, ' Jt it t, ^ ' i BOUGHT WITH THE INCOME FROM THE SAGE ENDOWMENT FUND THE GIFT OF SHenrs W. Sage 1891 /^l//:^JM:^. .':..:.....z/l.^.o.3. 5474 F 184 C3l'""' """"""y "-ibrary *^° lSffiSf!ffi?.,°L..:Fi.'-st Citizen "-Charl olin 3 1924 028 867 020 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://archive.org/details/cu31924028867020 CORRESPONDENCE OF- id AND- u il Fnii" , il, 1773, With a History of Governor Eden's Adminis- tration in Maryland. 1769-1776. .'v. By ELIHU sT RILEY. baltimore: King Bros., State Pkikters, 128 East Baltimore St. 1902. 3i A , \n ^ w S" A, \n' Copyrighted iu I902 by ELIHU S. RILEY, Francis O. White, Jr;, Publisher, 19 State Circle,' Annapolis, Maryland. e W This Volume iS~-inscribed, with affectionate esteem, by the author, to William Shbpabd Bryan, Formerly Associate Justice of the Court of Appeals of Maryland. A judge — learned in the law — Just in the application of its principles; A man — chivalrous in spirit ; independent in thought ; brave in deed ; A friend — sincere and steadfast. PREFACE. It had been, for a number of years, the desire of the author of this book to rescue from the danger of destruction, by a multiplicity of copies, the one perfect series of letters of Charles Carroll, of Carrollton, and Daniel Dulany, on the question of the right of the Governor of Maryland to establish the fees of public officers without the consent of the Legislature. That one complete record is found in the files of the Maryland Gazette, in the Maryland State Library, at Annapolis. The "Lower House," of Maryland, January Session, 1902, now known as the House of Delegates, the action of whose prede- cessors, in defence of their rights and the rights of the people, developed in 1773 this correspondence, made practical the wish of the author to preserve to the citizens of Maryland and their posterity this remarkable discussion — it is cautiously sub- mitted — the most celebrated of colonial times. Yet, this com- mendable work of the House of Delegates would not have been accomplished had it not been for the favorable consideration' given the subject, and the valuable aid extended to the author, by a legion of endorsers of the movement, who aided him in bringing the matter to the attention of the House. While the author does not design to name them in numerical progression, in the order of their comparative assistance, yet he would be ungrateful if he did not state that, of all those friends who encouraged his efforts, Mr. James P. Bannon, of Anne Ai'undel ; Delegate Robert W. Wells, of Prince George's ; Delegate John G. Rogers, of Howard, chairman of the Com- mittee on Ways and Means ; Delegates L. L. Bawsell, Peter J. Campbell and Isaac Lobe Straus, of Baltimore city, were at "VI PBEFACE. the forefront in their invaluable efforts to secure the favorable action of the House of Delegates upon the report to print. Amongst those who gave their approval of, and their assist- ance to, the effort to secure the pablication of these letters were his Honor Chief Justice James McSherry, of the Court of Appeals, and Associate Justices James Alfred Pearce, A. Hunter Boj'd and Henry Page, of the same disiiQguished bench. The author is also indebted to the friendly offices of Senator Stevenson A. Williams, of Harford, who, in the session of 1900, offered a bill to print this correspondence, and gave the movement his approval. Senator Jacob L. Moses, of Bal- timore city, was, also, with Senator Williams, another earnest and intelligent supporter of the effort to print during the session of 1.9 00. In the House of Delegates itself every one of the delegates who supported the report on its final vote were ardent friends of the proposition, yet there were those among these who were pre-eminently earnest in their endeavors to secure favorable action on the pait of the House, and whenever the reader experiences any gratificatioD at the publication of this remark- able discussion, he should feel a corresponding seatiment of approval of those delegates for their valuable aid in making public these hidden records of the ability and courage of our Maryland ancestors. Those who so ably seconded the move- ment, were : Delegates L. L. Mattingly, of St. Mary's ; James B. Brashears, of Anne Arundel; Joseph Muir, of Somerset; Joshua Clayton, of Cecil ; and Patrick E. Finzel, of Garrett. The vote upon the report is appended to the order authoriz- ing the publication. It is confidently believed that, could the honest minority against the report have had that light upon the matter that the clouds of haste, which accompany so much of legislation in the expiring hours of a session, obscuie, the author feels that the order to priat would have had their sup- port as well as that of the sixty-four members who are recorded in favor of the report of the Committee on Ways and Means. The author is under obligations to Mr. William Meade PEEFACE. VU HoUaday, of Annapolis, for invaluable assistance in preparing for the vote upon the motion to reconsider and print. In re-printing the letters of First Citizen and Antilon, the originals, as they appeared in the Maryland Gazette, have been followed esactly in orthography, capitalization, punctuation and italicizatioD. The reading of the last proofs of the letters has been done by Mr. Louis H. Dielman, of the Maryland State Library, a gentleman who, besides being admirably equipped by his ability and experience for this work of arduous labor, threw into the friendly assistance that he cheer- fully gave the author, an ardor born of an earnest desire to have this correspondence issued to the public without fault or blemish. The printers of the volume have not only executed their letter press in admirable typography, but they have been, equally, with the others engaged in the publication of this work, earnest in their endeavor to have the book published free from mistakes. It was rare when the author's proofs contained any corrections that had escaped the vigilant eyes of the State Printers. Maryland has an honorable and illustrious history. The records of the deeds of valor and offices of distinguished state- manship that her sons have performed, aie sometimes found enrolled on the pages of their country's written histories, but are more often hidden in the musty rolls of Maryland's well preserved archives. To bring these records to light for public inspection, the people of Maryland have not been swift. The times are ripe for the sons of Maryland to exalt her fame by rehearsing the proud deeds of their ancestors in every line of public and patriotic duty — on the forum, in the field, and upon the seas — where, for the distinguished ability, heroic courage, and invincible valor of her citizens, Maryland will not yield superiority to any State in this great Republic of States. Elihu S. Eiley. Aflnapolis, Maryland, December 33, 1902. REPORT TO PRINT. Mr. Wells, of Prince George's county, by request, offered tlie following preamble and order : To the Members of the House of Delegates of Maryland, respectfully : — Whereas, The history of the administration of Governor Eden was honorable for the greatest and most prolonged struggle the Freemen of Maryland ever made for their rights in colonial times — a struggle which lasted three years in denial of the claim of the Governor to revive by proclamation Acts of Assembly that had expired by limitation — and a struggle which was second only in importance to the Revolu- tionary contest, and which controversy brought forth the cele- brated debate between Charles Carroll, of Carrollton, and Daniel Dulany, Jr., under the respective titles "First Citizen" and "AntUon ; " Whereas, These letters, remarkable for their learning, pro- found researches in the law, classic diction