Dinsmore Documentation presents Classics of American Colonial History
| Author: | Osgood, Herbert L. |
| Title: | The American Colonies in the Seventeenth Century. |
| Citation: | New York: Columbia University Press, 1904. |
| Subdivision: | Volume II. Part III. Chapter III. |
| HTML by Dinsmore Documentation * Added November 30, 2003 | |
| ← Vol. II, Pt. III, Ch. II Table of Contents Vol. II, Pt. III, Ch. IV→ |
CHAPTER III
Had governmental powers not accompanied the territorial grants which have been described, those grants would have lain wholly within the domain of private law. They would have been estates of land, unusually large, no doubt, but nothing more. In cases where the governmental rights of proprietors were suspended or resigned into the hands of the crown, they remained thereafter only private landlords. But the fact that rights of government were bestowed with the land gives to the regulations concerning the latter a significance in constitutional history. The proprietor was made thereby the political head of his province. In fact, the territory became a province by virtue of the rights and institutions of government existing in and connected therewith. The bestowment of grants of land by the proprietor not only carried with it the obligation to pay quitrent, but to take to him the oath of fidelity. Had it been possible for a territorial nobility to develop in the American provinces, its creation would have shown here, as in Europe, how the granting of land could have been utilized as a means of strengthening the government and checking the growth of democracy.
In the discussion of the corporation as a form of colonial government it was necessary to dwell first and chiefly on the legislature. The general court was the central feature of that organism, for in that the freemen, who were the grantees of power, found their embodiment. But with the proprietary province the case is different. The king established this form of colony by delegating to the proprietor the right to exercise certain functions of the prerogative within the province. It is true that the proprietary charters contained more hints concerning
the form of government which should obtain in the province than did the charters of the corporations; but the existence of an assembly, and hence the enjoyment of political rights by the colonists, was not in any of the charters guarantied in mandatory terms. In the charter of New York it was not mentioned. The powers which were definitely bestowed were executive in character,—the ordinance power, the power to appoint all officers, to establish courts, to punish and pardon, to organize a military force and defend the province, to bestow titles of honor, to found churches and present to livings. These made the proprietor the executive of the province, and for the most part left it to him to determine how and under what forms the governmental powers which he had received should be exercised. That he did this alone, without advice, or apart from the social and political conditions of the province, is not claimed. That in none of the provinces, save New York, was there or could there have been much delay in calling an assembly, is true. But in all cases the assembly was called by the proprietor, and without such action of his it could not legally meet. What control he had over its organization and work, when once in existence, will appear in the sequel. The fact here insisted upon is, that the bestowment of power upon an individual instead of a corporation assembled in general court, and its transmission through him to the colonists, made the executive, instead of the legislature, the centre from and around which development in the province chiefly occurred. It gave to the proprietor an importance, especially at the outset, which was analogous to that enjoyed by the general court in the corporate colony. It made him in a derived and inferior sense the source, within the province, of office and honor, the fountain, of justice, the commander of the military, the recipient of the provincial revenue, the constituent part of the legislature. These were the jura regalia of the proprietor, which made his position that of a count palatine. They were in kind the power of the English monarch; and, when used according to the precedents of the county palatine, they made the province monarchical in form.
Of the proprietary provinces which attained permanent form and development, Maryland was founded prior to the Restoration, while all the rest were established subsequent to that event. The Calverts and the Duke of York were the only proprietors who did not issue elaborate concessions as to government. As we have seen, they all published the terms on which they would grant land; the Carolina and New Jersey proprietors and Penn made similar announcement of the conditions under which government should be administered. With one exception,—the Fundamental Constitutions of Shaftesbury and Locke,—these documents have a decidedly modern form and purport. They were apparently issued for the purpose of attracting settlers, and may have contained features which were suggested by those who expected to live as colonists under them. They approach as near formal compacts as is possible in the case of documents within the domain of public law. One cannot imagine a mediæval count palatine issuing to his vassals such grants as these. In them the organs of the government which it was proposed to establish, and their powers, were described, in some cases very minutely, while provisions for amendment were included. They were, in fact, octroi constitutions, and were issued as an expression of the will of the proprietors, but also with a view to the interests and demands of those who, under new and strange conditions, were to inhabit the provinces. In these rudimentary constitutions, then, we note the first significant innovation in matters of government, which occurred when the palatinates were reproduced in the American colonies. The Calverts and the Duke of York, by refraining from their issue, kept more strictly in the line of precedent, and, on that account, for a time at least, they were able better to control the exercise of political power. They conceded less at the outset than did the proprietors of Carolina, New Jersey, and Pennsylvania.
