Jeffrey K. Sawyer, University of Baltimore School of Law, has posted, in two parts “The Rhetoric and Reality of English Law in Colonial Maryland.”
Part 1 - 1632-1689, appears in the
Maryland Historical Magazine 108 (Winter 2013): 392-409:
The rule of English law in the English-speaking colonial world is at once obvious and puzzling. Along with language, the law anchored the Englishness of life in colonial America, At the same time, warring states and rival investors used law and diplomacy as weapons in their arsenals of global competition, and so the law of nations provided an unstable and frequently contested framework for exploration and settlement. The governance of struggling Atlantic settlements (especially before 1660) rose, fell, and was reconstructed with the various fortunes of each. In these early settlements there was much law-making, but law was perhaps negotiated as often as it was applied; local officials frequently adjusted English rules to local circumstances. The more historians investigate this world, the harder it is to be sure, exactly, how colonial law worked.
This article examines why a perennial contest over the precise authority of English law was so central to the rule of law in early Maryland. Two new perspectives will help further this inquiry, which has long interested colonial historians generally and historians of Maryland in particular. The first is a heightened appreciation of the fact that early American legal history unfolded in distinct phases. The second is a recognition that the contest over English law in the colonies developed along different but overlapping dimensions, a political or rhetorical dimension and an operational dimension. This latter world of law was the reality of lawsuits, debt collection, inheritance, criminal prosecutions, judgments, and so on.
Part 2, 1689-1732, appears in the
Maryland Historical Magazine 109 (Spring 2014): 81-95:
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.