and patriotic sentiments of the sage of Carrollton ; and Whereas, The letters of Antilon now rest as they have for one hundred and twenty-nine years, existing only in the files of one newspaper, two copies remaining, Therefore, Oedered, That the State Printer, Edwin W. King, trading as King Bros., is hereby authorized and directed to furnish for the use of the House of Delegates four hundred copies of the Letters of "Antilon" and "First Citizen," the names respect- ively of Daniel Dulany, Jr., and Charles Cari'oll, of Carrollton, including the Letters, and a history of Governor Eden's adminis- tration — 1769-1774 — probably the most remarkable of colonial times in Maryland, which above-named work is in preparation X BEPOKT TO PRINT. by Elihu S. Eiley, said 400 copies to be delivered to the Chair- man of tlie Committee on Printing of the House of Delegates, and seat to the State Librarian to. be distributed as follows: 50 copies to the State Library ; 242 copies to the members of the House and Senate, respectively, for distribution by them, that is, two copies each; two copies to the Maryland Historical Society Library ; one copy to Johns Hopkins University ; one copy each to the following colleges : Mavylaad Agricultuie, Western Maryland, Washingtoo, St. John's, St. Mary's, Balti- more City College and Charlotte Hall; and the remainder to the School Boards of Baltimore city and the several couDties of the State, for the use of Iheit" libraries and scholars. And on the cevtificale of the Chairman of the House Committee on Printing to the State Comptroller, that the said four hundred copies have been delivered to the said Chairman of the House Committee on Piinting, he, the Comptroller, shall issue his waiiunt to the State Tjeasurer to pay to the said Edwin W. King, trading as King Bros., State Printer, a sum not exceed- ing twelve hundred dollars for the publication and fifty dollars to the State Librarian to pay for postage and distribution of • said boots ; the said money to pay for said work and distribu- tion shall be paid by the Treasurer out of the money appro- priated by the Act of 1900 to pay for the printing of the January Session of 1902. l^he order was referred to the Printing Committee, which amended the order and referred the same to the Committee on Ways and Means On March 2oth the Committee on Ways and Means made a favorable report on the preamble and order, which report was rejected by a vote of 31 to 44. On March 27th, Mr. Bawsell, of Baltimore city, moved a reconsideration of the vote by which the report was rejected, which motion was adopted. Whereupon, Mr. Bawsell moved that the report be adopted. Which motion was adopted by yeas and nays as follows : AFFiRMATiVE-r-Messrs. Mattingly, Grason, Kendall, Leather- bury, Watts, Shipley, Brashears, Smoot, Everhart, Painter, EEPOET TO PRINT. XI Slade, Myers, Callahan, Benson of Talbot, Dryden, Muir, Hackett, Shepherd, Baker, Steele, Cosden, Clayton, Brooke, Wells, Curley, Norman, Thomas, Onley, Dirickson, Merrill, Nicodemus, McComas, Proctor, Carroll, Goldsborough, Jeffer- son, Melis, Bawsell, Bumgarner, Johnson, Foutz, Beasley, Campbell, Straus, Hoffman, Godwin, Morgan, Henkel, Biggs, Charles, Newcomer, Johnston, Sellman, Williams, Eodinette, Eilbeok, Drum, Fuss, Hoffacker, Rogers of Howard, Forsythe, White, Finzel, Ashby— 64. Negative — Messrs. Speaker, Simmons, Griffith, Smith, Mathias, Broening — 6.* *House Journal, page 1505. CONTENTS. PAGE Chapter 1. Arrival of Governor Eden in Maryland 1 Chapter 2. Governor Eden Issues his Proclamation to Regulate and Continue the Fees of Public Officers 12 Chapter 3. The Session of 1771 and the Prorogations of 1773 21 Chapter 4. Two Gladiators 27 Chapter 5. Dul&uy' s. First hetter a,ippea.TS in the Maryland Gazette. 31 Chapter 6. First Citizen's First Letter 44 Chapter 7. The Second Letter of Antilon 53 Chapter 8. Second Letter of First Citizen 69 Chapter 9, The Third Letter of Antilon 95 Chapter 10. Third Letter of First Citizen 120 Chapter 11. " Old Maryland Manners" 149 Chapter 12. The Fourth Letter of Antilon 158 Chapter 13. Fourth Letter of First Citizen 196 Chapter 14. The Election 334 Chapter 15. Revolution Follows Resistance to Usurpation 244 CHAPTER 1. ARRIVAL OF GOVERNOR EDEN IN MARYLAND. 1769. Its illustrious aunals of virtue, courage and patri- otism is the most precious legacy of a State. The people of Maryland recount, with honorable pride, that it was that commonwealth, j&rst inXtlie hjsrory of the world, in which religious liberty was esmbHshed' by law, and where every citizen was given the rigjwro, worship God "according to the dictates of his own cojlscience, hone daring to molest, or make him afraid ; " they tell their children, with patriotic enthusiasm, that the Province of Maryland furnished the first volunteers that reported, to General Washington on the field of battle at Boston, under the first call of Congress for United States troops, and it was the first Province to maintain, in the perfect- ness of complete actuality, in its own right and by its own individual hand, the principle that there could be no taxation of the Freemen of any of the American Colonies without the consent of those Freemen. The Legislature of Maryland, January Session, 1902, authorized and .directed this later story of the courage and patriotism of our ancestors to be perpetuated. Robert Eden, Governor of Marjdand, was the chief factor in the events that made it possible for Maryland to take this leading part in the assertion of the political rights of an American Colony. He was appointed Governor of the Province in 1769, succeeding the celebrated Horatio Sharpe. Eden was the last of the Proprietary Governors of Maryland. With his departure faded the twilight shadows of that social and colonial life that had made Annapolis unique in the annals of the British-American Provinces. Eden's administration was romantic in stirring historic adventure. It was under his hospitable roof that Washington was guest when at Annapolis, '2 FIEST CITIZEN AND ANTILON. and where the first American disiDlared that native dignity in conversation and broad liberality in opinion ^\•lJieh so eminently distinguished his lofty character. Eden was still, in namf, Governor when Maryland formulated Iier faith in the new nation, and he saw, helpless to jDrevent, its jeople prepare for a,nd enter the arena of Revolution. The strong and genial attributes of Eden were well suited to play their part in the approaching drama of political events in a city that had been the first in all tlie American Colonies t(j rise in arms a,nd drive away by force, the King's Stamp Officer, his vessel and stamps when the ship and ofiicer had attempted to land at the City Dock in Annapolis City."' It was the lovely mouth of June when Covernor Eden landed. At this season the picturesque scenery of Ainiapolis is particu- larly beautiful. On the fifth of the month the ship bearing Governor Eden, wife and family, arrived in the harbor. On ci)4, Annapolis had witnessed many a battle royal between the " Freemen of Maryland, " the representative body of the peo])le, as the Lower House was called, and the Governor and Upper House, appointed by the Proprietary, Lord Balti- more, and which reflected his policy and defended his interests. There was thus an endless cause of controversy between the Governor and his Council on the one hand, and the House of Delegates on the other. Proprietary interest had only to assert its privileges beyond the pale of its perogative when the gauntlet was accepted by the Freemen of Mar^dand, and never did they flinch from maintaining their rights, nor were they ever unsuccessful in preventing encroachments upon the liberties of the people of Maryland. The history of the col- onial House of Delegates of Maryland known, respectively, as "the Freemen of Maryland," "the Lower House," "the House of Delegates," and "the House of Burgesses," from its initial session in 1637 to its last, in 1774, is the recital of succession of patriotic and successful contests for the maintenance of the inalienalile rights of the people of the province of Maryland. Guarding with the jealousy of freemen their natural rights and constitutional privileges, the people of Maryland still GOVEKNOB EDEN S .