Politics and Law
Whitman H. Ridgway
[The author constructs a clear and concise historical overview of
his subject around its four most salient elements: governmental structure,
the franchise, political factions and parties, and the codification of
state law. - Eds.]
Politics and law are the bases of citizenship and government.
Government generates and administers laws; the art of politics is to
influence government; and in Maryland citizenship has usually been the
source of both. James Madison articulated a fundamental conundrum about
this complex relationship in The Federalist No. 51: "In
framing a government which is to be administered by men over men, the
great difficulty lies in this: You must first enable the government to
controul the governed; and in the next place, oblige it to controul
itself. A dependence on the people is no doubt the primary controul on
the government; but experience has taught mankind the necessity of
auxiliary precautions." These auxiliary precautions include
written documents defining and limiting the powers of government, from
Lord Baltimore's Charter of 1632 to the most recent state constitution, as
well as more mundane accommodations, such as the emergence of political
parties and the manner in which power is shared in society. Madison's
assumption in 1787 that government ought to rest on the consent of the
governed, that is "the people," is anything but self-evident. It
was a minor concern to the Calverts when they petitioned the King to
establish a Catholic-tolerating colony in Maryland. Indeed, Madison's
definition of who the people were was far less inclusive in 1787 than ours
is today.
I: The Proprietor's Government: From Vision to Reality
The Charter of 1632 granted Lord Baltimore and his successors
considerable latitude in creating a government in the wilderness between
the soon-to-be disputed boundaries of Virginia and Pennsylvania. Subject
only to fealty to the King, a promise to adopt laws "with the Advice,
Assent, and Approbation of the Free-Men ... or of their Delegates or
Deputies, whom We will shall be called together for the framing of
Laws...," laws which would not be repugnant to those of England, and
a guarantee that those who migrated to the new colony would continue to
enjoy "... all Privileges, Franchises and Liberties of this our
Kingdom of England," they had a free hand in creating any type of
government they pleased.
In the abstract, the governmental structure they established appeared
ideally suited for taming a wilderness. Offering generous land grants to
settlers who would bear the cost of sponsoring other immigrants, and the
promise to run their land holdings along the pattern of the old English
manors, which gave considerable power and privileges to the manor lord,
the Calverts hoped to defray the cost of settling the new colony and to
ensure political stability. The Proprietor would be at the top of this
political pyramid based upon manor estates and subjects.
This manor system proved inadequate from its implementation. The root
of the problem was that the Calverts could not recruit enough wealthy
adventurers to settle the province and to establish a proper manorial
system. The topography of the colony, furthermore, with its many rivers
and tributaries fanning out from the central Chesapeake Bay, encouraged
diffuse settlement patterns rather than one which would support a manorial
system.
It is not surprising that settlement eventually would be followed by
the "Time of Troubles" and that the Calvert dream would prove to
be elusive. The Chesapeake region proved deadly for European settlers,
many of whom did not survive long enough to become "seasoned" to
the local diseases, so that it took several generations to establish a
self-perpetuating population. Virginians who had established settlements
in the territory claimed by Lord Baltimore, such as William Claiborne,
resisted and undermined his authority in the new colony, and challenged it
in London. Furthermore, the Puritan Revolution in the mid-seventeenth
century unleashed a fury of Protestant efforts to eliminate this heretical
"Catholic colony." By far the most devastating was Richard
Ingle's attack on St. Mary's County in 1645, which destabilized the colony
and encouraged many to abandon it altogether. By 1648 there were fewer
than 250 people in the area.
The political society that emerged from the chaos of the
mid-seventeenth century was far different from that envisioned by Lord
Baltimore. The manor ideal was replaced by political units based upon the
county. Proving remarkably resilient to the continued political
dislocations associated with the Puritan challenges to the Catholic
Proprietor, the justices of the peace and the county court provided
stability and order, creating a system that endured well into the
twentieth century as the basis for local government. Given the short life
expectancy in this period, it is not surprising that men without
significant land-holdings or social pedigree, indeed some of whom had been
indentured servants not long before their appointment, served on local
juries, were appointed to the county courts, or were elected to the
Assembly. Indeed, one of the more remarkable developments in this period
was the establishment of an indigenous elite which quickly established
itself in colonial government as a counter-force to the Proprietor and his
agents. Their greatest successes were in the Assembly.
