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Mr. President and Gentlemen of the State Bar Association :
The office of Chancellor has always been esteemed among English-speaking people to be one of the highest dignity and responsibility.
Sir William Blackstone tells us (3 Bl. 47) that in ancient times a Chancellor was regarded as the keeper of the king's conscience, as well as the keeper of the Great Seal of the kingdom.
If there be any truth in history the former of these tasks must have been at times a somewhat difficult one.
The High Court of Chancery of Maryland having been organized at the time of the revolution to take the place of its prototype, the High Court of Chancery of England, it may be assumed that the duty of conscience-keeper did not become obsolete, but was transmitted along with the other functions of the Lord High Chancellor of England to chancellors of Maryland. The only difference being that the sovereignty having passed from the Crown of Great Britain to the people of Maryland, the Maryland Chancellor had devolved upon him the duty of keeping the conscience of the whole people instead of one man.
To give some idea of the manner in which that duty was discharged by the High Court of Chancery under the administration of the Chancellors of Maryland will be the purpose of what I shall have to say to you this morning.
The office of Chancellor is one of great historic interest for many reasons. It is related by a learned author that when the first English Chancellor received from his sovereign the Great Seal of the Kingdom "the King did commit to his Chancellor (together with the charge of the Great Seal) his own regal, absolute and extraordinary pre-eminence of jurisdiction in civil causes, as well for amendment as for supply of the common law." (Expansion of the Common Law, 67-68 Pollock.)
By virtue of his office the Chancellor presided over the deliberations of the House of Lords. In rank he took precedence over all the nobility of the Kingdom, being inferior only to the princes of the blood and the Archbishop of Canterbury, and he still holds that rank in Great Britain. The emoluments of his office have ever been upon a most liberal scale. In a country like England with a monarchical form of government, where during many ages the exercise of political power was to a great extent confined to the aristocratic class, it might be supposed that an office of such power and dignity as that of Lord High Chancellor would be reserved in all cases for a member of that class, but such was not the case. The remarkable fact is, that a great many of the Chancellors of England, especially those who have attained especial distinction, were not of the ruling class, but, on the contrary, were men of humble origin.
For instance. Sir Edward Sugden, raised to the peerage at the time of his appointment as Lord Chancellor, was the son of a wig maker and hair dresser. Lord Chancellor Somers was plain John Somers, son of a "respectable" attorney, and Lord Thurlow was the son of a clergyman, at a time when the clergy did not rank very high in the social scale; Lord Hardwicke, the greatest of all the Chancellors, was the "son of a small attorney at Dover;" Lord Cairns came to London as a poor Irishman, without a friend, and was raised to the position of High Lord Chancellor solely by virtue of his character and abilities.
In Campbell's "Lives of the Lord Chancellors," an incident is mentioned which will illustrate the manner in which these representatives of the legal profession would hold their own with the hereditary nobility of the realm. Upon one occasion, during a debate in the House of Lords, the Duke of Grafton was guilty of the bad taste of reproaching Lord Thurlow with his plebeian extraction, and his recent admission into the peerage. Thurlow's reply, and the manner in which it was delivered are thus described by this historian: "He (Thurlow) arose from the wool-sack and advanced slowly to the place from which the Chancellor generally addresses the House; then fixing on the Duke the look of Jove when he grasps the thunder, 'I am amazed,' he said, in a loud tone of voice, 'at the attack the noble Duke has made on me. Yes, my Lords,' considerably raising his voice, 'I am amazed at his Grace's speech. The noble Duke can't look before him, behind him, or on either side of him, without seeing some noble peer who owes his seat in this House to successful exertions in the profession to which I belong. Does he not feel that it is as honorable to owe it to this as to being the accident of an accident? To all these noble Lords the language of the noble Duke is as applicable and as insulting as it is to myself. But I don't fear to meet it singly and alone. No one venerates the Peerage more than I do. But, my Lords, I must say that the Peerage solicited me and not I the Peerage. No more I can say, but I will say that as a Peer of Parliament, as speaker of this Right Honorable House, as Keeper of the Great Seal, as Guardian of His Majesty's Conscience, as Lord High Chancellor of England, nay even in that character alone in which the honorable Duke would think it an affront to be considered-as A MAN-I am at this moment as respectable-I beg leave to add I am at this moment as much respected-as the proudest Peer I now look down upon.' "
"The effect of this speech," says Campbell, "both within the walls of Parliament and out of them was prodigious. It gave Lord Thurlow an ascendency in the House which no Chancellor had ever possessed; it invested him in public opinion with a character of independence and honor; and this, though he was found on the unpopular side in politics, made him always popular with the people."
It is not surprising to learn that "after this every Peer shrunk from the risk of an encounter with Thurlow, and he ruled the House with a rod of iron."
The truth is while our British ancestors may have had great reverence for rank and titles, and in their hearts have "loved a lord" as much as their descendants on the other side of the water are alleged to do today, yet they respected and reverenced the law still more. And it would seem to be a characteristic feature of their institutions, and an evidence that bold spirit of liberty, which made them so often boast that every man stood equal before the law, that they gave to their Chancellors, as the representatives of that law, a rank higher than the proudest members of their aristocracy.
There never was a time when any English or American lawyer who loved the law, and was faithful to its highest traditions, need feel aught but pride in his profession.
Of the High Court of Chancery of Maryland, as constituted prior to the revolution, or the Chancellors who presided over that court during the Colonial period, it is not my purpose to say more than a few words.
In the course of one of his opinions, to which I shall have occasion to refer more particularly later on, Chancellor Bland says: "The Province appears to have always had a Chancellor who was ex-officio keeper of the Great Seal, and a Court of Chancery." Citing 2 H. & McH., 289.
Under the charter granted by Charles I to Cecilius Calvert, Baron of Baltimore, the latter and his successors as Lords Proprietary were given ample power to establish judicial tribunals in the Province of Maryland. In fact, as we all know, the power vested in the Lord Proprietary was little less than regal in its scope. All writs ran in his name, instead of in the name of the King, and the power of life and death was to a great extent vested in him.
In the exercise of these powers Cecilius Calvert, the first Lord Proprietary, appointed his brother, Leonard Calvert, to be Chancellor of Maryland, vesting him at the same time with the functions of Lieutenant General, Chief Justice and Chief Magistrate.
The Chancellor thus appointed, and his successors in office, who were appointed from time to time by the Lords Proprietary and held office de bene palacito constituted the High Court of Chancery during the Colonial period, and at the time of the revolution were exercising to a great extent the powers and functions of the High Court of Chancery of England.
When, therefore, the representatives of the people of Maryland met in convention in November, 1776, for the purpose of adopting a "constitution and form of government" for the people of that Province, they found the Court of Chancery to be one of the established institutions of the country, and with the wise conservatism that characterized the American Constitution makers of that day, as compared with the political iconoclasts of the French Revolution half a generation later, they made no change in the Constitution of that court further than to provide that thereafter the Chancellor should be appointed by the Governor of the State, by and with the consent of the council, and should hold his office during good behavior (sic) (vide "The former Chief Judges of the Court of Appeals of Maryland," by Honorable James McSherry, in Transactions of Maryland State Bar Association, 1904, page 106.)
There is much in this Constitution of 1776, and the Declaration of Rights which precedes it, to indicate that its framers were men of the same high order of intellect and character as those who subsequently laid the foundation of the federal Government; that they were not mere insurgents or revolutionists, but conservative and constructive statesmen.
The one prevailing thought with them seems to have been not to destroy, but to preserve and improve the institutions already existing. They had no quarrel with those institutions save so far as they were abused by those having charge of their administration. They sought no new thing. All they wanted was the rights of English freemen; those rights they demanded and nothing else would they have. They, therefore, only made such changes in existing institutions as would in their judgment most certainly secure to themselves and their posterity those "inalienable rights."
