The Constitution, the Bill of Rights, and Changing Perceptions of Peaceable Assembly and Representative Government in Maryland, 1765--1802

by

Edward C. Papenfuse,
Maryland  State Archivist and
Commissioner of Land Patents

and
 

Robert C. Murphy
Chief Judge, Maryland Court of Appeals, retired

©1991, rev. 1999
 

In at least one widely distributed edition of the U.S. Constitution, the First Amendment is wrongly punctuated.  It reads “Congress shall make no law ... abridging the right of the people peaceably to assemble and to petition the Government for a redress of grievances.”  The lack of the required comma before  "and to petition the government for a redress of grievances"  limits people to assembling only for the purposes of petitioning  the government.  Without the comma, deliberately inserted by Congress in 1789 in the final and engrossed version of the First Amendment,  there is no clear sanction for people to assemble peaceably for whatever other purpose they have in mind. While this assertion may at first seem trivial, what that comma represents is a major shift in thinking about the purposes of permissible peaceable assembly in a Republic.†1

The idea that people could assemble peaceably for whatever purpose was not a widely held constitutional proviso in the 1770s and 1780s. As Bernard Schwartz points out, both the English Bill of Rights (1689) and the Declaration of the Stamp Act Congress (1765) asserted the right to petition the Crown, which, by implication, meant assembly for that purpose.†2 In 1774 the First Continental Congress resolved unanimously in its “Bill of Rights” that the inhabitants of the English Colonies in North America “have a right peaceably to assemble, consider of their grievances, and petition the King;... ,”  but not until the debates over ratification of the Constitution was the language and the spirit of the language broadened to encompass assembly for any peaceable purpose, even if such an assembly did not entail petitioning for redress of grievances.†3

During the efforts to write the first state constitutions in 1776 and thereafter, eight states (if Vermont is included) wrote separate Bills of Rights of which five mentioned the right of the people to assemble in connection with petitioning their legislatures. †4  Virginia (the first, in June 1776) was silent both on peaceable assembly and the right of petitioning the legislature. Pennsylvania (August 1776), North Carolina (December 1776), and Vermont (July 1777) added the right “to instruct their representatives” but did not qualify the right to assemble with "peaceable." Massachusetts (September 1779) combined both, as did New Hampshire which copied Massachusetts almost verbatim in 1783:
 

The people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good; give instructions to their representatives; and to request of the legislative body, by the way of petitions or remonstrance, redress of the wrongs done them, and of the grievances they suffer.†5

The Maryland Declaration of Rights of August 17, 1776, was the third to be drafted, after Virginia and Pennsylvania. Maryland kept the process of petitioning to individuals and dropped any reference to public assembly, peaceable or otherwise. In Article 11 the Maryland Declaration avowed that:
 

every man hath the right to petition the legislature for the redress of grievances, in a peaceable and orderly manner.†6

While Maryland did not explicitly recognize the right of the people to assemble, its Declaration of Rights, adopted in November 1776,  did contain a totally new and potentially radical provision that implicitly provided for collective action, a provision that only one state, New Hampshire, would copy into its Bill of Rights (1783):
 

whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to, reform the old, or establish a new government.  The doctrine of non--resistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.†7

When the new Federal Constitution, as drafted in 1787, failed to include a Bill of Rights, Richard Henry Lee introduced an amendment in Congress on September 27 (ten days after the Constitution was signed in Philadelphia) which was a condensation of the Pennsylvania, North Carolina, Vermont, Massachusetts, and New Hampshire provisions.  Lee proposed

 
that the right of the people to assemble peaceably for the purpose of petitioning the legislature shall not be prevented.†8

