Commentaries on the Constitution of the United States (1833)
by Joseph L. Story
§ 103. THE province of Maryland was included originally in the patent of the Southern or Virginia company; and upon the dissolution of that company it reverted to the crown. King Charles the First, on the 20th June, 1632, granted it by patent to Cecilius Calvert Lord Baltimore, the son of George Calvert Lord Baltimore, to whom the patent was intended to have been made, but he died before it was executed.1 By the charter, the king erected it into a province, and gave it the name of Maryland, in honour of his Queen, Henrietta Maria, the daughter of Henry the Fourth of France, to be held of the crown of England, he yearly, for ever, rendering two Indian arrows. The territory was bounded by a right line drawn from Watkins’s Point, on Chesapeake bay, to the ocean on the east, thence to that part of the estuary of Delaware on the north, which lieth under the 40th degree, where New England is terminated; thence in a right line by the degree aforesaid to the meridian of the fountain of Potomac; thence following its course by the further bank to its confluence with the Chesapeake, and thence to Watkins’s Point.2
§ 104. The territory thus severed from Virginia, was made immediately subject to the crown, and was granted in full and absolute propriety to Lord Baltimore and his heirs, saving the allegiance and sovereign dominion to the crown, with all the rights, legalities, and prerogatives, which the Bishop of Durham enjoyed in that palatinate, to be held of the crown as of Windsor Castle, in the county of Berks, in free and common soccage, and not in capite or by knights’ service. The charter further provided, that the proprietary should have authority by and with the consent of the freemen, or their delegates assembled for the purpose, to make all laws for the province, “so that such laws be consonant to reason, and not repugnant or contrary, but, as far as conveniently might be, agreeable to the laws, statutes, customs, and rights of this our realm of England.”3 The proprietary was also vested with full executive power; and the establishment of courts of justice was provided for. The proprietary was also authorized to levy subsidies with the assent of the people in assembly. The inhabitants and their children were to enjoy all the rights, immunities, and privileges of subjects born in England. The right of the advowsons of the churches, according, to the establishment of England, and the right to create manors and courts baron, to confer titles of dignity, to erect ports and other legalities, were expressly given to the proprietary. An exemption of the colonists from all talliages on their goods and estates to be imposed by the crown was expressly covenanted for in perpetuity; an exemption, which had been conferred on other colonies for years only.4 License was granted to all subjects to transport themselves to the province; and its products were to be imported into England and Ireland under such taxes only, as were paid by other subjects. end the usual powers in other charters to repel invasions, to suppress rebellions, etc. were also conferred on the proprietary.
§ 105. Such is the substance of the patent. And Chalmers has with some pride asserted, that “Maryland has always enjoyed the unrivaled honour of being the first colony, which was erected into a province of the English empire, and governed regularly by laws enacted in a provincial legislature.”5 It is also observable, that there is no clause in the patent, which required any transmission of the province laws to the king, or providing for his approbation or assent. Under this charter Maryland continued to be governed, with some short intervals of interruption, down to the period of the American Revolution, by the successors of the original proprietary.6
§ 106. The first emigration made under the auspices of Lord Baltimore was in November, 1632, and consisted of about 200 gentlemen of considerable fortune and rank, and their adherents, being chiefly Roman Catholics. “He laid the foundation of this province, (says Chalmers7) upon the broad basis of security to property, and of freedom of religion, granting in absolute fee fifty acres of land to every emigrant; establishing Christianity agreeably to the old common law, of which it is a part, without allowing preeminence to any particular sect. The wisdom of his choice soon converted a dreary wilderness into a prosperous colony.” It is certainly very honourable to the liberality and public spirit of the proprietary, that he should have introduced into his fundamental policy the doctrine of general toleration and equality among Christian sects, (for he does not appear to have gone farther;) and have thus given the earliest example of a legislator inviting his subjects to the free indulgence of religious opinion.8 This was anterior to the settlement of Rhode Island; and therefore merits the enviable rank of being the first recognition among the colonists of the glorious and indefeasible rights of conscience. Rhode Island seems without any apparent consciousness of cooperation to have gone farther, and to have protected an universal freedom of religious opinion in Jew and Gentile, in Christian and Pagan, without any distinction, to be found in its legislation.9
§ 107. The first legislative assembly of Maryland, held by the freemen at large, was in 1634-1635 ; but little of their proceedings is known. No acts appear to have been adopted until 1638-1639, when provision was made in consequence of an increase of the colonists for a representative assembly, called the House of Assembly, chosen by the freemen ; and the laws passed by the assembly, and approved by the proprietary or his lieutenant, were to be of full force. The assembly was afterwards divided into an upper and lower house. At the same session, an act, which may be considered as in some sort a Magna Charta, was passed, declaring among other things, that ” Holy church within this province shall have all her rights and prerogatives;” “that the inhabitants shall have all their rights and liberties according to the great charter of England;” and that the goods of debtors, if not sufficient to pay their debts, shall be sold and distributed pro rata, saving debts to the proprietary.10 In 1649 an act was passed, punishing blasphemy, or denying the Holy Trinity, with death and confiscation of goods and lands;11 and, strangely enough after such a provision, in the same act, after a preamble, reciting that the confining of conscience in matters of religion hath frequently fallen out to be of dangerous consequence, it is enacted, that no person ” professing to believe in Jesus Christ,” shall be molested for or in respect to his religion, or the free exercise thereof, nor any way compelled to the belief or exercise of any other religion.12 It seems not to have been even imagined, that a belief in the divine mission of Jesus Christ could, in the eyes of any sect of Christians, be quite consistent with the denial of the Trinity. This act was confirmed among the perpetual laws in 1676.
