Abstract
This chapter provides a brief overview of the founding of the colony in 1632 as a Catholic refuge under the proprietorship of Cecil Calvert, 2d Baron Baltimore. The authors explore the tradition of rights in the colony, paying particular attention to the Maryland Toleration Act (1649), which offered the broadest definition of religion freedom during the seventeenth century. Once Maryland became a royal colony in 1691, religious equality for Catholics ended. In 1776, Maryland adopted a declaration of rights—the longest of any of the states during that period—in conjunction with its state constitution. The Maryland declaration relied extensively on a draft of the Virginia declaration. A replication of and notes on the declaration of rights and relevant rights provisions in the frame of government is provided.
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Notes
- 1.
The Charter of Maryland (1632), sec. V, in Thorpe, Constitutions, 3:1679.
- 2.
Ibid., sec. VII, 1679–1680.
- 3.
Ibid., sec. X, 1681.
- 4.
Donald S. Lutz, ed., Colonial Origins of the American Constitution: A Documentary History (Indianapolis: Liberty Fund, 1998), 308, https://oll.libertyfund.org/pages/1638-act-for-the-liberties-of-the-people-maryland.
- 5.
The claim, made by Bernard Schwartz in The Bill of Rights: A Documentary History (New York: Chelsea House, 1971), 1:67, is based on the fact that the act predated the Massachusetts Body of Liberties by two years. Charles A. Rees has challenged that designation on several grounds. See “The First American Bill of Rights: Was It Maryland’s 1639 Act for the Liberties of the People?,” University of Baltimore Law Review 31, no. 1 (Fall 2001): 53–61. For one, Rees claims the act was never duly enacted. Ibid.
- 6.
Lutz, Colonial Origins, 308.
- 7.
An act ordeining certain Laws for the Goverment of this Province, March 19, 1638/1639, in William Hand Browne, ed., Archives of Maryland, vol. 1, Proceedings and Acts of the General Assembly of Maryland, January 1637/8–September, 1664 (Baltimore: Maryland Historical Society, 1883), 82–83.
- 8.
Lutz, Colonial Origins, 309. For a careful and less laudatory evaluation of the act in the context of previous and subsequent actions on the question of toleration in Maryland, see Carl N. Everstine, “Maryland’s Toleration Act: An Appraisal,” Maryland Historical Magazine 79, no. 2 (Summer 1984): 99–116.
- 9.
An Act Concerning Religion, April 21, 1649, in Lutz, Colonial Origins, 312.
- 10.
Gregory A. Stiverson, “‘To Maintain Inviolate Our Liberties’: Maryland and the Bill of Rights,” in The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties, ed. Patrick T. Conley and John P. Kaminski (Madison, WI: Madison House, 1992), 377.
- 11.
Ibid.
- 12.
Ibid.
- 13.
By the first decade of the nineteenth century, twenty-five percent of Maryland blacks were free—a tenfold increase. Richard S. Dunn, “Black Society in the Chesapeake, 1776–1810,” in Slavery and Freedom in the Age of the American Revolution, ed. Ira Berlin and Ronald Hoffman (Urbana: University of Illinois Press, 1983), 50.
- 14.
The test oath is replicated at Browne, Archives, vol. 25, Proceedings of the Council of Maryland, 1698–1731 (Baltimore: Maryland Historical Society, 1905), 68.
- 15.
An Act for the Establishment of Religious Worship in this Province According to the Church of England: and for the Maintenance of Ministers, March 16, 1701/1702, in Browne, Archives, vol. 24, Proceedings and Acts of the General Assembly of Maryland, April 26, 1700–May 3, 1704 (Baltimore: Maryland Historical Society, 1904), 265–273. This act followed several similar bills in previous years that had passed the general assembly but failed to secure royal assent.
- 16.
An Act to prevent the Growth of Popery within this Province, September 30, 1704, in Browne, Archives, vol. 26, Proceedings and Acts of the General Assembly of Maryland, September, 1704–April, 1706 (Baltimore: Maryland Historical Society, 1906), 340–341.
