from a monarchical government to a "government of the people, for the people, and by the people " as in Maryland ; and the attempt has been made in the following pages to enable the reader to enter into the experience of that people engaged in that struggle.

The charter, the constitutional basis of the government, was granted by a monarch who had unusually high notions concerning the divine right of kings. It bestowed on the lord proprietor the powers of an absolute monarch. For many years the province was too sparsely populated to admit of the development of a political life ; but the sense of individual freedom was strong from the first, and was encouraged by disturbances from without until a successful revolt was effected. The revolt not only gave the people control of their branch of the legislature, but also extended the jurisdiction of the law-making body. An industrial development, a growth of social pressure.

VI PREFACE

and the immorality of the clergy then instigated the people's representatives to encroach on the lord proprietor's powers until they became supreme in nearly every department of the government.

The author has gathered the material for this book from original matter, of which the greater part exists only in manuscript ; and although the leading facts have been found in the assembly journals and council records, yet the land office records, the more important wills, the Maryland Gazette, and numerous letters have been drawn upon in the effort to get nearer to the life of the people and thereby present the reader with a more lifelike picture.

The book has been written as a dissertation for the degree of Doctor of Philosophy in Columbia University, and the author desires to express his sense of obligation to the friends of the university as well as to those members of its faculty who have given him encouragement and assistance ; but especially does he wish to acknowledge his indebtedness to Professor Herbert L. Osgood, at whose suggestion the work was undertaken and under whose guidance it has been carried on, for whatever measure of success has been attained.

Acknowledgment is also due to Drs. F. E. Sparks, B. C. Steiner, G. A. Leakin, and Mr. John Gatchell of the Maryland Historical Society, and Mr. L. H. Dielman of the State .Library, for assistance in the search for material.

NEWTON D. MERENESS.

New York City, June, 1901.

Introduction

PAGB

The Evolution of the Proprietary Province :

England vs. Spain 1

The earliest English patents for colonization .... 2

Trade and the corporate colony 2

Land tenure, border defence, and the proprietary province . 3 The British Empire and the royal province .... 4 The Maryland Charter :

Absolutism in England at the time it was granted Its monarchical nature and its early mediaeval origin

The lord proprietor's territorial rights 7

The lord proprietor's governmental rights 7

Eights reserved to the crovjfn Rights guaranteed to the people .

The charter's double aspect

Its elasticity

Forces determining the Development of the Proprietary Government

(a) The democratic tendencies in the Neve World ... 10 (6) Disturbances from without :

The petition of the Virginians against the Maryland charter 11

Claiborne vs. Maryland 13

Cornwallis, Ingle, and the English civil war . . .18

The Claiborne and Ingle rebellion 20

The seizure of the government by the Puritan commissioners 21

The Fendall rebellion 26

The boundary dispute between William Penn and Lord

Baltimore 29

The Protestant Revolution of 1689 33

The royal government — increase in the power of the

representative body 42

(c) Industrial, social, and political development ... 44

vii

VUl CONTENTS

CHAPTER I Land A^fD the Land Office

PAGE

The Feudal Features of the Land System 49

Ownership :

The granting of land 50

Steps by which title was acquired 51

Freeholds 52

Manors 52

Proprietary manors and reserves 53

Vacant lands 54

Surplus lands 55

Escheated lands 56

Loss of the essentials of a fief on the side of ownership . . 58

Jurisdiction, or the Administration of the Land Office :

Three distinct periods 58

The early development of the system of administration . . 58

Tlie formal erection of the land office 60

Public vs. private nature of the land office during the period of

royal government 61

Governor vs. agent upon the restoration of the proprietary government 63

The private side of the office after the Restoration ... 65

The public side of the office after the Restoration ... 69 The final contest over the question as to whether the office

should be treated as public or as private . . . 72

CHAPTER II Grounds for Opposition to Territorial Revenue .... 76

Purchase Money paid for Land 76

Complaint about the price asked for vacant lands ... 77 Quit-rents :

Gradual increase of the rate . 78

Payment of the rents in tobacco at twopence per pound . . 79

A full equivalent for the rents 79

Jealousy with respect to it . . 80

CONTENTS ix

PAGE

Expiration of tlie law by which it harl been given ... 82

Regret of the people for its loss ....... 82

Failure to obtain another 83

Raising and lowering of the rents in new grants ... 86

Alienation Fines :

Successful resistance to the demand for alienation fines on lands

devised 85

DifQculty in securing payment of other alienation fines . . 86

Ferry Licenses, controversy over 87

Port Duties, controversy over ... ^ .... 89

Collection of the Revenue :

