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CHAPTER IV

THE LEGISLATURE IN MARYLAND AND ITS RELATIONS WITH THE EXECUTIVE

The charters which the proprietors received from the crown went farther toward guarantying the existence of legislatures within the colonies than did those which created the corporations. The latter made no reference to any assembly except the general court of the company, leaving it wholly to the latter to grant or withhold the benefits of a colonial legislature. In the proprietary charters, beginning with that of Maryland, the grantees were empowered to make laws and to do so with the assent of the freemen of their provinces, and it was declared to be the will of the king that they should be called together for the purpose. But it was left to the option of the proprietor to determine when, where, and how he should exercise this power. A proprietary instruction or concession was therefore necessary to bring the legislature into existence and to continue its activity. The existence of a parliament in England did not legally necessitate the existence of assemblies in her colonies, though it greatly increased the difficulties of governing them without assemblies. Moreover, their origin is not to be found in the natural or preexistent rights of Englishmen. Like all their other organs of government, the legislatures of the provinces developed as the result of social and political causes operating upon the proprietors and in the provinces themselves. Though not original in the sense in which the executive was, events soon showed them to be instruments of government which were indispensable to proprietors as well as provincials, and about their development centre events of the greatest interest in the history of the provinces. Their study reveals the operation of forces which were to

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transform the fief and thus to open the way for the growth of modern democratic institutions. The rise of assemblies in the English-American colonies is an event of great significance in the history of the world. Its importance will be evident to any one who takes the trouble to compare events as they occurred in these colonies during the seventeenth century with the trend of institutional development at the same period, especially on the European continent.

The form of the legislature in the corporate colony was determined by the organization of the general court of the trading company from which it developed. The form of the general assembly in the province was determined by the concessions of the executive, and by the form which the executive had assumed when the legislature had reached its full development. The first step toward calling a general assembly was taken by the proprietor, who, if he was not in the province, instructed his governor to issue writs of election, with such other summonses as might be necessary. The electors to whom these writs were issued were not freemen in the technical sense of being members of a corporation, but were such in the broad and general sense which attaches to that term. In the beginning they were literally free men, but the law soon came to define them as freeholders.

When met in regular form the legislature consisted of the governor, the council or upper house, and the assembly or deputies. The latter, who were sent by the localities, constituted the only representative part of the legislature. Its other elements were, as a rule, appointed, were a part of the executive, and were in existence before the legislature met. In both tenure and functions the governor and council were legally independent both of the deputies and of the electors. They held their offices at the pleasure of the proprietor, and were or might be guided by his instructions. Engaged as they were in the permanent work of government, they would naturally be swayed by a regard for the interests of the proprietor and by some sense of administrative traditions and needs. Though a component of the legislature, the council was also the legal adviser of

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the governor and through him of the proprietor. As the governor, unless specially limited by law, had the sole power of calling, proroguing, and dissolving the general assembly, the council might advise him in such a way as to destroy the body itself or thwart its plans. The joint work of the council and assembly was subject to the veto power of the proprietor, or of both the proprietor and his governor. The legislature of the province, therefore, differed materially from the general court, though in practice this was somewhat offset by the fact that in the New England colonies the magistrates were in the majority of cases reëlected for a long series of terms. In the province, as in the kingdom, the legislature was in a sense an expansion of the executive, developed out of it, and was to an extent controlled by it. Out of this relation arose the possibility of conflict between the two parts of the legislature—that which represented the people and that which represented the proprietor.