- 17.
A Supplementary Act to the Act directing the Manner of Electing and Summoning Delegates and Representatives to serve in succeeding Assemblies, in Clayton Colman Hall, ed., Archives of Maryland, vol. 33, Proceedings and Acts of the General Assembly of Maryland, May, 1717–April, 1720 (Baltimore: Maryland Historical Society, 1913), 288.
- 18.
Stiverson provides a concise description of these developments. “To Maintain Inviolate,” 379–386.
- 19.
Marc W. Kruman, Between Authority and Liberty: State Constitution Making in Revolutionary America (Chapel Hill: University of North Carolina Press, 1997), 112.
- 20.
Archives of Maryland, vol. 78, Proceedings of the Conventions of the Province of Maryland, Held at the City of Annapolis, in 1774, 1775, and 1776 (Baltimore: James Lucas and E.K. Deaver, 1836), 184.
- 21.
Ibid., 220.
- 22.
Dan Friedman, The Maryland State Constitution: A Reference Guide (Westport, CT: Praeger, 2006), 2, and Dan Friedman, “Tracing the Lineage: Textual and Conceptual Similarities in the Revolutionary-Era State Declarations of Rights of Virginia, Maryland, and Delaware,” Rutgers Law Journal 33, no. 4 (Summer 2002): 929–1028. Maryland largely ignored the Pennsylvania declaration, which would have been available. Ibid., 942–943.
- 23.
See pp. 72–80 for further discussion of the importance religion played in the early state constitutions.
- 24.
See Article V and accompanying commentary, p. 152.
- 25.
Article I proclaimed the doctrine of popular sovereignty. A more immediate influence was the Virginia Declaration of Rights (sec. 2), where the first expression in a state constitution appears.
- 26.
Proposals for confederations at the Continental Congress prompted convention delegates to assert their right to internal government—a state’s right as a sovereign entity. In particular, the Congress had ordered Robert Eden, Maryland’s last governor, arrested—an act the convention believed was interference in Maryland’s internal affairs. Friedman, “Tracing the Lineage,” 998. This concern foreshadowed the states’ anxiety over the formation of a national government.
- 27.
Derived from Maryland’s colonial charters, this article, found in nearly all early state constitutions, served to ease the transition to statehood and give constitutional status to the extensive rights and liberties encompassed by the common law and statutes that made up the English Constitution. The common law had been adopted in Maryland by statutes between 1635 and 1639. William E. Nelson, The Common Law in Colonial America, vol. 1, The Chesapeake and New England, 1607–1660 (New York: Oxford University Press, 2008), 106.
- 28.
Article IV provided a statement of the political ideas that underpinned the American Revolution. It fused popular sovereignty, announced in the first article, with ideas proclaimed in the Declaration of Independence. It was not a provision that could be judicially enforced; rather it served as an aspirational reminder of the ideals on which the polity was founded and, if necessary, sustained. It contained a right/ought combination: the people may and by right ought to reform or alter their governments.
- 29.
This article provided reaffirmation and formal recognition of the right to self-government, implemented by suffrage requirements for the right to vote. Suffrage provisions first appeared in the colony’s founding charter. In response to interference by King James II with parliamentary elections, the English Bill of Rights declared that “election of members of Parliament ought to be free.” English Bill of Rights (1689), in Schwartz, Bill of Rights, 1:42. The frame of government outlined the frequency of elections to the various offices and the level of “attachment to the community” required.
- 30.
Article VI provided a succinct statement of the doctrine of the separation of powers. That it was included in a declaration of rights is evidence of the broad understanding of rights in eighteenth-century America. Here, the separation of powers was understood as a structural right meant to prevent abuse of power and provide security for other rights.
- 31.
Article VII was a corollary to the separation of powers, specifying the legislature’s role as sole law-maker and representative of the people. In response to the suspension of laws by the Crown, often done to afford religious toleration to Catholics and dissenters, the English Bill of Rights included a precursor to this article. English Bill of Rights, 42. More than just a reaction to interference with the operation of the colony’s affairs by the Crown and colonial governors, the article also anticipated the possibility of a colonies-wide government, having the potential of limiting the state’s sovereignty.
