Papenfuse: Setting the Limits of Arbitrary Power

Narrator:

For almost all of the first sixty years of its history, from 1634 through 1694, the capital of Maryland was St. Mary's City.  In that period the population of the colony grew from approximately 150 souls concentrated at the former indian village re-named for St. Mary  to nearly 30,000 people spread about the shores of the upper Chesapeake Bay and its tributaries. (see Maryland at the Beginning for a more detailed account).  The native poplulation moved inland as the numbers of European settlers increased and over the years they were negotiated out of any claims for land that they may have had in the colony.  During the years at St. Mary's most of the settlers were English in origin, although during the 1660s and thereafter the African American population began to grow as slaves became an integral part of the labor force.  How early slavery was introduced is not known for certain, but by 1639  a law would be enacted by the General Assembly that provided "that all the inhabitants of this province being Christian (slave excepted) shall have and enjoy all such rights, liberties, " etc., "as any natural born subject of England hath, or ought to have enjoyed in the realm of England." [Andrews, History, p. 64]

The whole period prior to 1694 was a time of experimentation often coupled with failure.  Just keeping the colony running was an exasperating task.  When Lord Baltimore wrote requesting the indian arrows required by his Charter to be delivered annually to Windsor castle, and for exotic birds for his aviary, an overworked clerk wrote:

Probably the most significant accomplishment of the years at St. Mary's was the emergence of a strong legislative component in the government of the colony.  Indeed one historian argues that Maryland, by virtue of its charter, was the first permanent English colony anywhere to provide from its founding for an assembly of resident freemen.

The life of the legislature and its members was not easy. In the course of its stay at St. Mary's it had to cope with at least eight insurrections, some of which it led. It had no home of its own until 1674, and even then the roof leaked, causing one historian to remark that the replica you can see there today, completed in 1934, was far better built. To date the replica has withstood fifty years of tourists, whereas the original was in a 'ruinous condition' in less than eight years. So intolerable was the heat in the State House during the summer that the upper house frequently had to adjourn to 'the council Chamber at Vanswearinges,' the local tavern....at least that was the excuse they gave.
 

The first legislature in 1634/5 was one house, unicameral, with a President as chief officer. It was not until 1650 that the legislature divided into two houses, although the idea was first broached as early as 1642. Even then it returned to meeting as one house for the few sessions in the early 1650s held in Calvert County during the fortunately brief and temporary rule of the Puritans. In 1658 the legislature again divided into two houses and has remained so ever since.
 

A good way to look at how an institution works is to examine the rules by which it governs itself. The Maryland legislature is no exception.
 

Throughout the Seventeenth Century the number of legislators at any one session was quite small. With the exception of a general assembly of all Freemen in 1642 in which as many as 60 legislators may have attended, mustering a quorum seems to have been a problem. Until 1648 ten members constituted a quorum. After that, the number rose (for the Lower House) to a high of twenty-two in 1678, at which point, perhaps under pressure from irate taxpayers, the size, and thus the cost of the Assembly was cut in half, and the quorum adjusted accordingly, to 11. There it remained until shortly before the Assembly left St. Mary's.
 

Mustering a quorum must have been difficult. Fines were imposed to ensure that the house sat at its appointed hours of eight in the morning and two in the afternoon. By 1642 things were so bad that house ordered "a drum to beat as near as may be to sunrising, and half an hours distance between each beating." Any one of the house not appearing upon call after the third beating of the drum shall forfeit 100 lb tobacco unless he has leave of absence. It didn't work. Legislators liked to sleep. Next session the rule was revised, "for the morning the Drum is to beat as near as may be to sunrising and an hours beating between each beating." Legislators must also have enjoyed long lunch hours, or siestas, for according to the revised rule, "in the afternoon the first beating is to be at one of the Clock and then an hours distance between each beating." By my calculation that means the afternoon session did not have to meet until 3 p.m., even though the rules called for 2. Even these changes failed to work, however and the rule was dropped altogether, the next session.
 

