The American Quarterly Review, No. 18, June 1831 (Vol 9)

by Various

The resistance of the colony to external aggressions was not less resolute. We have noticed her neglect of the royal rescripts in the case of the quotas; she opposed with like firmness, the plan originated in 1701, and revived in 1715, for destroying the charters, converting the colonies into royal governments, and forming a confederacy of them, at whose head was to be a royal commissioner, residing at New York. She was as adverse to the plan of colonial union, aiming at much the same object, proposed in 1753. We have already alluded to the controversy respecting the extension of the English statutes to the province, which began in 1722, and lasted ten years. In their session of that, year, the lower House of Assembly adopted a series of resolves assertory of their liberties, and declaring the grounds on which they claimed the benefit of the statutes. These resolves, which became the Magna Charta of the province, and were afterwards substantially re-adopted on every occasion, involving its rights and liberties, declared that the province was not to be regarded as a conquered country, but as a colony planted by English subjects, who had not forfeited by their removal any part of their English liberties; that, as such, they had always enjoyed the common law, and those general statutes of England, which were not restrained by words of local limitation, and such acts of the colonial legislature, as were made to suit the particular constitution of the province; and that this was declared, not from apprehension of the infringement of their liberties by the proprietary, but as an assertion of them, and to transmit their sense thereof, and the nature of their constitution, to posterity. These resolves divided the whole province into two parties, "the court party," consisting of the immediate retainers and adherents of the proprietary, and "the country party," which embraced the lower house, and the great body of the people. On the latter side, were enlisted all the talents of the province; and the papers on this subject proceeding from the lower house, were marked by great ability and research. Some of them are from the pen of the elder Daniel Dulany, the father of another distinguished person of that name, and who transmitted to his son the talents, which, our author remarks, seem to have been the patrimony of the family in every generation. The controversy resulted in the recognition of the pretensions of the assembly, and thenceforth the courts of judicature continued to adopt such statutes as were accommodated to the condition of the province.

The spirit which begat and established these claims, appeared equally in the dissensions which succeeded them, respecting the proprietary revenues. A series of resolves was adopted by the lower house in 1739, denouncing, as arbitrary and illegal, the levying of certain duties, the settling of officers' fees by proclamation or ordinance, and the creation of new offices with new fees, without the assent of the assembly. The act proposing the appointment of an agent to present these grievances to the king was vindicated by a message from the lower house, "worthy to be preserved for its laconic boldness." "The people of Maryland," say they, "think the proprietary takes money from them unlawfully. The proprietary says he has a right to take that money. This matter must be determined by his majesty, who is indifferent to both. The proprietary is at home, and has this very money to enable him to negotiate this affair on his part. The people have no way of negotiating it on theirs, but by employing fit persons in London to act for them. These persons must be paid for their trouble, and this bill proposes to raise a fund for that purpose." Though the measures then adopted did not lead to a definitive suppression of the grievances complained of, some of them were removed in another mode. Thus, fines on alienation were relinquished by the proprietary in 1742; officers' fees were established by law in 1747; but the tobacco and tonnage duties formed a standing subject of complaint till the revolution, and a justification of the refusal of supplies, and of other opposition to the government. In voting supplies during the French war, the lower house had imposed an increased tax on "ordinary licenses," and a duty on convicts transported into the colony. The former was resisted as an invasion of proprietary prerogative; the latter, as in conflict with the acts of Parliament authorizing their importation, according to an opinion obtained from Mr. Murray, afterwards Lord Mansfield. The assembly was not daunted by authoritative names. "Precarious," said they, "and contemptible indeed would the state of our laws be, if the bare opinion of any man, however distinguished in his dignity and office, yet acting in the capacity of private counsel, should be sufficient to shake their authority." "I remember," says Daniel Dulany, in his Considerations on the Stamp-Act, "many opinions of crown lawyers on American affairs. They have generally been very sententious;—they have all declared that to be legal, which the minister, for the time being, has deemed to be expedient." The opinion of Attorney-General Pratt, afterwards Lord Camden, prevailed as little on a subsequent occasion. In it he denied the legality of certain extensions of the taxing power, in a supply bill voted by the lower house. It is chiefly remarkable, however, for the distinction set up by one who was afterwards an advocate of American liberties, between the rights of the House of Commons and of the Colonial Assemblies. The Assembly entertained a very different judgment. "Being desirous," they said, "to pay the opinion all due deference, we cannot but wish it had been accompanied with the state of the facts on which it was founded." In nine successive sessions, the supply bill was passed in nearly its original form. With such exhibitions of the tempers of the colonies, it is a just subject of wonder that the Stamp-Act should ever have been ventured on.

