Writing It All Down: The Art of Constitution Making for the State and the Nation, 1776-1833

Archives of Maryland Documents for the Classroom
Maryland State Archives
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The Maryland Constitution - 1776

by H.H. Walker Lewis

The Maryland Constitution of 1776 was one of the least revolutionary documents of that revolutionary period. Its frame of government was designed to perpetuate the existing social order minus Crown and Proprietary. It was also remarkable in another respect. It was drafted with great expedition and apparent unanimity by a committee of seven, all of whom had been trained in the law.

In Maryland, unlike some of the other colonies, the American Revolution was not a class war. Patriotism, or the lack of it, was not a matter of affluence, and the change from Proprietary to State government was effected with little social turmoil. It approached the ideal stated by John Adams in a letter of April 16, 1776, to Mercy Otis Warren:

No other colony effected the transition with less turbulence.

Three factors were principally responsible: (1) the quality of the leadership, furnished mostly by lawyers; (2) the personality of the last Proprietary Governor, Sir Robert Eden; and (3) the conditions created by the Proprietorship.

The Proprietorship

The Proprietary charter granted in 1632 by Charles I to Cecil Calvert insulated Maryland from direct control by the British Government. Provincial officials were appointed, not by the Crown, but by the Proprietor. Also, the charter purported to exempt the colony from British taxes. By the beginning of the Revolution, this insulation had been considerably eroded. Nevertheless, Maryland was a proprietorship at the time of the Revolution. Accordingly, the governmental grievances that mattered most were directed against the Proprietor rather than against Parliament, creating a materially different situation from other colonies.

On some of the earlier colonial issues, the Proprietary officials sided with the colonists. Indeed, the strongest and most effective American attack against the Stamp Tax was that mounted by the Secretary of the Province, Daniel Dulany the younger. Entitled "Considerations on the Propriety of Imposing Taxes in the British Colonies for the Purpose of Raising a Revenue by Act of Parliament," [ 2 ] it was widely read in England as well as in America, and was the ablest of all such documents. In addition to being a high-ranking Proprietary official, Dulany was the leading lawyer in Maryland, and perhaps in all America.

Constitutions stem from grievances. Bills of rights furnish the clearest example of this, but any new frame of government necessarily reflects the defects of the old. In writing the 1776 Constitution the grievances most important to the draftsmen, and therefore to us, were those against the Proprietorship. In addition, it was these that created the strong opposition party that led Maryland through the transition period.

The party division in Maryland was between those who owed their livings to the Proprietary and those who did not. The former, though powerful, were a small minority, and their ultimate withdrawal from the political scene caused little disruption. Their opponents, on the other hand, grew steadily in numbers, organization, and leadership. By the time of the final crisis and breakdown, they were in a position to take over the running of the Province, and did.

The shift was gradual and without convulsion. For more than a year before the Declaration of Independence two governments functioned side by side, each wary of the other and anxious to avoid open conflict, the one inexorably gaining strength, the other fading.

In the light of other colonial events the local situation was fraught with danger and could have become explosive. That it did not was a triumph of leadership, and major credit must go to lawyers, including individuals trained in the law as well as those in active practice. Forming the nucleus of the "Country Party," so named to distinguish it from the Proprietary or "Court Party" centered in the City of Annapolis, they had been drawn together by common grievances extending back some thirty years. They had gained domination of the lower house, or House of Delegates, in the Provincial Assembly. From this they moved into control of the revolutionary Conventions and then furnished the leadership in the organization of the new State.

Except for the Governor, the dominant leaders of the Court or Proprietary Party were Marylanders. Led by the Dulanys, [ 3 ] they held the principal offices in the government and made up the Governor's Council that formed the upper house of the Assembly. They were bound to Maryland by ties of family and self-interest. When the crisis came, two members of the Council, George Plater and Daniel of St. Thomas Jenifer, joined the leadership of the Country Party. Equally important was the tact and pleasing personality of the Governor, Sir Robert Eden, who set the tone of the Proprietary Government during the transition.[ 4 ]

Sir Robert owed his post to nepotism. He was the brother-in-law of Frederick, the last of the Lords Baltimore and a dismal remnant of the great line of Calverts. Eden was without prior training in government. He had been an army officer in one of the royal regiments in which commissions were bought rather than earned, and his tastes had run to high living. Nevertheless, he proved the perfect person for the post. Humorous, gracious, and likable, he mixed easily with Marylanders of both parties. He participated with enthusiasm in their hilarious goings on in the Homony Club, [ 5 ] a semi-intellectual group that wrote bad poetry, played jokes on each other, and had fun generally. He entertained with ease and without formality.

Perhaps too much so, if we may believe the gossip that Charles Carroll of Carrollton relayed to his cousin, Charles Carroll, Barrister, while the latter was on a trip to England. In a letter of August 9, 1771, he wrote:

Eden possessed to a remarkable extent two of the greatest of all public virtues, tolerance and common sense. At the height of the crisis he wrote the Earl of Dartmouth, British Secretary of State for the Colonies:

For contrast we need only look next door to Lord Dunmore, Royal Governor of Virginia. When opposed, he had arbitrarily seized the colonists' gunpowder, promised freedom to their slaves and indentured servants, and conducted a campaign of arson and pillage against the plantations that could be reached by his fleet.

The Country Party

Patriarch and recognized leader of the Country Party at the time of the Revolution was Matthew Tilghman (1718-1790), whom J. Thomas Scharf in his History of Maryland characterized as "one of the richest and worthiest citizens that Talbot County has ever known." [ 8 ] Without formal training in the law, he had been a justice of the Talbot County Court for more than thirty years. He had served almost as many in the Provincial House of Delegates and was Speaker in 1773 and 1774, the last two years of its existence. He presided over five of the seven Conventions that gradually took over the government of the Province from 1774 to 1777, including the one that created the Constitution of 1776. In addition, he was a delegate to the Continental Congress, and was on most of the important revolutionary committees in Maryland, including the one that drafted the new Constitution.

At the time of the Declaration of Independence, Tilghman was 58 and belonged to an earlier generation than most of the other revolutionary leaders in Maryland. Closest to his age in the group that drafted the Constitution was his son-in-law, Charles Carroll, Barrister, five years his junior. At the core of the revolutionary leadership were the individuals we will meet as members of this group. All of them were lawyers or trained in the law. Those other than Tilghman, and their ages at the time of the Declaration of Independence, were:

The two Charles Carrolls have often been confused, a mistake compounded by the fact that each was the son of another Charles Carroll, and that all four maintained residences in Annapolis. As they played key parts in the creation of the Constitution, it seems desirable to differentiate them at the outset.

Charles Carroll, Barrister, [ 9 ] received this appellation because he had been admitted to the English bar in 1754 after study at Cambridge University and the Middle Temple in London. His father, Dr. Charles Carroll (1691-1755), had at one time been a physician and for fifteen years was a leader of the Country Party in the House of Delegates. Upon his death, the Barrister was elected in his place, and became, like him, a staunch and able opponent of the Proprietary, although a friendly one. Both had given up the active practice of their professions and had prospered as merchants and investors. Among their profitable ventures was an interest in the Baltimore Iron Works, operated in partnership with the other Carrolls and the Dulanys.

