©1991, rev. 1999 Edward C. Papenfuse; published in a slightly altered form in "Maryland and the Constitution," in A. E. Dick Howard The Constitution in the Making: Perspectives of the Original Thirteen States (Richmond: 1993)
 

¹⁾The United States Constitution. Text with Analytical Index. Washington, D. C.: United States Government Printing Office, 1961, p. 11.

²⁾ Bernard Schwartz, The Roots of the Bill of Rights. New York: Chelsea House Publishers, 1980, vol. I, p. 215.

³⁾Ibid., pp 216-217.

⁴⁾ Edward Dumbauld, "State Precedents for the Bill of Rights,"  Journal of Public Law, VII (1958), p. 343.

⁵⁾ Ibid., Vol. 2, pp. 338, 266, 286, 324, 374.

⁶⁾Revised introduction from Edward C. Papenfuse, and Gregory A. Stiverson, eds. The Decisive Blow is Struck. A Facsimile Edition of the Proceedings of the Constitutional Convention of 1776 and the First Maryland Constitution. Annapolis: Hall of Records Commission, 1977.

⁷⁾ Ibid., and Schwartz, Vol. 2, p. 375.

⁸⁾ Richard Henry Lee's "Proposed Amendments," 27 September, in The Documentary History of the Constitution, edited by Merrill Jensen (Madison: State Historical Society of Wisconsin), vol. 1, pp. 337-339.

⁹⁾ The original drafts of the amendments offered at the Maryland Ratification Convention in April 1788 are in Maryland State Archives Special Collections, MSA SC 1592, and the printed broadside of the minority report that found its way to Richmond is in MSA SC 176, item 443. For the first time, the Maryland Broadside presented both the proposed language and the argument for a bill of rights in the form of explanatory notes to the proposed amendments. For a discussion of all of the Maryland amendments, including some not printed in the broadside, see Gregory A. Stiverson, "Maryland's Antifederalists and the Perfection of the U.S. Constitution," Maryland Historical Magazine, 83(Spring, 1988), pp. 18-35. Apart from the seminal ideas expressed in George Mason's original Virginia Declaration of Rights (1776), the contributions of individual states to the language of the Federal Bill of Rights as finally adopted, is not as important as the process by which all the states contributed to the consensus that emerged in 1789. Maryland did much, however, to focus attention on what the substance of the amendments might be, and did materially assist the process through supplying new or improved language which the Richmond committee adopted. Judge Dumbauld (Journal of Public History), volume 7 (1958), p. 329, was the first to point out the unique contributions of Maryland to the Bill of Rights:
 

Among the innovations offered by Maryland, one finally found its way into the federal Bill of Rights: that relating to the quartering of troops, which in turn had its origins in the Magna Carta. Other propositions put forward for the first time by Maryland included: freedom of debate in the legislature; frequent sessions of the legislature; abolition of poll tax, sanguinary and ex post facto laws, and attainder; that a speedy remedy should be available for every injury; that forfeiture should be permitted only for murder and for treason; that only the military should be subject to martial law; that judge should hold office during good behavior; that there should be rotation in the executive departments; and no person should hold more than one office; that no person in public trust should receive a present from any foreign prince or state or from the United States or any state without special permission; that gifts for religious purposes without leave of the legislature should be void; that no other test or qualification for holding office should be required "than such oath of support and fidelity to this State" and such oath of office as shall be prescribed by law "and a declaration of a belief in the Christian Religion;"  that solemn affirmations should be admitted in place of oaths in the case of Quakers, Dunkards, and Mennonites; that the city of Annapolis should retain its charter rights; that monopolies should not be permitted; that "no title of nobility or hereditary honours" ought to be granted.

There were two distinct parts to the Richmond Committee proposals, a twenty-item `Declaration of Rights' prepared by Mason, and 20 amendments apparently compiled by the Richmond committee and introduced by Patrick Henry, both of which were adopted by the Virginia Ratifying Convention on June 27. Maryland language was used in whole or in part in 13 of the 40 proposals (32.5%: Mason's 3, 6, 9, 12, 14, 16, 19; Henry's 1, 3, 8, 11, 16). More significant than counting, however, is the point with regard to derivation and substance. George Mason's proposals came from his own pen with little direct copying of the report of the Maryland minority, although he was in close correspondence with his lawyer in Annapolis, John Francis Mercer, and subsequently had to repudiate charges that he had circulated some of Mercer's purportedly seditious remarks in Richmond. Mason's proposals are taken directly and verbatim from his efforts of 11 years previously except where he thought Maryland had a better idea which he generally either adopted in whole, or  reworked into language of his own. The Richmond Committee, on the other hand, clearly took some of their ideas and text for the amendments introduced by Henry directly form the printed broadside of the Maryland Minority which was circulating in Richmond. An example is proposal number 1 which is the beginnings of the 10th Amendment,  materially altered the following year from the floor of the House of Representatives by Maryland Congressman Daniel Carroll. Carroll added the words "to the people"ª to the mystification of succeeding generations of lawyers and constitutional scholars. In all, the Maryland context cannot be ignored in attempting to understand the general consensus on the need for a Bill of Rights that emerged by the Summer of 1788.