The policy of the first proprietor of Maryland apparently was to call assemblies frequently, but to control their proceedings by retaining in his own hands the exclusive right to initiate legislation. Not until the close of the disturbed period of the Commonwealth and the restoration to Lord Baltimore of the powers, the exercise of which had been suspended at the advent of the commissioners of parliament, did the legislature of Maryland assume its final and permanent form. In its early sessions it consisted of only one house and that was variously organized. In 1658, so far as the legislature was representative, the hundred was the unit of representation; but the representative element in the body throughout those years was decidedly fluctuating. For the general assembly of January, 1638,—the earliest whose records have been preserved,—both personal writs and writs of election were issued, but the only one which has been preserved was that directed to Captain Evelyn,¹ commander of Kent island. It commanded him to assemble the freemen of that locality and to persuade such as he should think fit to attend in person; the others he should authorize either to go themselves or to elect and send deputies. It was left

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wholly to the freemen of the localities to decide how many deputies they would send, but a record of the election and of all else which was done should be returned by them to the secretary of the province. The assembly was attended by the governor and the members of the council, by the commander of Kent island and one of his council, by two other officials, together with twenty gentlemen and planters and one artisan, all of whom came in response to writs addressed to them personally. The rest of the freemen, so far as they took any action at all, sent proxies, and many of the proxies were held by officials. Those who did not appear, either in person or by proxy, were fined. On every day until the close of the session cases occur of the admission of freemen to seats; the membership roll of the assembly was never closed. The body seems not to have contained a single representative; it was substantially a primary assembly, with the governor as its president. Though summoned in a different way, it, to an extent, resembled the New England court of election.

But in the legislature of February, 1639, the above model was almost wholly abandoned. Elections were held in nearly all the hundreds, and the assembly which resulted was largely representative. Individual writs were apparently sent to only three besides the members of the council. Two were admitted without election or special writ. An enactment was passed at this session and became law, to the effect that the general assembly should consist of the lieutenant-general and secretary, of gentlemen summoned by special writ, and of one or two burgesses chosen out of every hundred. Included in a list of bills, already referred to, which failed of final passage, was one providing for triennial assemblies, and one providing that the general assembly should have within the province the same powers as the House of Commons in England.

From this time until 1650 the legislature fluctuated in its organization between the primary and the representative form, while a small proportion of the members attended in response to personal writs. The general assembly of October, 1640,¹ was almost wholly representative. It was continued in existence by successive prorogations until March,

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1642. In July, 1641, however, elections were held in Kent island and in two of the hundreds, and from one of these, Saint Clement’s, Thomas Gerard, lord of the manor, was returned in the place of Robert Vaughan. Vaughan thereupon asked “to have a voice in his own person,” but was refused. Gerard, as lord of the manor, was also summoned in person, by virtue of the proprietor’s authority to specially summon “gentlemen of able judgment and quality.” Writs of election for a new assembly were issued in January, 1642,¹ but, for some reason which is not stated, early in March they were superseded by a proclamation of the governor requiring all freemen either to attend the assembly personally or to send proxies. This was obeyed and the legislature which resulted was organized substantially as that of 1638 had been. A resolve was passed that it should not be adjourned or prorogued without its own consent, and it adjourned itself from day to day. At the close of a short session, during which it manifested some independence toward the proprietor, it was dissolved.

In July, 1642,² writs of election were issued and personal writs were sent to nine individuals. Elections were held and burgesses were returned from all the localities of the province. No proxies seem to have been sent to this assembly, except one or two by those who were personally summoned. A natural result of the adoption of this form of organization was the proposal made by Robert Vaughan in the name of the burgesses that the general assembly should be divided and the representatives sit by themselves and have a negative voice; but the governor would not agree to it. The unsettled condition of affairs was again shown when a new general assembly was called in September, 1642. Under the authority of the governor’s proclamation the proxy system was entirely restored.³ In this body there seem to have been no representatives. One hundred and eighty-two persons were entitled to seats, of whom eighteen were individually summoned, eighty-eight attended without personal summons or sent proxies, and seventy-six were fined twenty