- 32.
Maryland was the first American state to include the parliamentary privilege of speech and debate in its declaration of rights, likely a response to prosecutions of several members of the English House of Commons for offering bills displeasing to the monarch. See Leon R. Yankwich, “The Immunity of Congressional Speech-Its Origin, Meaning and Scope,” University of Pennsylvania Law Review 99, no. 7 (1951): 962–963. The English Bill of Rights included a speech and debate clause. English Bill of Rights, 42. Such provisions were seen as necessary to ensure that the legislature would be able to deliberate without interference from intrusions by the executive or judicial branches of the government.
- 33.
At first glance, Article IX seems out of place in a declaration of rights, but it was a means to protect the right of the legislature to be free from external manipulation or interference. It appears to be derived from the fourth grievance listed in the Declaration of Independence, which accused the Crown of calling legislative bodies at unusual and distant places to force them, through fatigue, into compliance. This article and the one immediately preceding were part of a package of provisions meant to protect and implement the separation of powers and popular sovereignty.
- 34.
Articles X and XI, along with Articles IV, V, and IX of the declaration and Article II of the “Form of Government” made it clear that legislators were to reflect the wishes of their constituents. Article X is taken almost verbatim (substituting “the Legislature” for “parliaments”) from the English Bill of Rights. English Bill of Rights, 42. Royal abuses of the power to summon and dissolve Parliament had contributed to the English Civil War. Suspension of colonial legislatures was mentioned in three separate grievances listed in the Declaration of Independence.
- 35.
The idea that legislative bodies were to represent or mirror their constituents’ policy preferences was an underlying assumption of these early constitutions. They instantiated and operationalized Maryland’s commitment to popular sovereignty. Several colonial charters, beginning with the Massachusetts Body of Liberties (1641), included similar provisions concerning petition rights. The right preceded Magna Carta and appeared in the 1215 version of that charter (Chapter 61), as well as the English Bill of Rights. A detailed analysis of the right in England and in the colonies is provided by Gregory A. Marks, “The Vestigial Constitution: The History and Significance of the Right to Petition,” Fordham Law Review 66, no. 6 (May 1998): 2153. The right to petition, historically a formal process, was taken more seriously by colonists than it is today. Professor Marks asserts that petitioning was “originally a central feature of the relationship between the governed and the government….” Ibid., 2155. Note Article XXXI of the frame calling for rotation in office, another measure directed at keeping the government close to the people as well as limiting opportunities for corruption.
- 36.
The principle that free people ought not to be taxed without their consent or that of their elected representatives is seen in Magna Carta, the English Petition of Right (1628), the English Bill of Rights, the Resolutions of the Stamp Act Congress of 1765, the Declaration and Resolves of the First Continental Congress, and the grievances listed in the Declaration of Independence. See Table 5, pp. 84–85. But the proprietary fee controversy in the colony was the immediate motivating factor for this provision, rather than the more general colonial complaints against parliamentary taxation.
Proprietary officials were paid by fees on the transactions of their offices, such as real estate activities, tobacco inspections, control of shipping, execution of documents, and the collection of proprietary dues and rentals. H. H. Walker Lewis, The Maryland Constitution of 1776 (Baltimore: Bicentennial Committee, Maryland State Bar Association, 1976), https://msa.maryland.gov/megafile/msa/speccol/sc2200/sc2221/000004/000000/html/00000005.html. As the colony grew, so did the volume of transactions, enlarging significantly the revenue collected. The exorbitant fees created temptations too strong to resist, and the offices collecting these fees become patronage plums to be granted to favored individuals.
- 37.