Thus we find that they begin by proclaiming in their Declaration of Rights.
"That the inhabitants of Maryland are entitled to the common law of England, and to trial by jury according to the course of that law," etc., and then proceed with enumeration at great length of the rights to which they conceive themselves to be entitled under that law, and to specific prohibitions against the invasion of those rights. Accordingly they expressly declare (Section 30, Declaration of Rights), "'That the independency and uprightness of Judges are essential to the impartial administration of justice, and a great security to the rights and liberties of the people; wherefore the Chancellor and all all Judges ought to hold commissions during good behavior, and the said Chancellor and Judges shall be removed for misbehavior, on conviction in a court of law, and may be removed by the Governor upon the address of the General Assembly, provided that two-thirds of all the members of each House concur in said address. That salaries liberal, but not profuse, ought to be 'secured to the Chancellor and the Judges during continuance of their commissions. * * * No Chancellor or Judge ought to hold any other office, civil or military, or receive fees or perquisites of any kind."
By this and similar means did the framers of this Constitution seek to raise the standard of judicial character and conduct, and place the judiciary upon that high plane which it has occupied even unto this day. So that a Maryland lawyer may travel where he will and never have occasion to hear impeachment of the character of a Maryland Judge. So accustomed have we become to the idea of absolute integrity in our Judges, and the entire absence of any form of personal corruption, that this prohibition in the Declaration of Rights and the Constitution of 1776 against the taking of any fees other than his established salary by a Chancellor or Judge, makes strange reading; but evidently there was a time, even in Maryland, when these things were done, else there would have been no occasion for such a provision in the organic law. In the evolution of morals which has taken place during the time which has elapsed since this Constitution was adopted, it has come about that that form of corruption has practically disappeared. The recognition of its enormity has become so general and so deeply rooted in the minds and conscience of the people, the disgrace which would attach to any judicial officer who accepted a fee for his judicial services would be so terrible that the offense has become almost inconceivable to our minds. But the evolution of morals is not yet complete. If we may believe even a small part of what we have read of late in the newspapers of a sister State with reference to the manner in which those occupying high positions in the financial world, and charged with the administration of trusts of enormous magnitude, have made use of the power and opportunity incident to their positions to make personal profit out of those trusts, we cannot but realize that something yet remains to be done along the lines established by the framers of the Maryland Constitution, if popular confidence in the financial and industrial institutions of our country is to be preserved.
Upon his induction into office the Chancellor became the keeper of the Great Seal of the State (Section 36), and in his hands reposed all the extraordinary and benificent powers of chancery, subject, however, on appeal to the corrective supervision of the Court of Appeals. The latter court, as then constituted, was the court to which appeals lay from the Court of Chancery, the General Courts and the Courts of Admiralty (Section 56). The Judicial system thus established is fully described in Judge McSherry's address above referred to.
But these provisions of the Constitution of 1776 with respect to the Chancellor and other officers could not become operative until after the second Tuesday of November, 1777 (Secs. 25, 26) ; and to provide for the period until the Constitution would become operative we find Section 61 authorizing" a special election of electors on November 25, 1776, to meet at Annapolis on December 9, 1776, for the purpose of choosing State Senators; and a special election on December 18, 1776, of delegates to serve in the General Assembly. These senators and delegates so selected were to assemble-for the purpose of "introducing" the new Government-at Annapolis on February 10, 1777, and there choose a Governor and Council for the residue of the year; and this House of Delegates, with the advice of the Council, was to fill, in the first instance only, the offices in the disposition of the Governor under the provisions of the Constitution. (Sec. 61.)
And it was under this Section 61 that the General Assembly, on April 3, 1777, had the power and did appoint Richard Sprigg the first Chancellor of the State of Maryland.
Before the appointment of the Chancellor the Governor and his council were engaged in the recovery of the Great Seal, and on March 22, 1777, addressed a communication to one Robert Smith, stating that "it was necessary for conducting the public business that the Governor and Council should be possessed of the Great Seal of Maryland," and that he should deliver it, "together with the Vice," to Mr. Ridgely, "who waits upon you for that purpose." Mr. Richard Ridgely was clerk to the Council and evidently obtained the seal, because on March 31, 1777, the Governor and Council declared this seal should be the Great Seal of the new State of Maryland until they would have time to devise a new one.
The Great Seal having been obtained and formally recognized, Richard Sprigg qualified as Chancellor on April 21, 1777, by taking the several oaths prescribed by the Constitution and directed by the General Assembly; and thereupon in the presence of the Council, the Governor, Thomas Johnson, delivered to him the Great Seal of the State of Maryland (Archives).
The first Chancellor of Maryland assumed the duties of his position in a period when the birth throes of a nation and a State so convulsed the times that litigation had by legislative enactment been suspended in Maryland since July 26, 1775. (See Act of 1777, Ch. 15, passed April 20, 1777.) As the courts of Maryland did not take up the threads of litigation and hear causes in law and chancery until after July 1, 1777 (supra), the Chancellor had been in active office but little over eight months when he resigned on Friday, March 20, 1778.
In such a fleeting judicial career, Richard Sprigg could not stamp his personality upon the record of his court, and it is lost to us. No decree of his ever went to the Court of Appeals, and it is doubtful if the Chancellor ever took his position seriously. Much light is thrown upon the circumstances of his appointment and the spirit with which he entered upon the discharge of his duties by a letter of the Council (June 6, 1777), to Benjamin Rumsey, the first Chief Justice of the Court of Appeals of Maryland, in which Rumsey is informed that the appointment of Chancellor Sprigg was for a "temporary purpose," and that if he had been in reach at the time he could have had the place, and that the Council would make him the Chancellor, if he would accept. Rumsey did not accept, but John Rogers did, and thus Sprigg retired. We may conjecture that if after about eight months of office the first Chancellor was anxious to surrender his place, he had no stomach for its duties, or, perhaps, he found few duties to perform. The fighting people had all gone to the front.
I can give no very satisfactory information about Richard Sprigg beyond that his residence was at Cedar Park, on the West River, Anne Arundel County; that he married, Margaret Caile in 1765, and died about 1799. ("Old Kent," 273.) A daughter was born to him at "Strawberry Hill," where he wrote to the Council of Safety on February 9, 1777, asking them to repay him four and a half bushels of salt he had loaned to different companies in General Smallwood's battalion in the summer of 1776, as he was in want of salt. This appeal did not go unanswered and the very next day an order was given on Nicholas Thomas, at Annapolis, for the salt. But this was not the only occasion that the Council of Safety had dealings with the Chancellor, who had a schooner which Stephan Steuart found a fast sailer and suitable for an armed vessel; and the Council accordingly paid Sprigg 250 pounds for it on July 18, 1776, and on September 17, 1776, we discover the Council paying 40 pounds, 8 shillings and 8 pence for the cannon which the Council on April 30, 1776, had sent Capt. John Fulford to bring from Mr. Spring's residence to Annapolis. In this fashion- for a consideration- did the future Chancellor contribute to the State forces both by land and by sea.
In these transactions we seem to see the provident man of affairs, according to every one no more than was his due, and vigilant and solicitous to see he got his own, and yet withal a man not indifferent to public affairs nor deficient in public spirit, as is evidenced by his interest and work in the establishment of St. John's College, at Annapolis. (Riley's Ancient City, and Archives.)
Estimable man as he must have been, he played no appreciable part in our jurisprudence. One whose name is not found in the cases of our reports either as Chancellor or as lawyer cannot demand much attention. The concurrence of two things, however, mark him as unique among Maryland Chancellors-he never was reversed and he resigned his office.
Chancellor Richard Sprigg made no written resignation. The Great Seal of the State was the symbol of his authority, and to it was attributed by his generation some of the majesty of the State itself, and so the surrender of his office was most appropriately accomplished on Friday, March 20, 1778, by the Chancellor's ceremonious delivery of the Great Seal to the Governor in Council. And when John Rogers had been appointed Chancellor by the Governor, with the advice and consent of the Council, and the oaths had been administered, he received at the hands of the Governor, on March 20, 1778, the Great Seal of the State as the completest evidence of his selection and investure (Archives).