^^MINISTRATION. ,0 supported Lord Baltimore's goyernment in all its just demands and rendered to the proprietary of the Province and the King of England, a loral obeisance, probably more intense in its fealty to the British Sovereign than that felt by native born subjects themseh'es. Distance had increased their respect for King and Parliament. In Annapolis, the seat of Provincial government, centered all the interests, social and political, of the commonwealth ^of Maryland. "Ye antieut capital," of the Province, at this period, 1769, was the most famous, cultivated and dissipated city of the colonies. Settled in 1649, by a sturdy stock of Puritan refugees from Virginia, driven out by the churchmen of that colony for their religious beliefs, on this splendid material had been grafted, by successive emigrations, scions of the best blood of England; and when, in 1694, the capital of the Province was removed from St. Mary's to Annapolis, there came with it a coterie of settlers who soon formed a Court party with all the arts and refinements of European life and intrigues of political science, traditional usages and official position. It led its local festivities, and gave tone and zest to reciprocal hospitalities. The elegant homes of these gay and wealthy people, a dozen of which still remain in all their capacious proportions, show the comfort and luxury in which they lived. Here the Legislature met ; here were held the sessions of the Provincial Court, the High Court of Chancery, and the Court of Appeals ; here were the residences of the Governor and his highest offices; and here his Council convened. These brought together the best legal minds of the colony, and all those who sought place or pursued pleasure, and with King William's School, which for nearly a century had been shedding the benfit of liberal education upon the capital, created a community of pre-eminent culture and superior refinement. Thus Annapolis became known, throughout the colonies, as "the Athens of America." In the decade preced- ing the Revolution, its life of fashion and frivolity, of culture and elegance had reached its height and development. Wealth 6 FIEST CITIZEN AND ANTILON. gave leisure and promoted education; education and leisure created a longing for refined and dissipated pleasures. The presence of a large number of officials, some of whom liad come from "Merry England," and had imported with its pleasures, its refined follies, and with the native invention of the province, devised a lengthened repertoire of social amusements, while the emoluments of office and the dividends of successful tiade and the proceeds of productive plantations provided the means to gratify the taste of these gay and cultured devotees of fashionable festivities. The theater flourished in its highest art ; the race-track blended excitement for the upper and lower strata of pleasure-seekers; the l)a]l-room and its elegant and costly entertainments drew together a refined and beautiful company of women and learned and handsome men whose society was sought by the great AYashington, who often came to Annapolis to enjoy the delights of an unending programme of rich and rare amusements. The only place in the province, nor was its peer to be found in any of the colonies, that ofi'ered worshipers at the shrine of Fashion the opportunity to gratif}- a refined and cultured desire for the highest social function, Annajiolis had now become a rendezvous of a gay, learned and dissipated society. The very lack of better mental effort, the want of useful and energizing employment, liegat a longing for these trivial pleas- ures, which they named "enjoyment," because it relieved "from the ennui of the moment by occupation." Thus the gayety, culture, cleverness ami ver}- intellect of tlie province, from numerous potential causes, were gathered here. Its lawyers came to the courts, the judges to the bench, the dele- gates to the house of burgesses, at Annapolis, and. even the planters whose tobacco had brought them fine revenues jour- neyed to the capital to spend the winter. They built costly and elegant houses as their homes, and furnished tliem in a style corresponding to their elegance. The staple export — tobacco — brought back to the colony, in exchange, the luxuries of the foreign markets. Troops of aOVEKNOR EDEN ,S ADMINISTRATION. ( slaves, as obedient as the captives of the Orient, supplied the house with perfect service. Lumbering equipages, or old and rickety stage-coaches, geuerally drawn bv splendid horses, bore the colonists about the coiintry, while in the city, the sedan chair, carried by lacquers in rich liveries, was the luxu- rious car of the queens of the house. These favored people sat on carved chairs, at curious tables, "amid piles of ancestral silverwai'e, and drank punch oiit of vast, costly bowls from Japan, or sipped Madeira a half century old." Three-fourths of the dwellings in the city gave evidence of the wealth and refinement of the people, while the employ- ment of a French hair dresser, by one lady, at a thousand crowns a year, was but an outcropping of that luxury which made it the home of a gay and haughty circle of giddy voluptuaries and social autocrats. Commerce flourished ; its merchants imported goods in ships from every sea, and its euterjJi'ising citizens made special effort and oft'cit-d great inducements for men of every craft to settle in their midst. Nor was the element of evil -nanting in tliis dwarfed modid of a European capital. Youth, beauty, wealth and learning soon chastened the rigors of the j)i'iii)itive virtues of the settlers of the province into the refinements of continental manners. Yet these fascinating and dangerous attractions, while they created a soft and luxurious c'oterie of mendicants at the feet of social autocracy, did not dominate its true and better character; for, though the fame of its festivities and the grace and beauty of her women who rivaled the charms and manners of the most polished and elegant women of the mother country, was bruited throughout the provinces, it was for its culture that the little city on the Se\-ern was best known in the thirteen colonies. Though it was true " her pleasures, like those of luxurious and pampered life in all ages, ministered neither to her hapjji- ness nor her purity," yet that manliness of character that the English chronicler of its life at this period had noticed, marked the bearing of the humblest of her peoiDle, and its citizens, at 8 ■ FIEST CITIZEN ANX> ANTILON. the first call of revolution, responded with the highest attributes of enlightened mankind and the loftiest aspirations of unal- loyed patriotism. • This picture of Annapolis would want its best and brightest coloring, and the right to its title would be clouded, if it was unwritten that, in this city of pleasure, of legislatures, of courts, of proud men, were the best lawyers of America — the Jenningses, Carrolls, Chalmers, Bogers, Hall, the Dulanys, the Chases and the Johnsons, for almost all of them went in pairs, with father and son at the bar together. Dulany, with his opinions courted by the bench to aid them in elucidating the law, and requested even from the great metropolis of London, dominated