Rent-rolls 92

Collectors 92

Rent-roll keepers 93

Farming of the rents 93

Charges of extortion 93

Success of the Proprietor in preserving his Rights to the Territorial

Revenue 94

Amount of the Revenue 94

Its Effect upon the Government 95

CHAPTER III The Activity of the Assembly in Territorial Affairs

The Mediaeval Fief vs. the Maryland Assembly . . . . 96

The Lord Proprietor fails to induce the Assembly to provide the

Province with the Military Features of a Fief ... 96 The Lord Proprietor concedes to the Assembly the Right of initiating Legislation . 97

Legislation in Support of the Lord Proprietor's Territorial Jurisdiction previous to 1689 . 97

Legislation against the Proprietor during the Period of Royal Government 97

The Lord Proprietor disallows the Act for determining the Bounds

of Estates 98

Growing Disaffection between Landlord and Tenants . . . .99 The Imposition of a Tax on the Cultivated Part of the Proprietary

Estates 99

The Attempt to tax the Proprietor's Quit^rents . . . .100

Effective Resolves of the Lower House 101

The People and their Representatives against Escheat . . . 102

X CONTENTS

CHAPTER IV The Industrial Development PAGE

The Prevalence of the Economic Motive 104

The Tobacco Industry, through Difficulty in regulating itj promotes the Cause of Popular Government: The small planters are jealous of the large planters . . . 106 In the interest of the small planters the lord proprietor disallows the act for requiring a cessation from planting . . . 108

109 110 110

Failure of attempts to limit the number of ports

Failure of the attempt to make a law against deceitful packing

A critical condition

Officers' fees and dues to the clergy become the great obstacles

to a regulation .' . Ill

Failure of the law limiting the number of plants . . .113 The Virginia inspection law makes the condition still more

critical in Maryland 114

The passage of the Maryland inspection act . . . .117

It causes the price of tobacco to advance 118

The Growth of Other Industries leads both to Industrial Independence and to Popular Government : Early attempts to encourage the sowing of grain, the planting of

corn, and the raising of stock ...... 120

The growing of hemp and flax is recommended .... 121

The Palatines open the resources of Frederick County . . 122

Wheat growing 123

Iron manufacture 123

Road making 124

Exports 125

Currency and public credit. 126

CHAPTER V The Dependence of Political Activity upon Social Conditions . . 129

Absence of Social Pressure in the Seventeenth Century . . . 130 In the Eighteenth Century the Facilities for Intercourse and the

Population increase 131

The Divergence of Extremes between Social Classes :

Slaves 132

Servants 133

CONTENTS

XI

Paupers 136

Insolvent debtors 136

Failure to educate the children of the middle class . . . 137

The favored sons are educated in schools outside of the province 145

The educated become lawyers 145

Alliance between the lawyers and the uneducated commonalty . 146

The affluence of the upper social extreme 147

Concentration of wealth and power 148

The Opposition to the Government is invigorated by the Lawyers

and the Existence of High Social Pressure .... 149

CHAPTER I The Executive The Lord Proprietor

His position at the head of the official system

The personality of each lord proprietor

Exercise of control through his governor .

Exercise of control through other officers .

Exercise of control through the veto . The Governor :

Powers and duties

Instructions from his superior .

The personality of each governor from the year

Salary

The Council :

Duties

Size

Tenure

Decrease In the amount of business transacted in council

Concentration of offices in the council

Character of the members of the council

The maintenance of the council .

The Official System under the Governor and Council

Creation of offices

153 154 158 158 159

159 161 163

XU CONTENTS

PAGE

Appointment of ofBcers . . 186

Centralization and sale of offices 190

Fees of office . . 191

Popular Criticism of the Official System 192

CHAPTER II The Legislature The Durham Assembly

Its limited legislative activity 194

The Lord Proprietor's Charter Right with Respect to calling the

Maryland Assembly 195

At First the Freemen assembled in Person or by Proxy . . . 195

Representation is established 196

The Assembly is divided into Two Houses 197

The Upper House :

Its membership 197

Its organization 198

The Lower House :

Suffrage 198

Qualifications of delegates 199

Compulsory voting 201

The unit of representation 201

The control over election writs passes from the lord proprietor

to the Assembly 201

Annual assemblies 206

Triennial elections 206

Decline of the lord proprietor's power to call, prorogue, and

dissolve the Assembly 207

The control over the conduct of elections passes from the lord

proprietor to the Assembly 208

Party spirit and electioneering ....... 212

Voting 212

The lower house becomes the judge "of the elections, returns,

and qualifications of its own members ..... 213 The lower house seeks to preserve the independence of its

members 213

Ability and parliamentary skill of the delegates . . . 215

Pay to assemblymen 218

Officers 219

CONTENTS xiii

PAGE

Parliamentary Procedure 221

The Lord Proprietor gives up his Claim to the Sole Right of initiating Legislation 222