In Maryland, as in the other provinces, the effective exercise of government began with the appointment of the governor. Between two and three hundred colonists came thither on the first vessels in 1634.1 Before they left England, a
1 Calvert Papers, I. 131 et seq.
governor, a secretary, and a surveyor were appointed. Closely associated also with the governor were two commissioners, Jerome Hawley and Thomas Cornwallis, who were likewise appointed in England. They were called “commissioners for the government of the province,” and were the germ of the executive council. The first instructions extant were issued by the proprietor to the governor and commissioners jointly. According to the instructions the appointees were enjoined to keep the peace on board ship during the voyage, to choose a place for a settlement on their arrival, to land the colonists, cause them to assemble to hear the patent read, take charge of Indian relations, and of relations between the colony and its English neighbors.
In April, 1637,1 a general ordinance of government, containing a commission for a governor, a council, and a secretary, as well as direction for calling an assembly, was issued. This clearly shows what the powers of the governor were. The military function was placed in the foreground. The governor was designated as lieutenant-general and admiral, and as such was within the province the chief commander of its militia, its forts and vessels of war. Indian relations fell partly under this head, and partly under the powers relating to trade. The second power mentioned was that of chancellor. By virtue of this the governor was keeper of the seal of the province, and from him all patents, territorial and governmental grants, writs for elections and original processes, licenses, and many other public documents took their origin. As chancellor also the governor was judge in equity for the province, with power, if he saw fit, to call the council to his aid in its exercise, a discretion which the governors of Maryland never chose to exercise. From 1661 to 1689 the office of chancellor was distinct from that of governor and was held by another individual. This was also the case during two brief intervals at a later time. But with these exceptions the two offices were united in the same hands throughout the entire history of Maryland as a province.
Under his authority as chief justice the governor was
1 Council Proceedings, 1636-1667, p. 49 et seq.
chief common law judge, with power to hear and determine all cases, civil and criminal, as if the proprietor himself were present. When life, member, or freehold were involved, the councillors should sit as judges with him. The fact that the governor was intrusted with the pardoning power, save in cases of high treason, at the same time that he was judge, shows how limited was the official personnel of the province in the early period of its existence.
The title of chief magistrate apparently refers to the power of the governor as leading conservator of the peace in the province, and to the fact that from him proceeded the authority which was exercised by the sheriffs, constables, and justices of the peace in arresting, detaining, and binding over offenders. Closely connected with the governor’s magisterial authority was his general executive power; that is, his power to issue and execute ordinances, to establish ports, harbors, markets, and fairs, to care for the interests of the province and control its administration in general, supplementing in all needful ways the work done under the functions already specified, so as to make a rounded whole. Under this head fell the power of the governor, as the constituent part of the legislature, to call, prorogue, and dissolve it, and to accept or veto its acts. The last-named power was also exercised by the Maryland proprietor on such acts as passed the governor. This right was of special value to the proprietor,1 in that it enabled him to review acts which established, confirmed, or changed officials in the province, or infringed any of his rights. Later commissions made no material change in the governor’s powers, though the gradual expansion of the official system made it necessary that in time some of his authority should be shared by others.
Within the province, especially in the early time, the governor was the centre from whom radiated military, judicial, administrative, and, to a considerable extent, legislative activity. He was the proprietor’s commissioner or agent for all purposes of government. Power was transmitted to him by a commission, and he was guided in the use of it by instructions. Instructions might be given him at the time
1 Council Proceedings, 1636-1667, 154, The Commission of 1644.
of his appointment or at any later period. The letters written by the proprietor to his governor were informal instructions. As cases in point, may be cited the detailed instructions given to Leonard Calvert and his associates before they left England in 1634, the various conditions of plantation, a long list of instructions concerning grants of land, the reorganization and management of the land office, and a less number relating chiefly or wholly to matters of government.1 Appointments to office, relations with Claiborne and with the Jesuit priests who accompanied the early settlers to America, Indian affairs, relations with Virginia and with the Dutch, internal disturbances and attacks on the proprietor’s authority, the calling of assemblies, measures the passage of which would encroach on his prerogative—all these and many more affairs of a public nature are referred to in a manner more or less imperative in the proprietor’s letters and formal instructions. Since the early governors of Maryland were in several instances members of the Calvert family, instructions were most frequently conveyed through the informal channel of letters, and these often refer in detail to the management of the private estates of the proprietor,2 the purchase and sale of stock and products, building of houses, servants, control of trade, and the like. The correspondence with the secretary and with some of the councillors also partakes largely of this character.3 These give an informal aspect to the communications between the proprietor and his subordinates which reminds one that, even under the system of individual property, the province had not lost all the characteristics of a plantation.