them all. From the lawyers sprang the real fame of Annapolis. It was gay, but it halted in its gayety the moment the call for earnest work was made. It was learned — it rose in sacrifice from steep to steep, as the keynote of patriotism sounded for greater and more dangerous enter- prises. At every advance the lawyers were in the forefront; they were on the outposts to give warning of danger; their clarion tones were heard calling to battle ; they led the conflict. It was to such a community and in such a city, quick to hear, nervous in thought, cultivated in the highest culture of the colonies, jealous of its rights, used to struggles with the wilderness and their autocratic rulers, that the lawyers of Maryland, of Annapolis — for there, they were gathered — spoke. It is not surprising that these ^Jrofound ]iolemics in which the lawyers of Maryland engaged produced results that tingled in the very veins of their hearers, and, as they were talked in the ballroom, at the theater, on the race track, at the club house, in the legislature, in their homes, and reverl)erated in the courts, sent contagious sentiments throughout the American provinces. There were giants in those days. Towering above his fel- lows, in intellectual ability, profound legal learning and pro- fessioiral success stood Daniel DuL.tNY, of Daniel.* *Bench and Bar of Maryland, page 163. tiOAT^ENOR EDEN S ADMINIHTKATION. 9 Maryland itself was the reflex of England. Indeed, so closely have the first settlers of this illustrious commonwealth clung to the spirit and principles of their English forefathers that it has been confidently asserted that the people of St. Mary's county, the seat of the settlement of Lord Baltimore's first colony in Maryland, to-day, after the lapse of nearly three centuries, are more like the people of England at the date of the settlement of St. Mary's than are the English people them- selves. Xo branch of the history of Maryland, more than the records of the courts, reflects so distinctly the life and character of the people who settled the "Laud of the Sanctuary." Here are the motives that animated the fathers who planted the cross on the shores of Maryland and reclaimed the wilder- ness to civilization. Their cares, their pleasures, their aims, their possessions, their provisions for their families, their deeds of valor, their petty disputes, their great endeavors-^all stand out in the records of the courts, as true aud faithful indices of character and conditions ; for here the report and the tradition were sifted by the rules of critical proof and legal evidence, and the record was made by unprejudiced scribes, before a scrutinizing court, in the presence of adverse interests, zealous aud watchful, to have the docket state the truth only. The helpful, busy, worthy life of the Maryland settlers, as seen through the telescope of judicial records, displays the colony as the bustling young model of the mother county from which it sprang. Here was the court pypowdr)- of the great cities of Liverpool and London; here, the court peers and barons that reflected the picturesque tribunals of the lordly barons of the Isle of Liberty; here wa.s the county court mirroring the busy courts nisi of York and Devonshire ; the provincial court; -the shadow of the high court of chancery of England; and then the appeal to the legislature, as the English suitor came, as the court of last resort, to the House of Lords. Here was my lord, " Sir Thomas Gerrard," "my lady of the manor ; " the steward of the manor ; the seizin by the rod ; the stock ; the ducking stool ; the whipping post ; the governor of the provice as the high chancellor of the state ; the sovereign lord 10 FIRST CITIZEN AND ANTILON. proprietary; "his highness lord protector;" our sovereign lord the king ; the trial by jury ; the writs of right and arrest ; the Bible of the Englishman — found returned in almost every inventory ; the right to have and possess arms ; the voice of the freemen in assembly ; his right to levy his own taxes and make his own laws ; his duty to quiet his own estate before he died ; his jealously of his reputation ; his fearlessness in battle ; his superiority over trials and environments ; his ability to adapt himself to every condition ; his resjoect for women ; his love of the chase ; his desire to acquire property ; his worshijJ of God ; his veneration for law and love of order ; his penchant for trade and' adventure ; hi« merry-making ; his love of strong drink, and hatred of drunkenness ; the effort of Lord Baltimore to establish in his lords manors a hereditary aristocracy ; the military spirit of the freemen ; their oaths, pardons, acts of oblivion, seditions and insurrections ; the names of the people, towus, rivers, counties and province ; all reflect the land from which these sturdy pilgrims came, and «ho lit up the horizon of national hope with a fresh beam from the torch of liberty — the unfettered right to worship God in that way which to them seemed right.* If the people of Maryland were similar in their tastes, habits and occupations, to the native born Englishmen, like them, the inhabitants of the Land of Mary were none the less of the same heroic mould in prizing their liberties and in resisting every attempt to encroach upon their sacred rights. They loved the people of England and in common with all the American colonies previous to the passage of the first Stamp Act in 1765, held that they possessed no greater privilege than to be subjects and citizens of the British Empire, entitled to the same rights and proud of the same history that the native born Englishmen themselves enjoyed. At the time Governor Eden arrived in Annapolis all the American colonies were stirred to their profoundest depths of patriotic concern and resentful indignation o\er the passage of the second Stamp Act. Associations were being formed in *Beiich and Bar of Maryland, page 60. GOVERNOR EDEN's ADMINISTRATION. 11 various parts of the colonies for the non-importation of British goods — associations to last as long as the Stamp Act remained unrepealed. The kindly and fraternal feeling that had existed between the American people and the British Empire, had' been deeply wounded, and it was no longer a mark of distinc- tion in America to be a native born Englishman as Dr. Benja- min Franklin told the Committee of Parliament in 1766 existed in America previous to the passage of the first Stamp Act. Fifteen days after his arrival on June 20tli, Governor Eden saw the first public exhibiton of the spirit of the people over whom he was set as Governor and of their sentiments upon this second attempt to infringe their rights as British-American citizens. On that date committees from the seveial counties of the province met in Annapolis to form an association for the "Non-importation of British Superfluities in this Province." Previous to this several organizations to effect the same pur- poses, existed in Annapolis and several of the counties. The Provincial association, after enumerating the various articles that its members agreed not to import, amonii,st them one vei-y dear to the appetites of the average Marylander of that period — wines — also resolved that no ewe lamb should henceforth be killed. The spirit of the Father of American industry, Daniel Dulanv, of Daniel, who in his "Consideration" against the Stamp Act in 1766, proposed an outline of the first system of American manufactures, was working. Maryland was now to do its part in furnishing wool for the teeming looms of the industrial future of America. At the conclusion of the resolutions of the Provincial asso- ciation, it was resolved, that if "any person or persons trliiifei:vr shall oppose or contravene the above Resolutions or act in Opposition to the true Spirit and Design thereof, we will consider him, or them, as Enemies to the Liberties i )f America and treat them on all Occasions with the (Jontempt they deserve." Governor Eden had well taken heed to this initial proof of the mind that animated the people of Maryland. 