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pounds of tobacco each because they failed to be present. The proxy system seems to have been retained until 1644,¹ or possibly a year later. Records of the sessions between April, 1644, and December, 1646, are lacking. The general assembly of the latter date, which was called by Governor Hill at Saint Inigoe’s Fort, and continued by Calvert, contained burgesses, and one would infer from the fragmentary record which remains that it consisted of two houses. It is stated that Governor Calvert, “in the upper house,” with two councillors, called the burgesses before him and assured them that they might consult as freely as in any earlier assembly. But in January, 1648, the representative system² was again abandoned, and in that body there is no trace even of personally summoned members. The general assembly held by Governor Stone in April, 1649, the one which passed the famous act concerning religion, seems, on the other hand,³ to have consisted of council and burgesses. In the proclamation by which the assembly of April, 1650, was: summoned, it was left to the option of the freemen to choose delegates⁴ or to attend personally or by proxy. All the hundreds now showed their preference for the representative system by electing burgesses. This legislature did not stop there, but as soon as it met organized in two houses and passed an act confirming what had been done. This, as it proved, committed Maryland permanently to the representative system and to the normal provincial legislature of two houses; the upper house consisting of the council, presided over by the governor, and the lower house consisting of the burgesses. Only during the brief period when affairs were administered by the commissioners of parliament did the legislature meet again in a single house.

The upper house, in its legislative as in its executive capacity, supported the interests of the proprietor. In its sympathies it represented him rather than the people of the province, and was really a projection of the executive into the legislature. It was a small body, consisting wholly of the governor’s nominees and of the proprietor’s appointees,

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all holding during pleasure. Though subsequent to 1675 the governor¹ ceased to be a member of the upper house, it was still easy for him to control it. Neither house made much use of committees till near the close of the seventeenth century, and the upper house needed them scarcely at all except for the purpose of negotiating with the lower house. The lower house contained the representatives of the freeholders of the province, and through it taxes were voted and their desires and interests found expression.

At the outset it was the intention of Lord Baltimore to control the proceedings of his legislatures, not only by his right of appointing and instructing the governor and members of the upper house, by his veto² power and the influence which he could exert in many other ways, but by retaining in his own hands the exclusive right to initiate legislation. He attempted at the beginning to exercise this power on a large scale. Whether his rejection of all the acts of the general assembly of 1635 was due to the fact that they originated with that body, we cannot tell. But he caused to be submitted to the general assembly of January, 1638,—the second legislature which met in the province,—a series of twelve bills which he desired to have enacted.³ They were read and debated, and finally, by a majority of the members, led by Captain Cornwallis, they were rejected. Only the votes of the governor and Secretary Lewger, and the proxies which they held, were cast in favor of their passage. Then the question arose, by what laws the province should be governed. Some said that they would do well to agree upon certain acts, which should be in force till they heard again from England. The governor at once denied that the assembly had such power. Captain Cornwallis then. suggested that in the interim they be governed by the laws of England. To this the governor replied that by his commission he was empowered to proceed in civil causes according to the laws of England, and in criminal causes also if they did not involve life or member. In cases of this nature he

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could proceed only by the laws of the province, and if these were lacking, great crimes could not be punished. On examining the commission, this was found to be true. In spite of the assurance from some that such crimes could hardly be committed without mutiny, and in that case they might be punished by martial law, the prospect was apparently not reassuring. When, the following afternoon, a motion was made that some bills be considered with a view to their transmission to the proprietor, the governor went so far as to advise that a committee be chosen to draft them. This was done.

When the discussion of the subject was resumed, on motion of this committee the bills sent over by the proprietor were again considered, because it was found that their rejection had been due to the existence of misunderstanding concerning them. Between thirty and forty new bills, prepared by this and a later committee, were considered along with them. The result was the passage of a considerable number of acts at the close of this session, all of which, however, were rejected¹ by the proprietor, probably as a further assertion of his claim to the right of initiative.

But before the general assembly of the next year met Lord Baltimore apparently became convinced that it was unwise, if not useless, to longer contend for the claim in the extreme form in which he had asserted it. Therefore, after organization,² the first business of that session was to listen to a letter in which the proprietor authorized the governor to assent to acts originated and passed by the general assembly, and that they should be in force in the province until Lord Baltimore or his heirs should express their dissent. An act declaring the substance of this concession as it applied to the existing assembly was at once passed. When the commission of the governor was reissued by the proprietor,³ it was made to conform to the regulation thus established.

