Mr. President and Gentlemen of the Maryland State Bar Association
Under the Seventh Article of the liberal Charter granted by Charles the First, in the eighth year of his reign, to Cecilius Calvert, Baron of Baltimore, the Lord Proprietary was given1 ample power to establish judicial tribunals in the province of Maryland. Following the custom, which prevailed in England, of making the Lieutenant-General or Governor of a Colony its Chancellor, Lord Baltimore, by his commission dated April 15th, 1637,1 appointed his brother, Leonard Calvert, Lieutenant-General, Chief Justice, Chancellor and Chief Magistrate of Maryland, and he named three other persons to be members of his Council. The Chief Justice and the members of the Council so appointed constituted the first Court of Appeals, and Leonard Calvert became its first Chief Justice, and, except during revolutionary interruptions, continued such until his death, in 1647. In reviewing the administration of Leonard Calvert up to the close of the year 1638, Bozman says: "The paucity of inhabitants, and consequently of suits or actions at Law, will possibly reconcile what at first appearance strikes us at this day as too large a monopoly or reservation of Judicial power in the hands of the Chief Executive Magistrate. But, in justice to the memory of those in whom the supreme power of the Province, both executive and judicial, had been hither-to vested, from the first landing of the colony in March, 1634, to the close of the year 1638, a period of almost five years, it ought to be remarked that it would be difficult to find on our records a single instance of an arbitrary or wanton exercise of such power on either the person or property of any one individual." (2 Boz. His. Md., 92.)
The Appellate Court so formed, though its members frequently changed, continued to be the tribunal of final resort in Maryland for more than a century and a third, until the dawn of a new era was ushered in with the advent of American Independence.
The proceedings of the Court of Appeals, thus organized, are partially reported in portions of the first and fourth of Harris & McHenry's Reports; the remainder of those volumes contain cases determined by the Provincial Court. Many cases not published in the Reports just named may be found in the Council Proceedings from 1636 to 1657. By the Act of 1699 (Chapter 19), it was declared that the Port of Annapolis should be the general place and seat of justice within the province for holding Assemblies and Provincial Courts, and all writs, pleas and processes issuing out of and returnable to the Provincial Court and the Court of Chancery were made returnable to the Port of Annapolis. The requirement in Section 14 of Article 4 of the present State Constitution that the Court of Appeals shall hold its sessions in the City of Annapolis, may be traced back through prior Constitutions to the Act of 1699.
As but few of the Justices who presided over the Court of Appeals from its organization in 1637 until the formation of the State Constitution in 1776 were lawyers, it is not deemed that a particular reference to them is within the purview of my subject. I have alluded to the first Court of Appeals merely to show the antiquity of Maryland's highest judicial tribunal. It was stated by Chase, Chief Justice of the General Court, in the case of Whittington vs. Polke, I Harris & Johnson, 247, decided in 1802, that the judiciary of Maryland, previous to the time when the Constitution was adopted in 1776, consisted of County Courts and a Provincial, afterwards called the General Court, a Court of Appeals, a Chancery Court and a Court of Admiralty. A Court of Admiralty was also created by the Constitution of 1776, but its functions ceased upon the adoption of the Federal Constitution, as jurisdiction in admiralty was thereupon transferred to the General Government.
The cases contained in the Maryland Reports begin with the year 1658, although there are others as far back as 1637 which have not been published except in the proceedings of the Council. The Maryland Reports antedate those of any other State. They are seventy-two years older than those of Virginia; ninety-six years older than those of Pennsylvania; one hundred and twenty years older than those of North Carolina; one hundred and twenty-five years older than those of South Carolina; one hundred and twenty-seven years older than those of Connecticut; one hundred and thirty-two years older than those of New Jersey; one hundred and thirty-six years'older than those of New York; one hundred and forty-six years older than those of Massachusetts; one hundred and forty-seven years older than those of Georgia; one hundred and fifty-six years older than those of Delaware ; one hundred and fifty-eight years older than those of New Hampshire, and one hundred and seventy years older than those of Rhode Island. The total number of volumes comprised in the series of Maryland Reports is one hundred and thirty-one, and of these only one volume and a portion of another cover the period prior to the American Revolution.2
The convention which assembled in Annapolis in 1776, adopted on November 8th, the first Constitution and form of Government of the State. By Article 56, it was provided, in substance, that there should be a Court of Appeals composed of persons of integrity and sound judgment in the Law, whose judgments were to be final and conclusive in all cases of appeal from the General Court, the Court of Chancery, and the Court of Admiralty; that there should be a Court of Chancery and a Court of Admiralty; that there should be a General Court to be composed of three judges, and that the General Court should ait on the Western and Eastern Shores, at such times as the Legislature might prescribe. On the 27th of February, 1777, it was resolved by the House of Delegates that a committee be appointed to consider and report in what manner the Judges of the Court of Appeals should be constituted and a committee was accordingly selected. On the 28th of March it was suggested by the House of Delegates that the Court of Appeals should consist of five judges with power to any three or more of them to weigh and determine all appeals and writs of error from the inferior Courts within this State. It was proposed that three of those judges should be elected by the joint ballot of the two Houses of the Legislature; that in all cases of Appeal from the judgment of the General Court, the Chancellor and the Judge of the Court of Admiralty should be associated with and join the three judges appointed by the two Houses; that in all cases of appeal from the Court of Admiralty, the Chancellor and the Chief Justice of the General Court should be associated with and join the said three judges, and that in all cases of appeal from the decrees of the Chancellor, the Chief Justice of the General Court and the Judge of the Court of Admiralty should be associated with and join the said three judges; and whenever the Chief Justice shall be absent from the State or so indisposed that he cannot attend, the next judge in commission of the General Court should take his place. These propositions embodied in a resolution were sent to the Senate for their concurrence. On the 29th of March a message was received from that body wherein the Senate agreed to the proposal that the Court of Appeals should consist of five judges and that the power be lodged with any three or more of them to hear and determine all appeals and writs of error, but the Senate disagreed with that part of the resolution directing the Chancellor, Chief Judge of the General Court, or the Judge of the Admiralty Court to be occasionally associated with the three judges proposed to be appointed by the joint ballot of both Houses, because, so says the message, " we conceive it to be a matter of the highest importance to keep the Court of last resort totally distinct from all inferior jurisdictions, which distinction we apprehend could not be so entirely preserved were the Chancellor or one of the Judges of the General Court or a Judge of the Court of Admiralty to be admitted as a Judge of the Court of Appeals. Many appeals may come from the General Court through the Court of Chancery into the Court of Appeals and in such cases either a Judge of the General Court or a Chancellor might sit and determine in the last resort a case in which one of them had already passed judgment. The frequent and occasional change, too, of judges, besides interrupting the sittings of inferior Courts might also prevent uniformity of decision in cases governed by the same principle and those settled rules of practice so necessary to be observed in the Court of Appeals." I have quoted this message of the Senate because it gives the reasons for the establishment of an independent Court of Appeals-a plan which was adopted the following year but was discarded after the experiment had been tried; though later on in the history of the State, as will be indicated in a 'few moments, the same system was again tried and again abandoned. The House and the Senate failed to reach any conclusion, the House claiming the right to name a list of officers and to send that list to the Senate for their approbation, and further claiming that if, after such list was so sent, the two Houses should disagree in opinion, then a joint ballot would be necessary. On the 31st of March, 1777, the House informed the Senate that it was not prepared to furnish its list of officers and on the same day the House 'resolved that the nomination of judges for the high Court of Appeals be postponed, and the reason assigned in the message sent the following day to the Senate was,'" the difficulty of finding proper persons to fill that important station."