It is interesting to note here that just as the first Chancellor of the State of Maryland received the Great Seal of the State when he assumed the duties of his newly created court, so the first English Chancellor received from his Sovereign the Great Seal of Great Britain when the first Court of Chancery was there established. "The King did commit to his Chancellor (together with the charge of the Great Seal) his own regal, absolute, and extraordinary pre-eminence of jurisdiction in civil causes, as well for amendment as for supply of the Common Law." (Expansion of the Common Law, 67, 68, Pollock.)
Richard Sprigg was intensely indignant at the stopping and search of his vessel by the officers of the Council of Safety. In the report made of the affair to the Council, it seems that the suspicion of the officers was aroused by seeing Governor Eden's barge or boat going to the Sprigg boat; and the officers thought the Governor was about to take his flight from the Province in it. When they boarded the vessel they felt that this suspicion was confirmed by the discovery on board of porter and claret, which the officer in charge regretfully reported to the Council his men proceeded to drink. Their moderation, however, is to be commended as they only took two bottles.
In regard to Sprigg; See Journ. & Corres. of Council of Safety, pp. 124, 391, 393; XXI, 156, 224; XII, 10, 1771, 276; XVI, 123, 129, 280, 331, 543. [These are references to the Archives of Maryland series which is available online]
JOHN ROGERS : 1778-1789.
As a member of the Council, John Rogers had witnessed the installation of his predecessor, Richard Sprigg, and he in turn became the first actual Chancellor of the State.
Unlike Sprigg, Rogers had appeared in the Court of Appeals as an attorney before his appointment, although his appearance is confined to two cases; (1 H. & McH., 513, 523;) but like Sprigg, he never was reversed in the Appellate Court. Only three appeals are found in the Reports, and they are all reported in 2 H. & McH., 201, 245, 266; and are all affirmed without the filing of an opinion, by the higher court. This is his record in the Court of Appeals, but in the Chancery Reports it will be seen from the footnotes and from the citations in the various causes that he was quite active in his court.
John Rogers was of Prince George's county, and he was a notable man. He had been a member of the Maryland Convention of 1775, he had prepared the act passed to suspend all litigation during the troubled times from 1775 on (supra); he had signed the address issued on July 26, 1775, by the "Association of the Freeman of Maryland," and he had been a member of the Congress of 1776 from Maryland; he had been a member of the first Council of Maryland, and on November 25, 1777, declined to serve in the second. He had the gout so badly that he was sometimes prevented from attending to official business.
Of the second Chancellor's devotion to business there is recorded the fact that on November 21, 1777, the Council directed that he should be paid 166 pounds, 7 shillings and 6 pence for 121 days attendance as councilor-including 7 days he was patiently waiting for his fellow members to appear for the discharge of their duties.
And the Chancellor immediately went about his duties and received for the discharge of them from March 20, 1778, to October 26, 1778, 450 pounds, which is in excess of the 550 pounds per year fixed as his salary under the Act of 1785, Ch. 27, Sec. 2. But the Chancellor had no great reason to complain, as even then he received 50 pounds per year more than any other Judge of the State.
Rogers was on October 24, 1776, appointed the first Judge of the Court of Admiralty; and on the same day he was asked by the Council when he would hold court, as there were several cases awaiting his sittings. I do not know, however, if he assumed the duties of this position. (Journal & Cor. of Coun. of Safety, 1776, p. 397, & Md. Archives, "J. Rogers.")
The amount necessary to give the Chancellor jurisdiction was 5 pounds and 1 penny in money or 1,201 pounds of tobacco; (1715, Chapter 41, Section 7), and the county court had concurrent jurisdiction if the matter involved did not exceed 20 pounds or 5,000 pounds of tobacco (1763, Chapter 23, Sections 5, 6), and the amount was increased afterwards to 100 pounds or 10,000 pounds of tobacco, with the right of appeal to the Chancellor from the county court where the sum involved exceeded 30 pounds sterling or 3,000 pounds of tobacco. (1791, Chapter 78, Sections 2, 3, 4.) This appeal to the Chancery Court was made final by the Act of 1792, Chapter 62, Section 5. These acts show that the Chancellor had both original and appellate jurisdiction.
The Chancellor affixed the Great Seal of the State to the writs and processes issuing out of his court (1779, Chapter 25) and discharged many duties which would be now considered rather foreign to the judiciary, but which were largely due to the peculiar condition of affairs. The Chancellor transmitted the Acts of Assembly by writ, under the Great Seal, to the several sheriffs commanding them to publish the Acts; (1715, Chapter 25) the returns of elections for delegates to the General Assembly and the electors of the Senate were made to the Chancellor after 1799 (Ch. 50, S. 15) : he had charge of the land office, and had jurisdiction to determine disputes between the purchasers of confiscated property and the State, by causing the Attorney-General to be made a party (1787, Ch. 30, S. 4), and to decree a conveyance of property contracted to be sold by a British subject prior to the Revolution, and to execute the conveyance (1786, Ch. 49, Sec. 8) ; he had the power to grant deeds to the purchasers of property bought in and sold by the agents of the State, and to grant deeds for confiscated property. (1793, Ch. 64.)
The Register was annually appointed and had full charge of the papers and records of the court. He was an inheritance from the period before the Revolution, but the first Auditor was appointed under the Act of 1785, Ch. 72; and so was the first Messenger, an officer who executed the writs and processes of the court and was its executive arm. (1785, Chs. 72, 77, and 1854, Ch. 234.) Provision was made for the general court and the Chief Judge of the district to hear a cause when the Chancellor was interested in any way. (1779, Ch. 24, Sec. 4; 1805, Ch. 65, Sec. 19; 1806, Ch. [55].) In 3 H. & McH. 128, is found the first instance of the general court deciding a question because the writ of injunction was asked to go out against Chancellor John Rogers, and the Chancellor was therefore disqualified. (Vide Alexander's Chancery Practice.)
ROBERT HANSON HARRISON. Appointed October 1, 1789, but declined.
He was a son of Richard Harrison and Dorothy Hanson. "He was a lawyer of fine talents and legal acquirements ; was military Secretary, with the rank of Colonel, to General Washington during the Revolutionary War, and upon the unanimous election of the latter as President, and the organization of the Government under the Constitution of 1787, Col. Harrison was selected and appointed by him one of the Supreme Court of the United States." "Old Kent," 114. He was appointed Chief Judge of the General Court on March 10, 1781, in the place of J[sic]. Paca. (See Bench and Bar of Maryland, 211, 212.)
ALEXANDER CONTEE HANSON.
Alexander Contee Hanson was born October 22, 1749. Was the son of John Hanson and Jane Contee. He was educated at the College of Philadelphia. Studied law at Annapolis. Started for England to be ordained for the ministry of the Protestant Episcopal Church, was wrecked on the voyage over, was rescued and taken to Philadelphia. Here he became the Assistant Private Secretary to General Washington; his cousin, and the future appointee to the Chancellorship, Col. Robert Hanson Harrison, being Chief Secretary. In 1776 he lost his health, and after two months service, had to leave General Washington's Military Family. He visited headquarters just after the battle of Brandywine, and was present when the two armies, just on the eve of battle, were separated by a violent rain. He accompanied Washington to a farmer's house, being greatly invalid, and such was the benevolence of Washington that he offered him his bed. Alexander Hamilton lay down on the floor in the corner, and afterwards Colonel Hanson would good-humoredly remark that he "never saw a man look so like a cat." He returned to Annapolis, and February 12, 1778, with Governor Paca and Nicholas Thomas, was appointed Judge of the General Court under the Constitution of 1776. In 1784, with Samuel Chase, he was appointed to digest Laws of Maryland from 1763. This work was done by himself and is known as "Hanson's Laws." During this period he took great interest in public affairs. He wrote a number of valuable pamphlets on both State and Federal questions, which attracted much notice. These pamphlets, which have been collected by the Maryland Historical Society, are as follows:
"Political Schemes and Calculations," 1784. This was on public credit.