The governor, in return, was expected to report his doings to the proprietor, and to keep him informed concerning all
1 Those relating to territorial affairs will be most easily found in Kilty, Landholder’s Assistant. All are printed in the Council Proceedings under their respective dates. The letters, so far as preserved, will be found mainly among the Calvert Papers, and some specimens of them have been printed. A few instructions appear among the Proceedings of the Assembly. Examples of Maryland instructions may be cited as found in Proceedings of Council, 1636-1667, 51, 99, 135, 139, 324, 329, 335, 385; Assembly Proceedings, 1637-1664, 321-323; Council Proceedings, 1667-1678, 54, 63, 94.
2 Calvert Papers, I. 211, 229.
3 Ibid. I. 194.
chief common law judge, with power to hear and determine all cases, civil and criminal, as if the proprietor himself were present. When life, member, or freehold were involved, the councillors should sit as judges with him. The fact that the governor was intrusted with the pardoning power, save in cases of high treason, at the same time that he was judge, shows how limited was the official personnel of the province in the early period of its existence.
The title of chief magistrate apparently refers to the power of the governor as leading conservator of the peace in the province, and to the fact that from him proceeded the authority which was exercised by the sheriffs, constables, and justices of the peace in arresting, detaining, and binding over offenders. Closely connected with the governor’s magisterial authority was his general executive power; that is, his power to issue and execute ordinances, to establish ports, harbors, markets, and fairs, to care for the interests of the province and control its administration in general, supplementing in all needful ways the work done under the functions already specified, so as to make a rounded whole. Under this head fell the power of the governor, as the constituent part of the legislature, to call, prorogue, and dissolve it, and to accept or veto its acts. The last-named power was also exercised by the Maryland proprietor on such acts as passed the governor. This right was of special value to the proprietor,1 in that it enabled him to review acts which established, confirmed, or changed officials in the province, or infringed any of his rights. Later commissions made no material change in the governor’s powers, though the gradual expansion of the official system made it necessary that in time some of his authority should be shared by others.
Within the province, especially in the early time, the governor was the centre from whom radiated military, judicial, administrative, and, to a considerable extent, legislative activity. He was the proprietor’s commissioner or agent for all purposes of government. Power was transmitted to him by a commission, and he was guided in the use of it by instructions. Instructions might be given him at the time
1 Council Proceedings, 1636-1667, 154, The Commission of 1644.
of his appointment or at any later period. The letters written by the proprietor to his governor were informal instructions. As cases in point, may be cited the detailed instructions given to Leonard Calvert and his associates before they left England in 1634, the various conditions of plantation, a long list of instructions concerning grants of land, the reorganization and management of the land office, and a less number relating chiefly or wholly to matters of government.1 Appointments to office, relations with Claiborne and with the Jesuit priests who accompanied the early settlers to America, Indian affairs, relations with Virginia and with the Dutch, internal disturbances and attacks on the proprietor’s authority, the calling of assemblies, measures the passage of which would encroach on his prerogative—all these and many more affairs of a public nature are referred to in a manner more or less imperative in the proprietor’s letters and formal instructions. Since the early governors of Maryland were in several instances members of the Calvert family, instructions were most frequently conveyed through the informal channel of letters, and these often refer in detail to the management of the private estates of the proprietor,2 the purchase and sale of stock and products, building of houses, servants, control of trade, and the like. The correspondence with the secretary and with some of the councillors also partakes largely of this character.3 These give an informal aspect to the communications between the proprietor and his subordinates which reminds one that, even under the system of individual property, the province had not lost all the characteristics of a plantation.