The prohibition against poll taxes arose out of Maryland’s colonial experience. It was a reaction to the highly unpopular use of poll taxes to support the Church of England and its clergy. As Professor Lewis notes: “This explanation of the prohibition of poll taxes in the 1776 Declaration of Rights is supported by the fact that no comparable restriction was adopted by the neighboring colonies of Delaware, Pennsylvania and Virginia, where poll taxes do not appear to have been used for the support of the church.” H. H. Walker Lewis, “The Tax Articles of the Maryland Declaration of Rights,” Maryland Law Review 13, no. 2 (Spring 1953): 89. The second clause in this article exempts paupers from taxes to support the government. Lewis claims that the third clause proposing taxes in proportion to a person’s actual worth can be traced to Adam Smith’s An Inquiry into the Nature and Causes of the Wealth of Nations, ed. R. H. Campbell and A. S. Skinner (1976; reprint, Indianapolis: Liberty Fund, 1981 [1776]), 2:825, which states the following as the first maxim concerning taxes:
I. The subjects of every State ought to contribute towards the support of the government, as nearly as possible, in proportion to their respective abilities; that is, in proportion to the revenue which they respectively enjoy under the protection of the state.
The two clauses are not identical, but both have equality as their underlying principle.
The fourth clause, that fines, duties, or taxes, may properly and justly be imposed or laid, for the good government and benefit of the community, was a response to an earlier proposal that would have outlawed all taxes other than property taxes. Lewis suggests that this clause, by expressly authorizing other types of taxes, settled the matter: “property was not to be the exclusive source of taxes.” Lewis, Maryland Constitution of 1776.
- 38.
Although the English Bill of Rights had forbidden the imposition by courts of cruel and unusual punishments, see commentary to Article XXII, below, this clause discouraging the use of sanguinary laws (i.e., laws imposing punishments deemed unnecessary or disproportionate to the crimes committed) had as its goal limiting the power of the legislature to adopt such laws. Friedman, “Tracing the Lineage,” 1018–1020. The addition of the sanguinary language may have been influenced by the Pennsylvania Constitution. Pa. Const. 1776, secs. 38, 39.
- 39.
This was the first appearance of the ex post facto protection in an American constitution. It derived from English common law. See William Blackstone, Commentaries on the Laws of England in Four Books (1753; reprint, Philadelphia: J.B. Lippincott Co., 1893), 1:46. Bernard Schwartz calls this “the most significant innovation made by the Maryland Declaration of Rights.” Schwartz, Bill of Rights, 1:279.
- 40.
A legislative act attainting a person without a judicial trial was known as a bill of attainder. The power of Parliament to declare guilt and impose punishment by such measures was well established by the fifteenth century. This provision banned such acts.
- 41.
This article authorized the judiciary to provide a remedy where the legislature had unreasonably failed to do so. See Article XXI, which provided additional protection. The impetus behind the measure can be traced to Magna Carta, Chs. 39–40. Colonists often read Magna Carta through the filter provided by Edward Coke, whose interpretation of Chapter 40 read: “…every Subject of this Realme, for injury done to him in [goods, lands, or person], … may take his remedy by the course of the Law, and have justice, and right for the injury done to him, freely without sale, fully without any deniall, and speedily without delay.” Edward Coke, The Second Part of the Institutes of the Lawes of England, in Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund Inc., 2003), 2:870. Such clauses are now referred to as open courts or right to remedy provisions.
- 42.
This provision limited the power of the state to arbitrarily select the vicinage (venue) for trials. During the Revolutionary period, English authorities would sometimes require a person who committed a crime in the colonies to stand trial in Canada or England. Complaints about this practice were seen in both the Declaration and Resolves of the First Continental Congress (Declaration No. 5) and the grievances listed in the Declaration of Independence.
- 43.
Articles XIX and XX contained several criminal procedure rights derived from the accusatory system of justice developed in England as part of the common law and expanded by such statutes as the Petition of Right and the Bill of Rights of 1689. Maryland deviated from the common law of juries, permitting juries to decide matters of law as well as facts, making the jury central to Maryland’s legal order. William E. Nelson, The Common Law in Colonial America, vol. 3, The Chesapeake and New England, 1660–1750 (New York: Oxford University Press, 2016), 16ff.