"Considerations on the Proposed Removal of the Seat of Government," February, 1786.
(This he pronounces in a note in his own hands upon the margin of his copy to be his masterpiece in this field of literature.)
"Remarks on the Proposed Plan of an Emission of Paper and on the Means of Effecting it." December, 1786.
"Remarks on the Proposed Plan of a Federal Government," 1787. (This, as the preceding, was written over the signature of "Aristides," and to the reader of today is the most interesting of the pamphlets. Its title will indicate sufficiently the object and substance of it.)
"Address of the Visitors and Governors of St. John's College to the Senate of Maryland." 1794.
All of these papers have been collected in the original prints and bound together by the Maryland Historical Society. Upon all of them there are notes made by Chancellor Hanson in his own handwriting, from time to time up to his death, and throw a great deal of light upon public questions and the character of the public men of that day. In this same volume is a valuable manuscript from the hand of Charles W. Hanson, son of Senator Alexander Contee Hanson, and grandson of the Chancellor, giving a sketch of his life and much information about his family. Most of the data here given are taken from this source. Manuscript dated "Winter of 1851-3."
On October 3, 1789, Hanson was appointed to succeed John Rogers, deceased, Chancellor of the State of Maryland. This appointment was made after the place had been offered to Robert Hanson Harrison, before mentioned. Harrison, who was at that time Judge of the General Court, was confronted with the offers of two places. He "had been appointed by President Washington a Justice of the Supreme Court of the United States, and was strongly urged by Alexander Hamilton to accept the appointment. He finally declined the Chancellorship and accepted the place on the Federal Bench, but died on his way to take his seat. Hanson was about this time himself offered a place upon the Federal Bench, but declined.
Chancellor Hanson was a member of the Convention called to consider the proposed Constitution of the United States. He was a strong advocate of its adoption.
In 1789 he was appointed to digest the Testamentary Laws of the State.
Chancellor Hanson was a Presidential Elector in both of the elections of General Washington to the Presidency.
He was a visitor of St. John's College and a great friend of that institution. In 1803 he was appointed one of the committee to defend it against its adversaries.
Chancellor Hanson married Rebecca Howard, of Annapolis, and had three children-Charles Wallace Hanson, Alexander Contee Hanson (U. S. Senator), and a daughter, who married Peabody Grosvenor, of New York.
He seems to have been a religious man and of the kindest disposition. He was charitable, and many acts of kindness are related by his grandson. He took several young men under his care and treated them with a fatherly kindness.
He died by a stroke of appoplexy January 16, 1806.
Chancellor Hanson received the degree of LL.D. from one of the Universities, but from which one I cannot ascertain.
Hanson's reputation as a Judge must rest principally upon his services upon the General Court Bench. This is due to the fact that although he was for nearly 18 years Chancellor of the State there is no report of his decisions. All we have of his labors is what is given in the Court of Appeals' Reports when cases were taken from the High Court of Chancery to that Court on appeal. Here sometimes an opinion will be found, but more generally a short statement of his decree.
He delivered many opinions in the General Court, which are reported in Harris & McHenry's Reports, and these amply attest his learning and ability.
I will call especial attention to the case of Calvert vs. Eden, 2 H. & McH., 334, as being of great interest. From the report of this case I should suppose that it must have been one of the greatest legal battles in the history of our courts. This case raised many interesting questions in the law of real property, as a glance at the head notes will show, and gave a magnificent opportunity for the famous lawyers engaged in the case to display their erudition and eloquence. Cook & Jennings were for the plaintiff and J. T. Chase and Luther Martin for the defendants. A number of opinions by Daniel Dulany were filed in the case, and an opinion by the famous Francis Hargrave, of Lincoln's Inn (author of notes upon Coke Littleton) and John Hall, all of which are published in the report of the case. Judge Hanson delivered the opinion in this case and an appeal from the General Court to the Court of Appeals he was affirmed without any other opinion being rendered. This case involved many points of interest and importance, but as they are succinctly stated in the head notes of the case, I will not attempt to state them here.
As an illustration of the regard in which the opinions of Chancellor Hanson were held I may refer to the case of Damarest vs. Wynkoop. * * * The opinion in this case was delivered by Chancellor Kent, and the question was one similar to Lamar vs. Clarke, 3 H. & McH., 338, a question of limitations. The decree of Chancellor Hanson was reversed by the Court of Appeals in the latter case. Chancellor Kent, in the case first mentioned, adopted the view of Hanson instead of that of the Court of Appeals, and in doing so used this language:
"* * * This is clear judicial sanction to the doctrine of Lord Talbot, and, therefore, as well upon authority as upon the reason and policy of the rule I conclude that the Court of Appeals of Maryland was in this instance mistaken; and with respect to the learned Chancellor's opinion, notwithstanding the reversal, I trust I may without offense be permitted to say 'Scaevolve assentior.' " This case and Chancellor Hanson's opinion were afterwards adopted by the Court of Appeals in Hertie vs. Schwartze, 3 Md., 383, where its former decision was overruled.
WILLIAM KILTY.
Upon the death of Chancellor Hanson the Governor offered the vacancy to Gabriel Duval, who had been a Judge of the Court of Appeals, and was at that time Comptroller of the Treasury of the United States, and subsequently Justice of the Supreme Court. He declined, and Robert Smith, then Attorney-General of the United States, was appointed. He also declined, and finally William Kilty was appointed, and he accepted. He took his seat on the 26th of January, 1806.
William Kilty was born in 1757. He studied medicine with Edward Johnson, of Annapolis, and in April, 1778, proceeded to Wilmington, Delaware, where he received the appointment of surgeon's mate in the Fifth Maryland Regiment. He continued to discharge the duties of his position until the resignation of Michael Wallace, the surgeon of the regiment, when he was promoted in April, 1780, to fill the vacancy. He continued to act as surgeon until he was made prisoner at the battle of Camden. In the spring of 1781 he returned to Annapolis, where he remained until the close of the war, owing to his failure to obtain an exchange. He then studied law. In 1798 he was authorized by act of legislature to compile the Statutes of the State, and in compliance with this he published the two volumes known as "Kilty's Laws." He settled in Washington in 1800, and in the following year was appointed Chief Judge for the Circuit Court for the District of Columbia. He returned to Maryland and was appointed Chancellor in 1806.
Kilty's most important work was his report on the British Statutes in force in Maryland. This work had been to discourage the extension of these statutes, in a different nature-first on account of a partisan struggle in colonial times, which forms a very interesting branch of our judicial history-second the ideas of public economy entertained by the early legislatures of the State. As to the first I will give an extract from Mr. Alexander's preface to his British Statutes, which is interesting. "It is well known that the question of the application of the English Statutes to the Province was continually agitated between the proprietors, and their adherents, and what was termed the country party; the views of the former, as observed by Kilty, Int. to Rep., p. 6, having been long needed, but was delayed by several causes of order that their power of assenting to laws might become more important, and the country party being unwilling that such statutes'should be particularly enumerated, so as to limit the courts in their power of judging of the consistency of them with the good of the people; a power which was essential to the proper discharge of their duties, and which had been expressly given by several Acts of the Assembly. My purpose was to have given an account of the various disputes between these two parties on this subject; but my book has already gone beyond the limits originally assigned to it, and, perhaps, I am mistaken in the amount of interest which such an account would excite."