The two Carroll families were distantly related, but upon coming to America Dr. Charles had renounced the Catholic faith that they had shared in Ireland, and had become a Protestant. As a result he and his son were not disqualified from holding office and taking an active part in political life. Among other things, the Barrister presided over the Maryland Convention of May 8, 1776.

Although trained in the law, the Barrister once seriously ruffled the feathers of Colonel John Tayloe of Richmond by asking him to forward a claim to some honest attorney, "if any such there be." The Colonel expressed such indignation at this slur on his fellow Virginia lawyers that the Barrister tried to placate him by writing: "When I hinted at the honesty of Attorneys, I assure you I did not intend to apply it to those of Virginia only but to our whole fraternity." [ 10 ] We doubt that the Colonel was mollified.

Charles Carroll of Carrollton [ 11 ] used the name of his estate in Frederick County to differentiate himself from other Carrolls. He even signed himself this way in letters to his father, who for a like reason was sometimes known as "of Doughoregan," the family estate outside of what is now Ellicott City. Like the Barrister, Charles of Carrollton had studied abroad and had attended the Middle Temple, but he had not been admitted to the bar. As a Catholic he was disqualified from voting, holding office, or practicing law in Maryland prior to the Revolution, and he did not practice thereafter.

The other members of the Committee that drafted the 1776 Constitution were also lawyers or trained in the law. Like most members of the bar of that day, they engaged in farming and other income-producing activities. This was fortunate, as during much of the Revolution the courts were closed and the pickings from practice were slim. They were an able and distinguished group. Three were signers of the Declaration of Independence (Charles Carroll of Carrollton, Samuel Chase, and William Paca); three later became governors of Maryland (Johnson, Paca, and Plater); and two became justices of the U.S. Supreme Court (Johnson and Chase).

Proprietary Grievances

[ 12 ]

The grievances against the Proprietorship not only explain some of the provisions of the 1776 Constitution but, what is even more important, help us to understand the influences that united the Country Party, and the Province behind its leadership. Without such unity and leadership, it is idle to think that the 1776 Constitution could have been adopted with so little turmoil and on such conservative terms. At the time with which we are concerned, the major grievances fell into two categories: (1) the exorbitance of the fees charged by Proprietary officials for governmental services; and (2) the poll taxes collected from all inhabitants, regardless of religious belief, for the support of the clergy of the Church of England.

Proprietary Fees

Proprietary officials were paid by fees on the transactions of their offices, including real estate activities, tobacco inspection, control of shipping, execution of documents, the collection of Proprietary dues and rentals, etc. With the growth of the colony the volume of transactions multiplied, and fees that originally may have been reasonable came to yield an excessive renumeration. The offices became plums that the Proprietor could hand out to his favorites or use to purchase the loyalty of local leaders, such as the Dulanys.

The situation was aggravated by the deterioration of the later Lords Baltimore. They were absentee landlords primarily interested in squeezing the greatest possible profit from the Province. Quality hit bottom with Frederick, the Sixth Lord, who ruled the Province during the critical period from 1751 to 1771 and upon his death transferred the succession to his illegitimate son, Henry Harford. Under them the financial burden grew beyond reason, making Maryland one of the most heavily taxed of all the colonies.

The House of Delegates, elected by local freemen, asserted legislative power over all fees and taxes. This was disputed by the Proprietor. In any event, affirmative action by the House could be negated at any one of three levels: by the Council, which was appointed by the Proprietor and acted as the upper house in the Assembly; by the Governor individually; and by the Proprietor. Once a tax law or fee schedule got on the books, there was nothing the House could do about it over the objection of the others unless and until it expired, if it ever did.

Despite its subordinate role, the House of Delegates possessed considerable bargaining power. Laws could not be enacted without its participation, and when the Proprietor or the Council wanted something the House could demand concessions. In 1747, when a tobacco inspection law was found essential in order to place Maryland in a competitive position with Virginia, the House forced a reduction of official fees and poll taxes as the price of cooperation. In 1770 this law expired and the House sought to exact a further reduction. This time the Governor refused. Instead, he sent the House members home, as was his right, and then reinstated the existing fee schedule by proclamation.

At stake was the cherished principle that British citizens could not be taxed without their consent or that of their elected representatives. It was this issue that triggered the final great crisis in Proprietary affairs just prior to the Revolution.

The Poll Tax

The 1702 law establishing the Church of England in Maryland divided the Province into parishes and entitled the rector of each to forty pounds of tobacco annually from every resident. This was payable as a poll tax and was collected by the sheriff under the penalties of the law, including imprisonment for non-payment. At the time of the Revolution there were forty-four parishes and the more populous yielded a princely sum.

The tax was not limited to members of the Church of England. It extended to Puritans, Catholics, Quakers, Mennonites, and others; even to atheists, if there were any such. To be forced to support religious beliefs and practices that they detested was gall and wormwood.

Nor were the recipients of this largesse always beyond reproach. In 1714 Governor Hart wrote the Bishop of London, who had jurisdiction over the Church in America, that while there were some worthy persons among the clergy of Maryland, "I am sorry to represent to your Lordship that there are some whose education and morals are a scandal to their profession." [ 13 ] Scharf in his History of Maryland refers to them by such unflattering terms as drunkards and bigamists, and states that in 1734

Time did not improve the situation. In 1753 the Rev. Thomas Cradock, rector of St. Thomas parish in Baltimore County, and one of the "worthy" ones, in urging clerical discipline, called two of his fellow clerics "monsters of wickedness," adding that one had fallen into a fire while drunk and burned to death, and another had almost certainly been guilty, though unpunished, of murdering his wife. [15]

Top performer, however, was the Rev. Bennet Allen, who had been of comfort to the Sixth Lord Baltimore during the latter's trial for rape. Allen arrived in Maryland in 1776 with instructions to the Governor to give him the best church living available. When assigned St. James' Parish, near Annapolis, yielding 300 pounds sterling a year he expressed dismay. He told Samuel Chew, head of the vestry (also, father-in-law of William Paca) that it would scarcely keep him in liquor, and added: "You have a wife, but it will cost me something considerable to enjoy the pleasures you are possessed of." [ 16 ]

At the time, the richest parish in the Province was All Saints, which comprised most of Frederick County. The westward flow of population had swollen its poll tax to the incredible sum of 1,000 pounds sterling a year. It had also made subdivision essential from the standpoint of clerical management, and plans had been made to split it. This was awaiting only the decease of the then venerable rector, the Rev. Thomas Bacon, [ 17 ] who picked this critical moment to become fatally ill. Allen, hearing of this, demanded and received the assignment of the parish while Bacon was still alive and, over the objections of the vestry took possession of the church on the day of the funeral. The following Sunday, brandishing a pistol from the pulpit, he swore to shoot anyone who tried to remove him. His militant evangelism was a sufficient deterrent. No one tried. He then betook himself to Philadelphia to enjoy the amenities of city life while a hired curate took over his parochial duties. [ 18 ]

The 1770 Impasse

The effect of the earlier legislative compromise, in 1747, had been to incorporate the official fee schedule and the poll tax into the Tobacco Inspection Law. The expiration of this in 1770, and the ensuing impasse, created a curious situation. The official fees were left without statutory sanction, whereas the poll tax reverted from the compromise rate of 30 pounds of tobacco per annum to the original rate of 40 pounds. Faced with this and the Governor's proclamation continuing the official fee schedule, there was little the House could do but seethe. Instead, the controversy moved to the public press.