Procedures in the house were quite simple. Bills were to be read three times, as now, and not all on the same day. It is clear that legislators enjoyed debate and had a tendency to want to talk all at once. One of the earliest rules, required everyone "propounding any matter to the house to digest it first into writing and be read to the house" but that rule did not last beyond one session. In its place were a multitude of attempts at maintaining decorum, leaving it to the president and speaker to determine who spoke first if more than one legislator stood at one time. At first there was no requirement that respect be shown the president and the speaker, but experience must have elicited the permanent change in 1647 that "noe one shall deliver his opinion or speake to any bill sitting but shall stand up reverently and bareheaded directing his speech to the chair." The single attempt in 1666 requiring "no whispering or private communication...by any two or more members concerning the debate of any bill in the house or whillst the house is sitting" failed miserably. To evoke a modicum of respect to others when speaking, the very first rules required that no man shall stand up to speake to any matter until the partie that spake last before, have sate downe, nor shall any one speake above once to one bill or matter at one reading nor shall refute the speech of any other with any uncivil or contentious termes, nor shall name him but by some circumloquution." This rule survived in one form or another throughout the colonial period, amplified in 1642 and thereafter by another, that required "none to use any undecent taunting or reviling words to the naming or personating of any member in the house or any other way misbehave himself in his speech upon pain of such censure as the house shall think fit."
 

It was not until the move to Annapolis was complete and the first session in the New State House that the lower house tried to influence the smoking habit of its members. For the first time in 1698 it adopted a rule
 

That no ......Delegate during this session of assembly presume to smoake tobacco in the house whilst the house is a sitting under the penalty of being fined and censured as the house shall thinke fitt.
 

There is evidence that the rules were enforced and members were even being impeached for misbehavior by the 1660s. Initially the legislature appeared reluctant to carry censure too far. In 1651 Lord Baltimore indirectly chastised his Assembly for not acting at all in the case of one man who broke a number of rules, both inside and out of the legislature. The errant legislator had come to Maryland with good references and possibly a number of servants, but upon his arrival, according to Lord Baltimore, "he not only fomented divisions, but also lived a most scandalous life, whilst he was in the Province, with certain women whom he carried from England with him, leaving his wife there in a miserable condition, and did likewise, whilst he was in Maryland, most prophanely in publick discourse, profess himself of no religion, all of which was unknown to his lordship until late since" his return.
 

Later the legislature would take matters in its own hands, censuring some and impeaching others for misconduct in office, including, in 1683, the proprietor's agent with the Indians, Jacob Young. In the course of the proceedings in which Young was tried for being too friendly with the purported enemy, one member of the upper house was prevented from testifying because he insisted on wearing a sword. Weapons had been barred from the House since 1642. In any event Young was found guilty and sentenced to what must have been considered a fate worse than death, compulsory attendance at each session of the legislature for the remainder of his life.
 

Privileges held by a member of the legislature were considered very important. For example, legislators were free from arrest for debt while the legislature was in session. Initially this posed a major problem in Maryland, because all Freemen were considered legislators. The first recorded meeting of the Assembly in 1638 took pains to note that privileges did not extend for periods of adjournment. Perhaps one of the reasons why Maryland moved so quickly to representative government was the fact that a session of the Legislature could bring all legitimate business to a standstill.
 

As we have seen from the rules, legislators liked to talk. Freedom of speech while attending a session was considered a very important right, derived from precedents set by Parliament, precedents in which George Calvert, the First Lord Baltimore, apparently played a major, if ambiguous, role in securing. In the session of Parliament of 1620-1621, George Calvert, then Secretary of State to King James I, delivered a message to the House of Commons. It seems that the House had petitioned the King "to desire that if any of the House should speak in any undutiful manner, they may be censured here, and not be punished in or after the Parliament." A message "to the house was brought from the King, by Mr. Secretary Calvert to say:
 

Unfortunately, no matter how eloquent the response, a member was subsequently imprisoned, to which Secretary Calvert again responded to a sceptical house assuring them 'that he was not committed for anything said or done in Parliament." This time the debates recorded that "the House will scarce believe Mr. Secretary, but thinketh he equivocateth."
 