The peace of Paris had now, however, not only secured the safety, and with it the gratitude of the colonies, but also confirmed over them, it was supposed, the authority of the mother country. But if the termination of the French war, says the author, seemed to the government a fair occasion for resuming designs never lost sight of, its progress, however calamitous, had nurtured the free and adventurous spirit of the colonists by privations and dangers, until their minds, as well as their resources, were matured for effectual resistance. Their trade, indeed, was burdened with duties imposed for its regulation and restriction; but no tax had yet been laid for the mere purpose of revenue. Sir Robert Walpole "had sagaciously remarked, that, contenting himself with the benefits of their trade, he would leave the taxation of the Americans to some of his successors, who had more courage, and less regard for commerce." The Stamp-Act, by which the experiment was now to be tried, being stripped of the odious machinery of collection, and operating indirectly, was a well contrived initiatory measure. Coupled with it, however, were certain harsh enforcements of the trade-laws at this time, which had the effect of raising higher the indignation of the colonists, and of confounding the distinction hitherto, though reluctantly admitted, between the right to regulate their commerce, and that of direct taxation.

Circumstances prevented Maryland from expressing her opposition to the measure through her legislature, before, and for some period after its adoption. The act was passed on the 22d of March, 1765, and that body was repeatedly prorogued, from November, 1763, to September, 1765. This delay, at such a juncture, did not escape strong remonstrance. There existed, however, at that time, another mirror of the public feeling, whose respectable antiquity deserves mention. This was a journal at Annapolis, conducted by Jonas Green, under the name of "The Maryland Gazette." It was established in 1745, and has ever since been conducted by his descendants, under the same title. Its pithy appeals to the popular sentiment are amusing at this day; and, though the government paper, its temperate support of colonial rights made it the vehicle of communications on that side, not only from the province, but from other colonies. In one from Virginia, the writer says, "it being well known that the only press we have here is totally engrossed for the vile purposes of ministerial craft, I must therefore apply to you, who have always appeared to be a bold and honest assertor of the cause of liberty." The person selected for the distribution of the stamps in Maryland, was Zachariah Hood, a native of the province, and at one time a merchant residing at Annapolis. His appointment was announced with due mock ceremony in the Gazette, and himself to be a gentleman whose conduct was highly approved by all "court-cringing politicians, since he was supposed to have wisely considered, that, if his country must be stamped, the blow would be easier borne from a native than a foreigner." His arrival also was greeted with customary honours; his effigy, according to a circumstantial narrative in the Gazette, being hung to the toll of bells, by the "assertors of British American privileges" at Annapolis, and afterwards at Baltimore, Elk-Ridge, Fredericktown, and other places, in emulation. These significant tokens of the popular temper seem to have been promoted, as acts of deliberate defiance, by men of authority and character; as among the "assertors" at Annapolis was the celebrated Samuel Chase, who, at twenty-four, was already the champion of colonial liberties, and gave promise of that combination of abilities, which afterward elevated him beyond rivalry in the province, as a lawyer and advocate, and a leader both of popular and deliberative assemblies. Talents thus employed would naturally provoke the calumny of opponents. A publication of the municipality of Annapolis, describes him as "a busy, restless incendiary, a ringleader of mobs, and a promoter of their excesses; a foul-mouthed and inflaming son of discord and faction." His reply, "abounding in personal reflections, and savouring too much of coarse invective," shows something of the spirit of a tribune of the people, who, thrown into a tumultuous scene, and into contests with the courtly adherents of power, might deem himself excused for some disdain of reserve, and some bluntness of phrase. I admit, he says, that I was one of those who committed to the flames the effigy of the Stamp-Distributor, and who openly disputed the parliamentary right to tax the colonies; while some of you skulked in your houses, and grumbled in corners, asserting the Stamp-Act to be a beneficial law, or not daring to speak out your sentiments. The reader may be curious to know Hood's subsequent adventures. Not daring to distribute the stamps, and finding the indignation which had been lavished on his effigy, taking a more dangerous direction towards his person, he absconded secretly, and never paused in his flight till he reached New-York, and had taken refuge under the cannon of Fort George. Having gone afterwards to reside on Long Island, a party surrounded the house where he was concealed, requiring the abjuration of his office, on pain of being delivered to the exasperated multitude, and carried back to Maryland, with labels upon him signifying his office and designs. Unwilling to run this gantlet through a country up in arms, he yielded, and was accompanied by upwards of a hundred gentlemen from Flushing to Jamaica, where he swore to his abjuration, and was discharged.