The economical reason was very simple which actuated the legislatures under the Constitution-merely the cost of publication; and for nearly a century this vastly important part of our law was only known by the skeleton report of Kilty, which was the best compromise that the progressive element of the profession could effect. It was mainly due to the efforts of Chancellor Bland in the legislature that even this much was gained. While a member of the legislature in 1809 he had the resolution passed asking the Chancellor and Judges of the Court of Appeals for a report upon the Statutes. Kilty took the matter in hand and two years later made the report which bears his name.
The work so far as the legislature would allow it was thoroughly done and has since received high commendation from the Court of Appeals and the profession generally. In Dashiell vs. Attorney-General, 5 H. & J., 403, the court said that "the book was compiled, printed and distributed under the sanction of the State for the use of its officers and is a safe guide in exploring an otherwise very dubious path." Observations of a like sort are to be found in other cases.
In 1818 under authority of the legislature he published with Harris & Watkins a continuation of Kilty's Laws.
Kilty died in Annapolis October 10, 1821.
I copy the following from the National Intelligencer for October 17, 1821, being an account of the action of the Bar of the District of Columbia on the death of Kilty.
"This morning, shortly after the meeting of the court, Colonel Ashton, a member of the bar, stated to the court that the death of William Kilty, late Chancellor of Maryland, had just been announced to the public; that penetrated with deep regret himself at the loss of a citizen and officer of such distinguished talents and such eminent virtues and usefulness, he could not forbear to hope that this court, of which Chancellor Kilty had been formerly the chief judge, and this bar, which could bear such ample testimony to his work and excellence, would not deem it out of place to show, by some public act, their general sorrow for the melancholy event, and their high respect for the memory of the deceased. The court, upon the motion being seconded by Mr. Swann, the District Attorney, and carried, adjourned. It was resolved that the members of the bar of the court wear crape on their left arm for a month."
A memorial meeting was also held on October 11 in the Baltimore County Court.
Kilty seems to have been a man of quiet, unassuming life and his greatest interest was, no doubt, in his judicial and professional work, at the same time he was a very patriotic man and took deep interest in the welfare of his State and country. In the trouble preceding the War of 1812 he seems to have been active in demanding redress from England and in calling on the people to support the President in his policies of defence. With John Johnson, his successor in office of Chancellor, he was a member of the committee to draft resolutions at a meeting held at Annapolis February 4, 1809, for the purpose of expressing approval of the course of the President toward Great Britain and France.
Of Kilty as a Judge I cannot say anything of particular interest. His opinions, the few we have, are uniformly excellent, showing ample learning, ability and industry. As chancellor he gave universal satisfaction.
His opinions were generally very concise, not laden with citations of authorities like Bland's, but showing close familiarity with English equity jurisprudence.
I might cite Hogson vs. Payson and Lorman, 3 H. & J., p. 339, as a fair example of Kilty's opinions.
JOHN JOHNSON, SR.
Upon the death of Kilty, Johnson was the one man marked for the place. He was immediately appointed and accepted.
I regret that of this great lawyer and judge whom tradition has raised so high, I am unable to give anything but the barest outline. The incidents of his early life seem to be lost in obscurity.
He was born in 1770. Where his elementary or professional education was obtained I cannot find. He settled in Annapolis and there practiced his profession. He was appointed Attorney-General October 18, 1806, to succeed John Thomson Mason. This appointment will give some idea of the standing of Johnson when it is remembered that his predecessors had been Luther Martin, William Pinkney and Mason.
Chief Justice Taney in his Autobiography, mentions John Johnson along with Luther Martin, Philip Barton Key, John Thomson Mason, Arthur Scharff, James Winchester as a leader of the bar when he went to Annapolis to study law in the first decade of the last century. In other places he speaks of him with honor.
He held the Attorney-Generalship until 25th of March, 1811, when he was appointed Judge of the Court of Appeals to fill a vacancy caused by the death of Judge Gantt.
It is from the ten years' service upon the Court of Appeals that the best estimate of Johnson's worth can be obtained. Here he certainly stood near the front in learning and ability. This is high praise when it is recalled that J. T. Chase and Buchanan were his colleagues.Pratt vs. Flamer, 5 H. & J., 14, may be cited as one of the many able opinions while on the Bench of the Court of Appeals. This is a good illustration of his sound reasoning and deep learning.
He was appointed Chancellor of the State October 15, 1821. We find the same difficulty in judging Johnson as a chancellor as in the case with all his predecessors-the lack of reports. His term was comparatively short and few of his opinions are given in the report's of the Court of Appeals, most of the cases that went up on appeal contain the bare decree of the Chancellor below.
He was one of the Boundary Commissioners to settle the dispute between Maryland and Virginia, and died of fever while in discharge of his duties in the western part of the State. This occurred July 30, 1824.
John Johnson was the son of Robert Johnson, who was said to have been a revolutionary officer. This cannot be positively ascertained.
He was a Presidential Elector in 1816.
THEODERICK BLAND.
Theoderick Bland was born in Dinwiddie county, Virginia, 1776. Whether he was the son of Col. Theoderick Bland of Revolutionary fame I cannot say. Neither have I been able to ascertain where he was educated. The first notice I have been able to find of him is as a member of a meeting of citizens held in Baltimore in 1807.
In 1809 he was elected to the House of Delegates. He rendered valuable service to the State by the drafting of a Code of the Criminal Law of the State and securing its enactment by the legislature. This was in the November Session, 1809.[In the same session an act was passed authorizing him to bring slaves into the state. (1809, Ch.187)]
October 10, 1812, he was appointed Associate Judge of Sixth Judicial District, which included Baltimore and Harford Counties. He was Secretary of the Committee of Safety in the War of 1812, and was active in defense of the city at the time of British invasion. While associate judge. Bland delivered many able opinions, several of which may be found in the Maryland Reports when the cases were appealed from his court.
In Boyles vs. McLaughlin, 4 H. & J., 291, he discusses the duties of common carriers. This case is one of the ablest as well as one of the longest in this volume of our Reports. This opinion was cited with approval by the Supreme Court of the United States Clark vs. Barnwell, 1.2, How., 283.
In November, 1817, Judge Bland was appointed by President Monroe Commissioner to South America, with John Graham and Caesar A. Rodney. He spent a year in South America investigating the affairs and condition of the new Republics, and on his return made an exhaustive report to the President.
On his return he was appointed United States Judge for the District of Maryland, a position which he held until he was appointed Chancellor of the State to succeed John Johnson August 16, 1824.
In one of his letters Charles Carroll of C. [Carrollton] mentions at this time John Buchanan, subsequently Chief Judge of the Court of Appeals as the probable successor of Johnson. The appointment, however, went directly to Bland.
Chancellor Bland has himself said: "I determined (at the time of his appointment), to make every effort to acquire a complete knowledge of the peculiar principles and practice of the Court of Chancery of Maryland to which my attention had been so rarely drawn and for which I had had, for many years in the judicial stations I previously held, so little use. Upon inquiry I soon found that anything like an accurate knowledge of those principles was only to be gathered from the records themselves, to which I therefore resorted and after a careful perusal noted the course of proceeding, and occasionally made short digests of such cases as appeared most likely to be useful thereafter. In this way I collected a considerable mass of information, which has greatly facilitated my official labors."
The result of this resolution was the three volumes of his reports, which, as Reverdy Johnson said, are a perpetual monument to his industry and learning.