And yet these acts, in the proprietor’s opinion, did not deprive him of a right to a share in initiating legislation, for, in 1649, moved apparently by the disturbances recently created by Claiborne, Ingle, and their Puritan supporters, he sent

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over under his great seal sixteen bills which he instructed the governor to lay before the assembly for its acceptance as perpetual laws. Among these were a number, the intent of which was to secure the right of the colonists to freedom of conscience, freedom from martial law except in camp and garrison, exemption from taxes, and especially from contributions to wars outside the province without the consent of the assembly, and freedom of trade with the natives on reasonable conditions. There was also among them an act in recognition of the royal charter, and another providing for an oath of fidelity; and the expressions “absolute lord and proprietary” and “royal jurisdiction” which were contained in these at once provoked criticism.¹ In a long letter the assembly insisted on its right and on the necessity of making a selection from among the measures which the proprietor had sent over, and adding others of its own which might be less elaborate, but, in their opinion, better suited to the condition of the province. In view of the stringent oaths which the proprietor had directed to be taken, the assembly asked to be let off with “as little Swearing as Conveniently may be.” The proprietor was also requested not to send over bodies of laws “which serve little other end than to fill our heads with suspitious Jealousies and dislikes of that which we understand not.” Instead, they urged that “some short heads of what is desired” might be sent, and they pledged themselves in dealing with these to give the governor all reasonable satisfaction. A part of the proprietor’s bills were selected—among them perhaps the one concerning religion—and others were added; the whole number was then passed and sent to England.

The reply of the proprietor to this was a long declaration,² which was laid before the assembly of 1650. In this he defended his royal jurisdiction and attributed the failure of the preceding assembly to pass all the sixteen bills to the machinations of his enemies. He offered, if the sixteen bills were passed, to release the province from one-half the tobacco duty appropriated in a recent act. But this did not have the desired effect. The assembly of 1650 substantially

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repeated the policy followed by its predecessor; a selection was made from among the bills sent over by the proprietor, and others which were initiated by the legislature were added. With this Lord Baltimore abandoned his effort, and the independence of the legislature, so far as it was possible under the Maryland system of government, was attained. Its competency for all questions of local legislation was asserted.

But before this point was reached events had occurred which reveal the extent to which the whole course of legal and constitutional development within a province depended on the relations between the legislature and the executive; in other words, on the comparative extent, at the outset or at any point along the road, of the realm covered by statute and of that covered by ordinance. The legislature of February, 1639, as we have already intimated, advanced to a stage preliminary to the third reading a large number of bills,¹ the object of which was to provide thus early a statutory basis for all the institutions of the province; to take them, so far as possible, out of the sphere of the prerogative, of custom, and the common law, and to define and guaranty them through positive legislation. Thus it was sought to guaranty the liberties of the church, the liberties of settlers as English subjects, the title of the proprietor to the lands of the province, to assure titles in general to lands and goods, to establish offices and courts and prescribe their duties, to provide official oaths, regulate fees, establish ports, and provide a system of military discipline. These elaborate measures did not then become law. Instead, a few summary enactments and such as were ineffective for the purpose were passed. The ideal, a glimpse of which had been thus revealed, was left to be striven for, chiefly by the representatives in the lower house, during the entire period of provincial government. A programme had been formulated, and the most important part of the history of the province, that part which gives the story unity and meaning, consists in the record of the efforts that were made to carry it into execution.

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Suggestions of the possible attitude of the lower house toward the executive appear in 1642. In the first session of that year, when a bill providing for an expedition against the Indians was read, the majority voted that the management of the enterprise should not be left to the discretion of the governor and council.¹ When, in the second session of that year, great opposition appeared among the burgesses to a proposed military expedition,² the governor told them that “he did not intend to advise with them whether there should be a march or not, for that Judgment belonged solely to himself as appeared by the Clause of the Patent touching the power of war and peace, but to see what Assistance they would contribute to it in case he should think fit to go.”