The Calvert's promise to adopt laws "with the Advice, Assent, and
Approbation of the Free-Men ... or of their Delegates or Deputies, whom We
will shall be called together for the framing of Laws..." was far
more tentative than it appears. From the modern perspective, it indicates
a commitment to form some sort of representative body, through which the
settlers could share the "framing of laws." The question which
would divide the Proprietor and the settlers would be their respective
roles in this process. The Proprietor favored a system where he would
formulate laws to which the settlers would respond; the settlers saw their
role as law makers. This debate was transformed when the Protestants
wrestled the colony from Calvert control during the Glorious Revolution,
and Maryland became a Royal Colony. With the arrival of the first Royal
Governor, the leadership in the Assembly successfully asserted its right
to initiate legislation, which reversed their former roles thereafter.
Now the Governor, and after the Restoration, the Proprietor and his
appointees, was forced into the role of approving or disapproving
legislation from the Assembly. Physically the changes associated with the
Glorious Revolution were reflected by moving the capital from St. Mary's
City to Annapolis in 1695.
One of the most notable achievements in the seventeenth century was the
adoption of An Act Concerning Religion, also known as the Toleration Act,
in 1649. The Charter of 1632, in deference to the fact that Britain was a
Protestant nation, could not give precedence to the Catholic Church.
Eschewing the creation of a religious establishment, where taxes were
collected to support religion, the Calverts believed that religion should
be a private affair, and that the various denominations ought to co-exist
peacefully in public. In an effort to attract Virginia Puritans to settle
in Maryland, the Assembly adopted the Toleration Act, which was a
commitment to religious pluralism and its free exercise. This noble
experiment was soon undercut by the politics of the Puritan Revolution
abroad and at home in the mid-seventeenth century. When the Puritans
dominated the Assembly in 1654 they forbade Catholics from openly
practicing their faith. Thereafter the Toleration Act represented more of
an aspirational ideal than an achievable goal in this religiously troubled
era.
The Charter guarantee that all settlers would enjoy "...all
Privileges, Franchises and Liberties of this our Kingdom of England"
proved equally vexatious to the Proprietors. Whenever their essential
rights were in dispute during the proprietary period, Marylanders appealed
to the King for protection against arbitrary government. Later, beginning
with the Stamp Act crisis in 1765, they would claim their historic rights
and liberties as justification for their opposition to Parliamentary
policies.
The American Revolution brought the Proprietary period to an end. The
Calverts had lost their charter once before, as a consequence of the
Glorious Revolution, after which the colony reverted to Royal control.
They regained it in 1715, however, after Benedict Leonard Calvert, who had
converted to the Anglican Church, successfully petitioned for the
restoration of the proprietorship. By the late eighteenth century, many
Marylanders found both continued Proprietary and colonial rule oppressive,
and the events of the 1760s led to independence. The Charter of 1632
would be replaced by the Constitution of 1776.
II: Republican Government: From the Revolution to the Present
The Maryland Constitution of 1776 reflected tensions between the two
influential ideologies of the revolutionary era, republicanism and
democracy, which would animate state politics thereafter. Echoing the
influence of John Locke, the Declaration of Rights articulated the new
social and political contract between the people and their governors. More
than a bill of rights, where certain essential rights were reserved to the
people, it stipulated that all power emanated from the people and that the
governors were accountable to them; indeed, they were their
trustees.
Yet the structure of the new government kept the sovereign people at
arms length. Male citizens who met a minimum property requirement voted
directly for delegates to the general assembly and indirectly for the
Senate. Every five years voters elected Senatorial Electors who would
then meet together to elect a fifteen member Senate. If there was a
vacancy in the Senate between elections, then the Senate itself selected a
replacement. The people had no direct voice in the election of the
Governor, who was elected indirectly by the joint legislature, nor for the
selection of most local offices, which were appointed by the Governor,
with the concurrence of his Executive Council.