12 FIRST CITIZEN AND ANTILOK. CHAPTER 2. GOVERNOR EDEN ISSUES HIS PROCLAMATION TO REGULATE AND CONTINUE THE FEES OF PUBLIC OFFICERS. 1770. The Proprietary Government of Maryland had not been an unmixed blessing to the people of that Province. Lord Baltimore and his successors had been instrumental in settling the colony with members of some of the best families of England ; the religious freedom of a colony had accentuated the love of liberty amongst the people and the substantial justice rendered each individual in his personal rights, with the products of the soil, the industry of the people and the commerce of the merchants, had created a hardy, intelligent and prosperous colony. Yet, from the first settlement of the colony, the Freemen of Marjland had constant battle with the Proprietary and his reiiresentatives to maintain their rights and privileges. At the first hn\-ful assembly, the Legislature of Maryland, the Upper and Lower House sitting as one body, wrung from the unwilling Proprietary the right to initiate Acts of Assembly. He had contended that he alone had the power to propose laws for the government of the colony, and had maintained that the only prerogative of the General Assem- bly was to assent to, or dissent from, that enactment into statutes. So the Freemen of Maryland were inured' to the hardships of fateful controversies with the craftiness of Government officials. So, when the Stamp Act was passed, Maryland was aroused to the highest state of opposition to its pro\isions. In review- ing the history of this opposition and the maintenance of the principle that there could be no taxation of the American colonies without then- consent, McMahon, in his historical view of the government of Maryland, page 329, says : "There is then but little room for rivalry, in contending for the honor GOATEKNOB EDEN's ADMINIKTEATION. 13 of originating or sustaining this principle; but if there were, there is no colony to which Maryland would yield the palm. The taxation of the crown was excluded, both by the express words of her charter, and the uninterrupted practice of the colony, from the very period of colonization. The taxing power, as granted by the charter, could be exercised ' only by the advice and assent of the freemen, or a majority of them ; ' and that every possible safeguard might be thrown around this right, it was expressly declared by the law of the province, in 1650: 'That no subsidies, aids, customs, taxes, or imposi- tions, shall be laid, assessed, levied, or imposed, upon the freemen of the province, or their merchandise, goods or chattels, without the consent of the freemen, their deputies, or a majority of them, first had and declared in a General Assembly of the Province. ' " The second Stamp Act, passed July 2, 1767, and repealed April 12, 1770, still retained the duty on tea as a whip over the heads of Americans to remind them of their vassalage to England, and to warn them that their liberties were yet threat- ened by the King and Parliament of England. The people of Maryland, throughout the counties, were desirous so long as one vestige of the assertion of the right to tax Americans without their consent remained on the statute books of England to continue the association for the non-importation of British goods ; but the cupidity of the merchants of Baltimore, follow- ing the examjile of their mercantile brethren in New York, Philadelphia and Boston, who had already abandoned the non- importation articles, brought about internal dissensions, which in the fall of 1770, led to abandonment of the principles of non-importation. While there came a temporary lull throughout the colonies, generally, in the battle for the cause of no taxation without representation, Maryland was about to begin a contest single- handed and alone for this vital principle of constitutional government. 14 FIRST CITIZEN AND ANTILON. "In their resistance to the impositions of Parliament," says Mr. McMahon, page 380: "The people of Maryland had hitherto been struggling for the preservation of an abstract princijDle of liberty, in opposition to their immediate wants and interests. The quantum of these impositions had not even been considered, and they were too limited, both as to their direct objects and their amount, to ha\e produced actxial distress by their mere operation. Their oppression consisted, not in the payment of the tax, but in the assertion and estab- lishment of the parliamentary right of taxation. This was one of the remarkable features of that controversy, evincing, more than any other, the general prevalence of rational liberty, and the sagacity of the American people in guarding its out- posts. Men must be thoroughly imbued with principles, familiar with their operation, and endowed with intelligence to estimate the danger of remote encroacliments upon them, before they will enter into a contest for them, prompted by no actual suffering. Other nations have risen, in the agony of distress, to shake off oppression ; the American jjeople stood erect and vigilant, to repel its approach. The internal admin- istration of Maryland now brought up a controversy, in which its people were to renew their combat for the principle the-^' had been sustaining against England, under circumstances bringing it nearer to their immediate interests. The advances upon their rights, now came in the shape of actual oppression, extending its operation to every citizen. This controversy related to what were familiarly called ' the proclamation and the vestry act questions.' From this period until the com- mencement of the revolution, all other subjects gave place to these engrossing topics. They elicited more feeling, and greater displays of talent and research, than auA' other ques- tion of internal polity, wliich had ever agitated the colonv." It has been remarked, that " the General Assembly of Mary- land at all times retained its control over the offiers of the province by its right to regulate their compensation for official services : and that the fees of office were not onlv fixed by law but also determined by temporary acts of short tluration, upon (rOA'EHSOlt EDENS ADMISISTRATION. iO the expiration of which the Assembly could withhold or reduce them at pleasiire. One of these acts, passed in the jear 1763, had been continued, from time to time, until October, 1770 : and was again renewed at the session of 1770. The system of official compensation established by that act, was that which had been used in the colony from a very early period. There were no salaries ; but the officers were allowed definite fees for each act, or service. These fees, as well as the public dues and the taxes for the support of the established clergy, were sent out each year to the sheriffs of the counties for collection. A particular jieriod in evei'v year was assigned, within which the lists of fees were to be delivered to the sheriff, and by him to the party chaiged for voluntary jjayment. If that period was suffered to elapse, the sheriff was required to levy by process of execution, and to account for them to the officers within another fixed period. (Such were the general features of this system of collection, which we will have occasion to examine more thoroughly hereafter. To the details of the act of 1763, now coming up for re-enactment, many objections were made by the lower house : but so far as they related to the essential parts