-The matter then slumbered until the 1st day of December, 1778, when a message was taken from the Senate to the House by Charles Carroll of Carrollton, in these words:"Gentlemen, we consider the appointment of the Court of Appeals as a measure absolutely necessary to carry into full effect our present Constitution and form of government. We think the appointment ought not to be longer delayed. If you should be of the same opinion, it will be proper to fix the number of judges of the said Court and their salaries before we go into a nomination of them." On the 9th of December the House replied to that message and conceded that the appointment of the Judges of the Court of Appeals was a measure absolutely necessary to carry into effect the Constitution and form of government, and stated that if proper persons could be found the House would cheerfully go into a joint ballot. In the same message the Senate was asked what gentlemen of integrity and sound judgment in the Law the Senators had in contemplation as proper judges, because, said the members of the House, " None have occurred to us that we think would accept the trust." On the 12th of December the House of Delegates recommended Benjamin Rumsey, Benjamin Makell, the fourth, Thomas Jones, Solomon Wright and James Murray to be Judges of the Court of Appeals and on the same day the Senate agreed to the appointment of the five gentlemen named. The salary of each of the Judges of the Court of Appeals was fixed at five hundred pounds current money per annum. (Votes and Proceedings of House and Senate from 1777 to 1779.)
Benjamin Rumsey was then designated Chief Judge of the Court of Appeals. Thus was the first Court organized under the Constitution of 1776. Benjamin Rumsey was born in Cecil County in 1735. He studied law, passed the Bar, and in 1770 removed to Joppa, in Harford County, then part of Baltimore County. He was a member of the first Revolutionary Committee of Harford County and represented the county in the Provincial Convention. In January, 1776, he was commissioned Colonel of one of the battalions of militia raised in that county and shortly afterwards was chosen by the convention as a member of the Council of Safety to act during the recess of the convention and was twice reappointed to the same responsible position. In October, 1776, he was chosen one of the four commissioners to proceed to the Maryland Camp in New Jersey to re-enlist and reorganize the Maryland troops whose term of service was about to expire and to commission the officers with the advice of General Washington. He was a delegate to Congress, chosen by the Maryland Convention, and on the organization of the new State Government, he was selected by the Legislature to fill the same office. He died at Joppa, March 7th, 1808, a little more than two years after retiring from the Bench. He occupied the position of Chief Judge of the Court of Appeals for twenty-eight years.3 There were but few opinions delivered by that tribunal during the twenty-eight years of its existence. In nearly every instance where appeals were heard by it, and which are reported in 2 Harris & McHenry; 3 Harris & McHenry; 4 Harris & McHenry, and I Harris & Johnson, we find the simple entry, "judgment reversed" or "judgment affirmed." There are a few exceptions, but they are only per curiam opinions. A large part of these volumes is taken up with the judgments of the General Court. During the early years of the Appellate Court's existence comparatively little business was before it. The people of the State were at that time more deeply concerned in filling the ranks of Maryland's regiments for service in the Continental Army, and with providing means to furnish her troops with muskets, ammunition and clothing, than they were interested in legal controversies. The Court was established at a period when the cause of American Independence "was most desperate. Every energy and every resource of the commonwealth were then strained to their utmost tension to put into the field and to properly equip the stubbornly brave regulars of the Maryland Line. It is doubtless due largely to this condition that but little legal business was transacted. In point of fact no Clerk to the Court of Appeals was appointed until some time in the year 1780, as appears by Chapter 23 of the Acts of Assembly of March session, 1780, under which Act the Court was empowered to select a clerk. By Chapter 11 of the June session of the same year and by Chapter 19 of the October session, it is shown that the Court was adjourned and that processes were revived and the cases were all continued until October, 1781. By the Act of February session, 1777, Chapter 15, the terms of Court were fixed to begin on the first Tuesday in May and October. In those days when cases were few in number and Law books 'had not multiplied as they have in recent years, the arguments of counsel in the Appellate Court were not confined within any time limits and this was so for many years. Indeed, the first limit put upon arguments was by an order adopted on the 13th of November, 1826, which will be found on page 351 of the minute book of the Court of Appeals for the Western Shore. The order is in these words "Ordered that henceforth not more than two counsel for either party shall argue any case in this Court, and that in no case shall a speech of, more than six hours duration be permitted." This limit does not seem to have been changed until February 12th, 1852, when it was "ordered that hereafter counsel will be limited to two hours and a-half in their argument, unless the Court for obvious reasons shall deem it proper to suspend the operation of this rule." Later on the limit was still further reduced to one hour and a-half, and finally it was curtailed to one hour.