Republican theory did not require greater popular participation.
Frequent elections for the delegates to the lower house and the Governor
tethered the trustees to their constituents. The five year term of the
indirectly elected Senate gave it independence from undue influence from
the executive and the popularly based assembly and provided the whole
system with stability. Age and property qualifications for office-holders
were designed to keep power in the hands of white Christian men who had a
greater stake in society than voters. The Revolutionary generation
attempted to craft a system of government that would balance direct and
indirect elections to keep the destabilizing power of the people in check,
as well as assure that office-holders would remain true to their trust, by
requiring them to be substantial citizens, who would serve short terms in
office.
Not all people enjoyed equal political rights or citizenship. Slaves
and women did not enjoy the franchise, nor did they have equal rights to
men. Office-holding was also limited to Christians. It would only be in
1826 that legislation was adopted allowing Jews to access to public office
holding and equal rights and privileges as enjoyed by
Christians.
The gap between the republican and democratic systems was evident in
the notion of representation. Rather than establish representation on
population, as we do in the twentieth century, the constitution
perpetuated the colonial system based upon geographic units. Each
country, regardless of area or population, sent four delegates to the
legislature. The cities of Annapolis and Baltimore sent two each. The
structure of the Senate reflected the additional influence of regionalism
which was pervasive at that time. Nine members were to be elected from
the Western Shore and six from the Eastern Shore. The effect of this
system was to give smaller counties greater influence in the legislature
and to empower the Eastern Shore over the next century when population
would gravitate to the Western Shore in ever greater numbers.
Several external factors, notably demography and democratic ideology,
undermined this republican system. Population exploded on the Western
Shore, due primarily to immigration from abroad and migration from other
areas, while counties in Southern Maryland and on the Eastern Shore
changed very little. The demands for greater representation by residents
of Baltimore City, whose population increased from 26,514 people in 1800
to 80,620 in 1830, and the more populous counties were rebuffed until the
constitutional crisis of 1836. Reformers boycotted the scheduled meeting
of the Senatorial Electoral College in an attempt to force the election of
a Senate sympathetic to reform. Governor Thomas W. Veazey of Cecil County
averted the potential chaos of not being able to elect a government by
re-calling the old Senate. This action, based upon dubious constitutional
authority, broke the will of the recalcitrant electors who joined the
College to elect a new Senate. True to republican principles, the
legislature eventually gave the Western Shore greater representation by
creating two new counties, Carroll in 1837 and Howard in 1838, and awarded
Baltimore City equal representation to the largest county in 1838, without
committing the state to popular representation. Even the reformers from
the more populous counties wanted to limit Baltimore City's
representation.
By 1850 the mal-apportionment of the state was no longer acceptable.
Baltimore City now numbered 169,054 souls and the Western Shore had 78 per
cent of the state's population. The new Constitution of 1851 allowed
citizens from each county and Baltimore City to elect one Senator
directly, and to send representatives to the general assembly based upon
population. The Constitution still allowed for a minimum of two delegates
for each county. Universal manhood suffrage proved more elusive and
obtaining the vote for women would take even longer.
The reforms embodied in the 1864 and 1867 constitutions had less to do
with the advance of democracy than with the tensions associated with the
Civil War. Few had forgotten how close Maryland had come to secession in
1861, so that a priority for the 1864 reformers was to nullify the
influence of southern sympathizers. The elective franchise section was
changed to disenfranchise Marylanders who had left the state to fight for
the Confederacy, to live there, or who had given it "any aid,
comfort, countenace, or support..," and to make it difficult for them
to regain the full rights of citizenship. Furthermore, office-holders
were required to take a new oath of allegiance to support the state and
union and to repudiate the rebellion. The influence of the small counties
which had a large slave population, many of which supported secession and
impeded union efforts during the war, was reduced by basing representation
solely on white population. The Constitution of 1864 also emancipated the
slaves. Freedom, however, did not mean equality. The franchise was
restricted to "white" males. Additionally, the Maryland
legislature refused to ratify both the 14th Amendment, which conferred
citizenship rights on former slaves, and the 15th Amendment, which gave
the vote to African Americans.