of the controversy about officers' fees alone, they consisted in the exorbitance of the fees connected with some of the principal offices, the abuses to the mode of charg- ing, and the want of a proper system of commutation." The principal complaints about the exorbitance of the fees, related to those of the provincial secretary, the commissary general, and the judges of the land office, and from the reports of that period, which enable us to determine the average annual receipts of those offices for several years previous, these com- plaints appear to have been justly founded. By a number of our citizens, the fees and salaries of the state offices, at a late period were considered excessive. Yet there was no office in the Province whose emoluments can be considered equal to those of any one of the above-mentioned offices, during the pendency of this controversy. The receipts of the secretary's office, for the seven successive years, from 1763 to 1769 inclusive, were 1,562,862 lbs. of tobacco : and the average 16 FIRST CITIZEN AND ANTILON. annual receipts 223,266 lbs. of tobacco. Tiie annual average value of his fees in the Ghancerj Court during the same period was 39,326 lbs. of tobacco. His annual receipts from these two sources were therefore 262,592 lbs. of tobacco ; or, accord- ing to the rate of commutation at that day, 4,376 dollars. The fees of the land office, during the same period, yielded 2,850,934 lbs. of tobacco, or annually, on an average, 407,276 lbs. or 6,876 dollars; and those of the commissary's office, annually, 235,428 lbs. of tobacco, or 3,923 dollars. The alleged abuses arose principally from a practice, not peculiar to that day, of dividing the (me service into several other enumerated services, with a view to the several fees. The commutation privilege of the act of 1763, was objected, as not sufficiently extensive. Tobacco was still the currency of the province. Officers' fees, and all public dues, were rated in it : and the right to pay these in tobacco, was, at first, considered a high privilege. To avoid the fluctuations in value, to which such a currency was necessarily subject, it obtained by la-w, a fixed specie value ; and in certain cases, the specie was made receivable, in lieu of it, at the rate so fixed. The right to pay in specie, the Lower House desired to extend to all persons within the period allowed for voluntary payment. Although several of the propositions, growing out of these objections, were at first resisted l)y the Upper House, it seems probable from the tenor of its messages, that it would ultimately have yielded to all but that to reduce the fees. Here, however, was a source of uncompromising disagreement between the two houses. The opposition in the Upper House unfortunately for it, was led liy those members of that body who were directly interested against the reduction of fees. Daniel Dulan}-, of Daniel, was the provincial secretary ; Walter Dulany, the com- missary general ; Benedict Calvert, and George Steuart, were judges and registers of the land ofiice. These four were all councillors for the Governor and by virtue of that ofiice, were members of the Upper House. Their opposition was, there- fore, believed to be a support of their own private interests as GOVERNOR EDEN's ADMINISTRATION. 17 against the public good. All efi'orts to harmonize diiferences between the two houses, failed. After many bitter discus- sions, Governor Eden finally prorogued the Assembly, and the province was left without any regulation of the fees of public officers and, also, without any public system for the inspection of tobacco. Governor Eden resolved to take upon himself, under the pre- rogatives of his office, the regulation of public fees, and for that purpose, issued on the 26th of November, 1770, this proclamation : A Proclamation. "Being desirous to prevent any Oppression and Extortion from being committed under Colour of Office by any of the Officers and Ministers of this Province and every of them their Duputies or Substitutes in exacting unwarrantable and exces- sive Fees from the Good People thereof I have thought it fit with the Advice of his Lordship's Council of State to issue this my Proclamation and do thereon hereby order and Direct that from and after the Publication hereof no Officer or Offi- cers (the Judges of the Land Office excepted who are subject to other regulations to them given in charge) their Deputies or Substitutes by Eeason or Colour of his or their Office or Offi- ces have, receive, demand or take of any person or persons directly or indirectly any other or greater Fees than by an Act of Assembly of this Province entitled " An Act for Amend- ing the Staple of Tobacco for preventing Frauds in his Majesty's Customs and for the Limitation of Officer's fees " made and passed at a Session of Assembly began and held at the City of Annapolis on Tuesday the Fourth Day of October Seventeen Hundred and sixty three " were limited and allowed " or take and receive of any person or Persons an immediate Payment in Case Payment shall be made in Money any larger Forfeit after 'the Rate of twelve Shillings and six Pence Com- mission Current Money for One Hundred Pounds of Tobacco under the pain of my Displeasure. And to the intent that all persons concerned may have due Notice thereof I do strictly 2 18 riKST CITIZEN AND ANTILON. charge and require the Sheriff of the City of Annapolis to make this my proclamation publick in the said tJity as he will answer the contrary at his Peril. Given at the City of Annapolis this 26th Day of November in the twentieth Year of His Lordship's Dominion Anno Domino 1770. Signed hy Order IT. K(JOTT, . . Ch. c;ierk." HoBEKT Edex. \ The Great Seal. Ii will be thus seen that the avo^\ed object was to prevent abuses and extortions on the part of public officers. Its real purpose — to lay a tax in the nature of public fees upon the freemen of Maiyland without their consent — was too apparent to deceive even its own friends. The time of issuing was most unfortunate for the Governor and his supporters. Never was a public measure more unadvised. Although this prero- gative had been exercised by former Governors, it had never received the united approval of the people of Maryland. Aroused, as the people were over the Stamp Act of Parliament and bending under the heavy burden of excessive fees, and determined to defend their liberties to the utmost limit of their constitutional powers, the proclamation fell as a fire brand in tinder amongst the people of Maryland. The weight of early precedent was against the Governor's proclamation. Public sentiment was almost entirely opposed to it, and, "in the general opinion, there was no chai'ter power under which it could be sheltered. In the present instance, it defeated all the purposes of the Lower House, by adopting the same system which they had refused to sanction. It was, therefore, in general estimation, a measure of arbitrary prerogative, usurping the very right of taxation which the colony had been so long defending against the usurpations of Parliament. If the Governor had doubted about the reception of such a measure, there was enough to warn him, in some of the trans- actions of the Assembly, immediately before its adjournment. Whilst the fee bill was under discussion, and after the law of GOVERNOR EDEN's ADMINISTRATION. 