Lee's amendment was rejected and although the following May Maryland offered the first comprehensive printed agenda for a bill of rights, it did not contain any provision for peaceable assembly, other than reiterating the provocative language of Article 4 of the Maryland Declaration of Rights.  The amendments proposed by William Paca, Samuel Chase, John Francis Mercer and the other Anti--Federalists to the Maryland Ratifying Convention encompassed only the right to petition as an individual (taken verbatim from the Maryland Declaration of Rights of 1776) and the right to reform the old, or establish a new government.†9 It was left to a badly divided Virginia ratifying convention, two months later and after a particularly acrimonious debate, to adopt much of the language and all of the intent from the provisions for peaceable assembly and the right to reform or establish a new government found in the state Bills of Rights. Together, George Mason, Patrick Henry and the other members of the Anti--federal Committee of Richmond, supplemented it would appear by suggestions brought them from New York by Philadelphia newspaper publisher, Eleazar Oswald, forged a 20 article Declaration of Rights and 20 proposed amendments from the collective wisdom of all the states.  Taking the language of all the states that gave legitimacy to peaceable assembly and Maryland's unique definition of what such an assembly might do, the Richmond committee's draft, as re-worked and amended by the Virginia Ratifying Convention on June 27, 1788, decreed that the
 

doctrine of non--resistance against arbitrary power and oppression is absurd, slavish, and destructive to the good and happiness of mankind,

and allowed
 

that the people have a right peaceably to assemble together to consult for the common good, OR to instruct their representatives; and that every freeman has a right to petition or apply to the legislature for redress of grievances.

At last the idea that the public could assemble peaceably was no longer linked to the petitioning process. What such peaceable assembly could do other than petition or instruct their representatives was as yet undefined, but Maryland's article 4, if less strident in the form adopted by Virginia, suggested that resistance to arbitrary power and oppression would be acceptable. †10

In 1788, James Madison won election to the First Congress from Virginia over James Monroe, the Anti--Federalist candidate, on the promise that he would lend his support to a Bill of Rights.†11 The amendments Madison proposed were published in the New York Daily Advertiser on June 8, 1789, and made clear his interpretation of `peaceable assembly:'
 

The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the legislature by petitions, or remonstrances for redress of their grievances.†12

The U. S. House of Representatives passed essentially the same language on August 24, 1789:
 

the right of the People peaceably to assemble, and consult for their common good, and to apply to the Government for a redress of grievances, shall not be infringed.†13

The U. S. Senate refined the wording of the House by adding the familiar language “Congress shall make no law,” by changing two `and's to `or's' and by boldly deleting all but the comma of the phrase `and consult for their common good.'  It was an intentional element of punctuation that was not overlooked in the official engrossed copy:
 

Congress shall make no law ... abridging ... the right of people peaceably to assemble, and to petition the Government for a redress of grievances.†14

Why is this particular comma so significant?  On its meaning rests much of the case for the legitimacy of any political activity in the advocacy of any cause, as long as it remains peaceable. Its intent provides the rationale for all manner of non--violent political activity ranging from single issue--oriented parties and protest marches, to P.A.C.s, and other political pressure groups we know so well today. It is also symbolic of a fundamental change in the definitions of "representative" and `constituent' that took place in Maryland between the Stamp Act cry of `No Taxation without Representation' in 1765, and the adoption of universal white manhood suffrage in 1802.†15

With the adoption of the Constitution and the Bill of Rights, it now became a matter of, to use and extend Edmund S. Morgan's words, `How ought political leadership to operate on a National [and local] level.  How were the sovereign people of the United States to be [defined and] led?'†16 The process of hammering out the language of the first amendment through the debates that began in Pennsylvania and Massachusetts, and which ran its course through all the states in 1787 and 1788, provided a written legitimacy to collective action on a scale hitherto not contemplated before in any state, except perhaps Maryland and New Hampshire.  In turn, both the process of debate and the language permitting peaceful collective action, as written into the first amendment, inaugurated a further process of political definition in American history that remains incomplete to this very moment, one that lies at the very heart of the American political system: who should lead us, how ought they be chosen and by whom, and to what degree should those who are chosen be subject to the pressures of public opinion, however that might be ascertained. The possible impact of the amendments proposed by James Madison on June 8, 1789 was not lost on the opposition.  On June 12, Maryland Congressman, Benjamin Contee, an ardent Federalist, wrote Governor John Eager Howard with sarcasm that would not be lost on the intended audience:
 