The provisions of the Constitution of 1864 which disqualified
Confederate supporters from voting proved to be especially controversial
thereafter. Expatriates returned to Maryland after Appomattox and soon
after the legislature formulated an official set of procedures, the
Registry Act of 1866, designed to provide election officials with a list
of questions, designed to make certain that the franchise would be
securely held by pro-Union voters, which would be asked every prospective
voter. Their return also re-invigorated the Democratic party which had
been decimated as a political force during the war years. Ultimately the
provisions of the Registry Act were applied leniently and by 1868 the
Democratic party regained its domination of the state
legislature
In light of this political transformation, it is not surprising that
there was considerable support to re-write the Constitution of 1864. It
may have emancipated the slaves but it failed to disenfranchise southern
sympathizers. The federal government, whose military presence had
sustained the Unionist government during the war, had withdrawn its forces
at its conclusion, with the result that the popular support shifted from
the Republican to the Democratic party. One hint of this change was the
deletion of the first article in the 1864 Declaration of Rights stating
that "...we hold it to be self-evident that all men are created
equally free...."
The Constitution of 1867 restored much of what had been changed three
years earlier. The provisions disenfranchising southern supporters were
considerably weakened and population again became the basis for
representation, which strengthened the legislative influence of the
smaller counties with large African American populations. It could not
re-impose slavery on former slaves but it continued to minimize their
influence by limiting the franchise to "white males." There was
a significant change in the power of the Governor in that he was given a
legislative veto.
The Maryland Constitution would be modified nearly 200 times over the
following century. By 1966 there was a feeling that so much had changed
in the state that Maryland voters authorized a convention to draft a
modern constitution. The proposed constitution modernized Maryland's
government, especially its judiciary, in a number of significant ways.
Unfortunately, the convention delegates were far more committed to reform
than the politicians or voters, so that the proposed constitution was
rejected by a popular referendum. Many of its recommendations for
modernizing government, however, would be implemented by the legislature
under the influence of Governor Marvin Mandel and progressive legislative
leaders.
The question of the fairness of representation in Maryland had been
revisited earlier in the 1960s. The existing system benefitted the
smaller counties and failed to increase representation to those where
population had grown. Following the Supreme Court's Baker v. Carr
(1962) decision, mandating one man one vote, and the reports of
several electoral reform commissions, Governor Tawes pushed a reluctant
legislature towards electoral reform. Ultimately, after further judicial
intervention, the more populous jurisdictions obtained greater
representation, and the congressional and state senatorial districts were
equalized.
Despite such reforms, the meaning of representative government is still
being contested today. Minorities assert that they are under-represented
in county, state, and congressional districts because of the way in which
district lines have been drawn by the state legislature. They claim that
"at large" county districting, "multi-member" House of
Delegates districts, and the practice of creating "minority"
legislative districts, results in minority under-representation. Some
groups advocate minority districts as a means to increase minority
legislative representation. Others argue that this process actually hurts
this goal by reducing their influence in other districts so that fewer
minorities are elected to the legislature, with the result that less
attention is paid to their concerns. However these issues are settled,
they illustrate the core value of representation, as well as the structure
of government, as fundamental components of republican government. The
fact that these issues must be faced every decade after a census is taken
is a tribute to the wisdom of the Framers of the Constitution over two
hundred years ago.
III: Government for Whom? The Franchise
James Madison's assertion that government ought to depend on the people
is an essential element of republican theory. On one level, that reliance
may be limited to the principle of frequent elections, where the sovereign
people may judge their trustees on a regular basis. A more fundamental
consideration, however, concerns the electorate itself. Who are "the
people" Madison was talking about? Are his "people" the
same as those with whom electoral power is entrusted today; if not, why
were they excluded then and included now?