§ 108. The legislation of Maryland does not, indeed, appear to have afforded an uniform protection in respect to religion, such as the original policy of the founder would seem to indicate. Under the protectorate of Cromwell, Roman Catholics were expressly denied any protection in the province; and all others, ” who profess faith in God by Jesus Christ, though differing in judgment from the doctrine, worship, or discipline publicly held forth,” were not to be restrained from the exercise of their religion.13 In 1696 the Church of England was established in the province; and in 1702, the liturgy and rites, and ceremonies of the Church of England were required to be pursued in all the churches, with such toleration for Dissenters, however, as was provided for in the act of I William and Mary.14 And the introduction of the test and abjuration acts, in 1716, excluded all Roman Catholics from office.15
§ 109. It appears to have been a policy adopted at no great distance of time after the settlement of the colony to provide for the public registration of conveyances of real estates.16 In the silence of the statute book until 1715, it is to be presumed, that the system of descents of intestate estates was that of the parent country. In that year an act passed,17 which made the estate partible among all the children; and the system thus introduced has, in its substance, never since been departed from. Maryland too, like the other colonies, was early alive to the importance of possessing the sole power of internal taxation; and accordingly, in 1650,18 it was declared, that no taxes should be levied without the consent of the general assembly.
§ 110. Upon the revolution of 1688, the government of Maryland was seized into the hands of the crown, and was not again restored to the proprietary until 1716. From that period no interruption occurred until the American Revolution.19
1. 1 Holmes’s Ann. 213; 1 Chalm. Annals, 201, 202; Bacon’s Laws of Maryland, ( 1765); 2 Doug. Summ. 353, etc.
2. 1 Haz. Coll. 327 to 337; I Chalm. Annals, 202; Charters of N. A. Provinces, 4to, London, 1766.
3. 1 Haz. Coll. 327,etc.; 1 Chalm. Annals, 202; Marsh. Colon. ch. 2, p. 69.
4. 1 Chalmers’s Annals, 203, 204, 205.
5. 1 Chalmers’s Annals, 200.
6. 1 Chalmers’s Annals, 203.
7. 1 Chalmers’s Annals, 207, 208.
8. 1 Chalmers’s Annals, 213, 218, 219,363.
9. Walsh’s Appeal, 429, Note B.
10. Bacon’s Laws of Maryland, ch. 2, of 1638; 1650, ch. 1; 1 Marsh. Colon. etc. ch. 2, p. 73; 1 Chalm. Ann. 213, 219, 220, 225.
11. 1 Chalm. Annals, 223,365; Bacon’s Laws of Maryland, 1649.
12. Bacon’s Laws of Maryland, 1649, ch. 1; 1 Chalmers’s Annals, 218, 219, 235.
13. Bacon’s Laws of Maryland, 1654, ch. 4; Marsh. Colon. ch. 2, p. 75; Chalm. Ann. 218, 235.
14. Bacon’s Laws of Maryland, 1702, ch. 1.
15. Bacon’s Laws of Maryland, 1716, ch. 5; Walsh’s Appeal, 49, 50; 1 Holmes’s Annnls, 476, 489.
16. Bacon’s Laws of Maryland, 1674.
17. Bacon’s Laws of Maryland, 1715, ch. 39.
18. Bacon’s Laws of Maryland, 1650, ch. 25; 1 Chalm. Ann. 220.
19. Bacon’s Laws of Maryland, 1692,1716.