The first blast was aimed at the poll tax. On September 28, 1770, someone who signed himself "Church of England Planter" issued a printed handbill attacking the constitutionality of the "Vestry Act" establishing the Church in Maryland. The clergy had been riding him "like an ass," he said, and he proposed not only to reduce the poll tax to 10 pounds but also to empower vestries to discipline, and if need be discharge, their rectors. The obvious design was to start a ruckus, and the clergy responded with zest. Scharf's History of Maryland calls it "the most exciting newspaper war that was ever known in the Province." [19]

It is within the realm of possibility that the "Church of England Planter" was one of the Country Party lawyers. In any event the legal issue was soon joined. Samuel Chase and William Paca wrote letters to the Maryland Gazette questioning the validity of the Church Establishment, [20] and then joined together in a long running newspaper debate [21] with the Rev. Jonathan Boucher, rector of St. Anne's in Annapolis and one of the most able of the churchmen. What particularly incensed the man of the cloth was that Chase and Paca were members of his vestry. He regarded them as ecclesiastical traitors and his letters grew wordier and wordier. Finally, Chase and Paca prefaced one of their thrusts with the following:

It was a high-toned controversy, but as might be expected, the lawyers ran out of words long before the man of God.

Later, in 1774, a test case was taken to court by Joseph Harrison, a delegate from Charles County. [23] Upon his refusal to pay the poll tax he was arrested and threatened with imprisonment by Richard Lee, Sheriff of the County, whom he then sued for sixty pounds damages. The jury brought in a verdict for the amount asked. Chase, Paca, and Johnson represented Harrison, and the Sheriff was represented by Thomas Stone, later to be a signer of the Declaration of Independence. It is not often that a single case has boasted counsel who later were to provide three Signers, two governors, and two Supreme Court Justices.

Chase and Paca were close in age and had become friends while studying law in Annapolis. In his 1831 Historical View of the Government of Maryland, John V. L. McMahon tells us that

Johnson and Paca had both studied in the Annapolis office of Stephen Bordley, the leading Maryland lawyer of his day, and Paca had later continued his studies at the Inner Temple in London.

Chase was the "enfant terrible" of the group. The fact that his father was rector of St. Paul's in Baltimore and would be damaged, did not deter him from attacking the poll tax. Like Paca, he was a signer of the Declaration of Independence, and an early biographer of that group described him as "a born leader of insurrection." The Mayor and Aldermen of Annapolis phrased it somewhat differently. They denounced Chase as a "busy, restless incendiary, a ringleader of mobs, a foul-mouthed and inflaming son of discord." He returned the compliment by calling them "despicable Pimps and Tools of Power, emerged from Obscurity and basking in proprietary Sunshine." [25]

The Carroll-Dulany Debate

The battle in the press over the Governor's fee proclamation gained even greater notoriety than the poll tax outburst. It also brought to the fore, out of political obscurity, one of the Country Party's most effective leaders, Charles Carroll of Carrollton. Wealthy, well educated, incisive and charming, his adherence to the Catholic faith had excluded him from the practice of law and from politics. But he could write, and he did so now, at white heat. His opportunity came when Daniel Dulany sought to overpower opposition to the fee proclamation with a cleverly concocted dialogue between a "First Citizen" and a "Second Citizen." In vaudeville parlance, the First Citizen was a "straight man." He raised a series of objections to the validity of the fee proclamation, which the Second Citizen then proceeded to demolish with crushing thoroughness.

It was an able and powerful performance, and for a time after its publication in the Maryland Gazette of January 7, 1773, it seemed to have foreclosed further debate. Then on February 4 a sequel appeared in which the First Citizen returned to the fray, this time with blood in his eye. It was Charles Carroll of Carrollton, who had cunningly stepped into the shoes that Dulany had so obligingly left vacant. He argued with such verve and skill that Dulany felt compelled to reply, this time as "Antilon."

Thus began one of the truly great debates on colonial constitutional principles. It extended through eight issues of the Gazette during the winter and spring of 1773, making each a sell-out. [26] The thrusts and rejoinders are too wordy and full of learned allusions for modern taste, but at the time they aroused enormous public interest. "In the result," says McMahon

Even more important from our standpoint, the debate catapulted Carroll into a position of popular leadership.

There had been bad blood between the Carrolls and the Dulanys, leading at one time to the threat of a duel between Charles of Carrollton and Lloyd Dulany, Daniel's younger brother. [28] It must have given vast satisfaction to Charles to take on the great Daniel, champion of the Proprietary Party and acknowledged leader of the bar.

Dulany was not alone in backing the Governor. Anonymous letters stigmatized Carroll in unflattering terms such as "Jesuitical hairsplitter." The controversy also brought a letter in support of the proclamation from John Hammond, respected Annapolis lawyer and former member of the House of Delegates. This backfired. Hammond was answered by a devastating attack in the Gazette from Chase, Paca, and Johnson. Many have considered their joint letter of September 3, 1773, to be the strongest statement written on the subject.

It remained for the Revolution to end the fee controversy by eliminating the Proprietary authority to collect. But the clerical issue was compromised at the 1773 General Assembly. In exchange for House passage of the Tobacco Inspection Law, the Governor and Council agreed to a continuation of the poll tax at its reduced rate, plus a provision giving taxpayers the option to pay four shillings' in current money instead of thirty pounds of tobacco.It is difficult to determine the precise monetary effect, but the clergy complained that they had been thrown to the wolves.

Colonial Events

In part because of its preoccupation with Proprietary grievances, Maryland had remained outside the main stream of colonial protest against Crown and Parliament. The Townshend Acts, although bitterly resented elsewhere, had little local impact. But the earlier Stamp Tax and the continuation of the tax on tea aroused strong emotions. News of the Boston Tea Party inspired an Annapolis mob to burn the locally owned ship Peggy Stewart for the sin of carrying such a cargo. [29] But it was not until the British closed the port of Boston that outside events took center stage. In the words of Johns Hopkins historian, Professor Barker, when the Boston Port Act was printed in the Maryland Gazette on May 26, 1774, "the news galvanized Maryland." [30]

If Parliamentary anger could lead to such brutal punitive action, then all the colonies were in jeopardy. It unified the spirit of resistance, and when a call went out for a Continental Congress, Maryland was quick to respond. To elect delegates, the Country Party organized a Provincial Convention. It was virtually an extension of the House of Delegates and met June 22, 1774, with Speaker Matthew Tilghman in the chair. To represent Maryland in Congress it elected him, Thomas Johnson, Robert Goldsborough, William Paca, and Samuel Chase.