The governor, in return, was expected to report his doings to the proprietor, and to keep him informed concerning all
1 Those relating to territorial affairs will be most easily found in Kilty, Landholder’s Assistant. All are printed in the Council Proceedings under their respective dates. The letters, so far as preserved, will be found mainly among the Calvert Papers, and some specimens of them have been printed. A few instructions appear among the Proceedings of the Assembly. Examples of Maryland instructions may be cited as found in Proceedings of Council, 1636-1667, 51, 99, 135, 139, 324, 329, 335, 385; Assembly Proceedings, 1637-1664, 321-323; Council Proceedings, 1667-1678, 54, 63, 94.
2 Calvert Papers, I. 211, 229.
3 Ibid. I. 194.
affairs, public and private, in the province. This, with the aid of the secretary and other officials, he did, and in the same informal manner which characterized the instructions. The governor, like all other officials, held office at the proprietor’s pleasure, and was in no respect legally independent of him. Of this the first Cecilius was not slow to inform his brother, Leonard Calvert, when in 1641 he had granted some land to the Jesuits contrary to the proprietor’s express order. “Certainly,” he wrote,1 “I have the power to revoke anie authoritie I have given you, either in whole or in part, . . . for you are but meerly instrumentall in those things to doe what I direct, and not to compel mee to doe what you thinke fitting.” “I shall earnestlie therefore desire you to bee more observant hereafter of my directions, and not to expect that I should satisfie your judgment by acquainting you still with my reasons why I direct anie thing; for then my power there were no more than any mans else, who may with reasons persuade you to doe or forbeare anything as well as I.”
In order to the existence of proprietary government, it was not necessary that the proprietor should reside in the province. Wherever the governor was, there was the proprietor. The governor brought the proprieter [sic] into the province, for every public act of the governor, if legally performed, was done in the name and by the authority of his superior. Anything which the proprietor could lawfully do, he could require his governor to do; and at the outset the proprietor was limited only by the very general, though in the sphere of private rights the comprehensive, terms of his charter. In the provincial system, then, provision was made for instructions before it was decisively made for legislation, and it was only through instructions that legislation could legally begin and be continued. Instructions were as normal and regular a part of the system as was lawmaking. Not only were they sent to the governor, but, when necessary, to all other officials appointed by the proprietor. Any official in the province might also send them to his subordinates.2
1 Calvert Papers, I. 219.
2 Council Proceedings, 1636-1667, 141, 147, 161, etc.
So far as Maryland is concerned, reference to the official oath will furnish additional evidence that the relation between the proprietor and the governor was such as has been indicated. The oath which was prescribed in 16481 bound the appointee to defend and maintain the jurisdiction and seigniory of the proprietor to the utmost of his power, and never to “accept of nor execute any Place, Office, or Employment, within the said Province anyway Concerning or relating to the Government of the said Province from any Person or Authority but by from or under a lawful Authority derived or to be derived from time to time under the hand of his said Lordship or his heirs and Assigns.” The oath of 16692 was drawn in the same terms. This furnishes additional evidence that, unlike the governor of the corporate colony, the head of the proprietary province derived his official status, not from the colony, but from the proprietor. He was head of the province by virtue of his being intermediary between it and the proprietor.
It has already been stated that at the time when the office of governor was brought into existence provision was made for a council. Of this body the governor was ex officio a member. By the commission of 1637 he was commanded to advise with its members “as he shall see cause upon all occations concerning the good of our Said Province and of the people there.” That it was associated with the governor in the discharge of the highest judicial functions we have seen. The councillor’s oath, as formulated and administered in 1639, bound him to bear true faith to the proprietor and defend his rights, maintain the peace and welfare of the people, assist in the administration of justice, give good advice to the proprietor and his governor, and keep secret the affairs of state.3 This oath proves that the council was an important part of the provincial executive, and that as such it was under obligation to uphold the rights of the proprietor. It
1 Council Proceedings, 1636-1667, 209.
2 Ibid. 1667-1688, 39.
3 The oath was prescribed in one of the bills which in 1639 just failed of final passage through the assembly; but it was later used. Proceedings of Assembly, 1637-1664, 44; Proceedings of Council, 1636-1667, 85; Bozman, II. 140.
stood toward the governor in a relation analogous to that occupied by the privy council toward the king in England. In 1642 the council received for the first time a commission1 distinct from that of the governor. In this it was called “our privie Councell within our said Province of Maryland,” and its members were empowered to meet with the governor when and where he should direct, “to treate, consult, deliberate and advise of all matters, causes and things which shall be discovered unto you, . . . as well concerning the quiet government and regulating the people there, as for the good & safety of our said Province of Maryland.” The peculiar function of the council, therefore, was to advise the governor and through him the proprietor, and without that advice the governor should not act. The councillors in early times also occupied the status of justices of the peace in their respective counties, their judicial powers in this connection being set forth in the commissions of the governors.2 The powers of the council as the upper house of the legislature will require notice in another connection.