His opinions speak for themselves. They reveal his excellence, and at the same time his short-comings as a judge. They also, it seems to me, to a somewhat unusual degree, furnish a revelation of personal character. Nearly all of them are lengthy, many of them very lengthy. They give evidence of a mind stored with varied knowledge, of which the possessor seems not to have been unwilling to make due display on all proper occasions. At the same time his learning must have been very great. In some instances his opinions read more like treatises upon the various legal questions presented by the case, than a judicial statement of the grounds upon which they are decided. They would scarcely, therefore, form a model to be followed too closely by the courts of the present day. Nevertheless, these lengthy opinions have in many cases been of great service to the Bench and Bar of Maryland. The frequency with which Chancellor Bland's opinions are referred to, not only by the Courts of this State, but of other States, and the Federal Courts, is sufficient evidence of the value of the adjudications made by him. Some of his opinions are veritable storehouses of useful legal knowledge. As an illustration of what I mean I would refer to the opinion in the case of Colgate D. Owings, 1 Bland, 370, wherein the learned Chancellor's knowledge of the English classics from Shakespeare to Byron is displayed to great advantage. As an other illustration was the opinion in Binny's case, 2 Bland, 99. This appears to have been a cause celebre in its day.
From a reading of the Chancellor's opinion in that case one might suppose that the principal occupation of his life had been the study of the various systems of canal construction in the civilized countries of the world. For an illustration of the Chancellor's fondness for displaying his knowledge, I would refer to the case of Pattison vs. McCausland, 3 Bland, 69.
One of the most interesting, however, if not by any means the most useful or instructive of this learned judge's opinions, is that delivered by him sitting as Judge of the Baltimore County Court in the case of Gwinn vs. Payson, on the question of the right of the judiciary to declare an Act of Assembly unconstitutional, and on the constitutionality of the Act then recently passed, vesting the County Courts of Maryland with equity jurisdiction. This opinion is not found in the volume of the published reports, but it seems that it attracted so much attention at the time of its delivery, which was at the March term 1816, that Judge Bland was induced to have it printed in pamphlet form, and it is preserved in the Maryland Historical Society where I recently took occasion to examine it.
This opinion is perhaps the longest Judge Bland ever wrote, occupying ninety-four long pages of print. It is an interesting one from more than one point of view, but specially as a revelation of the judge's personal character, and of his peculiar notion of the scope of judicial duty. It also serves to afford some explanation of the frequency with which he seems to have found himself in conflict with the higher courts in the latter stages of his judicial career.
The case before him was apparently a very simple one. It being a bill in equity to have a certain deed set aside, and the property mentioned therein sold to satisfy a mortgage held by the complainants. The learned Chancellor had doubts as to his jurisidiction, however, because of his uncertainty as to the constitutionality of the act clothing his court with chancery powers [1814, Chapter 94, 1815, Chapter 163]. He thereupon proceeds to deliver an opinion of ninety-four pages. Sixty-five pages of which are devoted to a discussion of the question as to whether or not the judicial branch of the government has the right to annul a law enacted by the legislative branch on the ground if its being in conflict with the Constitution of the State.
It may be a matter of surprise, to at least some of the profession of the present day, that this question should have been considered, an open one at so late a date as 1816. It has been supposed that the opinion of Chief Justice Marshall in the case of Marbury vs. Madison, in 1 Cranch, 49, which had been decided in 1803, had put an end to all controversy on this point. A persual of this opinion of Judge Bland, however, will satisfy anyone that there was at least one eminent jurist who, after thirteen years, was still unconvinced. In fact, the opinion is largely devoted to dissecting the opinion of Chief Justice Marshall in the Madison case, and combating the reasoning thereof.
After devoting sixty odd pages to this interesting, if not very successful task, the reader is surprised to find that Judge Bland while declaring his conviction that Judge Marshall's view was erroneous and his decision wrong, calls attention to decisions of the Court of Appeals of Maryland itself which are in accord with Marshall's view, and by reason of the binding force and effect of which, as precedents, he finds himself constrained to sustain the right of the judiciary to annul an unconstitutional act. He then goes on to discuss the question as to whether the act before him is or is not constitutional, and reaches the conclusion it is not, saying in conclusion, on this point: "And moreover, under a strong conviction that the legislature cannot in this or any other way constitutionally deprive me of the right to accept or to refuse the exercise of such public duty as this Act proposes to burden me with, I do, therefore, as one of the Judges of this court decline the acceptance of the original equity jurisdiction offered to me by this Supplemental Act of Assembly."
One would expect after this that the learned Judge would proceed forthwith to dismiss the bill, but not so; for he thereupon proceeds to say:
"With regard to the case now before the court, perceiving a diversity of opinion at the bar as to the constitutionality of this law, and seeing, too, that the chancery business of this court was likely to accumulate rapidly, I thought it best at this early day of the term to deliver my opinion on the subject, so that those who hereafter brought such cases into this court, might be apprised of the difficulties they were likely to encounter. It being my opinion that the Act of Assembly by virtue of which this case has been brought into this court as a court of equity, is unconstitutional, I should, therefore, if anybody asked for decree as of this term in an adverse and controverted suit, have ordered and decreed that the bill should be dismissed without cost merely on the ground of the unconstitutionality of the Act of Assembly; but, as this is an amicable suit in which the object has been obtained by an actual transfer of the property mentioned in the proceedings, in obedience to interlocutory orders, made during the last term, before I had formed or declared any decided opinion as to the constitutionality of the law; I have, therefore, at the request of both parties, consented to close the case by a final decree as of last term. As I am aware, however, that although consent will heal any mere errors in any judicial proceeding, it will not give jurisdiction to a court in any case, where it has none according to law, I would wish it to be understood, that it is not on the consent of parties alone, that I agree to close this case, but at their earnest solicitation, and owing to its peculiar circumstances."
The logical principle by which this learned judge reaches the conclusion that it is his duty to decide a case which he had previously declined to accept the jurisdiction to decide, is, it must be conceded, rather difficult to follow. But this is one of the things that makes the opinion interesting. Another feature of the opinion is the fact that a good part of the earlier portion of it is devoted to a criticism of the law under consideration from the standpoint of public policy, and an apparent impeachment of the wisdom of the legislature in enacting the same. The fact, however, that nothwithstanding these peculiarities, Judge Bland was promoted to the high position of Chancellor of Maryland evidences the esteem in which he must have been held by his contemporaries by reason of his countervailing good qualities.
No sketch of Chancellor Bland would be complete without some reference to the Chancellor's case reported in 1 Bland, 595. This case is interesting not only as an incident in the life of Chancellor Bland, but is also interesting as having possibly a controlling effect upon the judicial history of our State.
Soon after the appointment of Bland to the chancellorship, a great discussion arose in the legislature over the amount of his salary. At the December Session of the General Assembly in 1824, for some reason which cannot be clearly ascertained, the House of Delegates became hostile to the Chancellor and tried every means to curtail his salary, and even to abolish the office. The cause of this hostility, so far as it could be ascertained at the time, is stated by Bland to have been a decree passed in the case of McKim vs. Thompson, which displeased one of the parties to the suit, who carried the matter before the legislature.
The House of Delegates began at the foundation of the court, and on the 7th of February, 18[2]5, passed, apparently as a matter of course, and without debate, a measure to abolish the office of Chancellor by a vote of thirty-three to twenty-three, and sent it to the Senate. There it was unanimously rejected.
The attention of the House was then turned to the reduction of the salary. Under the General Appropriation Act of 1798, the Chancellor had been allowed a salary of $3,400, and this Act had been revived by every subsequent legislature.
At the session of the General Assembly in 1824 the House of Delegates passed several bills fixing the Chancellor's salary at from $2,200 to $2,500. Each of these bills when sent to the Senate was unanimously rejected.
Then the question arose upon the continuance of the General Appropriation Act for the expenses of the State Government. From this General Appropriation Bill the House of Delegates had stricken out all reference to the Chancellor. When this bill was sent to the Senate that body of course, rejected it upon the same ground that it had rejected the former bills. This became a very serious matter, as the entire government of the State was in danger of being blocked. The Senate very reluctantly, and to prevent this great complication of affairs, passed the General Appropriation Act and left the Chancellor without a cent.
At the next session of the legislature Chancellor Bland presented a memorial regarding the action of the previous legislature. This paper presents in a masterly manner the view of the Chancellor in regard to the action of the General Assembly in its attack upon the independence of the judiciary. This was the sole question involved.