If the first Lord Baltimore tended to equivocateth on the privileges of Parliament, his son Cecil, to whom Maryland was granted on June 20, 1632, was also guilty of considerable equivocating throughout his long 43 year tenure as Lord Proprietor, with regard to the role the Legislature should play in the affairs of the Colony.
 

The First Legislature met in February of 1635, less than a year after the arrival of the Ark and the Dove. Lord Baltimore did not like the results, and two years later rejected all the acts the assembly passed, sending over the text of his own code that he demanded be enacted. He was in for a surprise.
 

The legislature that met in February 1638 refused to enact any of the laws Lord Baltimore had sent, substituting their own instead. By doing so they firmly established their right to initiate legislation. They so also distressed one of the leading Catholic investors and immigrants, Thomas Cornwaleys, who was kept from the profits of trading with the Indians by the new laws.
 

In April 1638, Cornwallis wrote Cecil Calvert a long letter explaining his dissatisfaction with Calvert's laws and instructions, and also with the laws passed by the Assembly.

Leonard Calvert, Lord Baltimore's brother and Governor of Maryland, cautioned his good brother to be reasonable.
 

Perhaps the most effective plea for restraint came from a Jesuit, Thomas Copley
 

Fortunately Lord Baltimore was willing to listen to reason. In effect he conceded that he might be asking for too much too quickly and wrote his brother,  Governor Leonard Calvert  a letter that permitted the Assembly to originate laws.

For nearly a decade after 1638 the colony struggled on, making little progress. In 1647 Leonard Calvert Died, leaving the government in the hands of Thomas Greene, and his estate entrusted to the care of Mistress Margaret Brent. Without strong leadership in the Colony to interact successfully with a determined Assembly, matters quickly got out of hand, including Mistress Brent. On January 21, 1648, the clerk recorded in the Lower House Journal:

Although she did not get the two votes she demanded, Margaret Brent seems to have continued to attend the session and did manage Lord Baltimore's property in the colony, selling off his cattle to feed and pay soldiers hired to defend Maryland from attack by Virginia

Meanwhile, in England, Lord Baltimore had decided upon a radical new course of action. Abandoning all previous attempts at founding a colony in which Catholics played a major, perhaps even predominate, political and economic role, Baltimore changed direction.
 
He sent out
 

a new Protestant Governor, William Stone,
 

a new secretary, Thomas Hatton (learned in the law)
 

a new great seal with a new motto carefully chosen from the thirteenth verse of the fifth Psalm, which when translated could read: [with favor wilt thou compass US as with a shield],
 

and, finally, a new code of laws for the Assembly to enact, including the draft of an Act concerning religion that offered protection for those who had come under the old plan and also for, those divergent religious groups that might come under the new. Predictably the new departure did not meet with immediate or universal success. The act concerning Religion was enacted by the first assembly called by Governor Stone, but most of the other laws were not.  The General Assembly fumed at Lord Baltimore's presumption sending him a long letter of complaint:

Lord Baltimore was not pleased with either Margaret Brent (she and her family moved to Virginia) or the rejection of his laws, but he took pains to defend his request while leaving the door open to compromise. In doing so he wrote the longest reply to an Assembly challenge to be found on record during colonial times. He began by demanding that his sixteen laws be passed as he had submitted them, taking pains to explain what they meant and why he wanted them. He offered the gift of one half of his customs revenue as enticement to help pay the cost of government, and concluded with a conciliatory plea for compromise.
 

The battle was far from over. Indeed it had hardly begun, even though to this ringing declaration of purpose the General Assembly readily agreed and passed the Proprietors Code without alteration. By bringing so many new people into the colony so quickly, at a time when the political situation in England was also in such turmoil, only led initially to considerable tension and stress culminating in the unsuccessful attack by protestant Governor Stone and his forces from St. Mary's on the Puritan enclave at Providence on the Severn in 1655. Stone was imprisoned, leaving his wife Verlinda to make an impassioned plea for help from Lord Baltimore:

Thereupon the assembly took the matter into consideration and, after a full debate, requested the upper house to not consider any plea of drunkenness and to punish Erberry severely.
 