Over time, there have been seven elements - citizenship, residency,
age, property holding, gender, race, and literacy - which have been used
to define the elective franchise. Variations in how these elements were
applied over time reveal changing attitudes towards the underlying
assumptions about the basis for political responsibility in Maryland's
system.
Citizenship is an essential requirement for voting. One has to be a
citizen to vote but not all Maryland residents are citizens. Women,
Indians, indentured servants, and slaves were not considered to be
citizens in the colonial period and did not qualify to vote; although
indentured servants enjoyed some rights as citizens of the realm. In the
late seventeenth century, when Puritans challenged the Catholic domination
of the colonial leadership, religion served as a means for political
disqualification. Catholics lost the franchise in 1718 and regained it
only with the adoption of the Declaration of Rights in 1776. During the
Revolution, the vote was restricted to those who gave allegiance the
patriot cause. Neither non-associators, who refused the take the oath and
were considered as being residents, nor Tories, who maintained their
allegiance to Great Britain, enjoyed the franchise. Allegiance to the
state was used again during the Civil War to disqualify active supporters
of the Confederacy which was then written into the Constitution of 1864.
Caucasian women were recognized as citizens prior to the ratification of
the 19th Amendment but they did not enjoy the vote. The 13th Amendment
freed the slaves, but it was not until the ratification of the 14th
Amendment in 1868 that African Americans by law became citizens of the
nation and the state and not until the 15th Amendment in 1870 that they
gained the vote. Even then, African American males were not given the
franchise until the adoption of the 15th Amendment. Resident aliens did
not enjoy the rights of citizens. Today a voter has to be a citizen of
the United States and a resident of Maryland.
Citizens must also meet a residency requirement in order to exercise
the franchise. This requirement is designed to assure that a voter has an
persisting commitment and some knowledge of the area where he lives. The
current requirement of a year follows the pattern established in the
Constitution of 1776.
The age component of the franchise has been the most unambiguous.
Linking voting with the age of majority, it was defined as 21 for many
years. This was reduced to 18 during the Viet Nam war on the theory that
if one could be inducted to fight one should be able to vote.
Surprisingly, this apparently was not a concern during World War II.
The relationship between property-holding and the franchise would be a
core value from settlement through the early nineteenth century.
Property ownership meant that one had a stake in society and stake-holders
ought to have a say in political affairs. The question became, however,
how much property ought to be required to qualify to vote.
At the time of settlement there were essentially two classes of people
in the colony. Those who were affluent enough to purchase large
quantities of land, and to sponsor other settlers, enjoyed the undisputed
right to participate in political affairs. Those without independent
means were able to indenture themselves, that is to exchange their labor
for a specific term of years for the cost of bringing them to the colony,
after which they were promised land as well as their freedom. Since
property-holding was the measure of independence, those formerly
indentured servants who actually took title to the land would enjoy access
to the political system.
Over time, indenture disappeared and people challenged property
qualification as a criterion for voting. The limitation of the franchise
to land holders excluded artisans and landless workers so that property
qualifications in the eighteenth century were redefined to include a
minimum amount of property other than land. This still excluded those who
fell below the threshold. It became an especially contentious issue
during the Revolution when militiamen, who were being asked to fight for
the state, demanded a reduction in the monetary value of property
qualifications so that they could participate in government. The
legislature ignored their demand, but inflation during the war eroded this
barrier.
The democratic impulse, where an individual citizen standing alone was
sufficient qualification for voting, was attained early in the nineteenth
century. By the Constitution of 1776, all freemen who had freehold to
fifty acres of land, or who had property in the state above thirty pounds
current money, qualified to vote. The legislature abandoned property
qualifications for voting, as well as for membership in the legislature,
in 1810.
Women did not obtain the right to vote in Maryland until the
ratification of the 19th Amendment in 1920. During the colonial and early
national periods, males considered women to be a dependent class,
belonging to their father's household prior to marriage and to their
husband's thereafter. Ironically, considering how strongly Americans
asserted their right to representation in Parliament in the 1760s, men had
no shame in justifying the subordination of women by claiming that they
enjoyed "virtual representation" in this male dominated
political system. There is evidence that widows were allowed to vote
occasionally in Maryland in the seventeenth and eighteenth centuries.