- 44.
The origin of this article, found in Maryland’s first governing charter and repeated in subsequent statutes, can be traced to Chapter 39 of Magna Carta. Frequently quoted, the colonists viewed Chapter 39 as epitomizing the idea of the rule of law.
- 45.
The wording of this article is all but verbatim from the 1689 English Bill of Rights. That bill had as its primary objective prohibiting the imposition of punishments not authorized by statute or within the jurisdiction of the court to impose. Anthony F. Granucci, “Nor Cruel and Unusual Punishments Inflicted: The Original Meaning,” California Law Review 57, no. 4 (October 1969): 859. The language at the end of this article made clear the article was a command to the judiciary.
- 46.
Similar to Va. Decl. 1776, sec. 10. This article represents Maryland’s attempt to deal with general warrants, which had been commonly used by the British during the Revolutionary period and were a major grievance of the colonists. The language used, emphasizing that any such warrants were “illegal,” was stronger than its Virginia counterpart.
- 47.
Under English law, forfeiture of an estate (to the Crown) was a consequence of conviction for a felony. During the Revolution, British authorities would confiscate estates with similar justifications. This article limited that procedure to certain well-defined exceptions.
- 48.
Articles XXV and XXVI were intended to protect the citizens’ right to form militias that would enable them to fight in the defense of their country and “not be dependent an alien soldiery commanded by men who are not responsible to law ...” E. A. Dick Howard, Commentaries on the Constitution of Virginia (Charlottesville: University of Virginia Press, 1974), 1: 277. Article XXVII made clear that the military power would always be subordinate to the civil power. Most likely these articles have their origin in similarly worded provisions in the draft of Virginia’s declaration of rights, available to the Maryland convention delegates. Friedman, “Tracing the Lineage,” 971–972.
- 49.
The quartering of troops by the British was a major grievance of the colonists. This provision, the first American constitutional limitation on this practice, would ensure that quartering, if deemed necessary (“in time of war”), obtained the approval of the legislature.
- 50.
This provision, along with Article XXVII, reinforced the supremacy of the civil power over the military, in this instance by subjecting only military personnel to martial law.
- 51.
Article XXX began with a compelling expression of the importance of an independent judiciary to the rights and liberties of the people, followed by a series of structural measures designed to ensure that independence. This guarantee of independence was repeated in Article XL of the frame, which also afforded the attorney general, the clerks of court, and certain registers tenure during good behavior. Removal for misbehavior required a “conviction in a court of law,” a two-thirds vote of each house, and agreement by the governor.
- 52.
This article called rotation in office “one of the best” safeguards of permanent freedom. The mechanics of rotation were addressed in the frame of government. The governor could not serve longer than three years successively, nor be eligible to serve again until the expiration of four years after leaving office (Const. 1776, Art. XXXI). Regarding other executive officials who wielded power, the measure was essentially admonitory.
- 53.
By prohibiting multiple office-holding and gifts from the U.S. government or any other nation, this provision insured the independence of public officials from any other sources.
- 54.
See p. 148 above for the treatment of religion by the 1776 constitution and see pp. 72–80 for the role of religion generally in the colonies. Article XXXIII disestablished the Anglican Church but allowed the state to provide general support for all Christian religions. None was ever authorized.
- 55.
Article XXXIV limited gifts to any religious activity or organization. It was designed to prevent deathbed wills that left money to religious institutions. As one scholar wrote, “[u]nderlying the laws was the image –or fantasy—of the wicked priest preying on the dying man or woman, manipulating their fears of eternal damnation to squeeze out gifts for the church.…” Lawrence M. Freidman, Dead Hands: A Social History of Wills, Trusts, and Inheritance Law (Palo Alto, CA: Stanford University Press, 2009), 29. Further justification for this provision was the prevention of considerable amounts of property being granted to the church, leading to an “overgrown establishment holding fast a large portion of the property in this State.” The Debates of the Constitutional Convention of the State of Maryland, Assembled at the City of Annapolis, Wednesday, April 27, 1864 (Annapolis: Richard P. Bayly, Printer, 1864), 1:382.