Accordingly the upper house orered

It did not pay to criticize the Assembly in those days.

The critics of the Assembly were not limited to one or two drunk or disgruntled citizens like Erberry. In 1676, the year after Cecil Calvert, second Lord Baltimore, died,  a "complaint from heaven with a hue and cry, and a petition out of Virginia and Maryland" was sent to the King:
 

The issue was defense against the indians on the frontier and who should pay for it.
 
 

Fortunately Charles Calvert, who had returned to England following the death of his father, left the government of Maryland in the care of the Speaker of the House, Thomas Notley, who, as acting Governor, moved swiftly to counter the insurgents and to provide defense on the frontier. In doing so he showed the same campassion Cecil Calvert called for in 1650, granting pardons to all would genuinely express regret.
 
On his return to Maryland, Charles Calvert, now the Third Lord Baltimore, resolved to keep matters under control.
 

In 1681 he wrote:
 

As long as the political situation in England remained relatively stable, Charles Calvert managed to work reasonably well with the legislature, but when serious efforts were made in England in the early 1680's to revoke or severely curtail his charter, politics in the colony were thrown off balance. Charles Calvert, 3rd Lord Baltimore, left for England in 1684, never to return. There he proved no match for the rising tide of Anti-catholicism and displeasure with King James II. By carefull maneuvering, he managed to retain the economic privileges guaranteed by his Charter, but he lost all political control over the colony. It was partially his own fault. Instead of chosing someone who could work with the Assembly, as his governor, in 1688, he selected William Joseph to be Governor and President of the Upper House. Flying in the face of all the compromises and accomodations made with and by previous assemblies, Joseph chose to proclaim the birth of a child he hoped would be the future Catholic monarch of England, and in his initial address to the Assembly harangued it at length on the need to stamp out sin throughout the colony. The speech covers pages in the Journal. The response of the Assembly, shortly before he dismissed it, was appropriately brief:
 

The Governor criticized the Assembly, the Assembly criticized the courts,
 

Is it no wonder that the absent proprietor and his representatives were overthrown the following year?
 

By 1688, the days of St. Mary's City as capital of Maryland were numbered. Not long before the Third Lord Baltimore left Maryland for good, the Assembly met in Anne Arundel County. The proprietor had even said on occasion that the would be willing to have the capital moved if the General Assembly would pay to have a new house built as his residence. The Assembly respectfully declined, and it was left to a Royal Governor, Sir Francis Nicholson to force the move in 1694.
 

In all, the years at St. Mary's were good years, in terms of prosperty over the long run, and in terms of the political legacy it provided. During those years the legislature came into its own as a necessary component of effective government. The achievement was no one person's, nor any particular institution's. What had been gained by 1694 was due as much to conflict, and compromise among many contending forces, as it was to any grand vision held by Cecil or Charles Calvert. If anything the experience of government at St. Mary's taught a lesson that for government to work there had to be a balance of power among all contending parties, be they proprietary, legislative, or simply concerned citizens, a balance of power that was maintained by constant reevaluation of options and through political compromise. In such a world there proved to be disappointments to be sure, but it was also a world in which about all, but the truly enslaved, could be called winners.
 

In 1671, four years before Cecil Calvert died, John Ogilby published the first retrospective historical account of Maryland. He better than any one, summarized the achievement of the years at St. Mary's, even though he somewhat overstated his patron's role:
 

It would be some time before that goal would be achieved for all Marylanders, but at St. mary's (as elsewhere in the colonies) representative governmenthad taken root and would grow stronger with each controversy whether the adversary was the proprietor, parliament, or finally, the King.  As one of the Royal Governors of Maryland, Francis Nicholson observed in August 1698,  Maryland would not be alone in its struggle to resist the exercise of arbitrary power.

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©Edward C. Papenfuse, September 30 1998