The best example of the dramatic change in attitude toward the need for a bill of rights is James Madison who in the end distilled all the work of Mason, Henry, the Maryland Minority, and others, into the proposed 12 Amendments. When Madison finds he has to return to the stump in 1788 in an effort to beat his Anti-Federalist opponent, James Monroe (as quoted in Rutland, Bill of Rights, 195-196) he is forced to write an explanatory letter:
 

it is my sincere opinion that the Constitution ought to be revised, and that the first Congress meeting under it, ought to prepare and recommend to the States for ratification, the most satisfactory provisions for all essential rights, particularly the rights of Conscience in the fullest latitude [Maryland's suggestion], the freedom of the press, trials by jury, security against general warrants [uniquely Maryland language, Minority Report, adopted amendment no. 8].

¹⁰⁾For details of the work of the Richmond Anti-Federal Committee, see Robert Rutland, ed. The Papers of George Mason, pp. 1046-1122. For the text of the Declaration of Rights and amendments proposed by Virginia see: Documents Illustrative of the Formation of the Union of the American States. (Washington: Government Printing Office, 1927), pp. 1027-1034

¹¹⁾ Ralph Ketchum, James Madison: A Biography. New York, 1971, p. 277

¹²⁾The Story of the Bill of Rights. Washington, D.C.: National Archives and Records Service, 1980, p 4.

¹³⁾Ibid., p. 11.

¹⁴⁾ Ibid., pp. 18-19.

¹⁵⁾ attributed to James Otis, 1763 although he actually wrote: `No parts of His Majesty's dominions can be taxed without their consent.' Rights of the Colonies, 1764, p. 64.

¹⁶⁾Edmund S. Morgan, Inventing the People,New York: W. W. Norton, 1988, p. 287

¹⁷⁾Maryland State Archives, S 997-19970-18-16

¹⁸⁾Maryland Gazette and Baltimore Advertiser, September 14, 1787.

¹⁹⁾for a full discussion of suffrage reform in Maryland see L. Marx Renzulli, Jr., Maryland The Federalist Years. Rutherford, N.J.: Fairleigh Dickinson University Press, 1972, p. 215, n. 9. The bill to adopt universal manhood suffrage was first introduced in 1797 by a Federalist, Michael Taney, who Renzulli correctly suggests was reflecting pressure from militiamen. Such pressure was identical to that influencing Rezin Hammond in 1776 when he argued that all men who bore arms should be permitted to vote. Both efforts failed because they were reactions to the exigencies of the moment and not a carefully calculated party strategy for gaining political power. It is not until the Election of 1800 that the a broader based suffrage becomes a platform of the Republican Party.

²⁰⁾ Bulletin of the New York Public Library, vol. II, pp. 176-177.

²¹⁾Morris L. Radoff, The State House At Annapolis. Annapolis: Hall of Records Commission, 1972, and The Maryland Journal and Baltimore Advertiser, September 30, 1783.

²²⁾Note on Suffrage in the late 18th century: Adult white males over 21 with 50 acres of land or £30 common currency (current money) could vote. In 1782 the population was estimated at 35,268 white males over 18, but this cannot account for soldiers still in the army. Anderson (Maryland Historical Magazine, Vol. 73-4: n. 19) suggests 4.5% reduction to give a realistic estimate of those over 21: 33,680.94. He then estimates that 63.8% of the Free Adult males had enough property to vote suggesting that about 21,488 could vote in 1782 and 21,738 in 1783 (Anderson, Maryland Historical Magazine, Vol. 76-2:150). Anderson qualifies this further with some discussion of free blacks, reducing % to 62, but his conclusion remains basically unaltered: the result is 'a figure not irreconcilable with the estimate of 25,000 in 1788 cited above.' He derives the 25,000 from Crowl who cites a 1788 article in the Maryland Journal. Based upon Anderson's calculations, 12.5893% of the total white population was eligible to vote (possibly lower in Baltimore City where there were more people who had less than £30 of property?). Anderson indicates that in Baltimore County, 58% of the Free Adult White Males were eligible to vote (Maryland Historical Magazine, Vol. 76-2:149). The best estimate of the population of Baltimore about 1790 (Greene and Harrington: 133) was 12,248 whites. My calculations for 1783, based upon the tax lists is: 9,597 whites, up from an estimated total population of 6,000 in 1776 (Merrill Jensen, The New Nation, 115). Assuming the lower eligibility rate for Baltimore city (10.458% of the total white population), then the voting population in 1776 was less than 627, when adjusted for slaves in the total population. In 1783 it was 1004, and in 1790, 1280. We know however, that in 1788, 1342 people voted in BC, so it probably makes more sense to use the state-wide figure offered by Anderson of .125893 of the total population which would make 1776 less than 755, 1783 about 1208, and 1790, 1542.

