Land, Aubrey C.

Digital Commons @ UM Law

Maryland Law ReviewVolume 20 | Issue 2 Article 4Lord Baltimore and the Maryland County CourtsAubrey C. LandFollow this and additional works at: http://digitalcommons.law.umaryland.edu/mlrPart of the Legal History, Theory and Process CommonsThis Article is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted forinclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contactsmccarty@law.umaryland.edu.Recommended CitationAubrey C. Land, Lord Baltimore and the Maryland County Courts, 20 Md. L. Rev. 133 (1960)Available at: http://digitalcommons.law.umaryland.edu/mlr/vol20/iss2/41960] EARLY MARYLAND COUNTY COURTS 133Lord Baltimore and the Maryland County CourtsAuBmEy C. LAND *Anyone who leafs through that curious collection ofdeath warrants, ship registries, and like miscellaneaknown as the Commission Records cannot fail to be struckby the unusual appearance of the twenty-third folio. Here,on 4 August 1733, a clerk entered in the usual way a newcommission of the peace for Talbot County. But theentry itself is not at all ordinary. The striking feature ofthe page is a dramatic bracket that encloses the quorum ofthe court, no less than seventeen persons in all, headed by"The Honble Charles Calvert." Altogether the commis-sion names the extraordinary number of twenty-two per-sons as justices of the Talbot County court.Now everyone familiar with the county court sessionsof the eighteenth century knows perfectly well that noinstance can be cited from the records of twenty-twojudges, or for that matter of even two-thirds that number,sitting at a meeting of the court. To our surprise, then,we add a puzzle. Nor is the puzzle made clearer whenwe scrutinize the quorum, for here we find that the firsteleven members of this panel were also members of LordBaltimore's Council of State and that they are set downin the commission in exactly the order of their rank ascouncillors. This unexpected result suggests no solution toour mystery, unless perhaps that a clerical error has oc-curred. But this easy answer is ruled out by the succeed-ing folios. One by one for each county of the province anew commission of the peace is recorded, every onebeginning with the oversize quorum, each quorum con-taining all and several the members of the right honorable,his Lordship's Council of State.'These are the facts. Taken with the obvious inferences,they add up to a statement of the case about like this:At some time before 4 August 1733 the Lord Proprietorand his advisers had decided to make all the councillorsex officio members of all twelve county courts. Between4 August and 28 August his governor, Samuel Ogle, issuednew commissions for the counties to implement this policydecision. But still we have been told nothing we really* Professor and Chairman, History Department, University of Mary-land; B.Ed., Southern Illinois University, 1934; M.A., State University ofIowa, 1938, Ph.D. 1948.1Commission Records, 1726-1786, Maryland Hall of Records (herein-after cited MHRecs.) folios 23-26.MARYLAND LAW REVIEWwant to know about this extraordinary procedure. DidBaltimore expect his councillors- the gravest andweightiest persons in the province - to do regular judicialduty on the county benches? If he did, what was hisobject? Did his plan, whatever it was, work at all and ifso, what were the results? How long did this arrange-ment continue? And finally why have we not heard of itbefore?Only the last three of these questions can with anycertainty be answered from evidence now before us. Theaddition of the Council to the quorums of the countycourts lasted until the province overthrew the proprietaryestablishment at the time of the Revolution.2 This was,then, a permanent alteration in the constitution of theMaryland judiciary. The discernable results of this recon-stitution of the judiciary were, as we shall see, quitenegligible. Partly because the arrangement was barrenof results it has not figured in general works of history.But more lamentably we are not informed on this, andmany similar matters of interest, because the legal andjudicial history of colonial Maryland has not yet beenwritten.' To the other questions- Lord Baltimore's pur-pose and expectations - only partial and not altogethersatisfactory answers can be given at this time.In the lack of direct information on the origin andobject of this scheme there are some bits of evidence thatmay be admitted to this hearing, evidence that is, I think,sufficiently material to create a strong supposition thatLord Baltimore had devised what was essentially a court-packing scheme. The earliest shreds that we can pick upcome from the day of Governor John Seymour nearly ageneration before, back in the days of royal rule.John Seymour (1704-1709) may not have been thefirst governor of Maryland to clash with the county courts,but he was the