It may be seen from [the amendments proposed by Mr. `Maddison'] that some of them are inapplicable in a great degree, as being needless stipulations between —not a people and a seperate and independent power —but between a people and their representatives— in other [words] between a people and —who[?]—why themselves.†17

Before 1789, representatives were thought of in terms of their personal virtues and the local interests they represented.  One `Constituent' summarized the prevailing view of a both the good legislator and his constituency for the Maryland Gazette and Baltimore Advertiser, 1787.  Legislators he wrote, should be, but were not necessarily
 

men who can read the human character, and know what will best suit the circumstances, habits and dispositions of the people—men whose minds are enlightened and improved by experience and observation, which ever communicate the most solid and the most useful information on constitutional and legislative deliberations.  Those also, and those alone, are deserving of [the voter's] patronage, who can have no motive to oppose the general good, or throw the State into disorder, from party violence, factious combinations, disappointed resentments, or pinching want.  Of all such beware, or you will repent of your folly too late to prevent its injurious effects.  .  .

Constituents, he added, were wisely defined as property owners in the Maryland Constitution:
 

property is the ground of distinction between freemen and slaves in our excellent constitution--they who have a certain proportion in consequence of it, possess the right of suffrage, while all who have not, are on that account disqualified.†18

By 1802 the legal transformation in Maryland from suffrage based on property and age, to suffrage based on color, age and sex was complete.†19 Along with the legal change in who could vote also came substantive changes in generally accepted perceptions of what government was all about.  In the years prior to the Revolution, government was inconsequential, in large measure a legislative body that passed a few laws, laws that remained largely uncodified, and often were simply forgotten after a year or two. The first systematic effort at codifying Maryland laws occurred in 1765.  It would not be attempted again until 1785, and only became a regular function of state government after 1790 with the publication of Kilty's Laws and its successors.  Before the 1780s, provincial and state government alike was little more than a debating, eating, drinking, and racing club for the landed elite.  In 1766, Thomas Jefferson paid the first of many visits to Annapolis.  He wrote  his friend John Page a vivid account of the General Assembly at work.
 

The assembly happens to be  sitting at this time . . . I went into the lower  [house], sitting in an old courthouse, which,  judging from its form and appearance, was built in  the year one.  I was surprised on approaching to  hear as great a noise and hubbub as you will  usually observe at a public meeting of the planters in Virginia.

Jefferson found the members paying little attention to the speaker.
 

The mob (for such was their appearance) sat covered [with hats on] on the justices' and lawyers' benches, and were divided into little clubs amusing themselves in the common chit chat way.  I was surprised to see them address the speaker without rising from their seats, and three, four, and five at a time without being checked.  When a motion was made, the speaker instead of putting the question in the usual form, only asked the gentlemen whether they chose that such or such a thing should be done . . . in short everything seems to be carried without the house in general knowing what was proposed.†20

Within six years of Jefferson's visit, a new elegant and expensive State House was begun on the site of the old court building and State House.  Moving to their new home seven years later, in November 1779, the Lower House of the General Assembly was so impressed by its new surroundings that it increased its rules of behavior and procedure from the mere nine that had been in effect since before Jefferson's visit in 1766 to thirty--one.  In addition to prohibiting members from bringing guns into the chamber and using unseemly language in speeches, the House of Delegates now required its members to conduct business in ways designed to improve order and decorum.  Perhaps the influence of their splendid new surroundings and the new rules had the desired effect.  A visitor in September 1783 observed that he had "been present at one of their sessions of assembly and could not help admiring the order and dignity in which they conducted their business"†21