The Convention was wholly outside the Proprietary framework and derived its authority directly from the people. One Convention then led to another until there was a total of seven. Accreting power as they proceeded, they created and financed a militia and assembled military supplies; they set up machinery to enforce non-importation agreements; and in addition they elected a Council of Safety to exercise executive authority. Bit by bit, governmental authority was drained away from the Proprietary and into the hands of the Country Party. [31]

The process was gradual, and the leaders continued to pay deference to the Governor as the titular head of the Province. He remained in Annapolis until the eve of independence. He had the good sense not to resist forcibly what he could not successfully oppose. Mutual restraint and courtesy kept the peace, and the transition was not merely bloodless, it was amicable.

The Virginia experience was very different. There, Governor Dunmore was conducting a naval war of his own against his former subjects, attacking plantations along the Bay and rivers, burning houses, slaughtering live stock, and carrying off slaves. The Virginians fought back, and in the spring of 1776 intercepted a letter being relayed to Governor Eden from Lord George Germain in England. This thanked Eden for information he had sent to the British Government, and indicated that he was expected to assist in projected operations against the colonies. Upon reading this, General Charles Lee, who had taken command in Virginia, issued orders for Eden's arrest. So did the Continental Congress.

No Convention was meeting at the time, and these orders were routed to the Council of Safety. Instead of complying, a committee headed by Charles Carroll, Barrister, interviewed the Governor. Eden assured them that the information he had furnished to the British was not hostile, and the Committee's reaction was one of friendship for the Governor and of resentment at being ordered to imprison him. A letter written by William Eddis, aide to Sir. Robert, describes the outcome:

The Convention reassembled May 8, 1776, with Charles Carroll, Barrister presiding in place of Tilghman, who was attending Congress. On May 25 it delegated a committee to inform Sir. Robert that in the interest of all concerned his departure was absolutely necessary. Until he left on June 23 aboard the British frigate Fowey, he remained at liberty, and he was given a friendly send-off.

Independence

Until this time most of the Maryland leaders had opposed a complete break with the mother country. The prevailing hope was for reconciliation, and as late as May 21, 1776, the Convention voted unanimously to instruct its delegates in Congress to oppose a declaration of independence. Then, swiftly, the tide turned. On June 28, again by unanimous vote, the Convention authorized its delegates "to concur with the other united colonies, or a majority of them, in declaring the united colonies free and independent states."

Some have given credit for this about-face to Samuel Chase and Charles Carroll of Carrollton, the most zealous of the Maryland leaders for independence. They had been sent to Quebec on an unsuccessful mission to persuade the Canadians to make common cause with the other colonies. When they got back to Philadelphia on June 11, the drive for independence was reaching its climax, and they returned to Maryland to campaign for it. Undoubtedly they played a part in the result, but there were also other factors.

William Eddis attributed the sudden shift in Maryland opinion to a different cause. Governor Eden had boarded the Fowey on June 23, leaving his baggage and provisions ashore to be picked up the next day. During the night a deserting militiaman and some escaping servants sought refuge on the Fowey. When this fact became known their return was demanded but was denied by Captain Montague of the Fowey. Rightly or wrongly, this was attributed to Governor Eden. It was so strongly reminiscent of the hated Lord Dunmore who, upon leaving Williamsburg (also aboard the Fowey) had promised freedom to all slaves and indentured servants who would turn against their masters, that Annapolitans gathered in rage. They prevented the loading of Governor Eden's personal belongings, and he was forced to leave without them. Eddis, who was still in Annapolis, wrote:

In addition to these factors, Maryland was one of the last holdouts against the independence fever that had been sweeping the country. Its delegates in Congress had been under attack for their seeming intransigence, and there was serious concern that the Province would be left alone in its stand. Its delegates in Congress now favored united action, including Thomas Johnson and others who previously had opposed a declaration of independence. They returned to Maryland to urge it, and their combined voices carried the Convention to unanimity. [34]

The Call for a Constitutional Convention

As a corollary to independence came the need for a permanent form of government. On July 3, 1776, the Convention

It called local elections for Thursday, August 1 and appointed judges of election throughout the Province. For this purpose, Frederick County was split into three districts, soon to become Frederick, Montgomery, and Washington Counties. Each county, and each district of Frederick, was to elect four delegates. In addition, and for the first time, Annapolis and Baltimore Town were each accorded two delegates of their own, separate from their counties, bringing the total number of delegates to 76.

The property qualifications that had been in force under the Proprietary were expressly made applicable (except in Annapolis, for which there were special rules). These limited voting to male freemen over twenty-one who owned fifty acres of land or had visible property of the value of forty pounds sterling. It has been claimed that these restrictions disqualified half the otherwise potential voters. In the existing revolutionary frame of mind they caused a political uproar, especially among the militia. They felt that if they were to be asked to fight they should be allowed to vote, and they were now greatly enlarged and well organized.

When the Constitutional Convention met at Annapolis on August 14, 1776, Samuel Chase, Chairman of the Committee on Elections, reported that four of the subdivisions had rebelled against the property qualifications. An unruly crowd led by militiamen had blocked the Kent County election altogether. In the face of like demonstrations in Prince George's, Queen Anne's, and the lower district of Frederick, all taxable individuals bearing arms had been permitted to vote. In a crucial decision the Convention stood firm, and by vote of 49 to 10 ordered a new election in each such area. [35]

As it turned out, all but one of the twelve unseated delegates were returned on the second round. But the revolt was symptomatic. The voting issue split the State along economic lines and created a power base for dissent. If the long struggle with the Proprietary had not given the conservative leadership of the Country Party such strength and cohesion, it is most unlikely that it could have maintained its ascendancy. And if it had not, the results of the Convention would surely have been very different.

Next to Tilghman, the most respected of the Country Party leaders was Thomas Johnson, later to be the first Governor of the State. Charles Carroll of Carrollton, and no doubt others as well, thought his participation in the Convention indispensable. But organized opposition in Anne Arundel County had blocked his election. Instead, he was serving as a senior officer with the militia at its "Flying Camp" [36] in Frederick County.

His loss was soon rectified. On the second day of the Convention, Gustavus Scott of Somerset County (who had studied law at the Middle Temple) put through a motion to disqualify from membership in the Convention anyone thereafter accepting a commission in the "Flying Camp." Next, the Convention elected William Richardson as Colonel of the Eastern Shore battalion on duty there. As he was a delegate from Dorchester County, his prompt acceptance created a vacancy and the Convention ordered a special election on the 26th. Unsurprisingly, it chose Johnson. To qualify him there, Richardson transferred some of his own land into Johnson's name, and they exchanged places. [37]

The Opposition

Johnson's defeat in Anne Arundel County, which he had previously represented, came as a shock and was the first public evidence of the strength of the developing opposition. Its leader there was Rezin Hammond, aged thirty of Annapolis, who was also a Lieutenant Colonel in the militia. On June 26 he and his older brother, Matthias, arranged a meeting of militia representatives at which resolves were adopted in favor of immediate independence and for the preparation of a new form of government to be laid before the people of the County. They presented such a form at an adjourned meeting the very next day, in such detail as to make it obvious that it was part of a pre-arranged plan. It was published in the Maryland Gazette of July 18, 1776, two weeks before the election.

On August 1 Hammond was elected and Johnson was defeated. Thereafter, a set of "Instructions" embodying many of the provisions in the previously proposed form of government was circulated in the County and, with the help of the militia, was signed by 885 freemen. Although the Instructions were addressed to the four elected delegates by name, including Hammond, they were in reality from him to the other three: Charles Carroll, Barrister, Samuel Chase, and Brice T. B. Worthington.