This may be explained because widows had been emancipated, in that they
were no longer members of their father's or husband's households, and that
the law recognized their ability to control their property which conferred
the necessary independence to exercise the franchise. Between 1776 and
1807 widows who met the property qualification were able to vote on a
regular basis in New Jersey. This anomaly of gender relationships did not
long survive. After widows strongly supported the Federalists in a hotly
contested election in 1798, the victorious Republicans added
"male" as a voting qualification.
The women's rights movement, which took shape in the early nineteenth
century, asserted that the principles of "virtual
representation" were no more appropriate in America after
Independence than it had been in the colonial period, and that women could
never be independent without the vote. The logic of this proposition was
not apparent to nineteenth century males, however, and the battle for
women's suffrage was complicated by other issues, such as abolitionism,
immigration, prohibition, and gender relations. Some felt that
involvement in politics would coarsen the "fair" sex and divert
their attention from their pre-eminent responsibilities of household and
motherhood. Prior to the emancipation of slaves, some reformers opposed
the introduction of women's rights issues because they feared it would
divide the abolitionist movement. The publication of the Seneca Falls
Declaration in 1848, asserting the equal rights of women and demanding the
franchise, was endorsed more by women than by men. Frederick Douglass,
the former Maryland slave who had become an abolitionist spokesmen, was
one of the few editors to support these goals.
The de-gendering of voting was ultimately achieved 1920. The Women's
Suffrage movement was revitalized in the Progressive Era. After the
ratification of the 19th amendment, which again the state legislature
refused to endorse, Governor Ritchie called a special session of the
legislature to implement women's suffrage, and then initiated a campaign
to register women voters in Maryland.
Race has also been used as a qualification for voting. Although slaves
were excluded from voting because they could not be citizens, and indeed
before the law they were considered to be a form of property and had
almost no enforceable rights, the Constitution of 1776 did not mention
race in defining voter qualifications. One consequence of this was that
free black males, that is former slaves who had been manumitted, were able
to vote if they satisfied the property qualifications for voting. It is
not clear how many Free Blacks actually voted, but by the late 1790s there
was growing opposition to their exercising the franchise, and the
legislature added "white" as a voter qualification in 1802. The
Constitution of 1851 specifically gave the legislature the responsibility
to legislate for the free colored population.
Emancipation did not include the right to vote. The 13th Amendment
freed the slave, and the 14th Amendment presumably established equal
citizenship, but not until the ratification of the 15th Amendment in 1870
was the right to vote guaranteed by the national government. Like many
other guarantees, it proved to be flawed. States under the federal system
still enjoyed a great deal of latitude in determining voter
qualifications. Various devices - from literacy tests, poll taxes, and
grandfather clauses - were employed to disqualify African Americans from
voting. For a time, these efforts were opposed by federal authorities and
in federal courts, but by the end of the nineteenth century there was an
acceptance of ostensibly non-discriminatory tests. That is, if election
officials could show that their procedures were not overtly biased, where
some whites were disqualified along with African Americans, courts
accepted such restrictions as being non-discriminatory and
constitutional.
The most blatant effort to disqualify Maryland African American voters
occurred in 1904. Democrats attacked the electoral strength of the
Republican Party by proposing a constitutional amendment disenfranchising
Negroes, who had supported the party of "the Great Emancipator"
since Reconstruction. Although this effort failed, other
"reforms," and more overt methods of intimidation, made it
increasingly difficult for African Americans to vote as the twentieth
century progressed. The adoption of the Voting Rights Act in 1965
re-invigorated the federal commitment to guaranteeing the ballot-box to
all citizens.
Reformers and good government advocates favored using literacy tests to
make sure that voters would make intelligent decisions at the polls.
Facing governmental corruption and boss-dominated machine politics in the
late nineteenth and early twentieth centuries, reformers sought to break
the alliance between the bosses and immigrant groups, who were willing to
exchange their votes for economic benefits. Reformers hoped to break this
nexus by introducing literacy tests. Objectively, such a system had merit.