If in outward appearance more orderly than in pre--war years, politics in the State House continued for some time to be dominated by factional disputes in which legislators relied heavily on instructions and petitions from a small, property--based electorate (at best 12.6% of the white population).†22    Some representatives even went so far as to solicit advice through the newspapers, as Charles Ridgely did in 1784:
 

As long as I may have the honour of representing you in Assembly, I shall consider it my duty to follow your instructions; and whenever I am timely apprized of any subject of importance, I shall endeavour to inform you it, and take your direction thereon.†23

The adoption of the Constitution and especially the first amendment, provided the impetus for a change in the ground rules.  In one sense the definition of "constituent" was broadened considerably by the creation of a strong central government that obscured state boundaries.  As one writer calling for ratification of the Constitution pointed out to the "Working People of Maryland":
 

We common people are more properly the citizens of America than of any particular state.  Very many of our sort, die in different parts from where they were born; and the constitution ordains, that wheresoever we may find land for our children, there we shall also find exactly the same general liberty that we left.  Taxes too, are to be every where equal.  I allow that men, seeking power and profit, may wish to keep opportunities of that sort, in the state governments where they live; but I must think the general government, so far as it goes, [is] better for the majority of the people, who want land for their children.†24

The retention of the comma in the first amendment legitimized a form of political behavior under the Constitution that hitherto had been considered unseemly.  By 1796 the politics of party as distinct from the small "clubs" of Jefferson's visit to Annapolis of thirty years before had become so prevalent as to provoke a warning from President Washington in his "Farewell Address."
 

Let me now take a more comprehensive view, and warn you, in the most solemn manner, against the baneful effects of the spirit of party, generally.

This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind.  It exists under different shapes in all governments — more or less stifled, controuled, or repressed; but in those of the popular form, it is seen in its greatest rankness, and is truly their worst enemy. ...

The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, ... [and] the common and continual mischiefs of the spirit of party, are sufficient to make it the interest and duty of a wise people to discourage and restrain it...†25

In making these observations, Washington was reflecting fondly on the pre-Constitution era when leaders such as he would be chosen to serve in their provincial assemblies as the delegates of a restricted and largely quiescent electorate.  To be sure they would receive petitions and instructions from their constituents.  As Samuel Chase pointed out in 1787:
 

Representatives ... are bound by your instructions, or you destroy the very idea of election, and of delegated power.  To represent, is to speak and act agreeably to the opinions and sentiments of the persons represented, in the same manner as they would do, if personally present; of consequence therefore, to speak and act contrary to the declared will of the persons represented, is not to represent, but to misrepresent them.†26

To argue that a representative could be bound by interests other than those of the constituents in his district was a new phenomena that Chase rejected in his bid for election as a delegate from Baltimore Town.
 

the doctrine that the representatives of the people are not bound by their instructions is entirely new in this country, and broached since the revolution, and was never heard of but within these few weeks ... .

Chase had moved Baltimore in early 1787 after more than twenty years of serving Annapolis and Anne Arundel County in the House of Delegates. In appeals to his new constituency he defended his previous voting record in the House of Delegates as the correct responses of a legislator to the demands of his constituents. If elected a representative of Baltimore he announced that he would, in every case, put aside any personal opinion and reverse any former vote, if his new constituents so desired.
 

It is well known that I zealously supported the bill that was proposed,  some years ago, for the support of the Clergy of all denominations of Christians; and I need not inform you, that in so doing, I acted agreeably to the sense of my constituents. ... I engage myself to you not to vote for, or promote, directly or indirectly, any law for that purpose; but, on the contrary, I promise you to oppose such proposition, until you instruct me to the contrary.†27

In his first election in Baltimore Town (September 1787), Chase won handily.  As one newspaper account observed:
 

[by] a great number of publications in the papers, and hand--bills, the attention of the public has been endeavoured to be drawn to the election of delegates for this town; ... warm and great opposition ... was ... to be made to the election of Samuel Chase, Esq who offered to represent this town in the General Assembly.  On Wednesday last [October 3], at noon the polls were closed and, of 830 votes, the numbers for the candidates were as follows.—Samuel Chase, 612...†28