As printed in the Maryland Gazette of August 22, 1776, the Instructions included the following demands, among others: that there be no property qualifications on voting by citizens; that justices of the peace, sheriffs, county clerks, and surveyors be elected by the people; that the militia elect their own officers; that all elections be viva voce (and not by ballot); that poll taxes be abolished and all money be raised by property taxes; and that tax assessors be elected annually by the people. [38]

The document was skillfully worded, and larded with proposals on which there could be little or no disagreement; for example, the preservation of the sacred rights of jury trial and habeas corpus. But to the conservative-minded it smacked of "levellers," a term that then had about as happy a connotation to property owners as "communist" now does to bank presidents.

On August 27, Barrister Carroll, Chase, and Worthington resigned from the Convention in protest. They conceded that they could not flaunt the wishes of 885 constituents, but they declined to follow instructions which they considered "incompatible with good government and the public peace and happiness." An election was ordered to fill the three vacancies, at which Chase and Worthington were returned. Charles Carroll, Barrister, was not. His successor was John Hall (1729-1797), who as a lawyer-leader of the Country Party had attended prior Conventions and had presided over one of them that Tilghman did not attend. Samuel Chase had studied law in his office. [39] The Barrister was a serious loss. [40]

As early as August 17, three days after the Convention met, Charles Carroll of Carrollton referred to the opposition in a letter to his father:

Carroll (here and hereafter "of Carrollton" unless otherwise noted) followed this on August 20 with a copy of the Anne Arundel Instructions, which he termed "the machinations of evil and designing men." [41] He attributed their acts to a desire for personal power. Their demagoguery so alarmed him that he said:

Overwrought as this may sound, it should be remembered, that mob action was not new to Annapolis. There had been riots in 1765 over the Stamp Tax, and in October 1774 the discovery of tea aboard the ship Peggy Stewart had brought a repetition. The Committee of Observation had ordered the tea burned, but the mob had demanded destruction of the ship as well. One of its leaders is reported to have told the owner, Anthony Stewart, to "burn or hang." Accepting the hint, he put a torch to his own ship. In the forefront of the mob were Rezin Hammond and Charles Ridgely, members of the Convention and leaders of the present opposition. [43]

Nevertheless, any view of Hammond, Fitzhugh and Deye as "levellers" fades upon acquaintance. Hammond's family was one of the wealthiest in Anne Arundel County. His brother Matthias built the Hammond-Harwood house, one of the architectural gems of Annapolis, and Rezin built a beautiful home, "Burleigh Manor," in what is now Howard County. At one time he owned more slaves than anyone in Anne Arundel County except the Carrolls. When he died in 1809 he left a Will freeing all of them.

Rezin's father, Philip, was noted for his rough tongue and made bitter enemies. Nor, if we can trust the historian Newton D. Mereness, author of Maryland as a Proprietary Province (1901), was he a totally exemplary character in other respects. He had been a member of the Provincial House of Delegates for some twenty years and was its Speaker when he died in 1760, but his actions led Mereness to comment:

Some of these qualities seem to have rubbed off on Rezin. [45] Either because of the enmities created by his father, or his own irascibility, he had not been accepted into the inner councils of the Country Party. He was five years junior to Chase and Paca, the youngest of the lawyer-leaders, but this would not of itself have been sufficient to exclude one of his wealth and ability. It seems probable that he developed a chip-on-the shoulder attitude and a compulsive desire for power.

Colonel William Fitzhugh, twenty-some years older than Hammond, also exhibited a thirst for political power. He had briefly been a member of the Council of Governor Eden, whom he had entertained lavishly at "Rousby Hall," his Calvert County estate on the Patuxent River. His hospitality was featured in the letters home of William Eddis. [46] Fitzhugh, a Virginian, had acquired the estate by marrying the widow of the last of the Rousbys after a courtship that is described by Charles F. Stein in his History of Calvert County. [47]

It seems that the Colonel had repeatedly proposed marriage but without success. As he was returning to his boat after the fourth rejection, a nurse appeared carrying the widow's baby girl. The Colonel snatched the babe from the nurse's arms. Dashing aboard his boat, he called to the mother that he would drown the baby unless she would marry him at once. Swooning, she did. Stein assures us that "a happy marriage ensued," and says that the baby grew up to become the wife of George Plater, a member of the Committee that drafted the Constitution and, later, governor of the State. Assuming that Carroll had heard the story, it is not surprising that he may have had reservations about the Colonel as a fellow constitutionalist.

Thomas Cockey Deye was a substantial landowner in Baltimore County and had served in the Provincial House of Delegates off and on since 1757. At the time of the Constitutional Convention he was closely associated with Charles Ridgely, also of Baltimore County, and they exerted strong political influence over the other delegates of that and Harford County. But they had not received posts of leadership and probably felt slighted.

Carroll obviously felt that Hammond, Fitzhugh, and Deye were playing up popular causes in order to build a political following. In addition, all three exhibited resentment at the dominance of the lawyer-leaders and were in the forefront of moves to regulate the legal profession. Their main delegate strength was from Baltimore, Calvert, and Harford Counties and the lower district of Frederick.

The Setting

Although the primary purpose of the Convention was to form a new government, the Convention itself was the only existing government of Maryland. As a consequence, it was constantly subjected to other urgencies. In addition, it was not only plagued by absences but met under the shadow of imminent military disaster.

On August 17, the third day of the Convention and the one on which the drafting committee was elected, Carroll wrote to his father at Doughoregan Manor:

On the 26th, the day before the draft of Declaration of Rights was submitted to the Convention, the British landed in force on Long Island, and in the ensuing attack the Maryland troops bore the brunt of the action. James McSherry's History of Maryland calls the losses "murderous," adding that "nearly half the force was annihilated. The loss in killed and wounded was 256 officers and men." [49]

On October 4 Carroll wrote:

And on October 10, the day the Convention started its detailed consideration of the Declaration of Rights, he said:

It would take something of an optimist to consider such an atmosphere conducive to calm deliberation.

The Convention

The Convention assembled August 14, 1776, and promptly elected Matthew Tilghman as president and Gabriel Duvall [52] as Clerk. Then, after other organizational details, they turned to the Constitution. On the late morning of Saturday, August 17, Samuel Chase moved:

Before acting on this the Convention recessed for mid-day dinner, and perhaps also to line up votes. Then, in the post-prandial comfort induced by Maryland cookery they balloted for a committee of seven and chose: Matthew Tilghman, Charles Carroll, Barrister, William Paca, Charles Carroll of Carrollton, George Plater, Samuel Chase, and Robert Goldsborough. Presumably the order in which they were listed reflected the number of their votes.

It seems obvious that the membership of the Committee must have been worked out in advance. Otherwise, it is difficult to believe that they could have started their work so quickly and accomplished it with such dispatch. Within ten days [53] they submitted a draft of the Declaration of Rights, and two weeks later a Form of Government. Both were presented to the Convention by George Plater, suggesting that he may have acted as a subcommittee on style to do the final polishing.