The council was never a large body. Its existence began with three members, and by 1690 it had reached the number of nine or ten. Its actual membership never exceeded this. Its extant records, prior to 1660, are so fragmentary that little idea of its composition can be obtained. Its journal subsequent to that date reveals the fact that business was usually transacted in the presence of from three to six, among whom the governor, chancellor, and secretary would in most cases be found. The councillors were appointed by the proprietor, usually on the recommendation of the governor. They were appointed for indefinite terms, and death or resignation were as a rule the only causes which brought their official careers to an end. The board met at irregular, but frequent, intervals, and during the seventeenth century it did a great variety of business. By it or in its presence
1 Council Proceedings, 1636-1667, 114. Substantially the same language was used in the commission of 1644. Ibid. 157, 159.
2 Ibid. 1636-1667, 159. They are called in this commissioners for conservation of the peace, with authority individually or collectively to arrest, detain, and bind over; but when the time for trial came the governor must be associated with them.
counties and hundreds were erected, offices and courts were established, commissions and instructions were issued to officials, oaths were administered, trade and fees were regulated, petitions and complaints heard, pardons and licenses granted, ordinances issued, advice given with respect to calling, proroguing, and dissolving the assembly, orders were issued for expeditions against the Indians and protection against the other enemies or rivals of the province.1 In the eighteenth century the governor and council were deprived by legislation of many of their earlier powers, but in the seventeenth century they formed altogether the leading organ of the provincial government.
During the seventeenth century, when internal peace permitted, the expansion of the official system, under the action of the proprietor, governor, and council, kept even pace with the growth of the province. By the ordinance of April, 1637, provision was made for a secretary, whose duties were closely connected with the original functions of the governor as chancellor. The first incumbent of this position was also made judge of probate, register of the land office, and receiver of the proprietary rents, profits, and customs, while he acted also as surveyor-general and attorney-general. A treasurer was also appointed, apparently by a separate commission.2 In 1642 the original office of surveyor was elevated to that of surveyor-general,3 and separated from the office of secretary. The same year the governor, council, and secretary received separate commissions.4 About the middle of the century the office of attorney-general was separated from that of the secretary, while in 1673 that of judge of probate was temporarily attached to the chancellor’s office, though ultimately made a distinct function. In 1676 two receiver-generals were appointed, and the secretary ceased to perform that function. Four years later the secretary ceased to act as register of the land office, and that
1 See entries in the first two volumes of Maryland Archives, Proceedings of the Council. The summary is given by Mereness, Maryland as a Proprietary Province, 175.
2 Calvert Papers, I. 153.
3 Council Proceedings, 1636-1667, 101.
4 Ibid. 108.
became a separate position. In 1685 the office of examiner-general was separated from that of surveyor-general.1 Toward the close of the century, naval officers began to be appointed, a part of whose duties was to collect customs which were levied under acts of assembly. Two treasurers were appointed, one for each shore, and their functions became distinct both from those of the naval officers and of the receiver-general.
The multiplication of lower offices was one of the results of the organization of counties and hundreds, of the establishment of courts and the development of a fiscal and a militia system. These, in nearly all cases, like the central executive offices of the province, antedated the legislature, and derived their origin from the proprietor. They were created by act of the proprietor, or of the governor and council proceeding with his approval, and in imitation of corresponding English institutions and offices. At first the entire west shore of Maryland was treated as one county under the name of Saint Mary’s,2 while it may be said that the east shore was treated in the same way under the name of Kent, or Kent island. These names appear also as the designations respectively of a hundred, a fort, and a town. The settlements, as they grew up on either shore, were organized as hundreds,3 and were used in early times as territorial units for elections, public levies, and the preservation of the peace. The chief officer of the hundred was an appointee of the governor, and, whether he went by the title of constable or conservator of the peace, had the powers of one or more justices of the peace in England. The chief officer of Saint George’s hundred was called a justice of the peace, and received authority to appoint a constable as his subordinate. The justice of the hundred could arrest, try, and punish for petty crimes, and bind over grievous offenders to the county court for trial.