A temporary act had been passed which regulated the granting of permits to leave the province. That law having expired, in the third session of 1642 Giles Brent, in obedience to the sentiment of Kent island, moved that it be re-enacted. The governor not only objected³ to any attempt being made to decide such a question in the assembly, but refused to put Brent’s motion. He declared that the freemen were not judges of the question, and, following English precedent, asserted that it was the right of all inhabitants to depart from the province, unless they were in debt or liable to punishment, or unless, for some reason connected with public safety, the proprietor or governor might temporarily, and in particular cases, overrule the right. This implied that the principle of the writ ne exeat regno should be applied to the province, and, notwithstanding a formal protest from members of the house, the contention of the governor prevailed.

Viewed from the constitutional standpoint, the most significant proposition yet made emanated from the lower house in the spring of 1660. Encouraged by a favorable turn of affairs in England, the lord proprietor had reached an agreement with Cromwell’s commissioners in Maryland, by virtue of which proprietary government was restored. Josias Fendall had been appointed governor, and Philip Calvert, a

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brother of the proprietor, secretary. It was supposed that the proprietory régime which had been interrupted nearly ten years before would now be permanently reestablished, and the proprietor had ordered the bestowment of suitable rewards in the form of land on those who had specially suffered in his cause. In imitation of the practice in Virginia, it was proposed by some that the members of the council, with a part or all of their families, should be exempted from taxation.¹ The proprietor also resolved that an export duty should be levied on tobacco. The two preceding acts of this nature had been passed in 1647 and 1649. The former provided for a duty of 10s. on every hogshead exported, and the latter, which was to continue in force for seven years, limited the duty of 10s. to that tobacco which should be exported on Dutch vessels bound for foreign ports.² But the act of 1649 did not expressly repeal its predecessor. In 1659 the proprietor instructed Fendall to procure an act levying 2s. on every hogshead of tobacco exported to Great Britain or Ireland, and 10s. per hogshead on that sent to any other ports. As the law of 1647 had not been expressly repealed, the cry was at once raised that the intention was to revive that act, and Fendall played into the hands of the opposition. More than a year previously, Thomas Gerard, of Saint Clement’s Manor, a prominent Catholic, had declared that Fendall would yield to the Puritans of Ann Arundel anything they might desire, however injurious it might be to the rights of the proprietor.³ For this he was prosecuted by the attorney-general; but, being a friend of the governor, he was not punished. The organization of the assembly which was called to consider Baltimore’s instruction concerning the export duty, and Fendall’s attitude toward the plan which it then proposed, revealed only too clearly the truth of Gerard’s statement.

The writs called for four delegates from each county, but Arundel county was represented in the assembly of February, 1660, by seven members, at the head of whom was William Fuller, the late Puritan governor. All except three

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delegates from Saint Mary’s county were opponents of the proprietor, and their election was contested, though without important result. In the upper house, the interests of the proprietor were supported by a small majority. A bill presumably embodying the instructions respecting the repeal of the act of 1647 was introduced, and that act was repealed the following year.¹

The lower house then sent to the upper house a declaration to the effect that it considered itself a lawful assembly, without dependence on any other power in the province, and the highest court of judicature therein, and if any objection could be made to this they desired to hear it. The upper house inquired in return whether the paper was addressed to the council as the executive or as a part of the legislature, whether they considered themselves a lawful and complete assembly without the governor and upper house, whether they believed themselves independent of the proprietor. The lower house in reply to this desired a conference. In the conference Fendall, Gerard, and Utye supported the claim of the burgesses, while Philip Calvert, Baker Brooke, and Price stood by the proprietor. Fendall declared that in his opinion neither the proprietor nor his deputy should be present in the legislature or have a casting vote, and that the governor should not exercise the veto power; that laws should be passed by the freemen or their deputies, and when published should go into force till such time as the proprietor might express his dissent. Later declarations of the lower house showed that its object was to have the upper house join with it as a single chamber under the presidency of the speaker; that the speaker should have the power to dissolve the assembly, while the governor should lose his veto power and as a member of the single house should receive in its place only a double or casting vote. To this Fendall was ready to agree. But Philip Calvert absolutely refused to enter into such an arrangement for destroying the proprietor’s share in the legislature, and with Baker Brooke he left the conference.²