The first measure of the assembly, when at length convened, was to appoint commissioners to a general congress that was to be held in New-York; its next, to make an expression of its sentiments on the existing question. The tone and unanimity of the resolves adopted, sufficiently show, in the author's opinion, that the temper and course of Maryland at this juncture, have been too lightly considered, and may advantageously be compared with those of any other colony. Another of her contributions, and not the least effective, to the common cause, was an essay published at Annapolis, in October, 1765. "A style easy but energetic, perspicuous thoughts, illustrations simple, and arguments addressed to every understanding," betrayed it to be the production of Daniel Dulany, the younger, whom it placed at once in the first rank of political writers. Long signal for talents and professional learning, his "Considerations" earned him the more grateful distinction of the great champion of colonial liberties; and in the joyous celebrations of the repeal of the stamp-act, placed him in remembrance with Camden, and with Chatham, his admirer and eulogist. It is known, that in this essay Mr. Dulany, though bold and decided as to the question of right, urged the disuse of British commodities as the most advisable weapon of resistance. This appeal to the commercial cupidity of England would, also, he thought, be the most effectual. The course, even could it have been perseveringly adopted, was too pacific for the temper of the times.

Political integrity and abilities associated the name of Dulany with the history of Maryland, during the better part of a century. The father of the distinguished person just mentioned, was admitted to the bar of the provincial court in 1710, and for forty years held the first place in the confidence of the proprietary and in the popular affection, being a functionary in the highest post of trusts, and long a leader also of the country party in the assembly. He was a kinsman of the celebrated Delany, the intimate of Swift, some of whose letters to him breathe the tone both of friendship and reverend regard. His son, Daniel Dulany, the Greater, (as our author styles him,) came to the bar in 1747, and was named one of the council in 1757; in 1761, he was appointed secretary of the province, and thenceforward held these posts in conjunction, till the Revolution. His legal arguments and opinions, the praise of contemporaries, and the deference of courts, attest him to have been an oracle of law; as a scholar and an orator, he was not only highly celebrated at home, but in the judgment of Mr. Pinkney, who saw him but in his "evening declination," unexcelled by the master minds abroad. Suavity of manners, and the graces of the person, combine to complete a most agreeable picture.