19 1763 had expired, tl^e judges of the land office, treating that office as the private institution of the proprietary, instructed their clerk to charge and secure the fees agreeably to the pro- visions of the expired law. A case, in which these instruc- tions were followed, was at once brought to the notice of the Lower House ; by whose order, the clerk was taken into custody and committed to prison. To effect his release, the Governor prorogued the Assembly for a few days. This interference elicited from the Lower House, upon its re-assemblage, an angry remonstrance, containing an expression of public senti- ment not to be misunderstood. ' The proprietor, (they remark), has no right, eithfer by himself, or with the advice of his coun- cil, to establish or regulate the fees of office ; and could we persuade ourselves, that you could possibly entertain a different opinion, we should be bold to tell your excellency, that the people of this province ever will oppose the usurpation of such right.' In venturing upon such a power, after such an admoni- tion, the Governor therefore sinned against light and knowl- edge : and his measure shared the usual fate of those which set at naught the opinions, and sjDort with the liberties of a free and intelligent people." The members of the Lower House of the General Assembly of Maryland which convened on Tuesday the 25th day of September, 1770, were as follows : St. Mary's County, John Eden, William Thomas ; Kent, Thomas Ringgold, Stephen Bordley, Richard Graham ; Anne Arundel County, Samuel Chase, Brice Thomas, Beale Worth- ington, Thomas Johnson, Jr., Henry Griffith ; Calvert County, Benjamin Marshall ith, Edward Gantt, Young Parran, Charles Graham ; Charles, Francis Ware, Joseph Hanson Harrison ; Somerset, Levin Gale; Talbot, John Goldsborough, Matthew Tilghman, Nicholas Thomas ; Dorchester, Henry Hooper, Henry Steele, Edward Mace; Cecil, William Ward; City of Annapolis, John Hall, William Paca ; Prince George's, Robert Tyler, Mordecai Jacob ; Worcester, Joseph Dashiell ; Fred- erick, William Luckett. 20 FIEST CITIZEN AND ANTILON. A direct test vote of the strength of the two parties for and against the government is not to be found in the proceedings of the Lower House of 1770, but on a question, "that leave be given to bring in a bill, entitled An Act to continue the Act, entitled an Act for amending the Staple of Tobacco for pre- venting Frauds in his Majesty's Customs, and for the limita- tion of Officers' Fees, and the Supplementary Act thereto. The motion was put. Whether That Question be not put?" "Resolved, That, The Question be now put." The vote was — For putting the Question — Messrs. Gantt, Grahame, Hay- ward, Gale, Dickenson, Goldsborough, SuUivane, Hooper, Steele, Hall, E. Tilghman, Hollyday, Allen, Selby, Purnell, Wilson, J. Dashiell, M. Tilghman, N. T. Thomas, Veazey, Ware— -21 Against putting the Question — Messrs. Eden, Ringgold, Bordley, Graham, Worthington, Johnson, Griffith, Chase, Ward, Harrington, Beall, Tyler, Luckett — 13. The thirteen votes, apparently, represent the element radi- cally opposed to all compromise with the Governor on the question of fees, resolved to let the whole matter fall into greater confusion than that which existed, and thus make the situation, liy its legislative chaos, nearer solution in favor of a reduction. GOVERNOR EDEN'S ADMINISTRATION. 21 CHAPTER 3. THE SESSION OF 1771 AND PROROGATIONS OF 1772. 1771-1772. The members who composed the Lower House of the Assembly of October Session of 1770 were : St. Mary's, John Eden, William Thomas ; Kent, Thomas Biuggold, Stephen Bordley, Eichard Graham ; Anne Arundel, Samuel Chase, Brice Thomas, Beale Worthington, Thomas Jenifer, Jr., Henry Griffith; Calvert, Benjamin Mackall 4th., Edmund Gantt, Young Parran, Charles Graham ; Charles, Francis Ware, Joseph Hanson Harrison ; Somerset, Levin Gale ; Talbot, John Golds- borough, Matthew Tilghman, Nicholas Thomas ; Dorchester, Henry Hooper, Henry Steele, Edmund Nace ; Cecil, William Ward ; City of Annapolis, John Hall, William Paca ; Prince George's, Robert Tyler, Mordacai Jacob ; Queen Anne's, Edward Tilghman, Thomas Wright ; Worcester, Joseph Dashiell ; Frederick, William Luckett. Three days after the Assembly met the Lower House appointed a committee for the purpose of bringing in a bill "for amending the staple of tobacco, for preventing frauds in His Majesty's customs and for the limitation of officer's fees." This is the bill on which the whole controversy centered. October 13th the committee reported a bill which made a con- siderable reduction in the fees of some of the Provincial officers and allowed a compensation in money in all cases, and, on October 17th, the Lower House passed it and it was sent to the Upper House. After five days that body returned the bill and refused to concur in the changes in the existing law. This precipitated the issue. The Lower House passed resolu- tions reaffirming the action of that same body in a similar dispute in the years 1733, 1735 and 1739, and declaring that •"the Representatives of the Freemen of the Colonies have the 22 MEST. CITIZEN AND ANTILON. sole right to establish fees of officers, and fees charged by the Lord Proprietary are arbitrary, unconstitutional and oppres- sive." The relations between Governor and Lower House were still further strained by the event referred to before which took place on November the first — the arrest and confinement in jail of William Steuart, clerk of the Land Office. He had presumed to transact the business of the Land Office as if the former Act was still in force. For this offense the Lower House, acting as the grand inquest of the Province, ordered his arrest, and directed that he be confined during the session of that body. Governor Eden, we have seen, prorogued the legislature for three days, which effected Steuart's release. Then followed some fruitless efforts on, the part of the two Houses to reach common ground on the matter of the regula- tion of fees, and, on November 2G, Governor Eden, after finding compromise impossible, finally prorogued the General Assembly. Then followed the jDroclamation noted in the preceding chapter. The Legislature for the session of 1771 met on October 2d. The Lower House was constituted as follows ; St. Mary's County, John Eeeder, Jr., ^Yilliam Thomas, Jeremiah Jordan ; Anne Arundel, Biice Thomas, Beale Worth- ington, Thomas Johnson, Jr., Samuel Chase ; Calvert, Benjamin Marshall 4th, Young Parran, John Weems ; Charles, Joseph Hanson Harrison, Josias Hawkins ; Dorchester, AYilliam Bich- ardson, William Edmonds, Joseph Richardson ; Baltimore, Samuel Owings, Jr., John Moale, George Risteau, Thomas Cockey Deye ; Cecil, John Veazey, Benjamin Rumsey, William Baxter ; Prince George's, Josiah Beall, Robert Tyler, Thomas Contee; City of Annapolis, William Paca; Talbot, James Lloyd Chamberlain, Matthias Tilghman, Nicholas Thomas Edward Lloyd; Queen Anne's, Edward Tilghman, Richard Tilghman Earle ; Worcester, Nathaniel Holland ; Frederick William Luckett, Jonathan Hager, Thomas Sprigg Wooten, Charles Beatty. The address in which Governor Eden opened ClOVEKNOK EDEN's ADMINISTRATION. 