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For the time the lower house was left supreme. It commissioned Fendall as governor, and appointed Gerard, Utye, and Slye, the speaker of the house, as his executive council.¹ Thus a movement toward independence, similar to that which had occurred a few years before in Virginia, seemed to have succeeded. But the triumph of Fendall and his associates was short. About two months later Charles II returned to the English throne. This insured the restoration of the proprietor’s authority and the suppression of all tendencies toward a commonwealth. Philip Calvert was appointed governor and assumed office in the autumn of 1660. A council was appointed, and vigorous steps, military and administrative, were taken to prevent insurrection and to insure the reestablishment of the proprietary regime. As it was, a “mutiny” occurred among Fendall’s neighbors in Charles county, and John Jenkins, a captain of militia there, was outlawed. In response to severe instructions from the proprietor, several arrests were made among the opposition leaders, and Fendall and Gerard were sentenced by the provincial court to lose all their real and personal estate and to be banished from the province. Later, however, on advice of the council, they, as well as their less guilty associates, were pardoned, though Fendall and Gerard were forever disfranchised and forbidden to hold office in Maryland.² Fuller escaped arrest by flight, but his family continued for some years to live in Maryland. Fendall remained in the province, and, when occasion offered, continued to be a centre of opposition to the proprietor and his policy.

Reference to the account already given of the executive will suggest the points against which, during the next thirty years, the opposition directed its attacks. The influence of favoritism and privilege, as revealed in the concentration of offices in so few hands, and those so largely belonging to members of the Calvert family, was a constant source of irritation to many. The fact that the proportion of Catholics among the officeholders was much larger than their proportion among the population at large, gave an added point to the criticisms

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of the Protestant, and especially of the Puritan, element among the people. Maryland, between 1660 and 1690, was ruled by a family clique, a body which closed in and formed its ranks with great celerity after the protectorate in England and the period of civil strife within the province came to an end. The executive and the higher courts were wholly under its control. It managed the land system and military system and collected the public levies. Reference has already been made to the manifold duties of sheriffs and to their influence over elections and returns. Local government, save in a few localities, was under its control. Over the selection or removal of these officials and the determining of their policy, the colonists as such had no control, and little, if any, influence. The narrow and exclusive spirit in which, under Charles Calvert, the province was governed, strengthened in the mind of the ordinary colonist the impression that the official system was imposed from without. Its essentially monarchical or “absolute” nature was revealed in the fact that the appointing power of the proprietor and his governor, with their power to create offices, was so broad and inclusive. Until 1690 it was practically unlimited. Such legal talent as existed in the province was enlisted on the side of the government, and that strengthened the natural aversion of the farmer class to lawyers. The burden of the fee system, by which officials were mainly supported, was felt by all who had to employ their services. In many ways, besides the direct interference of sheriffs, officials could influence elections and the proceedings of the lower house. In 1671 Charles Calvert, as governor, congratulated himself much on the return to the assembly of Thomas Notley and John Morecroft from Saint Mary’s county, and the election of the former as speaker. “Now I have gott Mr. Nottly into the Chaire,” he wrote to his father, the proprietor, “I have Assured him, That with your Lordships Leave, I am Resolved to Keepe him there as longe as hee and I live together.”¹ The bitter opponent of the proprietary regime who wrote the “Complaint from Heaven with a Huy and crye,” not unnaturally declared that. Notley was one of the “instruments” with which Lord Baltimore

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worked, under the cloak of assemblies and the consent of freemen, to convert the common good to his private ends.¹ The Puritans as a body, together with some others, constituted a permanently dissatisfied element, which became active when Indian attacks and other causes made the imposition of taxes necessary.

When the assembly met in April, 1669, a communication from the lord proprietor was submitted,² stating that he disallowed a number of acts which had been passed in 1663,³ more than five years before, and which were intended to secure interests of considerable value to the people at large. At the time of their passage the governor had given his assent, and upon that they had gone regularly into force. But that assent, under the proprietary system, was only provisional, and was liable at any time to be set aside by the veto of the proprietor himself. This involved a condition of perpetual uncertainty as to the status of the laws. Only those to which the proprietor had assented could be regarded as fixed, requiring as they did an act of assembly for their repeal. But the proprietor could choose his own time for declaring his assent, and until then there was no assurance of permanency. To this evil was added another, arising from the fact that in 1668 a public levy had been raised for defence under the authority of a perpetual law and without a special vote by the freemen. Complaints were also abroad

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relating to the charges connected with the probate of wills, the fees of officials, the activity of privileged attorneys and vexatious informers, and the seizure of tobacco by sheriffs on the pretence that it was due in payment of public debts.