first to formulate a definite plan for tamingthem. In his eyes the administration of justice was shotthrough with favoritism and, even worse, with indifferenceto the Queen's peace and good government. He found thejudges deaf to his exhortations to mend their ways and2 Talbot County Civil Judgments, 1770-1773, MHRecs., March Court, 1773.8 Judge Carroll T. Bond's admirable introduction to the first volumeof the American Legal Records comes nearest to providing an overallview, BOND, PROCEEDINGS OF THE MARYLAND COURT OF APPEALS, 1695-1729(1933). Limited periods and special aspects are treated in SAMS ANDRILEY, THE BENCH AND BAR OF MARYLAND (1901), SEMMES, CRIME ANDPUNISHMENT IN EARLY MARYLAND (1938), and in the introductions tocourt series in the ARCHIVES OF MARYLAND (vols. IV, X, XLI, XLIX, LI,LIII, LIV) (hereinafter cited ARCHIVES).[VOL. XX1960] EARLY MARYLAND COUNTY COURTS 135powerful in their resistance to his efforts to purify thejudicial branch. His letters to the Board of Trade atWestminister, filled with denunciations of "country borne"justices and their obstructionist ways, disclose an ingeniousplan to clip the wings of the justices of the peace. Verysimply Seymour proposed for each Shore a circuit courtcomposed of learned, tough-minded judges selected by thegovernor to hold assizes in the counties for hearing themore important cases that ordinarily would have beendecided at the quarterly session of the county court.These hand-picked itinerant judges, Seymour predicted,would allow no nonsense in their courts. They would give"handsome, and regular charges to the Grand Jurys ofInquest" and generally teach the commonalty "their Dutyto the Queens Matye. '4Seymour's reading is understandable. As governor herepresented the crown and thought in terms of royalauthority exercised for the welfare and good order ofsociety. From this point of view his solution to the prob-lem of the administration of justice was by no meansunsuitable. But there were other views, the conceptionsprovincials held of their own welfare. And these Seymoureither ignored or failed to see.Whatever limitations his position and outlook imposedon his vision, Seymour did clearly perceive the importanceof the county courts in the Maryland scheme of things.Not only were the county courts closest to the everydaylife of provincials, they were also vested with functionsand duties that made them the focus of local government.Beside hearing several dozen civil and criminal cases thecourt did an astounding amount of other business, so muchin fact that we are mystified to discover how it was alldischarged in a three- or four-day session. During thesession the justices appointed constables of the hundredsand overseers of thoroughfares, committed the poor andorphans to responsible citizens, examined and paid bountyclaims for destruction of wolves, squirrels, and crows, de-termined the county levy, fixed prices of accommodationsat public houses, gave necessary orders of keeping therecords - especially the vital land records - in its custody,and over the years assumed the authority of licensingtaverns and ferries. It is possible that the justices oftenlacked formal training, as Seymour charged, but that theywere ignorant or without ability we can hardly believe.ISeymour to the Board of Trade, 10 March 1709, AROHIVES, XXV,296-270. See also same to same, 10 June 1707, ibid., 263.MARYLAND LAW REVIEWNor were they inconsiderable persons in either propertyor prestige. Indeed, if we rule out a dozen or so higherofficials in the great offices of state and a handful ofwealthy Roman Catholics ineligible for public service, thejustices of the county courts were the substantial plantersof their neighborhoods. Very frequently their neighborselected them to the parish vestries and chose them asdelegates to the lower house of the Maryland assembly,adding to their prestige and power. Altogether thejustices of the peace were personages in the eyes of thecitizenry that converged on the county seats for courtsessions and made court days the busiest, most colorfulof the year prosecuting suits, selling crops, trading land,talking politics, gossiping, drinking, and - occasionally-fighting. This was the life of tidewater Maryland inSeymour's day and, whether the governor liked it or not,the inferior court judges were articulated to it and ex-pressed its imperatives.Seymour got his plan in operation. The assemblymendid not approve of itinerant justices, at least for the endthe governor intended them to serve, but Seymour ignoredtheir objections and established the new courts by preroga-tive action., Their life proved short, however. The assizesdid not long survive the founder, who died in 1709. Theyhad never been popular with the country justices and fewother provincials mourned their disappearance, certainlynot the planters whose representatives within a few