The seal adopted by the Court upon its organization in 1778 is the same which the Court of Appeals uses to-day. On June 23rd, 1806, this order appears on the minute book: " Ordered by the Court that the seal of the late Court of Appeals be adopted, received and used as the seal for the Court of Appeals for the Western Shore." On December 1st, 1851, the seal of the preceding Court of Appeals was adopted; and on November 26th, 1867, the seal of the former Court of Appeals was again adopted. It has therefore continued unchanged for at least a century and a quarter, though the die was renewed under an order of June 17th, 1837, in consequence of the old one having become too worn to make a fair impression.
The system of an independent Court of Appeals whose Judges performed no circuit duty-a system which was strenuously demanded by the Senate in its communication of March 29th, 1777,-was found not to meet the expectations of those who had established it, and accordingly the General Assembly at the November session, 1804, passed an Act, Chapter 55, designed to alter and change and abolish all such parts of the Constitution and form of government as related to the General Court and the Court of Appeals, and proposed in lieu thereof, an entirely different scheme which was to become effective if confirmed by the Legislature to be convened after the next election of delegates, as the Constitution and form of government then in force provided. By that Act the State was divided into six judicial districts, and it was enacted that for each of those judicial districts, three persons of integrity and sound legal knowledge should be appointed, one of whom should be styled in the commission, Chief Judge, and the other two Associate Judges; and that the Chief Judge and the two Associate Judges should compose the County Courts in each district. By Section 5 of the Act it was provided that the Court of Appeals should be composed of the Chief Judges of the six judicial districts of the State and that the Court should hold, use and exercise all the powers, authority, and jurisdiction formerly held, used and exercised by the Court of Appeals of this State, and also the appellate jurisdiction antecedently used and exercised by the General Court; and the section further required the Court of Appeals to sit on the Western and Eastern Shores for transacting and determining the business of the respective Shores, at such times and places as future legislation might direct and appoint. And the same section also declared precisely as does the present Constitution of the State, that a Judge of the Court of Appeals who had given a decision in any case in the lower Courts must withdraw from the Bench upon the deciding of the same case by the Court of Appeals. The Judges' tenure of office under this Act was during good behavior. By the Act of November session, 1805, Chapter 16, the Act of 1804, just alluded to, was confirmed and made valid to every intent and purpose therein mentioned and thereupon the provisions of the Act of 1804, became part of the Constitution and Form of Government of the State. The "system thus established is precisely the one we have to-day with a single exception, which will be noted presently, and is distinctly different from the one first inaugurated in 1778. The Court was required to sit on both the Western and Eastern Shores and this provision continued in force until the change brought about by the Constitution of 1851.
Jeremiah Townley Chase, who had been Chief Justice of the General Court, was appointed Chief Judge of the Court of Appeals. He was commissioned on the 27th day of January, 1806, and continued to serve with conspicuous ability until ill health compelled him to resign on June 18th, 1824. The cases heard and decided by the Court during the period that Judge Chase presided over its deliberations are reported in second, third, fourth, fifth, and one-half of sixth Harris & Johnson. Amongst the cases so reported there are some of considerable interest. Probably one of the most far-reaching in its consequences was the great case of McCullough vs. The State of Maryland, which was taken to the Supreme Court of the United States on writ of error in 1818, and there decided the following year adversely to the State (4 Wheat., 316.) The Supreme Court reversed the judgment of the Court of Appeals and of the Baltimore County Court and declared unconstitutional and void an Act of Assembly imposing a stamp duty on the circulating notes of a branch bank of the United States located in Baltimore. The case was argued for the bank by Pinkney, Wirt and Webster, and for the State by Martin, Hopkinson and Jones. Chancellor Kent in alluding to the decision said: "To define and settle the bounds of the restriction of the power of taxation in the States, and especially when that restriction was deduced from the implied powers of the general government, was a great and difficult undertaking, but it appears to have been, in this instance, most wisely and most successfully performed." (1 Kent Com., 425.) It was the great genius and the persuasive eloquence of William Pinkney, who was the matchless master of the forum in his day, which caused Chief Justice Marshall, in McCullough's case, to swerve from his earlier strictness of construction, and made him see, or think that he saw, in the auxiliary provision of the Constitution "to make all laws which shall be necessary and proper for carrying into execution" the specific powers granted, other powers as original as those which were unequivocally conferred. It is due, however, to the Court of Appeals to say that the judgment to review which the writ of error was sued out, was simply pro forma, as appears by the following entry on the minute book of June 27th, 1818: "The parties considering it very important to have the determination of the Supreme Court of the United States in this case without delay, the Court to facilitate that event have directed the judgment to be affirmed, but without having examined the merits of the question, or meaning to express their opinion thereupon, but, only as a means by which the, judgment of the Supreme Court may be obtained." This fact is not disclosed in the report of the case in 4 Wheat.
Judge Chase was born in Baltimore in 1748, and was from an early period of his life until the close of it, a public man in various important departments, in all of which he acquitted himself with distinguished ability. He took an early and decided part in the arduous and long doubtful contest with Great Britain in support of the violated rights of his country. During the whole period of that conflict he exhibited the most active patriotic zeal, undeviating rectitude and unshaken firmness. At the commencement of his public services, he was appointed a member of the first Committee of Observation in Baltimore town, where he then resided, and he was a private in one of the first militia companies raised, in Maryland. In February, 1775, he was elected by Baltimore County, of which the city was then a part, a member of the Convention which governed the State; and in 1776, he occupied a seat in the Convention which framed the Constitution and Form of Government. After the formation of the State Government, he was elected and continued to be a representative of Baltimore town until his removal to Annapolis in 1779. He was chosen a member of the Executive Council, in which capacity he continued to serve to the end of the Revolutionary War. The active and important services rendered by the Executive Council in procuring supplies of flour and cattle for the American Army, received the acknowledgment of General Washington. After the close of the war and the ratification of the Treaty of Peace with Great Britain, Judge Chase was elected a member of the Convention of Maryland which adopted the Federal-Constitution. In 1789 he was appointed Judge of the General Court, and, on the abolition of that Court, he was appointed Chief Judge of the Third Judicial District and Chief Judge of the Court of Appeals. The dignity, firmness, ability, and impartiality of his conduct in his judicial capacity were conspicuous. In the social and domestic character of this excellent man, the amiable and valuable qualities of his mind shone with distinguished luster. Pure and irreproachable in his moral conduct; mild, serene and placid in his disposition; benevolent and kind in his feelings; a warm and steady friend, he was courteous and obliging to all. He died May 11th, 1828. (Maryland Gazette, May 15th, 1828.)