For these reasons the lower house came together in 1669 in a mood for aggressive action. Charles Nicholett, a clergyman, in a sermon preached before the house, held up before them the example of the Commons of England, with the liberties it had won, warned them of the sin of permission, and declared that the overburdened people expected great things from this house. For this utterance the clergyman had to crave the pardon of the house, and submit to the payment of a fine. But at the same time the assembly permitted an outsider to impeach before the upper house John Morecroft, an assemblyman, but at the same time an attorney who was in favor with the officials. The ground of the impeachment was that he was taking too many and exorbitant fees. The upper house, after hearing Morecroft’s defence, declared him innocent of the charges, and levied costs on Morris, who had impeached him, to the amount of 1422 pounds of tobacco. While the proceedings against Morecroft were in progress, the grievances to which reference has already been made were formulated by the assembly, and laid before the upper house. The latter in reply justified the conduct of the provincial authorities on all the points, as being consistent with the charter. It then resolved that it would transact business with the lower house no longer until the latter should erase from its journal the mutinous and seditious votes contained in its list of grievances. During a conference on the subject the upper house roundly declared that the assembly was not to conceive that its privileges ran parallel to those of the Commons in England, for they owed their existence to the charter of the province, and would rather take rank with the common council of the City of London; both bodies were equally bound by the terms of their charter. Presently, after examining the province charter, the assembly showed itself to be in a more submissive mood, and declared its readiness to have its journal expunged or obliterated, or their form of stating the grievances

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changed in any way, if thereby the weight of them could be removed from the province. The upper house then modified its demand, so as to require only that the complaints about the exercise of the right of veto and assent by the governor and proprietor, and about the raising of the levy the year before, should be expunged. To this the assembly agreed, the upper house on its part promising to use its influence with the proprietor to secure a limitation of certain fees and court charges. But this promise resulted at that time in nothing of importance.

In 1671, however, acts were passed which embodied some of the important features of those disallowed in 1669. These included acts for the quieting of possessions, for the enrolment of conveyances and securing the estates of purchasers, for the preservation of orphans’ estates, and for a public notary. Sheriffs and clerks were prohibited practising as attorneys before the courts. At this time also, and during the next few years, the legislature made some progress in regulating fees. In 1671 a beginning was made with the fees of coroners and clerks of the county courts. In 1676 a somewhat extended act was passed prescribing the fees chiefly of the chancellor and secretary; in part also those of the judge of probate, the surveyor-general, and deputy surveyors, sheriffs, and coroners. Two years later those of county clerks were again limited. In 1674 it was provided by law that the governor should appoint a certain number of attorneys to practise in the higher courts of the province, and others should be appointed by the commissioners of the county courts to practise in the courts of the counties. A special oath was prescribed for them, and also the maximum fees which they should take. But in the matter of fees none of these acts was exhaustive, and that question was left unsettled till a later time.¹

Throughout the period between the Restoration and the English Revolution the large powers of the sheriffs and the oppressive manner in which they sometimes exercised them were a frequent subject of complaint. Sheriffs were charged with seizing more tobacco than was due for the public levies,

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with the detention sometimes of a man’s whole crop when it was ready for export, thus unnecessarily involving great delay and loss. In 1671 a sheriff of Talbot county, and in 1676 one of Cecil county, were removed from office and punished on complaints of this character—some involving downright extortion and oppression—which were presented by the lower house. In 1676 an act prohibiting undue seizures of tobacco was passed; and two years later a proclamation was issued against the oppressive conduct of sheriffs in general, and recourse to the provincial court for their punishment was encouraged. The same year also an act was passed limiting their term to a single year, unless at its close they could produce a certificate from the justices of their respective counties that they had conducted themselves fairly and honestly in office.¹ This, however, did not wholly remove the evil.