The initial draft of the Declaration of Rights has been attributed to Charles Carroll, Barrister. [54] If so, it is interesting to note that at the Middle Temple in London he was a friend of Thompson Mason, son of George Mason, author of the Virginia Bill of Rights. [55] For the reasons already noted, the Barrister resigned from the Convention on August 27, the day the draft was submitted, as did Samuel Chase, another Committee member. The Committee vacancies were filled August 30 by Robert Townshend Hooe of Charles County, and Thomas Johnson who had that same day made his appearance as a Delegate from Caroline County.

Little is known of the early life of Hooe, the youngest member of the Committee. He probably had legal training, as he had earlier served on an admiralty committee composed exclusively of lawyers. His interests later drew him to Alexandria, Virginia, where he owned privateers during the Revolution and later gained wealth as a merchant and landowner. He was Mayor of Alexandria from 1780 to 1782, and Sheriff of Fairfax County in 1790. In 1801 he was one of those whom President John Adams appointed Justice of the Peace for the District of Columbia during his last night in office, too late for the commissions to be delivered. When President Jefferson and Secretary of State Madison withheld his commission, he joined as plaintiff with William Marbury to force its delivery, giving rise to the famous case of Marbury v. Madison.

Throughout the Convention, the Committee's strength was reduced by absence. All its members except Hooe and Plater were delegates to the Continental Congress (later, Plater also was). Voting there was by State, and only three delegates were required to attend at one time, but the added responsibilities and the movement back and forth were disruptive of organized effort. Nor was this the only cause of absence. Hooe participated in only three of the many votes in which "yeas" and "nays" were recorded while the Declaration of Rights and Form of Government were being debated on the Convention floor.

Goldsborough's record was even worse. He was not present for a single one. [56] Absenteeism was endemic to the Eastern Shore, where the Committee could otherwise have counted on strong support. Transportation and weather presented special problems, as did the continuing threat of hostile naval action against tidewater plantations. In addition, then as now, Eastern Shoremen considered a day on the wrong side of the Bay to be a day of paradise lost. Early in September, before the drafts could be taken up for consideration, Congress called all its delegates to Philadelphia to meet emergencies created by the military reverses on Long Island and by the proposed Staten Island peace conference. On September 13 Carroll wrote:

On September 17 the Convention adjourned for two weeks, and voted:

The vote on this was 30 to 16 with Carroll and Plater in the negative. They plainly feared that this action would generate opposition and delay, whether or not so designed. The only other Committee member present was Tilghman who, as President, did not vote.

Convention Tactics

The voting on this and other preliminary questions gives a clue to the basic strategy of the opposing groups. The Committee and its supporters obviously were determined to push the drafts through the Convention as quickly and with as little change as possible. The opposition, on the other hand, played for a maximum of delay and discussion.

The Convention did not reassemble until October 2, The next day Upton Sheredine of the middle district of Frederick County proposed that it resolve itself into a committee of the whole to consider the Declaration of Rights and Form of Government. This was a customary procedure. The same individuals attended in either event, but the committee device allowed greater flexibility than was possible under the parliamentary rules of the Convention. Even more important, no record was kept of committee proceedings, other than the final report of the action taken, a feature that facilitated the bargaining and compromise so essential to legislative action of this type. Nevertheless, Carroll, Chase, Paca, and Plater, the only Committee members recorded, opposed the move. They were defeated by the close vote of 27 to 26.

Other business deferred action on the Constitution until October 10, when John Mackall, a lawyer of Calvert County and close political associate of Fitzhugh, presented the following motion:

The Convention defeated the motion 59 to 7, Carroll, Chase, Hooe, Paca, and Plater voting against it. That evening Carroll wrote his father:

The committee of the whole then chewed on the Declaration of Rights for parts of sixteen days. It was customary for a different individual to preside in committee so that he could present its report to the President of the Convention, and also to permit the President to participate in the discussion and voting. Most of these sessions were chaired by Turbutt Wright (1741-1783) of Queen Anne's County. He had been a member of the Provincial House of Delegates and was later to be a Justice of the County; also, a member at one and the same time of both the new House of Delegates and of Congress.

On October 30 the committee of the whole reported out a revised Declaration of Rights. Fitzhugh moved that it be reprinted and distributed before being acted upon by the Convention. This was voted down 36 to 23. The amended document was of course set out in full in the minutes.

The Convention spent most of the next four days debating the Declaration of Rights article by article, with results that will be more fully described later. By now the pressure to get done and home kept the Convention in session into the evenings, seven days a week. Final passage came on Sunday, November 3, without a record vote being called for.

The Convention immediately resolved itself again into a committee of the whole and spent the rest of the day considering the draft of Form of Government. The Lord must have approved of this use of the Sabbath, for in that one busy stretch the committee got through the whole of it and reported out a revised document.

The next day the Convention debated the revised Form of Government, article by article. Although there were various amendments, and some close votes, the proceedings went much more quickly than on the Declaration of Rights. The final vote was taken on Friday, November 8, and the amended Form of Government was approved without a record vote. The new Constitution was now complete and became the fundamental law of the State. It was not submitted to a vote of the people. [59]

On Monday, November 11, the Convention adjourned and, breathing a monumental sigh of relief, left the interim government of the State to the Council of Safety.

The Documents

Both the Declaration of Rights and the Form of Government went through four stages: (1) drafting by the Committee of Seven; (2) consideration for more than two weeks by the Delegates and constituents; (3) revision in the committee of the whole; and (4) amendment into final form on the floor of the Convention. At no stage do we have a record of the discussion or of the reasoning for the action taken. But we can infer a great deal from the background and from a comparison of the drafts and revisions.

The initial drafts have become rare items, available only at specialized libraries, such as the Hall of Records in Annapolis and the Maryland and Pennsylvania Historical Societies. The committee of the whole versions, as well as the final documents, are included in the printed proceedings of the August 14, 1776, Convention. These proceedings were published separately, and are also included in combined printings of all seven of the Conventions that effected the transition from Proprietorship to State.

There is another possible clue to enlightenment as to the process of revision. It is reasonable to assume that the issues producing close votes on the floor of the Convention had been bones of contention in the committee of the whole, and were brought up again by the losers in the hope that changes in attendance or of minds would swing the balance.

In analyzing the documents, it should facilitate understanding to consider them by issues, and to limit ourselves to those of major significance. Inevitably, this will result in omissions, but the alternative is to expand this already lengthy paper into an encyclopedia.

The Declaration of Rights

In drafting the Maryland Declaration of Rights, the Committee drew on experience stemming all the way back to Magna Carta. In addition they obviously considered the comparable documents recently adopted in Virginia and Pennsylvania. The Maryland Declaration was, however, the most elaborate to date and furnished the model for many that were to follow, including some of the provisions of the Federal Constitution. Delaware adopted its Declaration of Rights before Maryland, and the two were so similar that it has sometimes been supposed that ours was copied from theirs. The situation was actually the reverse. Although theirs was adopted first, Maryland's was drafted first, and George Read, Chairman of the Delaware drafting committee, said that he used the Maryland and Pennsylvania drafts as models. [60]

Professor Bernard Schwartz in his comprehensive treatise on Bills of Rights comments that Maryland was the first to make constitutional use of the term "ex post facto laws." He also says:

The attainder portion of Art. 16 was included in the original Committee draft.