Upon the resignation of Judge Chase, Judge John Buchanan was commissioned Chief Judge of the Court of Appeals and his commission bears date July 27th, 1824. He was first appointed in 1806 Chief Judge of the old Fifth Judicial District, which then comprised the counties of Frederick, Washington and Allegany, and thereupon he became an Associate Justice of the Court of Appeals. He served upon the Bench for nearly thirty-eight years, during twenty of which he presided as Chief Judge.
The decisions of the Court during the twenty years that Chief Judge Buchanan presided are reported in 7 Harris & Johnson, I and 2 Harris & Gill, in the twelve volumes of Gill & Johnson and I, 2 and 3 of Gill. Many cases of great importance were decided during this period. It was an epoch in which the Law of the State progressed from its formative stage into a fuller development. The Court over which Judge Buchanan presided was composed of men of vigorous intellects and patient industry, and the labor they performed, in contrast with what had been done by their predecessors, was enormous. It is probably due to the fact that the number of cases had increased largely, that the rule, limiting the arguments to six hours to each counsel, was adopted, less than two years after Judge Buchanan became Chief Justice. Amongst the cases of great magnitude that were decided by the Court during this period were the Chesapeake & Ohio Canal Co. vs. Baltimore & Ohio Railroad Co., 4 Gill & Johnson, 1; The Regents of the University of Maryland vs. Williams, 9 G. & J., and Calvert vs. Davis, 5 G. & J., the latter being the leading case in Maryland on the subject of testamentary capacity.
On December 26th, 1831, Daniel Webster was admitted to the Bar of the Court of Appeals, and with the late Mr. Reverdy Johnson argued the Canal case for the Railroad Company. It was argued for the Canal Company by Walter Jones and A. C. Magruder and was decided at the June term, 1832. The judgment of the majority of the Court was delivered by Chief Justice Buchanan. The report of the case occupies exactly half of one volume of the Maryland Reports, the opinion of the Chief Justice covering ninety-two pages. It was an exhaustive discussion of the question in controversy between the two companies with respect to the right claimed by each to the occupancy of a narrow strip of land on the north bank of the Potomac, at the Point of Rocks, in Frederick County. It required an examination into, and a decision of, the rights acquired by the Canal Company as assignee of the franchises and property of the old Potomac Company, which had been created in 1784; and it also involved a determination of the scope of the Railroad Company's privileges conferred by its charter, the Act of 1826, Chapter 123.
In December, 1836, Judge Buchanan, George Peabody and Thomas Emory were appointed Commissioners on the part of Maryland to negotiate a sale in London of the eight million dollars of State securities issued under the Act of 1835, Chapter 395, to aid in the completion of the Chesapeake & Ohio Canal, the Baltimore & Ohio Railroad and other works of internal improvement. Mr. Peabody was then abroad and remained there. Judge Buchanan and Mr. Emory went to England in the spring of 1837 and returned in December without having accomplished the object of their mission. (Message of Governor Veazey, December 27th, 1837.) They did, however, succeed in March, 1837 (Res. No. 26, Dec. Ses., 1837), before going to Europe, in getting the Canal Company and the Railroad Company to agree conditionally to take six million of the State stock at the premium named in the Act; and the transaction was ratified by Resolution No. 26 and then modified by Resolution No; 68, adopted by the General Assembly at December session, 1837. This arrangement,- which was severely criticised by the Ways and Means Committee in a report presented by its Chairman, the late Mr. Thomas S. Alexander, resulted in a loss to both companies, as they were compelled to pay into the State Treasury the twenty per cent premium at which the Act of 1835 required the State stock to be sold. (Doc. O. Rep. Com. Ways and Means, Dec. Ses., 1837.)
Judge Buchanan was born in Prince George's County in 1772. He was over seventy-two years of age when he died, but there was at that time no constitutional limitation as to age, and the people of the State reaped the benefit of his great learning and experience and ability after he attained and passed his seventieth year. On December 3rd, 1844, Mr. Pratt presented to "the Court resolutions on the death of Chief Justice Buchanan. After stating that Judge Buchanan had served upon the Bench for thirty-eight years, the resolution proceeded as follows "During the whole of which period his great anxiety to discover and protect the just rights of his fellow citizens was manifested by patient and diligent investigation and enlightened and accurate judgment. That whilst we feel deep regret at the departure of the deceased as for the loss of a cherished friend and companion, we in common with the profession will find great consolation in the recollection of his, many virtues, his manly, character and the dignity and grace which adorned his public and social life, and greater consolation in referring to his example as a model of judicial excellence."