yearswere acting in such concert in the elective house of theassembly that they earned the name "country party."6In the decade 1720-1730, the country party stood Sey-mour on his head. Led by a small band of expert attorneys,the country party developed its own program for super-vising the courts, not in the interests of English authoritybut of the country. The crown had in the meantime re-stored the province of Maryland to the Lords Baltimore,who now bore the full brunt of country party attacks.Smarting under a severe depression in the tobacco trade,militant representatives of Maryland planters assaulted thepalatine authority of the Lord Proprietor for ten years.They threatened to reduce the fees which provided allproprietary officers their income. They denied his Lordship'sright to collect certain export duties on tobacco. FinallyrSeymour's speech opening the spring session of 1707, ARCHmVES,XXVII, 4-5.0 Several features of the Seymour assizes deserve elaboration. Thisinstructive episode will be given fuller treatment in a forthcomingarticle.[VOL. XX1960] EARLY MARYLAND COUNTY COURTS 137they even questioned Baltimore's authority to veto actspassed by the assembly. The more aggressive spokemenof the country party demanded the introduction of Englishstatute law into Maryland and preached political solutionsto their economic ills- crop quotas, paper money, andthe like. And they continually eyed the Maryland courts.Scarcely a year passed without a demonstration of countryparty determination to divorce the courts from proprietarycontrol. At session after session delegates to the assemblyformulated oaths binding Maryland judges to disregardinstructions from higher authority in the administrationof justice and to follow the law.7 The noise they createdemphasized the importance of the "court question" in theseyears when major constitutional problems were debated.The echoes in England focused official attention on thebattle between Lord Baltimore and his faithful tenants inMaryland. Baltimore's secretary feared that the ministrymight even go to the length of taking the province backunder crown control.In the end Charles, Lord Baltimore, made a personalvisit to Maryland to settle the constitution on the spot andthus to end the noisy debate. Whatever the citizenrythought of the Lord Proprietor's actions in 1732-33 whilehe was in the province, Baltimore himself was surelyentitled to regard his accomplishments with satisfaction.First of all he removed from debate in the assembly mostof the negotiable issues. He established by proclamationtables of fees for payment of chief officers in the pro-prietary government. He ordered the collection of exportduties which the assembly claimed unauthorized. Hereorganized the system of collecting his quit-rents. Allthese actions were naked exercise of the prerogative. Inthe second place Baltimore projected a renovation of theproprietary staff in Maryland. Many of the recruits whoshortly afterward took office proved to be the ablestlieutenants ever to serve the Lords Baltimore in the cen-tury and a half of Maryland colonial history.'Charles, Lord Baltimore, was never one to make recordsof his doings, let alone give reasons for them. Even forthe most important matters historians must depend onhis actions as reported by contemporaries to tell nearlythe whole story. For the rest inference must suffice.I This constitutional struggle is discussed at length in LAND, DULANYSOF MARYLAND (1955), 62-85, and BARKER, BACKGROUND OF THE REVOLUTIONIN MARYLAND (1940), 117-139.8 Baltimore's visit is also discussed at greater length in LAND, DULANysOF MARYLAND (1955), 125-132, and BARxER, BACKGROUND (1940), 134-139.MARYLAND LAW REVIEWUndoubtedly the court question came up for discussionwithin the inner circle of proprietary advisers. The ques-tion was of first importance and had been debated be-tween proprietor and province in the bitterest verbal battleof the century. Consequently, it was not one to meddlewith unwarily or lightly. The presumption is strong thatBaltimore, after deliberating with his advisers, determinedto add the whole membership of his Council of State toeach of the county benches. Actual performance of thistask he left to his viceregent, Governor Samuel Ogle, astaunch supporter of the proprietary prerogative. In earlyAugust, 1733, Ogle began issuing the commissions.Again we are left to conjecture when we inquire intothe motives for this alteration of lower court panels. DidBaltimore expect that the councillors would regularlytake their places as senior justices - and, of course, as pre-rogative men - at county court sessions? Or did he regardthis "court packing" merely as a reserve weapon, a threatto any intransigeant county bench that the local justiceswould be outvoted unless they mended their independentways? Or did he perhaps hope that occasionally a coun-cillor