The bounds of Saint Mary’s county were gradually defined by the formation of outlying counties. Of the order of 1650,
1 Kilty, op. cit. 83; Proceedings of Council, 1667-1688, 542.
2 Council Proceedings, 1636-1667, 61.
3 Ibid. 59, 70, 89, 91; Assembly Proceedings, 1637-1664, 2, 87 et seq.
and that of 1654, repealing the above ordinance and establishing the bounds of Calvert county, the record has been preserved.1 The orders for the erection of Somerset county and for the attempted erection of Worcester county on Delaware bay are exceptionally detailed.2 But the more important act in the establishment of a county was the erection of the county court. Though the detailed consideration of this subject more properly belongs in a later chapter, it may here be said that, prior to 1690, the county courts of Maryland, with one exception, were created by the executive. By the governor their officers were appointed, and by him their jurisdiction to an extent established.
The same was true of the military officials. The governor’s commission implied that he should possess full power of appointment, and that all should obey him as lieutenant-general and admiral. Thomas Cornwallis, the councillor, commanded the first expedition against Claiborne. In May, 1638, John Boteler was appointed captain of the Kent island militia. In May, 1639, on the eve of a conflict with the Indians, Giles Brent was appointed captain of the military band of Saint Mary’s. This expressly gave him immediate command for purposes of training over “all Inhabitants of Our Said Colony able to bear arms, those only of our Council excepted.” After several more subordinate appointments, in August, 1642, Thomas Cornwallis was commissioned, with the power of a captain-general, to levy men and lead them on an expedition against the Indians. His authority for this purpose seems to have extended throughout the province. The following spring he was commissioned again for the same purpose, while Thomas Baldridge was at the same time ordered to take the assize of arms and ascertain the number of persons within his hundred who were able to serve. During the perturbed state of the province, between 1646 and 1657, we know that the governors
1 Council Proceedings, 1636-1667, 259, 308.
2 Ibid. 553-555; ibid. 1667-1638, 108. By the assembly of 1654, which was held under the parliamentary commissioners, Patuxent county was created by legislation. This was done when the authority of the proprietor was suspended, and Patuxent does not appear in the later list of counties. Proceedings of Assembly, 1637-1664, 369, 381, 396.
repeatedly appeared at the head of the provincial forces, as did Calvert in 1646 and Stone in 1655. Whenever outrages were committed by the Indians, or serious outbreaks on their part occurred, especially also when, because of conflicts between the Five Nations and the Susquehannas, the peace of the northern part of the province was threatened, armed expeditions were fitted out under the authority of the governor and council. Instances of such action during the period under review were the expedition of 1652 against the Indians of the eastern shore, of the spring of 1661 to aid the Susquehannas at Susquehanna Fort, of the summer of 1664 and 1665 against raiders presumably from among the Five Nations. The despatch of Henry Coursey to Albany in 1677 to negotiate with the Five Nations was caused by the almost yearly repetition of their attacks, which necessitated defensive operations. These all were carried on directly under the authority of the executive and of the commissions and instructions which he issued.1
By the process and to the extent thus indicated was the official system developed in Maryland prior to 1690. It constituted at once the provincial executive and judiciary, and was dependent almost wholly on the proprietor. The support of its members was largely derived from fees, and in addition from the appropriation by the legislature of a poll tax or the proceeds of a customs duty. Repeatedly during the decade between 1640 and 1650, and during the years between 1662 and 1670, such taxes were levied for the support of the government.2 Occasionally special grants of land were made to the governor, and he, with the other leading officials, was so situated that large favors of this kind could be procured. It was the intention of the assembly that one-half of the revenue from the export duty of 2s. per hogshead on tobacco, for which provision was made by the act of 1671, should go to the support of the governor and council and for a supply of arms and ammunition. For
1 Proceedings of Council, 1636-1667, 75, 86, 87, 88, 102, 104, 106, 132, 148, 282, 411, 502, 522 et seq.; ibid. 1667-1688, 21 et seq.; Bozman, II. 287.
2 Merenass, op. cit. 171 et seq.
this purpose it was presumably used. During the period under review no question of the proper support of officials arose; it did not become an issue, and the action of the executive was not modified or hampered by it.