From the standpoint of modern interest, the issues of major significance in the adoption of the Maryland Declaration of Rights include:

The committee of the whole deleted this in its entirety. In its day it was a very liberal proposal; more so, for example, than the comparable provision later included in the U.S. Constitution. It is of interest to note that it was written into the draft with apparent unanimity by a committee of seven consisting entirely of slave owners. The Anne Arundel Instructions contained nothing comparable.

Taxes. [62] Judging from the language of the prohibition of taxes without legislative authority (D/R 12), the Proprietary fee controversy was the immediate motivating factor rather than the more general colonial complaint against Parliamentary taxation. The only material change from the Committee draft was the committee of the whole's insertion of the word "rated."

The prohibition of poll taxes (D/R 13) also derives from Proprietary experience. It clearly was a reaction to the highly unpopular use of poll taxes to support the Church of England and its clergy. Poll taxes in other colonies did not inspire the hatred that they did in Maryland.

Although the provision has little practical significance, it is interesting to note that the word "paupers" in D/R 13 had started in the draft as the phrase "pauper estates not exceeding thirty pounds currency," which was a more understandable and generous term. The substitution was made in the committee of the whole.

The requirement that "every other person in the State ought to contribute his proportion of public taxes for the support of government according to his actual worth in real or personal property within the State" originated in the Committee draft. [63] It will be recalled that the Anne Arundel Instructions went further and would have outlawed all taxes other than property taxes. It probably was for this reason that the committee of the whole tacked a further clause on D/R 13 expressly authorizing other types of taxes. The wording of this was not happy, and has been a source of confusion, but it at least settled the point that property was not to be the exclusive source of taxes. Necessarily, this addition met opposition from those who were using the Instructions as a blueprint, and in the floor debate Fitzhugh moved that the clause be stricken. He lost 11 to 41, with the Committee members present voting against him.

Separation of powers. One of the Proprietary grievances was that the Governor and his Council exercised legislative, executive, and judicial powers, as in effect did the Proprietor, and as did Parliament. This was recognized as a potential source of oppression, and violated the political theories that Montesquieu and others had brought into vogue. Most of the bills of rights, including George Mason's famous Virginia model, contained provisions requiring a separation, and the Committee draft provided:

This language was substantially adopted as D/R 6, but not until after some tinkering in the committee of the whole, which reversed the order of "judicial" and "executive" and deleted the requirement that the powers be "independent." Probably there was also some more serious discussion, as there were interesting points involved, and during the floor debate on October 31 Chase proposed the following provision as a substitute:

This was defeated without a record vote. Thereupon, the five Committee members present (not including Tilghman who, as President, was not recorded) voted against the adoption of the entire provision, notwithstanding that they had originated it. They were defeated 30 to 29. Obviously, the point was considered crucial. Why?

The principal reason probably lay in the clarity of Chase's language and the comforting obscurity of the provision as drafted and adopted. For example, how would it affect justices of the peace? Some of the delegates held this then prestigious position and realized that under Chase's language its retention would exclude them from legislative or executive participation in the new government, whereas they might qualify under the original provision. It is of interest to note that during the debate on the Form of Government, Chase sponsored a specific provision permitting a justice of the peace to be a senator, a delegate, or a member of the Council. It passed 36 to 18. Also of interest is the fact that the 1851 Constitution enlarged D/R 6 to include language similar to that proposed by Chase.

Another question may have been in the minds of the more thoughtful delegates. The Form of Government that had been proposed and was later to be adopted provided for the election of the Governor and his Council by the Legislature. Would this of itself violate the broad D/R 6 requirement of separation of powers? Some have considered that it did, and Chase's language may have been designed to remedy this. The point was more theoretical than practical, but the Committee members may have wished to avoid the potential conflict. If so, it is not impossible that the opposition leaders may have preferred to leave the language as it was in order to embarrass the Committee and perhaps to gain an advantage when the Form of Government came up for consideration.

Removal of judges. The Constitution provided for the appointment of judges by the Governor, to serve during good behavior. The Committee draft of D/R 30 made them removable for misbehavior "on conviction in a court of law, on conviction by impeachment, or by vote of the legislature." [64] The Committee later had second thoughts about giving the legislature broad power to remove judges, and on November 1 Paca offered an amendment providing that the chancellor and judges

All through the Convention anything involving lawyers or judges drew fire. Ewing, of Cecil, immediately moved to change the "may" to "shall." [65] The defeat of this, 22 to 36, encouraged the Committee to tighten up the provision still further by requiring the concurrence of two-thirds of each house in such cases. This was passed 31 to 27. The amended article was then approved without a further record vote.

Legal fees. Two efforts were made on the floor of the Convention to limit lawyers' fees by law. On November 2, Elisha Williams, of the lower district of Frederick, sought to insert an article in the Declaration of Rights stating that the charging of exorbitant fees for legal services was "injurious and oppressive to the good people of the State and ought to be prevented." It was defeated 7 to 46. Its supporters included Fitzhugh, John Mackall, Deye, and Ridgely.

Later, on November 7, Fitzhugh moved the adoption of a comparable provision in the Form of Government and picked up nine additional votes, including Hammond. It was defeated 16 to 39. The fact that it was pressed by the opposition leaders, and that at least one of the delegates voting for it was a lawyer, makes one suspect that the motive was to capitalize on resentment against the dominance of the lawyer leaders in the Convention.

Religion. The Committee draft specified:

This effectively rooted out the discriminations which had prevented Catholics from having their own churches and from participating in public life. Its beneficence was, however, limited to Christians. Jews and other non-Christians were still consigned to the outer darkness.

The committee of the whole altered the wording and added a prohibition against forced contribution to any particular ministry. Then, in the debate on the floor on November 2, Gustavus Scott proposed the following qualification:

The amendment was adopted 41 to 20. The Committee members present voted in the affirmative. [66]

Oath or affirmation. In those days formal oaths were taken far more seriously than today, and the new Constitution was loaded with them; for example, to act impartially, to do one's duty, etc. It would be nice if human frailities could be so easily overcome. The requirement of oaths necessarily discriminated against individuals who had religious scruples against taking them, as did Quakers, Dunkers, and Mennonites. This had been a grievance under the Proprietary, but it was not so easy to cure as might appear. There had been such a long judicial tradition requiring oaths to support the testimony of witnesses, especially in criminal cases, that it had acquired the status of due process of law. It was questionable whether a defendant could be convicted on unsworn testimony.

The Committee draft contained two brief provisions permitting affirmations by office holders and in civil cases. In some respects these two provisions seem to duplicate each other, and in others to be inconsistent; for example, one required a declaration of belief in the Christian religion, the other did not. It seems likely that the Committee could not come to a consensus and thought it best to propose both versions and let the Convention take its pick.

The Convention was not satisfied with either. On November 2, Earle, of Kent, proposed a new one, sketchily worded but permitting affirmations in all civil and criminal cases. The latter was a touchy point, and his motion was voted down without a record vote. Johnson then came up with a more carefully worded version. This sanctioned affirmations based on religious belief with two provisos: it did not apply to prosecutions in capital cases, and in other criminal prosecutions it was limited to Quakers, Dunkers, and Mennonites. Chase immediately moved to strike out the special provision permitting members of these sects to testify in criminal cases on affirmation. His amendment was voted down 17 to 37, and Johnson's language was then adopted without a record vote.

