The Rhetoric and Reality of English Law in Colonial Maryland, Part 2, 1689-1732

Abstract

The first half of this essay, published in MdHM, 108 (2013): 393-409, explored the status of English law in colonial Maryland from the colony's beginnings to 1689. Despite heated rhetoric to the contrary, the central issue of contention for Marylanders was not the extension of specific rules of English law, but whether the proprietor and his judicial appointees should have the last word on the subject. Political flare-ups in the legislature notwithstanding, a stable legal reality developed in practice. Maryland law ruled in all legal proceedings. English law remained available in reserve for use as appropriate where Maryland law was silent. This practical solution prevailed against the impractical alternative sometimes advocated by the Lower House of the legislature, namely, requiring judges, by their oath of office, to apply English rules in any case where Maryland law was silent. The issue remained a highly emotional one, however, as English law continued to symbolize liberty as strongly as it had before, and any abridgment of it came even more strongly to epitomize tyranny during Maryland's years as a royal colony and during the restored proprietorship of Charles Calvert, the Fifth Baron of Baltimore. The resolution of the conflict was a subtle compromise that accommodated political realities as well as the intricacies of early Maryland law.

Keywords: Maryland, legal history, English law, royal colony, Charles Calvert, political realities, proprietor, judicial appointees, colonial unrest, royal governor, Maryland legislative assembly, Crown, Glorious Revolution, John Locke

JEL Classification: N41, N43, K19, K29, K39, K49