Who could argue with the ideal that voters should be literate, capable of
reading the ballot, and able to comprehend the issues of the day. In
practice, however, it proved to be a convenient device to strip the vote
from disfavored groups, such as African Americans and immigrants.
IV. The Competition for Power: Factions and Parties over
Time
From the establishment of political authority in colonial Maryland to
the present times individuals have organized themselves in various ways
into political groups. Partisanship flourished as soon as the colony was
settled. Conflicts between earlier settlers from Virginia, and repeated
Protestant challenges to the Catholic government, undermined political
stability throughout the seventeenth century. Even after these troubles
subsided, political rivalries developed around court and country parties
during the later colonial period, so that much of the dissatisfaction in
Maryland as the Revolution neared was less in response to Parliamentary
abuses than to discontent with Proprietary policies.
Following Independence, with few exceptions, the formal structure of
political rivalries within the state mirrored the national experience. As
two party competitions emerged from national competition for electoral
support, from the Federalist-Antifederalist rivalry over the adoption of
the Constitution in 1787-1788 through the two party competition between
the Democrats and Republicans today, they also took shape in Maryland.
The exceptions, or variations, are what make Maryland interesting.
During the early nineteenth century, for instance, Maryland Federalists
persisted longer as an active political movement than in other states.
This party did not attract a broad popular base because of its elitist
identity. Their longevity was explained by the arrogance of their
political opponents, the Democratic Republicans, who allowed an
anti-Federalist riot to get out of hand in Baltimore City in 1812, which
made them martyrs. When it finally expired in the early 1820s, some
former Federalist leaders, such as Roger B. Taney, emerged as early
supporters of Andrew Jackson and his popularly based Democratic
party.
In the mid-nineteenth century, Maryland is one of the few states where
the "Know Nothing," or the American Party, thrived. It rose to
national prominence as an anti-immigrant, anti-Catholic movement in the
1850s. Former Whig Party leaders, whose party had self-destructed as a
national force after the Mexican War, purposefully ignored the nativist
aspects of Know Nothingism while they took advantage of its electoral
appeal to challenge the Democratic Party, the party of urban immigrants
and proponents of slavery. This period would be characterized by
electoral fraud and violence. The party would survive efforts to restrict
its unsavory influence and emerged as a tentative bridge to the Union
Party during the secession crisis.
The Republican Party, which formed in other areas of the country around
1860, had almost no support in Maryland. But a Union Party did because
its pro-slavery, anti-secession stance appealed to many in this border
slave state. It was only because of the physical presence and support of
the national government that Maryland did not secede and join the
Confederacy. Even if the Democratic Party was tarred as the party of
secession, the Union Party had a very limited popular base in Maryland,
and not even the disenfranchisement of southern supporters guaranteed its
continued existence. One reason was that, few white Marylanders supported
the idea of extending the franchise to African Americans. It is not
surprising, therefore, that the Union Party did not long survive the
restoration of peace and the reassimilation of former confederates into
the polity.
The period between the end of the Civil War and well into the 1920s was
dominated by machine politics. First as the Gorman-Raisin machine, and
later under the leadership of "Sonny" Mahon, the political
machine would thrive as business leaders, politicians, and immigrant
voters exchanged favors at the public trough. Good government reformers
rallied against this abuse, and sometimes won occasional electoral
victories, but their efforts tended to scale back rather than destroy the
roots of the machine system.
The appearance of Franklin Delano Roosevelt's New Deal transformed
American politics in the 1930s. In Maryland, the story is a little
different. Governor Albert C. Ritchie, who would dominate state politics
from the late 1910s to the mid-1930s, was a "state's rights"
Democrat, who fought against the centralizing influence of the New
Deal.
During the 1950s and 1960s the concept of "state's rights"
became synonymous with Southern resistance to the Civil Rights movement.
Politicians like Alabama's Governor George Wallace, calling for continued
white supremacy and resistance to the involvement of the national
government in racial affairs, found some support in Maryland.