After the death of Chief Justice Buchanan, Stephenson Archer, who had been "appointed in 1824 Chief Judge of the old Sixth Judicial District which comprised the counties of Baltimore and Harford, and thereupon had become Associate Judge of the Court of Appeals, was commissioned Chief Judge of the latter tribunal. His commission bears date on November 27th, 1844. He died on June 26th, 1848, and on the 14th of November following, on motion of John V. L. McMahon, the Court did not proceed to business but adjourned until the following morning at ten o'clock, as a token of respect and affection for the memory and virtues of the late, the Honorable Stevenson Archer, Chief. Judge of the State of Maryland. Stephenson Archer was born in Harford County, October 11th, 1788. He read law under Chancellor Johnson in Annapolis. In 1809 he was elected to the Legislature of Maryland, and the following year was re-elected. In 1811, when only twenty-five years of age, he was elected to Congress. In 1813 and 1815 he was again re-elected to Congress, where he served during the eventful period of the War of 1812. He was subsequently appointed by President Madison, Judge of Mississippi territory, which included what are now the States of Alabama and Mississippi. After holding for a year this position, which involved both executive and judicial duties, he resigned and returned to Maryland and in 1819 was elected to Congress for the fourth term. (Green Bag, Vol. 6, p. 232.) He won distinction as a member of the Court both whilst an Associate Judge and as its presiding officer.
Upon the resignation of Judge Chase in 1824, Thomas Beale Dorsey was appointed Chief Judge of the First Judicial District and thereupon became Associate Judge of the Court of Appeals. On the third day of July, following the death of Chief Judge Archer, Judge Dorsey was commissioned Chief Judge of the Court of Appeals. He served in that capacity until. the adoption of the Constitution of 1851, by which the whole judicial system of the State was changed for the second time since the formation of the State Government in 1776. When the Court of Appeals was re-organized in 1851 and the Judges of that and every other judicial tribunal throughout the State were for the first time made elective by the people, Judge Dorsey's term came to an end. He died December 26th, 1855. Judge Dorsey was born October 17th, 1780. He was admitted to practice law in Baltimore in 1803. In 1807 he was a member of the State Legislature. In 1811 he was United States District Attorney for Maryland and in 1822 he was Attorney-General for the State. (Drake's Dic. Am. Biog.) On the 3rd of January, 1856, the minute book of the Court contains this entry, " The members of this Court have heard with sincere regret of the death of the Honorable Thomas B. Dorsey, who for more than a quarter of a century was one of the Judges of the Court of Appeals and for a part of the time Chief Judge thereof. To the great and universally admitted learning of the deceased he added in the discharge of his official duties an industry which commanded the admiration of all who had an opportunity to witness it. In his death the State has lost a good and useful citizen and the profession one who adorned it by his complete knowledge of it as a science, by his personal worth and by his uprightness and impartiality as a Magistrate."
Under Article IV of the Constitution of 1851 the Court of Appeals was to consist of a Chief Justice and three Associate Justices. The State was divided into four judicial districts and one person, it was declared, should be elected from each of said districts as a Judge of the Court of Appeals, whose term of office was limited to ten years, or until he should attain the age of seventy years. The Governor was authorized, by and with the advice and consent of the Senate, to designate the Chief Judge from the four Judges thus to be elected. Under the Constitution of 1851, the offices of Chancellor and Register in Chancery were continued for two years after the adoption of that instrument and until the close of the session of the Legislature next ensuing, at the end of which time both of said offices were abolished. It was the Constitution of 1851 which for the first time inserted the age limitation of seventy years, but it did not, nor did the subsequent Constitution of 1864, provide that the Legislature might extend the service of a Judge beyond seventy years for the residue of the term for which he was elected.
The first Chief Justice under the Constitution of 1851 was John Carroll LeGrand, who was born in Baltimore in 1814. On the 19th of February, 1844, he was appointed to the Bench as one of the Associate Judges of the then Sixth Judicial Circuit of the State, which was composed of Baltimore and Harford Counties. It was said by the late Mr. Reverdy Johnson in his address on January 9th, 1862, announcing to the Court the death of Judge LeGrand:
"He was at the time of being appointed Associate Justice so young and so inexperienced that his nomination took the profession by surprise and filled most of them with solicitude. In this apprehension I have some pride in remembering that I did not participate. My acquaintance with him, though not then of an intimate character, was, however, such as fitted me, I thought, to estimate properly his qualification for that highest of all functions, the functions of a Judge. To me his talents were apparent; his love of professional distinction ardent; his capability of study great, and his perceptive faculties so quick and generally so accurate, his bearing so polite and courteous, that I entertained no doubt of his rapid and complete success. His career, even at the first term of his Court, fully justified the expectations and hopes of his friends. * * * The reputation so acquired, and justly his due, pointed him out for a seat on this yet higher tribunal, and he was selected for it by the people, who were witnesses of his first judicial career. The records of this Court will ever illustrate the fitness of the choice. The Bar bears willing and cheerful testimony to the same effect, whilst his associates on this tribunal will cherish his memory as an able and enlightened colleague and a sincere, attractive and instructive friend." (18 Md. ix.) Judge LeGrand's commission was signed by E. Louis Lowe, then Governor, and was dated November 22nd, 1851. He qualified on December 1st. His term expired upon the qualification of his successor on November 16th, 1861, and he died December 28th, following, at the comparatively early age of forty-seven. In the words of Mr. Mayer, "as closed his official day so in the same horizon was the sunset of his life." Judge LeGrand has left the impress of his wisdom and his learning upon the judicial records of the State and his opinions are to be found in the first seventeen volumes of the Maryland Reports.At the election in November, 1861, just after the outbreak of the great Civil War, Richard I. Bowie was chosen and succeeded Judge LeGrand as Chief Justice of the Court of Appeals. He was commissioned on the 16th of November of that year. He was born June 23rd, 1807. In 1835-36-37 he was elected to the Maryland Senate. In 1845 he was Prosecuting Attorney for Montgomery County for four years and in 1849, and again in 1851, he was elected to Congress. In 1854 he was nominated by the Whig party for Governor but defeated. (Green Bag, vol. 6, p. 274.) He continued to serve as Chief Justice until the Constitution of 1867 was adopted and the judicial system of the State was again changed. Judge Bowie was an affable, accomplished, polished gentleman. He presided with grace and dignity and his opinions display learning and research. They are reported in Volumes 18 to 28, Maryland Reports, whilst he was Chief Justice. In 1871 Judge Bowie was elected by the people of the Sixth Judicial Circuit, Chief Judge of that circuit and thereupon became an Associate Judge of the Court of Appeals under the Constitution of 1867. He filled that position with fidelity until his death on March 12th, 1881. His opinions as Associate Judge began in Volume 36 and end in Volume 55. In 1876, as he was approaching the age limit of seventy years, the Legislature extended his term until the expiration of the period for which he had been elected. (Res. No. 2.) This was done by a Democratic Legislature with only three dissenting votes, notwithstanding the fact that Judge Bowie, in politics, was a pronounced Republican.