This memorial, at the December session of 1825, was referred by the House to a special committee. Their report upon the memorial was a complete vindication of the Chancellor, and pointed out with great force the danger of the action of the last legislature upon the independence of the judiciary of the State.
In discussing this question the following extract will show the earnestness with which the committee appealed to the legislature to thwart any such attempt:
"A more fatal stab could not be aimed at the independence of the judiciary, than to give a construction to the Constitution which would authorize the General Assembly to grant to the Chancellor and judges annual salaries. It must bring down the judges from the high and dignified ground on which they are placed by the Constitution, as a co-ordinate, independent branch of the government, and render them poor pensioners on the bounty of the General Assembly. They to whom the important power is assigned of deciding on the validity of legislative acts, become miserable suppliants for legislative gratuities. Infinitely better would it be for them, and infinitely less hostile to the genius of our government, that their salaries should be given with a perfect understanding that they might, at any time, be reduced by law. There would, to be sure, in such an arrangement, be but little of that security which is promised by the Constitution; but the condition of the judges would be less servile than when obliged to depend on an annual renewal of the gift. They would not then be periodically reminded that they were indebted to the bounty of each branch of the General Assembly for the continuance to them, of the means of subsistence; nor would they be urged, by such powerful motives, to trim their bark to the popular breeze, and to devote to the acquisition of legislative favour, those hours which ought to be consecrated to the studious contemplation of those laws which it is their duty to administer. To deprive them of their salaries then, the concurrence of both houses at least, would be required, a formal repeal of the law would be necessary, an accidental omission to continue the annual grant would not be sufficient; and the General Assembly would be compelled, by the common forms of legislation, to proceed with cool and calm deliberation.
The committee seems to have felt it their duty to make some avowal of their opinion upon the administration of the Court of Chancery at that time, and upon its presiding officer, and in doing so they use the following language:
"Did the committee feel themselves at liberty to advert to other topics, most cogent and persuasive arguments in favour of the course they have proposed might be derived from the arduous, important and increasing duties of the chancellor's office. They would also most gladly bear their testimony to the exemplary diligence, ability and faithfulness with which those duties have been discharged by the memorialist. But the suggestion of these considerations, though connected with the duty of the committee, does not form an essential part of it. They have therefore determined to omit them from an apprehension of transgressing the proper limits of a report. They rest the vindication of the measures they have recommended on those great constitutional principles which were established by our fathers, and the faithful maintenance of which, is essential to the preservation of the liberty and happiness of ourselves and our posterity."
Along with this report the committee proposed a bill to fix permanently the salary of the Chancellor at the sum of $3,400, and to pay him all arrears at the same rate. Both of these measures were overwhelmingly adopted.
Many other cases might be cited to illustrate the extraordinary learning, ability and versatility of this remarkable judge. For instance, his opinion in the case of Townsend vs. Duncan, 2 Bland, 45, contains a most interesting review of the history of the High Court of Chancery in Maryland. This was a case involving a question as to the power of the court to appoint certain officers. It evidences great familiarity upon the part of its author with the history and practice of the English Court of Chancery.
Another interesting opinion is that in the case of Midner vs. Diffenderfer, 2 Bland, 166. In discussing the question which had arisen in that case as to the propriety of having depositions which had been taken in Germany translated, the Chancellor considers in a most learned and interesting manner the development of the idea of publicity in the law courts of England, and in accordance with his custom, gives copious references to historic and judicial authorities.
Sometimes this learned jurist employs the arts of rhetorics in rather striking manner. For instance, in Campbell's case, 2 Bland, page 209, in the course of an interesting dissertation upon the American Government he says, "In England the Monarch alone wears the golden yoke of sovereignty."
This learned Chancellor's abilities and learning were recognized by the Judges of the Court of Appeals in his time, but his disposition to display the same rather at large in his opinions appear at times to have occasioned some little irritation against him on the part of certain members of that august tribunal. An amusing illustration of this is found in an opinion delivered by Judge A. C. Magruder in the case of Warfield vs. Owens, 4 Gill, at pages 375-6, where he says:
"When Chancellor Bland came into office this branch of the jurisdiction of the court was brought under his consideration, and reading, perhaps, the opinion of Chancellor Hanson, before referred to, and being a man of great research and industry, and perhaps rather over-anxious to find out what could not be found out, and what, if it could have been found out, would have been of no avail to a Chancellor, he chooses to know all about it."
Taking him all in all Chancellor Bland was one of the most picturesque figures in the judicial history of our State. It is evident that he had his weakness and his vanities, but as Judge Magruder says in another part of the very opinion just quoted, he was a man of very powerful mind and great research. He was a genuine lover of the law, and did no little in his time to increase the respect and confidence of the profession, and of the public in the administration thereof.
Chancellor Bland died November 16, 1846. At a meeting of the Bar of Baltimore, held on that occasion, Chief Justice Taney was called to the chair, and William Henry Norris was appointed secretary. The addresses delivered on this occasion by Messrs. Charles F. Mayer, the Hon. Reverdy Johnson and others, bear high testimonial to his character, and to his abilities and usefulness as a judge. The speech of Mr. Johnson gives an interesting review of Judge Bland's public career, showing that he had successively filled the stations of a representative of Baltimore City in the House of Delegates, Associate Judge of this judicial district, a District Judge of the United States for the District of Maryland, a Commissioner of the United States to the South American Republics, and finally that of Chancellor of the State. And that "he accorded to the performance of each of these high functions untiring industry, extensive general and professional acquirements and unspotted integrity." Concluding with the words "To the memory of such an officer and man it is fit that all respect be paid; and it is especially proper that we should testify our esteem for such a professional co-laborer and brother." Like the great Sir Edward Sugden, Chancellor Bland died as he lived-in the law; his will was the subject of litigation in Mayo vs. Bland, 4 Md. Chancery, 484.
JOHN JOHNSON, JR.
Upon the death of Chancellor Bland, John Johnson, Jr., the son of the former Chancellor of the same name, and brother of the great Reverdy, was appointed to succeed him.
In a memorial pamphlet of St. John's College I find the following statement:
"The material for a biographical sketch of Chancellor Johnson is rather meagre. The life of a lawyer who prefers the quiet work of his profession and stands aloof from the din and turmoil of politics presents, indeed but little variety and but few prominent points for the mere chronicler. It is the office of the biographer who brings out the minuter shades of character and portrays the virtues and amenities of private life to give to the world the finished picture of the man and to excite our interest or improvement by the exhibition of an instructive example.
"In the present case I can do little more than give you the leading facts and incidents in his life. Chancellor Johnson was born in Annapolis August 8, 1798. He was the son of John and Deborah Johnson, and his father, as is well known, was the first Chancellor of that name, and one of the most eminent lawyers of his time, thus presenting one of those rare instances of father and son filling the same high office.
"I have not been able to ascertain where his earlier elementary education was received, but he was probably entered at an early age at St. John's where his education was completed, although he does not appear to have finished the entire course, or to have remained long enough to take actual academic degree.
"Upon leaving college, somewhere about the year 1813, he made choice of the life of a merchant and after the experience derived from a clerkship of some years in a mercantile house in Baltimore, he removed to New Orleans to commence business for himself.
"Here he does not seem to have been successful, principally owing to the influence of the climate upon his health, and after a brief residence he returned to Maryland with shattered health and means nearly exhausted.
"The result of this venture was to change his views and his pursuits for life. A taste for the study and profession of law was hereditary and legitimate, and, perhaps, had only slumbered for a time. At any rate, he readily yielded to the advice of his father, and entered upon the preparation for the bar in the office of his brother Reverdy, then a rising member of his profession at Baltimore, and giving promise of that distinguished eminence to which he has since attained.
"He made rapid progress in his legal studies and was admitted to the bar about the year 1820 or 1821.