Maryland political parties are closer to their national counterparts
today. The lure of federal money, from highway funds to support for urban
renewal and social programs, eroded the popularity of Governor Ritchie's
"state's rights" stance among state officials after his death in
1936. The new "state's rights" position is whether the federal
government ought to direct such programs from afar or whether it is better
to give the states block-grants and allow them to implement programs with
minimal federal interference.
V. Law
The law has been an important part of Maryland history. At its core is
the common law, which was followed during the colonial period and
continued thereafter by statute, and established the working context of
the legal system. Occasionally, issues still arise in modern adjudication
which are not covered by statute requiring that judges revisit the common
law treatises of Sir Edward Coke and William Blackstone to decide the
issues.
English common law had played an important role in the country party's
challenge to the Proprietor's powers in the eighteenth century. Claiming
the liberties and rights of Englishmen based upon the common law and
custom, they argued that the Proprietor's powers were limited and that the
King and Parliament should protect them. It is not surprising, therefore,
that Article 3 of the Constitution of 1776 stated that "The
inhabitants of Maryland are entitled to the common law of
England...."
The problem, of course, was to identify those parts of the common law
that were applicable in Maryland. Beginning in 1793 the state legislature
initiated a process to collect them which culminated in the publication of
William Kilty's two volume, The Laws of Maryland...(1799).
Kilty collected the laws passed by the Assembly from 1692 through 1799,
which were then updated thereafter on a regular basis, growing to seven
volumes in 1818. This important publication supplanted the existing
Bacon's Code published before independence. Kilty also authored
A Report of all such English Statutes... (1811) which was a
compilation of English statutes in effect in Maryland in the colonial
period. In addition to these valuable works, Virgil Maxcy published
another collection, The Laws of Maryland..., also known as
Maxcy's Code (1811), which was initially issued in three volumes.
By 1825 there was growing opposition to the common law's continued
influence on Maryland practice. A petition from Baltimore citizens to the
legislature claimed that Maryland's adherence to the common law
represented a continuing subservience to Britain, had a limiting influence
by emphasizing technicalities, and was inconsistent with the trend of
modern laws enacted by the state legislature. This movement ultimately
resulted in the publication of Clement Dorsey's three volume The
General Public Statutory Law...1692 to 1839 (1840), also known as
Dorsey's Code of 1839.
The adoption of the Legal Code of 1860 marked an important
transformation in Maryland law. In the first place, it was
"adopted" by the legislature which meant that all previous
enactments were repealed and that it was recognized as the definitive
statement of the law. Rather than conforming to previous compilations,
which essentially listed the legislative acts in the order in which they
were passed, this Code divided Maryland law into 98 titles, or subject
headings, which was followed thereafter with some modern expansion. This
legal code format modernized the law and formed an important element of
efficient legal practice.
Considering that Marylanders demanded that the Proprietor and the King
recognize their rights of Englishmen during the colonial period, it is not
surprising that they adopted one of the most comprehensive Declaration of
Rights upon which to base their new government in 1776. The rights and
liberties of Marylanders have also been affected by the interpretation of
the national Bill of Rights. The difference between the two was clearly
stated by Chief Justice John Marshall in a Maryland case, Barron v.
Baltimore (1833), where he differentiated between rights guaranteed
by the state and the federal constitutions. This relationship changed
with the ratification of the 14th Amendment which protected the rights of
national citizens against state encroachments. This was essentially a
dead-letter issue until the twentieth century, when the Supreme Court
began selectively to incorporate the protection of the national Bill of
Rights against the states. This process has diminished the importance of
the state Declaration of Rights as the state courts have followed the
doctrine of in pari materia. That is, where state guaranteed
rights are construed with reference to the same national rights they will
be subordinated to them.
As the Warren Court was replaced by Supreme Courts which were
considered to be less interventionist there was a belief that state
Declaration of Rights would become more important in the protection of
individual liberties. This has been the case in limited areas, such as
those states whose Declaration of Rights make guarantees not found in the
Bill of Rights, such as equal rights for women or privacy, but this has
not been a major trend in Maryland.
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