The stamp-paper had now arrived. The governor, to whom the lower house had refused all advice as to the disposal of that paper, found it expedient to pursue the suggestion of the upper, to retain it on board of the vessel. By a general consent, the ordinary transactions of business and of the courts proceeded without it, and on the 24th of February, 1766, an association, bearing the name of the "Sons of Liberty," was formed at Baltimore, with the object of compelling the government offices at Annapolis to dispense with it likewise. They assembled at that place on a day assigned, the 31st of March; and the provincial court and other offices, after first a peremptory refusal, and some delay, conceded the point. Thus was the stamp-act virtually annulled in Maryland; it had been repealed in England a few days before, on the 18th of March; so that, in the author's words, "Maryland was never polluted even by an attempt to execute it."

Of the subsequent revival of the scheme of taxing the colonies, the manner and the event are so well known, that we have only to notice the contemporary transactions in Maryland, which fanning the resentment of her people, kept her at an even pace with the other provinces in the march of resistance. The "Proclamation and Vestry Act questions," have lost indeed their momentary interest, but serve to show in how many schools of exercise the champions were trained, who afterward displayed their collected prowess in a more conspicuous arena.

The colonial legislature had always controlled the provincial officers by exercising the right to determine their fees, which, by way of further precaution, they had been in the habit of regulating by temporary acts. An act of this nature, passed in 1763, coming up for renewal in 1770, objections were made to the exorbitance of the fees themselves, abuses in the mode of charging, and the want of a proper system of commutation. Angry discussions were followed by a prorogation of the assembly, and subsequently by a proclamation of Governor Eden, ostensibly to prevent extortion in the officers, but with the real purpose of regulating the fees by the prerogative of his office; accordingly, he re-established the fee-act of 1763. The proclamation begat the usual array of parties for and against prerogative, in which our author includes the established clergy on the government side, and on the popular, the lawyers. In this conflict of influence and abilities, by a turn which is to be lamented, as it threw them into collision with the Revolutionary leaders, and exciting high resentments on both sides, kept him aloof from their measures, Daniel Dulany was, in this question, the prominent partisan of the governor and upper house. The grounds somewhat technical on which he defended their procedure as both legal and expedient, and the more large and comprehensive ones on which it was impugned, were set forth in a series of essays in the Maryland Gazette, in which Mr. Dulany's antagonist was Charles Carroll of Carrollton. The angry excitement of the day gave these essays one feature in common,—strong invective, and personalities,—"of which, some are now unintelligible, and all deserve to be forgotten." Their distinctive characteristics are,—in Mr. Dulany's, "the traces everywhere of a powerful mind, confident in its own resources, indignant at opposition, contemptuous, as if from conscious superiority, yet sometimes affecting contempt to escape from principles not to be resisted;" in his opponent's, the language of a man "confident in his cause, conscious that he is sustained by public sentiment, and exulting in the advantage of this position." When the discussion was dropped by these combatants, it was taken up by others, as vigorous and adroit. In this new controversy, John Hammond, no contemptible reasoner in behalf of the proclamation, found antagonists in Thomas Johnson, the first governor of the state of Maryland, Samuel Chase, and his more conciliatory friend and coadjutor, William Paca. In the proceedings of the lower house relative to this subject, we find a sententious description of political liberty, which might serve as the motto of all Constitutionalists. "Who," says their address, "who are a free people? Not those over whom government is reasonably and equitably exercised, but those who live under a government so constitutionally checked and controlled, that proper provision is made against its being otherwise exercised."

The "Vestry Act" related to clergy dues, and the controversy on it arose out of the technical objection, that the law imposing them, which was enacted in 1701-2, was passed by an assembly, which, being dissolved by the demise of the king, had nevertheless been convened with fresh writs of election. The law thus regarded as intrinsically defective, had the farther demerit of being revived, (as in the case of the officer's fees,) in default of an existing enactment, by proclamation of the governor. In this discussion the clergy naturally took a part, and "found in their own body an advocate of extraordinary powers, in the person of Jonathan Boucher." These questions filled the province with contention. An act regulating clergy dues, some time after, put that question to sleep; the other remained in angry suspense, till swallowed up, with all less disputes, in the vortex of the Revolution.