Money Bills originate only in the Lower House .... 224

Decline of the Lord Proprietor's Veto Power 225

The Resolutions of the Lower House have much of the Force of

Laws 226

CHAPTER III Theory and Practice with Respect to Justice 228

The Establishment of Courts previous to 1689 :

The court of appeals 229

The provincial court 229

Manorial courts 230

Hundred courts 230

County courts 231

Justices court for the recovery of small debts .... 232

The chancery court 232

The admiralty court 233

The probate court 233

Centralization previous to the Revolution of 1689 .... 233

Decentralization under the Royal Government 234

The Lord Proprietor is denied the Right of erecting Courts . . 235

The Establishment of Circuit Courts by Act of Assembly . . 237

Jurisdiction of Each of the Courts :

That of the county courts is extended 237

That of the provincial court is restricted 239

That of the court for the recovery of small debts is extended . 241

That of the chancery court is restricted 242

That of the commissary general, or judge of probate, vs. that of

the deputy commissary in each county 243

Appeals 245

Judicial Procedure 246

The Number of Justices 247

Appointment of Justices 247

Salary of Justices 248

Attempts to increase that of the chief justice of the provincial

court 250

Incompetency of the Justices of the Provincial Court . . . 251

XIV CONTENTS

PAGE

Reform of the Provincial Court 252

Character of the Justices of the County Courts .... 253

Corporal Punishment and the Criminal Code 254

Prisons 255

The Long and Vehement Contest over the Question of the Extension ■ of the English Statutes to Maryland : The early tendency against such extension .... 257

On the eve of the Revolution of 1689 the lower house demands

that the people shall have their right to those statutes . . 264 The royal government more favorable to the extension, but the

question is left unsettled 265

The lord proprietor, from 1722 to 1732, stubbornly resists the

extfensioh '. 267

The charter and the resolves of the lower house in regard to the

matter 268

The judge's oath 270

Dulany, the leader in the lower house and the author of a

pamphlet 275

The lower house triumphant 276

CHAPTER IV The Dependence of the Lord Proprietor upon the People for Military

Protection 279'

The Training and Discipline of the Militia ;

Weakness of the militia laws 280

Contention that those laws had expired 287

Arms and Ammunition :

A part of the tobacco duty as a fund for the purchase of them . 290 The lord proprietor charged with not purchasing as the fund

provided 291

The crown directs that one-fourth of tlie duty be a fund for that

purpose 291

A new dispute with respect to that duty arises in the year 1739 293 The lower house wins a series of triumphs in the course of the

dispute 294

No fund for that purpose after the year 1749 .... 302 Fortifications :

Coast fortifioations and the tonnage duty 303

CONTENTS XV

PAGE

Torts on the Pennsylvania border because of the boundary dispute 306

Forts on the western frontier for protection from the Indians . 307 War Powers of the Governor :

No tax or imposition without the consent of the lower house . 310

No war outside of the province without the consent of the lowerhouse 310

The lower house attempts to instruct commissioners to a peace conference 311

The lower house nearly annihilates the governor's power over

the militia 312

Supply Bills for carrying on War :

The attempt of the lower house to appropriate the license

money from ordinaries 319

The attempt of the lower house to increase the duty on convicts

and to weaken the war powers of the governor . . . 325

The feeling of Protestants against Catholics makes the lower house more hostile to the government 326

The lower house vs. the governor and his secretary' . . . 330

The lower house seeks to encroach on the royal prerogative . 332

The lower house claims the sole right of nominating commissioners 333

The lower house insists on imposing a double tax on Catholics . 333

The lower house seeks to tax the proprietor's quit-rents and uncultivated estates 333

The lower house seeks to tax lucrative offices .... 333

The conditions existing during the fourth intercolonial war favorable to the rise of popular government .... 338

CHAPTER V Importance attached to Money Matters 339

Taxes :

(a) Property tax 340

(6) Poll tax 341

Who were taxables ? 341

Preparation of the lists of taxables 342

Passing accounts, imposing, assessing, apportioning, and

collecting the tax 342

XVI CONTENTS

Duties 343

The collection of duties 343

Annual Receipts from Taxes and Duties 343

Controversy over the Tobacco Duty for the Support of Government 344 From the year 1739 the lower house contended that its collection

was illegal 345

Trouble in building a House for the Governor 349

After expending the appropriation of four thousand dollars it

was not enclosed 352

The roof falls 353

Controversy over the License Money from Ordinaries :