In 1867 a convention was called and a new Constitution was adopted by an overwhelming majority of the people to supersede the one which was framed in 1864 in the midst of the acrimony and the angry feelings engendered by the Civil War. By the organic law of 1867, which, is now in force, the judicial system established in 1805, was restored. The Court of Appeals, which from 1778 to 1805 and from 1851 to 1867 had been an independent tribunal whose Judges performed no circuit duties at all, was, under the new Constitution of 1867 composed of the Chief Judges of the various circuits of the State, with this modification of the original scheme of 1805, that the Judge from Baltimore City was given no circuit duties to perform, except such as might be prescribed by the General Assembly. From 1778 down to the present time the Court has been in existence for one hundred and twenty-six years. For forty-four years of that period it had been composed of Judges who performed no circuit duty and for the eighty-two remaining years the Judges did have such duties to discharge. For seventy-three years of the one hundred and twenty-six years of its duration, the Judges were appointed, for the remaining fifty-three years they have been elected by the votes of the people.
Upon the reorganization of the Court in 1867, Judge James L. Bartol, who had on May 1st, 1857, on the resignation of Judge John Thompson Mason, been appointed Associate Judge of the Court of Appeals, and who had in the following November been elected to the same position for the term of ten years, was elected a member of the New Court and was commissioned as its Chief Judge, and he held that position (after being re-elected in 1881 and after having had his term extended by the General Assembly upon his approaching the age of seventy years) until ill-health constrained him to tender his resignation in 1883. He was born on June, 4th, 1813, and died June 23rd; 1887. It has been, said of Chief Justice Bartol that he "combined with all the qualifications of a profound lawyer and jurist and a great Judge, a heart as gentle as any woman's and a disposition so kind, a manner so dignified, courteous and deferential, a mind so fully stored with the treasures gathered in years of study and wide range of reading, that as a companion, he was delightful and he was no less beloved as a man than he was honored as a Judge." (Green Bag, volume 6, p. 277.) His opinions as Associate Judge are contained in volumes 10 to 27 inclusive of the Maryland Reports; and as Chief Judge in volumes 28 to 59. On October 31st, 1883, the members of the Court addressed a letter to Judge Bartol upon being apprised of his resignation, in which they stated that the severance of their official relation with him had occasioned the deepest sorrow and regret, "The pleasant remembrance," said the Judges, "of the dignified, firm, yet invariably kind and courteous manner in which you have presided over our public sessions and private consultations will accompany us through life. You take with you in your retirement the whole heart of each one of us. But while we thus part with you with regret we take a just pride in knowing that your name and fame are inseparably and honorably linked with the jurisprudence of your native State. You have devoted the better part of your life to this judicial service and we know we express the sentiments of the entire profession and of the entire public as well as our own, when we say you performed the work and lived the life of an able, upright and righteous Judge." (60 Md. xvii.)
On the 13th of November, 1883, after the resignation of Chief Judge Bartol, Judge Richard H. Alvey, who had been elected Chief Judge of the Fourth Judicial Circuit in 1867 and had been re-elected in 1882, and who therefore from the first mentioned date had been an Associate Judge of the Court of Appeals, was designated by Governor Hamilton to be Chief Judge of the last named Court. The opinions of Judge Alvey as Associate Judge are reported in volumes 28 to and including 60 Maryland Reports; 77 Maryland. His opinions are strong, vigorous and broad. He never failed to grasp the underlying principle of a case and he never erred in its application. His work speaks for itself. His knowledge of the Law was profound and his capacity for applying it remarkable. His industry was marvelous. In a word, his opinions as reported are not excelled in the judicial annals of the State, or by the judgments of any other Judge where the English tongue is spoken. In April, 1893, President Cleveland appointed Judge Alvey to be Chief Justice of the Court of Appeals of the District of Columbia, a tribunal which had just then recently been created by Act of Congress. On the 20th of April, an unusual audience, consisting largely of members of the Bar, was present in the Court of Appeals room and took part in the proceedings of remarkable interest, and such as had never before occurred in the judicial history of the State. It had been announced that the Attorney-General and others would attend to give formal expression of their feelings of sincere and deep regret at the contemplated retirement of Chief Judge Alvey from the Bench of the Court of Appeals and to tender him an affectionate farewell. Attorney-General Poe, in the course of his admirable remarks, said "The public announcement that to-day, for the last time, we shall have the privilege of seeing our honored Chief Justice in his accustomed place in this Court very easily accounts for this unusual gathering of representative members of our Bar. * * * We are here to thank him for the serene patience with which he always investigated, the calm analytical thoughtfulness with which he pondered, and the commanding power with which he embodied the well considered results of his deep study and reflection in the luminous judgments which, enriching forty-nine volumes of our reports, will connect his name forever with the proudest history of this tribunal. We are here to tell him before he steps down from the high place which it has so long been a strength and a consolation for us to know that he filled, how we admired and gloried in his enthusiastic devotion to his work; the absolute surrender of his time and talents to the absorbing demands of his judicial functions and the inestimable benefits to the jurisprudence of our State, of his ample and legal learning and acquirements." And upon the same occasion Mr. Bernard Carter, the magnificent type of a Maryland lawyer and a polished gentleman, said "I am very sure Mr. Chief Justice, that we all realize, coming here as we do to-day, spontaneously from all parts of the State, that our words are not needed to convince the people of Maryland of your eminent judicial ability, your rich judicial acquirements, and your worth in every way as a man; these things are known of all men in this your native State. * * * We have assembled only that we may have the pleasure of testifying to you our appreciation of you as a Judge, our warm affection for you as a man and to bid you an affectionate farewell; and it is in every way meet that we should do this, when for the second time in the history of our country Maryland is about to furnish to a Court which sits in the District of Columbia, a great Chief Justice." Appropriate addresses were also made by the late Col. Charles Marshall; the late E. Otis Hinkley and by Mr. Arthur W. Machen. (76 Md. xxviii, et seq.)