Eastern Shore secession. The last item in the debate on the Declaration of Rights was the following motion by Turbutt Wright:

Ewing, of Cecil, countered with an amendment requiring approval by a majority of the qualified voters in every county. The amendment was adopted, and then the whole thing was voted down 17 to 30.

The Form of Government

The structure of government proposed by the Committee consisted of a bicameral legislature, a Governor, and a Governor's Council of five. [67] Like the Convention itself, the House of Delegates was to be composed of four elected delegates from each county, plus two from Annapolis and two from Baltimore Town. A fifteen man Senate (nine from the western and six from the eastern shore) was to be chosen by electors who would be popularly elected, two from each county and one each from Annapolis and Baltimore Town.

The Governor was to be chosen by joint ballot of the House and Senate, as were the five Councillors. The Governor was not to have any veto or other power over legislation. His function was to execute the laws, and to make appointments with the advice and consent of the Council. The judicial system was to consist of a Chancellor, Court of Appeals, General Court, and County Courts, all appointed by the Governor to serve during good behavior.

No substantial change was made in this structure, either in the committee of the whole or on the floor of the Convention. A number of subsidiary issues arose, however, including the following:

Property qualifications: (a) For voters: The Committee draft proposed the same qualifications that had been in effect under the Proprietary and that had been used in electing delegates to the Convention. The committee of the whole reduced the requirement from forty pounds sterling to thirty pounds current money. This was a substantial change, as local currency was considerably debased and became more so.

Three efforts were made on the floor of the Convention to effect further reductions but all were unsuccessful. First, Bayly moved to strike all qualifications. This was defeated without a record vote. Then a motion by Turbutt Wright to reduce the requirement from thirty pounds to five was voted down 20 to 34. Finally, a motion by Bayly to make all taxpayers eligible was defeated 24 to 29.

(b) For others: In addition, property qualifications were established for the following, the amounts being left blank in the Committee draft and completed in the course of passage:

Delegates		500 pounds
Electors		500
Senators		1,000
Governor		5,000
Councillors	1,000
Sheriffs		1,000

The only one producing a record vote was that for Sheriff, which was approved 29 to 28, with the Committee members present supporting it.

Terms of office. The Committee draft provided for the election of Delegates every three years and Senators every seven. The committee of the whole shortened these to one and five years respectively. In the floor debate, Chase sought to reinstate the three year term for Delegates and was defeated without a record vote. He then tried for two years and was voted down 23 to 27.

Appointment versus election. This issue opened another chasm between the opposing groups. The Anne Arundel Instructions had demanded the election of all officials, including militia officers and tax assessors. The Committee, on the other hand, favored appointment by the Governor, and was sustained as to all but Sheriffs.

The Committee draft had provided for the annual appointment of Sheriffs, with a three year disqualification period after three years of service. The Committee of the whole changed this to popular election by ballot, with a four year disqualification period. In the floor debate, Turbutt Wright moved that Sheriffs be elected every third year, instead of annually, and this was passed without a record vote. Chase then sought to restore appointment by the Governor, instead of election, and was voted down 9 to 45.

Viva voce voting. Today, viva voce voting, in which an individual is required to state his vote publicly, is regarded as undemocratic. [68] This is a curious twist from the situation in 1776. The Anne Arundel Instructions, which were nothing if not democratically oriented, demanded viva voce voting in all elections. The Committee draft went along with respect to the election of Delegates and of the electors who were to choose the Senators, but not in other situations. For, example, the Governor and members of his Council were to be elected by joint ballot of the two houses, which permitted voting to be secret.

On November 4, Earle proposed that voting for Delegates be by ballot. It was defeated without a record vote. On November 5, the converse situation arose with respect to Sheriffs, who at this stage of the proceedings were to be elected by ballot. Bayly sought to substitute "viva voce" for "ballot" and was also brushed off without a record vote.

Baltimore representation. Baltimore Town, as it was then known, was represented in the Convention by Jeremiah Townley Chase (1748-1828), cousin of Samuel and future Chief Judge of the Court of Appeals. He continued to represent Baltimore in the new House of Delegates until he moved to Annapolis in 1779. There he acquired the Hammond-Harwood House, in a wing of which Roger Brooke Taney studied law under his tutelage. Anticipating the future growth of Baltimore, Jeremiah Townley Chase proposed an amendment to the Form of Government to increase or decrease its legislative representation so as to keep it roughly in line with the population of the counties. It was a smart idea, but he was mousetrapped. The Convention voted 37 to 14 to retain his provision for possible decreases in representation but to strike out that for increases. For more than 130 years Baltimore was to remain under-represented.

Notwithstanding the war conditions under which the Convention met, a spirit of tolerance prevailed among the majority. One example was the defeat of a motion by David Smith, of Cecil, to restrict the office of Governor to natives of the United States. The vote was 25 to 29, with the five Committee members present recorded in the negative. The other was the defeat of a proposal by Samuel Chase to disqualify from public office anyone who had not prior to July 4, 1776, subscribed to the colonial association to support united action against Great Britain. The vote on this was 20 to 27. The four Committee members voting split, Chase and Hooe being recorded in the affirmative, Johnson and Plater in the negative. [69]

Conclusion

Charles Carroll of Carrollton was not one to hide his sentiments, at least not from his father. On the whole, the Constitution had not turned out as badly as he had feared, and he wrote:

Most Delegates probably would have said "Amen." In point of fact, however, the Constitution won critical acclaim as one of the best products of its period.

The feature causing most comment was the composition of the upper house, or Senate, and its selection by electors rather than by the direct vote of the people. In a latter letter, Carroll wrote that this had been his brainchild, [71] and we have no reason to doubt his accuracy. Ultimately, it was deemed to have outlived its usefulness, and was abandoned, but in its day it was singled out for praise by no less an authority than James Madison. In No. 63 of the Federalist Papers he pointed to it as the model for the United States Senate and said:

The lawyer leaders who fashioned the 1776 Constitution set a high standard. It was in connection with their labors that John V. L. McMahon had these words for the legal profession in his Historical View of the Government of Maryland (Baltimore, 1831):

1976 H. H. Walker Lewis

Return to Introduction


The Documents for the Classroom series of the Maryland State Archives was designed and developed by Dr. Edward C. Papenfuse and Dr. M. Mercer Neale and was prepared with the assistance of R. J. Rockefeller, Lynne MacAdam and other members of the Archives staff. MSA SC 2221-04. Publication no. 3918. 1993 Maryland State Archives.

For further inquiries, please contact Dr. Papenfuse at:
E-mail: edp@mdarchives.state.md.us
Phone: MD toll free 800-235-4045 or (410) 260-6401


This information resource of the Maryland State Archives is presented here for fair use in the public domain. When this material is used, in whole or in part, proper citation and credit must be attributed to the Maryland State Archives. PLEASE NOTE: Rights assessment for associated source material is the responsibility of the user.


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