Chase's election to the House of Delegates from Baltimore came so close on the heels of the first publication of the Constitution, that there had been no opportunity for the debate over its merits to affect the complexion of local politics.  Over the next few months, as the Federalists in the City became organized, Chase saw the handwriting on the wall.†29 Baltimore had good reason to seek the protection of the Constitution, having lost in every effort at the State level and in the old Congress to obtain tariffs and other means of supporting the interests of its `mechanics' and manufacturers.†30 Abandoning his new constituents and their increasingly strident stand in favor of the Constitution, Chase sought refuge in his old Anne Arundel County constituency for support of his stand in opposition to the Constitution and election to the Ratification Convention. Chase, his cousin, and John Francis Mercer, forged a political party and platform that, considering the lateness of the hour, had remarkable success. While his surrogate unsuccessfully battled the Federalists in Baltimore Town, Chase went into one part of Anne Arundel County and harangued the electorate, while John Francis Mercer and Jeremiah Chase went into another where they dispersed a signed hand bill summarizing their "platform":

According to Federalist Daniel Carroll, the handbills and the arguments advanced by Chase and his colleagues were most effective.  The result was that “the people were alarmed at their positive assertions, and I am assured when they attended the Polls, a wildness appeared in many which show'd they were really frightened by what they had just heard.”  Undoubtedly similar campaigns were waged by William Paca in Harford County and Captain Charles Ridgely in Baltimore County, the only other districts in Maryland where Bill of Rights advocates were elected.  The lack of pro--amendment (Anti--Federalist) success elsewhere was probably due as much to timing as to any strong pro--Constitution sentiment.†31

With the publication of the proposed Constitution (September 22, 1787) Marylanders were  asked to consider a revamping of not only their own political world, but also that of the Nation as a whole.  At first their response was little more than to confirm the work of the Convention in Philadelphia, but as the arguments continued beyond the Ratification Convention itself, the mood of the electorate changed.  By November of 1789 a General Assembly consisting of many of the same people who overwhelmingly approved the Constitution without amendments, adopted twelve unanimously and without debate.  Within the short span of less than twenty--four months, the right of parties to “peaceably assemble” was written indelibly into the language of the Constitution, as far as Maryland was concerned.†32

The collective effort of a number of states in developing the wording of the First Amendment legitimized political parties and political action.  Furthermore, the shift in language of what became the First Amendment as forged by the Richmond Committee in June of 1788, reflects a significant shift in attitude towards political behavior, particularly in the context of those `peaceable assemblies' that became political parties after 1789.†33

Beginning in 1789 the "Vox Populi” also underwent a physical transformation from all men of property to all free white men.  By 1802 every free white male over the age of 21 in Maryland could vote. By 1802 he could use a paper ballot. Instead of standing at the polls, affirming his property qualifications, and announcing his vote, he could meekly submit a previously printed ballot supplied him by his party and quickly rejoin the crowd (presumably after carefully weighing the oral and printed arguments of the candidates).

This change did not occur overnight.  The caldron of national politics was needed to make party work at the State level. Initially many of the Anti--Federalists assumed that all the meaningful decisions with regard to public affairs would be made in Congress and that there would be little opportunity for promoting their programs at the State level. In 1789 John Francis Mercer declined to run for the Maryland House of Delegates:
 

The near approach of the election has induced me to notify, that I shall not be a candidate to represent you in the ensuing year.  —In doing which, permit me to return you my sincere thanks for the repeated marks of confidence with which you have honoured me. —At present, I am persuaded, that the establishment of the new constitution has rendered the happiness and prosperity  of the people of Maryland very little dependent on those internal regulations which remain within the limits of State legislation.  —Under these impressions, I could entertain no hopes of effecting any measures that could materially promote the public interest ... .†34

Like all good politicians, Mercer left the door slightly ajar in case “any further occasions occur that may require the free opinions and determined conduct of the friends of the American revolution,” and he promised to “be among the foremost to offer my services, and solicit again the honour of their suffrages.”†35 When it became clear that the key to success in Congress was the political organizations in each of the States, Mercer returned to the fray. By 1800 he was leading the forces for Jefferson and the adoption of universal white manhood suffrage in Maryland. But when he chose a course of consensus and compromise at the expense of party three years later, he was abandoned by his President and his party.