"He commenced practice at Upper Marlborough, and soon attained a high standing in his profession commanding a share of business fully proportionate to the range of his then district. But here also the climate proved unfavorable to his health, rendering him liable to periodical attacks of sickness; and after a residence of eight or nine years he was induced in the fall of 1829 to accept the appointment of Clerk of the Court of Appeals, and removed to Annapolis to enter upon his duties.
"With what ability and fidelity he performed those duties is well known to all the members of the profession and their enduring record is to be found in the reports of that period.
"This important office he held until the fall of 1836, when he resigned it, to return to the more active practice of his profession. He confined himself, however, principally to the Courts of Chancery and Appeals at Annapolis, in which his industry and accurate knowledge of the law made him eminently successful.
"It was during this period of his life that he had his only active public connection with politics, having been elected to represent Anne Arundel County in the House of Delegates. It was perhaps the most trying period, in the history of Maryland. The finances of the State were in a condition of unexampled depression, borne down with debt she had suspended the payment of her interest. To the timid her condition appeared hopeless, while the reckless and unprincipled talked boldly of repudiation. It was the time to try the man of what metal he was made.
"Upon taking his seat in the legislature at this crisis he was chosen Chairman of the Committee on Ways and Means. The exigency required bold and decided measures and he was the man to propose and advocate them. The honor of his native State was at stake, and he felt that no course was too stringent, no sacrifice too great to restore and preserve it. Adopting the fearless recommendations of the Executive (Pratt) he bent all his energies to secure the 'enactment' into laws and gave full proof not only of patriotism but of legislative ability. The events of that day passed into history, and with the struggles to which they gave birth, and the results in which they terminated, the name of John Johnson will ever be held in prominent and honorable association.
"His legislative career and his active connection with politics began and ended with this session, for although he was subsequently a candidate for the State Senate he was not returned.
"He continued the practice of his profession until the death of Chancellor Bland, when he was appointed to succeed him as Chancellor of Maryland.
"Fearing that the duties of this high office would prove too arduous for his health some of his friends, and even his brother, advised against his acceptance, but the post was too tempting to professional ambition, and too congenial to his tastes to be declined for considerations like these. A very natural desire, too, probably was felt by him to fill the same station which his honored father had adorned by his ability and learning. He accepted the appointment and continued to perform its duties with accustomed industry and devotion, until the office was abolished by the New Constitution of the State in 1851 thus making him the last of the Chancellors.
"We believe that this measure has been deplored by the larger part of the profession, not only on account of the utility of the tribunal itself, but because it deprived the State of the services of a judge of so much ability, impartiality, fidelity and uprightness.
"Judge Johnson's mind seemed to be eminently judicial, the bent of his intellect, the tone of his thought, and his personal tastes and habits were all congenial to such an occupation; his qualifications for the station were therefore of the highest order.
"A writer who paid a contemporary tribute to his memory under the signature of 'A friend' has so well delineated his judicial character that I prefer his language to my own.
"'No judge (he says) has ever brought to the performance of such high and difficult duties, qualifications better adapted to them; his calm, uniform patience on the bench, his clear comprehension of argument, his mildness of manner, his invariable courtesy, his ready and cheerfully rendered assistance whenever proper, to junior members of the bar, his solicitude for their professional success, and his evident pleasure at every indication they gave of high promise, his judgment never pronounced but after every test to which he could submit it, and then almost always commanding assent, soon acquired and secured for him the universal confidence, esteem and admiration of the profession.'
"After closing up the business of the expiring chancellorship, he removed to Baltimore to renew the practice of his profession in that city. But his career there was destined to be short.
"His extraordinary and prolonged labors began to tell fatally upon a frame not naturally strong, and his health rapidly declined. He died October 4, 1856, in the fifty-ninth year of his age.
"To attempt to portray the personal character of Chancellor Johnson in a community where he was so long and well known would be as rash as it is unnecessary.
"You all know that he was one of the most amiable of men. That bland and courteous simplicity of manner was the genuine off-spring of a gentle heart.
"How exemplary and upright was his whole life; with what conscientious fidelity he discharged every duty, public and private, as a judge, as a citizen, as a man. These are familiar to you all, and need no studied eulogy to give them additional prominence. He always took a deep interest in the welfare of the college (St. John's), and was an earnest advocate of its claims before the legislature and the public. He delivered at least one address before the alumni, and was for many years an active member of the board of visitors and governors."
I have been able to find little to add to this sketch of the last of the Chancellors. To my mind the most striking event of his career, and that which gave him an opportunity to display those characteristics of courage and fidelity, as well as intellect which specially befit a man who is to preside over the deliberations of a "Court of Conscience," is that referred to in the sketch just quoted from, in connection with his services in the legislature of the State at the time when he was Chairman of the Committee of Ways and Means.
The report which he submitted on that occasion was a fine paper. The State of Maryland at that time seemed upon the brink of a great disgrace-repudiation of its debt. The time was critical, and this report seems to have met the requirements of the time. There is a tone of hot indignation at the thought of the dishonor with which the State was threatened, and a ring of eloquence, born of genuine feeling runs through this report which makes it well worth reading, as a few quotations may suffice to show:
"If the State may set aside these engagements, she may with equal propriety violate any other contract into which she has entered. She may revoke the grants upon which the title to all the lands in the State depend, and issue others for the same lands, after having received a full equivalent for them, from those to whom the grants were originally made.
"To maintain such a doctrine, is to tear up by the roots that, which lies at the foundation of all that is worth living for, and to make the State the fountain of fraud and dishonesty, when its proper and becoming office is to disseminate among the people the pure principles of honour and justice.
"It may be assumed as incontrovertible, that corrupt governments will contaminate the people. * * *
"The committee cannot bring themselves to think, that the day will ever come, when the doctrine of repudiation will strike its roots in the soil of Maryland. * * *
"Can it be possible that the people of Maryland will refuse to make this small sacrifice for the preservation of their honor, that inestimable quality, without which every other blessing is vile and worthless ? That a community descended from the stock from which we derive our origin, will calmly fold their arms and hug their pockets, whilst an indignant world is looking on with scorn, and the 'robbed and ruined' creditor is beseeching in vain for payment, is too monstrous for belief. All the honorable instincts of our nature revolt at such a supposition, and it cannot, will not, and must not be the case."
Thus spoke the last of the Chancellors, and he can be no true son of Maryland in whose heart his stirring words do not wake some thrill of "the pride of former days."
The High Court of Chancery ceased to exist on the June 4th, 1854.
The report of the debates of the Constitutional Convention of 1851 and 1852, contains many interesting speeches of distinguished members of the Maryland Bar for and against the proposition to abolish this ancient and honorable court. It would avail us little now to review these arguments. Suffice it to say that they show very clearly that this important change in the judicial system of the State was not made without due deliberation and after full and free discussion. The various Circuit Courts of the State had already been clothed with concurrent equity jurisdiction with the Court of Chancery. Perhaps the necessity for such a court had ceased, and the abolition of it had a tendency to promote harmony in the judicial system of the State. Nevertheless Maryland lawyers cannot avoid a feeling of regret at the passing away of this most interesting, picturesque and dignified institution. The High Court of Chancery of Maryland was a high court in the broadest sense of the term; it stood high in the esteem and confidence of the people, and it secured and continued ever to retain that esteem and confidence, because its bench was always filled by high men.
I deem it no little honor to have been accorded by the President of this Association the privilege of paying this tribute to their memory-would it were worthier.
This speech was delivered by William J. Marbury at the 1905 annual meeting of the Maryland State Bar Association.
William J. Marbury, "The High Court of Chancery and the Chancellors of Maryland," Report of the Tenth Annual Meeting of the Maryland State Bar Association, (1905): 137-155.
This publication was loaned to the Maryland State Archives for scanning by the Maryland State Law Library.