Previous to 1689 the lord proprietor gave it to the secretary . 354 Under the royal government the secretary claimed it for himself

while the lower house claimed it for the country . . . 354

Governor Hart claimed it for the crown 355

From 1717 to 1739 it was given to the lord proprietor . . 356

From 1740 to 1763 it was appropriated for war purposes . . 357 The council then declined to support the lord proprietor's claim

and he gave it up 358

Controversy over Money arising from Fines and Forfeitures . . 360

Controversy over the Allowance to the Council .... 362

In the year 1747 the allowance was made for the last time . 367

Controversy over paying the Clerk of the Council .... 368 The Contest over OflScers' Fees :

The right to fix their amount claimed as incidental to the right

of creating oflSces and appointing officers . . . . 373 Previous to 1689 they were usually fixed and regulated by the

governor and council 374

Upon the establishment of the royal government they were fixed

and regulated by act of assembly 375

Reduction of them in 1719 375

Unsuccessful attempt of the lower house to have them reduced

one-half in 1724 378

Without any regulation from 1725 to 1733 379

From 1733 to 1747 they were fixed and regulated by the lord

proprietor's proclamation 381

From 1747 to 1770 they were fixed and regulated by the act

which provided for the inspection of tobacco . . 386 In 1770 the attempt of the lower house to correct abuses and to

make some reductions resulted in the loss of the old law . 386

The old table then continued by the governor's proclamation . 389

Controversy in the Assembly over the proclamation . . . 389

CONTENTS xvii

PAGE

Charles Carroll vs. Daniel Dulany and the proclamation . . 393

Uprising of the people at the polls against the proclamation . 399 Popular leaders contended that the people at the polls were the

ultimate authority 399

CHAPTER VI Local Government The Lack of Facilities for Intercourse increased the Importance

attached to Local Aiiairs 401

The Increasing Number of Divisions 401

The County :

Functions of the county court 403

Taxing pov?er of the county court 404

The almshouse and workhouse . 405

The school 405

The Hundred :

Its functions before the erection of counties .... 406

It becomes a constablewick 406

Duties of the constable 406

The hundred's representation in the county court . . . 406 Functions increase toward the end of the proprietary government 407

The Manor :

Its officers and courts 408

Examples of the business transacted in the courts . . . 408

The Parish :

Its ofBcers 410

Powers and duties of the vestry and church wardens . .411

Towns :

General town acts 413

Particular town acts . . 414

Town commissioners and their directions for laying out towns . 415

The government of Annapolis before it became a city . . 416

The government of Charles-Town on Northeast River . . 417

The government of Baltimore 418

Town government in general 419

Cities :

St. Mary's 419

Annapolis :

XVIU CONTENTS

PAGE

Its officers, their appointment or election, and their term of

ofBce 420

The powers and duties of the corporation 421

Courts 421

Extension of suffrage and extension of the privileges of the freeholders . 422

The lower house vs. the governor with respect to granting the charter 422

CHAPTER VII. Religion, the Chukoh, and the Clekgy

Social Expediency the Basis of Law 423

The Lord Proprietor's Promise of Religious Toleration . . . 424

The Jesuit Priests :

Their claim that the canon law prevailed propria vigore . . 426

Their requests and the strength of their party .... 427

The lord proprietor in the contest with them .... 428

Toleration in Practice :

Protestant opposition the support of the Claiborne and Ingle

rebellion 430

The governor and council bound by oath to promote toleration 431

The toleration act 432

Intolerance of the Puritans 434

Trouble with the Quakers 435

Catholic government vs. Protestant lower house . . . 435

Increase of Protestant opposition 436

Protestant opposition the principal support of the Revolution of

1689 437

The Establishment of the Church of England 437

Dr. Bray vs. Quakers and Catholics 489

Attempts to establish Episcopal Authority :

Dr. Bray's efforts 440

Governor Seymour's opposition 441

The Assembly attempts to establish a spiritual court . . 442

The Bishop of London appoints two commissaries . . . 443

Failure to establish their authority by act of assembly . . 446

The lower house vs. the clergy and episcopal authority . . 447

Appointment of Mr. Henderson as sole commissary . . . 448

The lord proprietor vs. the Bishop of London .... 449

Mr. Henderson left without power lays down his office . . 450

CONTENTS Xix

PAGB

The lord proprietor uses his right of patronages and advowsons of churches as a means of finding places of profit for his

ignoble friends 450

Another attempt of the Assembly to establish a spiritual court . 451

In vain the clergy again ask for a bishop 452

A spiritual court established by act of assembly . . . 452 Lack of Foresight in providing for the Maintenance of the Clergy :

Size of parishes 453

Dues to the clergy and the regulation of the tobacco industry . 454

The large incomes to many of the clergy 456

The most brazen faced receives the largest .... 456 The uprising against the clergy upon the expiration of the inspection act 457

Contention that Vestries were entitled to the Right of appointing

Ministers 458

Contention that the I.aw which was the Foundation of the Church

was null and void 458

Conditions with Respect to the Church favorable to the Rise of

Popular Government 459