English Law and American Democracy in the Revolutionary Republic: Maryland, 1776-1822

Abstract

Between 1776 and 1784, eleven of the original thirteen states made some provision for the continuing authority of the common law and British statutes. But there were highly significant variations in the pattern from state to state, variations that helped to differentiate each state as a unique jurisdiction. In Maryland, despite the effort of leading lawyers to settle the matter once and for all in 1776, the precise effects of Article 3 had to be worked out over several decades of political, legal, and intellectual maneuvering. As a result, Marylanders left a remarkable record of politicians, lawyers, and judges contesting for different views of the importance of legal continuity in a democratic republic. This history helps explain why Marylanders are still entitled to the benefits of the common law by the authority of Article 5 of their current constitution, and it also illuminates a defining feature of American democracy, the tension between its theory of sovereignty and the rule of law in practice. As historians and students of the revolutionary era in Maryland well know, the constitution of 1776 as a whole was a defeat for direct democracy and any popular agenda of social leveling or economic equality that may have been in play, A few idealists, notably Colonel Rezin Hammond of Anne Arundel County, were elected to the 1776 convention but were unable to build a strong statewide political coalition. Effectively led by their wealthy and worldly leaders, notably Charles Carroll of Carrollton, Matthew Tilghman, Samuel Chase, Thomas Johnson, Charles Carroll the Barrister, and William Paca, a majority of delegates embraced independence from the British Empire but voted consistently for a style of government that was familiar and predictable. Why was this plan so conservative? In part because delegates embraced a conception of democratic legitimacy shaped not just by Revolutionary ideals and rhetoric about liberty and rights, but also by the particulars of local legal history.