Judge Alvey was born in Saint Mary's County on March 6th, 1826, and is still living in the full possession of his vigorous mental faculties. He was a candidate for State Senator in Washington County in 1851. The election resulted in a tie and at the election which followed Judge French was chosen by forty majority. In 1852 Judge Alvey was a Presidential Elector and canvassed the State for Franklin Pierce, who received the electoral vote of Maryland. In 1867 he was chosen a delegate from Washington County to the Convention which framed the present State Constitution, and he served with conspicuous ability in that distinguished body. On December 17th, 1895, he was appointed by the President of the United States a member of the Commission to settle the boundary line between Venezuela and British Guiana.
Upon the retirement of Judge Alvey, Governor Brown designated Judge John M. Robinson to be Chief Judge of the Court of Appeals and he qualified as such on the 9th of May, 1893. In January, 1851, when only twenty-four years of age. Judge Robinson was appointed Deputy Attorney General for Queen Anne's County, and in November of the same year was elected State's Attorney. In 1864 he was elected Judge of the Circuit, which included the counties of Kent and Queen Anne. In 1867 he was elected Chief Judge of the Second Judicial Circuit and thereupon became a member of the Court of Appeals. His opinions as Associate Judge begin with 28 Maryland and continue up to and including 76 Maryland, whilst those he delivered as Chief Judge are contained in 77-78-79-80 81 and a portion of 82 Maryland. He was born in Caroline County December 6th, 1827, and died on January 14th, 1896. He served upon the Bench of the Circuit and of the Court of Appeals continuously for thirty-two years. As was said of him when his death was announced to the Court by Attorney-General Clabaugh, now Chief Justice of the Supreme Court of the District of Columbia, "the two distinctive characteristics of Judge Robinson were perhaps the originality of his mind and the firmness of his convictions. He had an underlying faith in and conception of the principles of Law and was quick to grasp the real point in a case. To a well-balanced judgment was added keenness of perception and a high ideal of judicial duty and the most exalted form of integrity and honesty. He was a distinguished Judge and his brother members of the Bench have lost a wise counselor and friend and the Bar of the State a distinguished jurist." Mr. William L. Marbury said of him "His moral nature was made of sterner stuff than that of most men. He was a man of stubborn courage, moral, physical, intellectual. He stood ever inflexible for what he deemed right. A trifle blunt of speech it may be, on occasion, he would not natter Neptune for his trident; Jove for his thunder. He was an independent man. He was a man to count on, and yet withal in social life as genial and hospitable a gentleman as ever our good State boasted. He leaves behind him a stainless reputation, a name which his latest descendants may well cherish as their proudest heritage." And Judge Bryan who responded for the Court said "The public voice has pronounced its matured and decided judgment on his merits; and here in this chamber, where his best work was done and where we preserve the enduring record of his faithful service, we have but to look around and see how wisely and justly the public opinion has been formed. His long and honorable course is ended, and he rests from his labors with his well-earned fame as his most fitting epitaph." (82 Md. xx.)
I have said that in 1777 the Senate of Maryland insisted upon an independent Court of Appeals for the reason that if a different system were adopted there would be less uniformity in decisions and less regularity in the attendance of the Judges. It may have been a survival or resuscitation of the latter apprehension that suggested the adoption of the Act of 1809 (Chapter 181), which required the clerk of every Court, including the Court of Appeals to report annually to the General Assembly the number of days each Court was in session and the number of days each Judge attended. Upon an examination of these reports it will be found that the attendance of the Appellate Judges, who then performed Circuit duties, was quite as regular as the attendance of the Judges under an independent system; and there was as much uniformity in decisions under the one as under the other scheme of organization; whilst on questions of practice there was more instability in the rulings of the Independent Court. During the period of twenty-eight years, from 1778 to 1806, with an independent Court of Appeals; the whole work done is contained in portions of four volumes of the printed reports-the larger part of those four volumes being taken up with the proceedings of the General Court. During the sixteen years, from 1851 to 1867, with an Independent Court, the whole work done is reported in twenty-seven volumes. For the forty-four years of the existence of the Independent Court we have, therefore, twenty-nine volumes of reports. During the period of forty-five years, from 1806 to 1851, with a Court of Appeals whose Judges did perform Circuit work, the decisions fill twenty-eight volumes; and during the remaining thirty-seven years, from 1867 till now, the decisions are reported in seventy volumes, each of the last ten of which contains at least two hundred more pages than the average number in the old reports. For the eighty-two years of the existence of the Court founded on the present system, there are ninety-nine volumes of reports, against twenty-nine under the independent system. The chief defect in an independent system lies in the fact that the Judges being wholly withdrawn from contact with the practice at nisi prius become more theoretical, and decisions are consequently apt to deal with abstract principles rather than with the practical application of them. The present system brings the members of the Bar and the Judges in closer touch and that circumstance is of great advantage to both in the administration of justice. The practical side of a case is often as important to be considered as is its technical legal aspect and the Judge, who for years has been removed from the attrition of the trial Court, is liable to grow oblivious of conditions which ought to have their due weight in reaching just conclusions. I think I may safely say that the best and most satisfactory work which the Court's records disclose has been that done under the system first adopted in 1805. Certainly the most expeditious work has been done under that system. When the Court established under the Constitution of 1851 and continued under the Constitution of 1864 was succeeded by the one created, in 1867, the New Court upon organizing, was confronted with two hundred and fifty-two cases which had not been disposed of, many of which had been on the docket for quite a number of years and some since 1852. It required considerable time and labor to do the work which the preceding Independent Court had left undone. Formerly all the records were transcribed in manuscript and as many as sixteen clerks were required to do the work. They were seated on stools at high desks arranged around the sides of the Court room, and their old-fashioned quill pens were actively employed, even during the oral arguments. By degrees records began to be printed and after 1860 they ceased to be copied by hand. Perhaps much of the delay in hearing and deciding cases under the independent system was due to the original method of transcribing the records. But whatever the cause, the fact remains that there was less expedition under the independent system than under the other.In bringing to a close this inadequate sketch of Maryland's former Chief Justices,4 I can speak no words of encomium half so appropriate as those contained in a single sentence written by the great Chief Justice Taney more than forty-four years ago. On March 17th, 1860, that eminent jurist attained his eighty-third birthday, and the Judges of the Court of Appeals addressed him a letter of congratulation, which will be found spread upon the minutes of the Court. On the 19th, Chief Justice Taney sent the following reply "Gentlemen I return my cordial thanks for your very kind letter on my birthday. If I have done anything to merit in any degree the approbation you are pleased to express, I owe it to my training in the Maryland Courts and at the Maryland Bar; and no mark of approval could be more grateful to me or more highly valued than the one you have sent me from the highest judicial tribunal of the State." If the distinguished Chief Justice owed the eminence he had attained and the distinction he had won, to his training in the Maryland Courts and at the Maryland Bar, those schools must have been of the highest order of excellence.