²³⁾Maryland Journal and Baltimore Advertiser, December 24, 1784.

²⁴⁾ Maryland Journal and Baltimore Advertiser, February 29, 1788.

²⁵⁾ Richardson, ed. Messages and Papers of the Presidents, Vol. I, p. 213 ff.

²⁶⁾Samuel Chase to his Constituents, February 9, 1787, reprinted in Representative Government and the Revolution. The Maryland Constitutional Crisis of 1787, edited with an introduction by Melvin Yazawa, Baltimore: The Johns Hopkins University Press, 1975, p. 57.

²⁷⁾ Maryland Journal and Baltimore Advertiser, September 21, 1787.

²⁸⁾Maryland Gazette and Baltimore Advertiser, October 5, 1787. The best discussion of the elections in Baltimore City in 1787 and 1788, as well as an overview of the whole period is to be found in William Arthur O'Brien, `Challenge to Consensus: Social, Political and Economic Implications of Maryland Sectionalism, 1776-1789,' unpublished Ph.D. dissertation, University of Wisconsin-Madison, 1979. O'Brien tries to make the sectional model of Main and Risjord work without any great success, but his coverage of the sources and degree of detail is commendable.

²⁹⁾ in addition to O'Brien's work, op. cit., see also James Haw, Francis F. Bierne, Rosamund R. Bierne, and R. Samuel Jett, Stormy Patriot: The Life of Samuel Chase. Baltimore: Maryland Historical Society, 1980, for the elections in Baltimore City and Chase's career.

³⁰⁾Charles G. Steffen, The Mechanics of Baltimore: Workers and Politics in the Age of Revolution, 1763-1812. Urbana: University of Illinois Press, 1984.

³¹⁾Edward C. Papenfuse, "An Undelivered Defense of a Winning Cause: Charles Carroll of Carrollton's `Remarks on the Proposed Federal Constitution,'" Maryland Historical Magazine, 71(1976), no. 2, pp. 220-251.

³²⁾ Although New Jersey acted first to ratify the Bill of Rights in November of 1789, Maryland was the first state to transmit its ratification to President Washington who sent it to Congress on January 25, 1790. See Schwartz, vol. 5, pp. 1193-1203.

³³⁾Perhaps the best single secondary source on the historical origins of the first amendments to the Constitution is Judge Edward Dumbauld's `State Precedents for the Bill of Rights.' Journal of Public Law, VII (1958), pp. 323-344. Dumbauld makes it abundantly clear that James Madison played the major role in articulating the concerns over the Constitution as presented for Ratification to the States, and that he was instrumental in seeing the first amendments through the first Congress. Madison worked from a printed compilation of amendments, proposed by New York, Massachusetts, New Hampshire, Maryland, and South Carolina which he sent to Jefferson in October of 1788. Dumbauld argues convincingly that the sequencing of the New York amendments was adopted by Madison as a way of incorporating them directly into the Body of the Constitution. In this way Madison hoped to ignore any of the proposed amendments that he felt would destroy the fabric of the Constitution, while the others became part of the language of the document itself. To that extent he failed. The pressure to have a separate statement of individual freedoms and States' rights was simply too great. But while James Madison applied his indisputable genius to the final form of the Bill of Rights, the language and intent of those ratified amendments had its origins in the Conventions called at the local level between 1776 and 1788.

³⁴⁾Maryland Gazette (Annapolis), October 1, 1789.

³⁵⁾ Ibid.

³⁶⁾Eric Robert Papenfuse, `Philadelphia and Beyond: Maryland's Five Delegates to the Constitutional Convention of 1787,' unpublished final report to the National Endowment for the Humanities, Younger Scholars Award program, 1988, p. 51.

³⁷⁾ [John Francis Mercer], Essay on the removal of the seat of government to Baltimore, [1816].

³⁸⁾Ronald Hoffman, A Spirit of Dissension Economics, Politics, and the Revolution in Maryland (Baltimore: The Johns Hopkins University Press, 1973).

³⁹⁾ Griffen Collection of Goldsborough Papers, Maryland State Archives, MSA SC 2085.

⁴⁰⁾ Alexis de Tocqueville. Democracy in America. Edited by J. P. Mayer. New York: Perennial Library, 1988, pp. 59-60.