Prior to 1690 no effort was made to limit the proprietor’s right of appointment, except in the case of sheriffs. The duties of the sheriffs were then large, for, besides being the executive officers of the courts, they held elections for members of the lower house and collected all direct taxes, officers’ fees, and dues of the clergy. For a time, also, about 1671, they were concerned with the collection of quitrents. In 1642 an act was passed requiring that the governor should appoint sheriffs from lists presented by the provincial court and by each county court. An act of 1662 added to this provision one forbidding any person to serve as sheriff longer than one year. Both of these were temporary acts and soon expired. But during the period of the Restoration complaints of the oppressive administration of sheriffs continued and multiplied, so that in 1678 an act was passed forbidding any one to serve in that office longer than one year, unless at its end he procured from the court of his county a certificate that he had performed the duties of his office with justice. This, though it was kept on the statute book, was evidently not an effective limitation; but it was the only one which, before 1690, was applied to the appointing power of the proprietor.
By the creation of offices and the appointment of their incumbents the influence of the proprietor was extended through the province and was consolidated. Those who held the higher offices were for the most part large landholders, while conversely the holding of office was very likely to facilitate the increase of the incumbent’s estates. In other words, under the Maryland system, there was a tendency toward the identification of the large landholders with the official class. But at the same time the higher offices were concentrated in the hands of a few persons, and these, in addition to being large landholders, were in many instances relatives of the proprietor. The last-mentioned feature of the system appears very clearly after 1660, when Charles Calvert was governor and afterward proprietor. Before
that time the only conspicuous instance of that kind was the appointment of Leonard Calvert, brother of the first proprietor, as governor. About 1660 Philip Calvert was appointed first as secretary, then governor, and, when his service in that capacity ended, he retained the chancellorship as a distinct office. Between 1669 and the overthrow of the proprietary government in 1689 the system of family government, with accompanying privileges and cliques, was at its height. During a part of this time Charles Calvert and his brother Philip were on bad terms and acted to an extent as rivals. In 1669, among the members of the council—which was also the upper house—were Charles Calvert, Philip Calvert, and William Calvert, Baker Brooke, who was brother-in-law of William Calvert, and the firm friends of the family, Jerome White and William Coursey.1 Soon after the arrival of Charles Calvert in the province, his intimate friend, Henry Sewall, was made2 secretary and a member of the council. Sewall married a daughter of Vincent Lowe, who was later a councillor and surveyor-general.3 By her he had four daughters and one son. On Seawall’s death Charles Calvert married the widow. In due course the children all married, and the husbands of the daughters—Dr. Jesse Wharton, Colonel Benjamin Rozier, Colonel William Chandler, and Philip Calvert—found their way either into the council, the provincial court, or the offices of sheriff and colonel of militia. William Burgess, whose daughter Nicholas Sewall, the son, married, became a councillor. Thomas Notley, a strong friend of the proprietor, was for some time speaker of the lower house and later became a member of the council.
The accumulation of offices in the same hands also contributed toward the concentration of political power. Secretary Lewger, who by his capacity and intelligence contributed not a little to the early success of the provincial government, received, in addition to his chief office, those4 of receiver-general,
1 Proceedings of Assembly, 1666-1676, 157; Sparks, Maryland Revolution of 1689, J. H. U. Studies, XIV.
2 Proceedings of Council, 1636-1667, 439.
3 Ibid. 1667-1688, 309 et seq.; Sparks, op. cit.
4 Ibid. 1636-1667, 55, 60, 71.
judge of probate, justice of the peace, deputy governor, while he was at the same time a member of the council. The members of the council constituted also the provincial court. They might or might not act with the governor as a court of admiralty. Reference has already been made to the union of large judicial powers with his many executive duties in the hands of the governor. It has also been stated that the members of the council were ex officio justices of the peace. It is true that they, with their immediate connections, held in many instances the positions of colonels of the county militia.1 The control of the proprietor over the personnel of the sheriffs was almost complete. It therefore appears that, from the attainment of internal peace about 1660, until 1689, official power in Maryland was centred in a few hands and these belonging to the proprietor’s own family or his immediate political connections. The official system was at that time an instrument which he and his governor could use almost as they chose. That it was used to hold in check all manner of popular movement which was favorable to change or reform in the province, is indicated by the numerous arrests and prosecutions for seditious conduct which occurred after 1670. The spirit of the administration under Charles Calvert was narrow, and toward those who refused quietly to submit to the pretensions of the government it was oppressive. The feeling of agitation and suspense which presently began to pervade the province was faintly suggestive of conditions which at the same time existed in England.
1 Proceedings of Council, 1667-1688, 309.