As Eric Papenfuse has pointed out:
 

In 1800, John Francis Mercer returned to politics at the state level in support of Jefferson, his former teacher.  To Mercer, Jefferson's election was a `Revolution', but the term meant one thing to him and another to the new President.  To Jefferson “Revolution” meant bringing the national government closer to the people and placing it firmly in the control of his Republican Party.  Mercer saw the “Revolution” as a progressive change in government, but one which would neither exclude sympathetic moderates from the opposing party nor depend too completely upon the opinions of the uninformed masses.†36

Near the end of his life Mercer would write a pamphlet decrying the efforts to make the sinful city of Baltimore the State Capital. In doing so he repeated with grateful acknowledgment the arguments of the arch--Federalist Alexander Contee Hanson that too much democracy could prove fatal to good government.†37 In Mercer's eyes, the course of party politics had gone too far.

The years from the adoption of the Constitution and the Bill of Rights to the enactment of the paper ballot and universal manhood suffrage in 1802 were years of transformation for the political system in Maryland.  Until 1789, politics in Maryland functioned as it had for two or more previous generations.  That is not to say that some within the governing elite did not worry.  Professor Ronald Hoffman has amply documented the levels of concern during the worst of the war years.†38   But those concerns were ameliorated by peace and played little part in the controversies of the late 1780s.  It was not until national issues such as the regulation of trade and the posture of the thirteen colonies in the world, could no longer be ignored, that changes in the definitions of "Vox Populi," and in the nature of representative government began to occur.

First with the Annapolis Convention of 1786, and then with the Philadelphia Convention of 1787, the questions of what the character of the National Government should be and how it should affect both local government and individual rights, became issues that forced those in power at the local level to reevaluate their positions and to advocate, in varying degrees and in quite different ways, the expansion of the electorate.  By 1816, few Marylanders even questioned universal white manhood suffrage and most undoubtedly agreed with arch--Federalist Robert Goodloe Harper.  On April 12, 1816 Harper wrote his fellow U. S. Senator from Maryland, Robert Henry Goldsborough:
 

I regret very much, my dear sir, that I will not be able to leave home till Monday, and that consequently I shall probably not arrive on time, for the discussion on the Indiana [statehood] bill.  Should it happen otherwise I should with great pleasure support your intended motion, for extending the right of suffrage in the new state.  For I have long been of the opinion, from a very careful consideration of the subject, that all restrictions and limitations of the right of suffrage, further than confining it to free white citizens, having the residence that may be required by law, in other words all property qualifications of voters are useless, impolitic, and improper, as being contrary to the nature of our government and to the genius and character of the American people.  I was therefore in favor of the change formerly made in our state [Maryland], on that subject, and though I differed in this respect from some our political friends, I had the satisfaction of knowing that many of them, and I believe a large majority, entertained the same opinion with me.†39

The state of Maryland, which had been founded by great lords, was the first to proclaim universal suffrage and introduced the most democratic procedures throughout its government.

Once a people begins to interfere with voting qualification, one can be sure that sooner or later it will abolish it altogether.  That is one of the most invariable rules of social behavior.  The further the limit of voting rights is extended, the stronger is the need felt to spread them still wider.  ... The people take part in the making of the laws by choosing the lawgivers, and they share in their application by electing the agents of the executive power; one might say that they govern themselves ... It is the cause  and the end of all things; everything rises out of it and is absorbed back into it.†40