would attend the court sessions in his home countyand thus bring along a breath of that superior learning,as well as the sense of duty to authority, that Seymourhad once found conspicuously lacking among the inferiorjudiciary?Unfortunately the record tells us little, for the resultsof this unusual proceeding were all but negligible. In thefirst trial of strength between the agents of the newproprietary dispensation and the county courts the courtspacking machinery, if court packing was intended, failedto operate. Late in 1733 Daniel Dulany, newly appointedAgent and Receiver General, began a campaign to re-cover all and sundry the rights and prerogatives of LordBaltimore usurped by the country courts. At the Novem-ber court in Baltimore County Dulany served notice onthe justices that his Lordship had decided to resume his"ancient and undoubted" right of issuing all ferry licensesin the county and warned them against granting licensesas they had customarily done there several years pastYA court properly packed with councillors should have re-turned a submissive and entirely satisfactory answer. Atthe session that took Dulany's letter under considerationnot a single councillor appeared on the panel of justices.OCourt Proceedings of Baltimore Oounty, Liber H W S No. 9, folios126-127.[VOL. XX1960] EARLY MARYLAND COUNTY COURTS 139And the court behaved most intractably. Not only did thejustices deny Baltimore's claim to sole authority overferry licenses but vigorously asserted "the undoubted rightof this court" to license all such public necessities. More-over in framing their reply they ignored Dulany, theAgent and Receiver General, entirely and sent the minuteof their action directly to the governor.1°There are excellent reasons why Lord Baltimore shouldnever have expected his councillors to add attendance atthe county courts to their schedules. Besides their legis-lative duties as members of the upper house during assem-bly time and as the governor's advisers when called to-gether as the Council of State at other times, all of themwere men of large affairs - planters, merchants, landspeculators, entrepreneurs. Regular court duty would havemade almost intolerable demands on their leisure. At anyrate they were conspicuously absent, at least as justices,from sessions of the county courts. The practice of addingthe councillors to the county benches in the commissionscontinued, but the records themselves suggest that thepractice shortly became a mere formality. After 1735 thecommissions of the peace were directed "To all the mem-bers of his Lordship's council" and to specified localjustices - the only persons actually named - who wouldactually preside."The date is significant. By 1735 the constitutional crisisthat had brought Baltimore from the pleasures of Londonto the capital of his palatinate had passed. Resistance andcriticism were never entirely suppressed. But until theyears immediately before the Revolution the proprietaryregime did not face dire threats to its existence. Evidentlythe Maryland establishment had not seen fit to employthe weapon provided by the new commissions of the peaceon such side issues as the licensing of ferries. After 1735no emergency sufficiently ominous arose to call the coun-cillors out to the county seats.Now if it is asked whether any councillor ever sat ascounty justice, the answer must be yes. A single instanceredeems the record from blankness. 2 In 1748 at the firstmeeting of the court in newly-organized Frederick County10 Ibid. The Dord Proprietor never succeeded in making good hie claimin the face of provincial determination expressed by the courts and Inthe assembly. GOULD, MONEY AND TRANSPORTATION IN MARYLAND, 1720-1765, Johns Hopkins University Studies in Historical and PoliticalScience, XXXIII, 139-142.1 Commission Records, 1726-1786, pa88iM.12 If there are other instances I have not found them while turning thepages of these stately old libers.140 MARYLAND LAW REVIEW [VOL. XXDaniel Dulany the Elder attended the session. By virtueof his rank as councillor he took precedence over the otherjudges present and sat at this and several subsequentsessions as Chief Justice. His long experience as judge inadmiralty and in the testamentary court enabled him toexpedite organization of the new county court and to getthe judicial business at Frederick Town well started. Itis only fair to add that Dulany had private motives, onlyremotely connected with the Lord Proprietor's welfare, forgoing to Frederick County as a judge."3 Even so, thisunique instance rescues the curious judicial arrangementof Charles, Lord Baltimore, from barren results.Is LAND, THE DULANYS OF MARYLAND (1955), 195-197.

Lord Baltimore and the Maryland County Courts

Abstract

Similar works

Full text

Available Versions

Digital Commons @ UM Law

NELLCO Consortium Legal Scholarship Repository