From among the Chief Justices of whom I have spoken, three stand out in bold relief as preeminently great-John Buchanan, John Carroll LeGrand and Richard H. Alvey. It is difficult to determine which of them ranks the highest. Judge Buchanan's, diction was graceful, polished and forcible. Judge LeGrand's was keen, clear-cut and incisive, and Judge Alvey's was terse, vigorous and direct. Each reasoned with great cogency and compactness. They belonged to successive periods of juridical development and they dealt, in a great measure, with essentially different legal problems. The first two were not given to copious citations of authorities, preferring to rely on fundamental principles; whilst Judge Alvey, with great perspecuity, not only drew from the same sources his own deductions, but he invariably fortified them with a ponderous weight of references, especially English precedents. His judgments display more research than the others and he evidently bestowed more patient labor and time upon their preparation.
If we look back over the record of the two hundred and seventy years which have come and gone since the landing of the Maryland Pilgrims at St. Clement's, we are struck with the marvelous growth of a small colony of two hundred individuals into a great and prosperous State. We see that from an almost trackless wilderness, large industries and vast business interests have developed; that mighty works of internal improvement have sprung into a beneficent activity; and we mark the magic progress which the influences of education, culture and civilization have wrought. But apart from all the mere material advancement, there is something of a loftier character which that retrospect discloses. We behold along its luminous pathway men of colonial and of sovereign Maryland who, in their generation, stood in the forefront of the arts and the sciences, and others of them who, upon the Bench, in the forum, in the liberal professions, in business pursuits, in the Councils of the Commonwealth and the Nation, on the seas and on the blood-stained fields of war, achieved distinction and renown, and won for their State a fame and a glory which will endure until the angel of eternity shall call the muster roll of time. We perceive the imprint made upon our jurisprudence by her great Chief Justices of the past, aided by her eminent lawyers, whose names are indelibly inscribed upon the pages of her judicial annals. And we finally discern, in our glance, the tolerant and the noble spirit, the patriotism, the lofty character and the moral worth of her chivalric people. In the light of her glowing history I may, I think, with propriety suggest that when gazing down the dim vista of the vast future before him
-a future which has become our glorious past-and foreseeing and anticipating this wondrous transformation, this intellectual development, and the civil and military achievements which have shed such luster on the names of Maryland's statesmen, jurists and heroes, it must have been a prophetic inspiration that induced Lord Baltimore to stamp on the signet of his province the words of the psalmist words which are to-day emblazoned on the Commonwealth's great seal-"Scuto bonae voluntatis tuae coronasti nos."
-Thou hast crowned us with Thy good will as with a shield. (Psalm V: v. 13).
2. Thirty-four volumes of the Reports are known by the names of the Reporters who published them, whilst the remaining ninety-seven are styled "Maryland Reports," because that title was prescribed by an Order of Court, dated March 24th, 1852.
3. He left by will one hundred pounds to put a wall around the churchyard at Joppa, but this was not carried out. There is no vestige of the church or churchyard left, but the Rumsey lot is enclosed by a substantial stone wall and it is supposed that Judge Rumsey's grave is within the enclosure, though if it was ever marked by a stone, it has long since been destroyed by the ravages of time so that of him, as of Moses, it may be truly said: "No man knoweth of his sepulchre to this day." The house in which he lived and died, a substantial brick mansion, is all that is left of Joppa. The warehouses and wharves that he built have long since disappeared.
4. Five of the ten died after retiring from office; four died whilst in office, and one, Judge Alvey, is still alive. Judge Rumsey was seventy-three years of age when he died; Judge Chase was eighty; Judge Buchanan, seventy-two; Judge Archer, sixty; Judge Dorsey, seventy-five; Judge LeGrand, forty-seven; Judge Bowie, seventy-four; Judge Bartol, seventy-four; Judge Robinson in his sixty-ninth year, and Judge Alvey is now in his seventy-ninth year. Judge Chase, at the age of seventy-six, and Judge Bartol, at the age of seventy, resigned on account of ill health, and Judge Alvey in his sixty-eighth year resigned to accept the position of Chief Justice of the Court of Appeals of the District of Columbia. Judge Rumsey, Judge Dorsey and Judge Bowie's terms came to a close by reason of changes in the judicial system, though Judge Bowie returned to the Bench as an Associate Judge.
This speech was delivered by James McSherry at the 1905 annual meeting of the Maryland State Bar Association.
James McSherry, "The Former Chief Judges of the Court of Appeals of Maryland," Report of the Tenth Annual Meeting of the Maryland State Bar Association, (1905): 106-134. This publication was loaned to the Maryland State Archives for scanning by the Maryland State Law Library.
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