Reference has already been made to the act of 1671, by which the proprietor secured a permanent revenue in the form of a grant during his life of an export duty of two shillings per hogshead on tobacco, one-half of which should go toward the defence of the province. It was at the same time provided that, so long as this act remained in force, no public levy should be laid except with the prior consent of the freemen in open assembly, and the act requiring that expenditures for defence should be met by levies upon the province should remain suspended. This meant that the cost of defence should be defrayed out of the revenue from the two-shilling duty, the remainder going to the support of the governor and council. In 1676 the same duty was continued to the new proprietor for life, but the disposition of it was changed when royal government was established. But, owing to the influence of the proprietor and council over the lower house, the provision that the cost of defence should be met exclusively out of the revenue of the two-shilling duty was occasionally violated. In 1675 a direct tax was voted to meet the charges of an expected war with

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the Susquehanna Indians, and the following year a similar levy was ordered for the general purposes of defence against the savages. In the last-mentioned law, however, the novel device was included, that the governor and council should summon one of the members of the lower house from each county, and one from the city of Saint Mary’s, to see that the tobacco levied was used exclusively for the purpose intended by the act. In all the appropriation acts¹ of this period, as will be shown hereafter, the objects of expenditure were specified in great detail, the budget of expenses being stated in full in each act. In the military appropriation act of 1676 the wages of officers and soldiers were designated at amounts previously agreed upon between the two houses. We also find a joint committee on accounts becoming prominent about this time.

One of the fundamental causes of difference between the lower house and the executive in Maryland arose from the attitude which they respectively assumed toward written laws as definite rules of action. The retention of power by the executive, in other words the possession by it of the opportunity to exercise discretion, depended largely on its ability to hold in check the development of statutes, of definite enactments. We sometimes see the executive in this province seeking to direct legislation in its own channels, or vigorously opposing some unwelcome bill, but more often we see it maintaining an attitude of passive resistance toward legislation in general. As we have seen, the long delays of the proprietor in expressing his final decision concerning the acts submitted to him kept the province in uncertainty as to what was law or was not law. In 1674 the suggestion of the upper house that a list of English statutes should be prepared and put into force to guide the provincial court in criminal cases, led to an inquiry as to the number of laws to which the proprietor had actually given his assent, and the lower house could find but thirty. Therefore, in 1676, an act was passed repealing 127 laws and confirming 70, with the provision that they should remain in

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force till repealed by the joint action of the proprietor and the two houses.¹ But on the plea that he was about to return to England and could not assent to any perpetual statutes without consulting his counsel-at-law, the proprietor confirmed all the acts of this session simply as temporary laws.

In consequence of this, the question was again brought up by the lower house in 1681.² Of this body Kenelm Cheseldyne and John Coode were members. It urged the passage of an act providing that a law passed by the two houses and assented to by the proprietor should be repealed only with the consent of the two houses, and also that the act of the governor in assenting to a law should be binding on the proprietor. To both of these propositions the upper house objected, to the former as useless and to the latter as dangerous, and cited Virginia, Pennsylvania, and Ireland as dependencies the governors of which did not possess the final veto power. In its reply to this the lower house, after insisting upon certain temporary and technical points, concluded with the broad statement of principle, “This house doth answer that nothing can or ought to be Satisfactory to us, or the Freemen of this Province (whom we Represent) unless we are Ascertained of the Validity force and Continuance of the Laws of this Province under which we live, and from whence we Expect protection and Safety and to the Enacting of which we have been and Still are Lyable to So much Trouble & Expence.” From the stand which it had taken in favor of maintaining the existing system, the family group which practically constituted the upper house could not be moved, though it did signify its willingness to urge the proprietor to publish his dissents in the province as soon as possible. A promise from the proprietor that, when in the future he should be absent from the province, he would have his assent or dissent to any acts published there within eighteen months after their passage, was all the lower house gained by its effort.