- 56.
Maryland was among several states requiring all officeholders to swear a belief in the Christian religion. See the discussion of religion in the 1776 constitution, p.150.
- 57.
Article XXXVI demonstrated the state’s commitment to religious liberty, by exempting Quakers, Mennonites, and Dunkers (German Church of the Brethren) from the requirement of swearing an oath of allegiance and permitting them to serve as witnesses in “all criminal cases not capital.”
- 58.
Among the “rights and privileges” afforded to the City of Annapolis, which had been chartered in 1704, was the protection of the city’s right to elect its own representatives. Dan Friedman suggests that delegates may have pointed to a precedent in Magna Carta wherein corporate entities like London were given certain privileges and immunities. Magna Carta, Ch. 13. Besides the powers and privileges relative to the organization of a municipality, Annapolis obtained the privilege of electing two delegates to the general assembly. Elihu S. Riley, The Ancient City: A History of Annapolis, in Maryland, 1649–1887 (Annapolis: Record Printing Office, 1887), 85. The closing of the Port of Boston by the British in 1774 aroused intense concern in Baltimore that the port city of Annapolis would be next. This provision reaffirmed the city’s long standing liberties and privileges to trade and to use its port. Richard A. Primus, The American Language of Rights (Cambridge: Cambridge University Press, 1999), 121–123.
- 59.
The word “ought” was employed to describe a right that, by the force of the word “inviolably,” cannot be removed or violated. “Ought to” suggests that the right was not judicially enforceable, placing it in the category of an admonition—a reminder to the community of its duty to maintain a free press. Like most early state constitutions, there was no protection afforded for speech.
- 60.
Maryland was the first American state to incorporate an anti-monopoly provision into its constitution, though it was not the first appearance in an American document declaring liberties. Over a hundred years earlier, the Massachusetts Body of Liberties provided: “No monopolies shall be granted or allowed amongst us, but of such new Inventions that are profitable to the Countrie, and that for a short time.” [Massachusetts Body of Liberties] (1641), sec. 9, in Lutz, Colonial Origins, 72. The purpose was to provide equal opportunity for invention and enterprise. It was a companion to the removal of ascribed or inherited privileges found in Article XL.
- 61.
Similar to Va. Decl. 1776, sec. 4. Titles of nobility were considered inconsistent with the equality of citizens in a republican form of government, and this article banned them. The article was superseded by Article I, section 10 of the national Constitution, prohibiting states from granting such titles.
- 62.
Article XLI was a transitional clause meant to keep in effect those resolves passed during the period between the Declaration of Independence and the adoption of the new constitution.
- 63.
The final article revealed both the ambiguities created by the use of the word “ought” and the inchoate understanding on the part of the delegates that what they were creating would be, in some way, permanent or at least more fundamental than ordinary legislation. The use of the word “ought” may reflect the fact that notions of judicially enforceable rights and courts voiding acts of the legislature or the governor had not yet been established or asserted. If the judiciary was not understood to be the enforcement agent of these provisions, then that enforcement rested with and was the duty of the citizenry and members of the government. This article served as an admonitory reminder of that duty. The method of amending the document was provided in Article LIX of the frame of government.
- 64.
The initial draft of the constitution proposed the same qualifications that had been in effect under the proprietary and that had been used in electing delegates to the convention. The convention reduced that requirement from forty pounds sterling to thirty pounds current money. As H. H. Walker Lewis noted, this was a substantial change as “[l]ocal currency was considerably debased and became more so.” Maryland Constitution, 1776. In addition to the suffrage granted by this article, the constitution afforded all persons qualified by the charter of the city of Annapolis to vote for burgesses and all inhabitants of Baltimore having the qualifications of electors in the county the right to elect two delegates annually.
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Galie, P.J., Bopst, C., Kirschner, B. (2020). Maryland. In: Bills of Rights Before the Bill of Rights. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-44301-6_6
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