23 the session contained no reference to the bone of contention, there being no word in regard to either his proclamation or the inspection law. The Lower House, however, was not willing to let the matter rest here. If that had been done, public officials would have gone on deriving their incomes under the proclamation, and Governor Eden would have won his point against the people's right ;is, understood by the Lower House. The opinion of that body was indicated on October K'th, when the committee on Aggrievances reported that the fees now collected for public purposes, besides being "excessive, great and oppressive," were "under no regulation of any law of this Province." The Lower House immediately appointed a committee to bring in a bill with the now well- known title of an Act "for amending the staple of tobacco, for preventing frauds in His Majesty's customs and for the limita- tion of officer's fees.' This was another event in the yet unsettled warfare between the proprietaiy government and the people of Maryland, for the committee lost no time, but intro- duced the bill on October 14th, and on the 18tli the bill was passed. The bill as usual, failed of passage in the Upper House, and the Lower House, anxious that, at least, there should l)e no doubt as to its position on the matter Ijegan to pass resolu- tions. The first resolution treated the contention from an entirely public standpoint and was passed on the 18th. It was as follows ; "Resolved, That the Representatives of the Freeman of this Province have the sole Eight, with the Assistance of the other part of the Legislature, to impose or establish Taxes or Fees, and that the imposing, establishing or collecting any Taxes or Fees ^" * "' under Colour or Petense of any Proclamation, is arbitrary, unconstitutional and oppressive." The other res- olution took a very personal turn, notwithstanding the fact that up to that time the relations between Governor Eden and* the members of the Lower House had been personally cordial. It was short and to the point, as follows : "Resolved, That the 24 FIRST CITIZEN AND ANTILON. Advisers of the Proclamation are the Enemies to the Peace, "Welfare, and Happiness of this Colony and the Laws and Con- stitution thereof." The members of the Lower House made a great point of claiming that the Governor was not alone in his action, but that there were those behind him whose identity they were anxious to discover. The vote in favor of this reso- lution was practically unanimous, and was as follows : In the affirmative — Messrs. 'Jordan, Grahame, Johnson, Chase, Mar- shall, Parran, Weems, Harrison, Smallwood, Handy, Dennis, J. Eichardson, Moale, Eisteau, Deye, Veazey, Baxter, Ward, Beall, Tyler, Canter, Paca, Tilghman, Earle, T. Wright, S. Wright, Holland, Chille, Eobins, Allan, Wootten and Beatty. Those in the negative weie Messers. Eichardson, Edmonds and Hall. On November 22d, the Governor was addressed in a cour- teous but determined petition, in which he was asked to name those who were his advisors in issuing the proclamation. It was now found impossible for the Assembly to transact any further Legislative business. The members spent the remain- ing time in passing resolutions condemnatory of the proclama- tions and in bitter communications and conferences between the UjDper and Lower House. Governor Eden, however, was an able defender of his side of the controversy. On November 29, 1771, he addressed the Lower House a letter which contained a stinging reprimand for their comments on the proclamation. He takes the ground that the members are attempting to stir up popular discon- tent. He says: "The sentiments yon have expressed against my preclamation have proceeded from your persuasion of it having been calculated to prevent litigation and secure the public peace, and your apprehension if left to its pi-oper effect, would extinguish the discontent you talie so much pains to kindle." The Governor goes further. He charges the House .and its Speaker with a number of unlawful actions, some con- nected with and others having no reference to the disputed subject. He was particularly severe with the Lower House GOATIRNOE EDEN's ADMINISTRATION. 25 for tlieir action in arresting William Stewart, the clerk of the Land Office, and characterizes it as the conduct of a highway- man. Governor Eden then very courageously states that none but himself was responsible for the proclamation, as he had no advisors whatever. He stated, besides, that the position of the Lower House is insincere, as they claim that fees should be collected in an ordinary action at law, whereas the lowest amount thus collectible was much larger than the ordinary fees of office. The Governor next went into a historical argument in justi- fication of his position. He claimed that all the offices were the private right of the Proprietary except the Land Office, which he admits to be of a quasi-public nature. The proclama- tion, he says, was written only after the most mature consider- tion. In conclusion Governor Eden says : " So clear is my conviction of the propriety and utility of a regulation to pre- vent extortion and infinite litigation that, instead of recalling it, if it was necessary to enforce it, I should renew my pro- clamation, and, in stronger terms, threaten all officers with my displeasure who shall j)resume to ask or receive of the people any fee beyond my instructions." The next day Governor Eden prorogued the Assembly until February 18th. He made a speech to the Assembly on the last day of its session, and complained of the vast loss of time to themselves, and the expense of money to the country which had accrued this ses- sion, and the very little business that has been done at it. He further told the Assembly that the excited treatment of the proclamation was due to the wrong idea that they had acquired over that document, which was issued solely for the benefit of the people of the Province and so understood by most of them. Early in 1772 the Governor prorogued the Assembly again, and so with several other prorogations 1772 expired without a meeting of the Legislature. The next meeting of the General Assembly was not until June 15, 1773, a period of nearly^two years. In the meantime the people either paid fees under protest, according to the old law, or refused absolutely to pay them. There was little to 26 FIRST CITIZEN AND ANTILON. support Governor Eden's claim that most of the people under- stood the proclamation to be in their interest, or, at least, they did not consider it to be for their benefit to the extent of making them willing to pay the fees. It seems, however, that in most instances fees were collected according to Governor Eden's way of thinking, and that the ijopular idea of a collec- tion by an action at law was seldom if ever, put into practice. The issue was clearly drawn. The people of the Province, through their representatives in the Lower House of the General Assembly, held that that body had the sole right to regulate the fees of all public offices, as they were subser\'ient to the public and created for their interest in the first place. The claim of the Proprietary, represented by Governor Eden, was that the offices, with the exception of the Land Office, which was in a degree excepted, were to be used for the private benefit of the Proprietary, did not find many supporters. Both sides were sincere, open and courageous in the controversy. It was Maryland's phase of that great question of popular rights against the usurpations of arbitrary authority, which was soon to cast the Thirteen Colonies into war with the mother countrv. GOVBENOR EDEN's ADMINISTRATION. 27 CHAPTER 4. TWO GLADIATORS. 1773. Whilst these acrimonious proceedings between the Governor and his Council and the Lower House of the Legis- lature were in progress, the people of the Province grew more and more restive under the attempt of the Governor to lay taxes upon them without the authoritj' of the House of Dele- gates, for these fees were only another name for taxes as a large part of the business of the Province of the most impor- tant character, could not be transacted without paying them, or, if refused, payment could be insisted through the sheriff at once by a sale of the delinquent's })roperty. It was an axiom among Marylanders that their property could not be lawfully taken from them without their consent or the consent of their representatives. No measure of public import was ever so wisely discussed. From the Freemen of Maryland it went to the people ; from the people to the press ; from the press to the polls ; and from the polls back to the Legislature again. The epoch became one of the most important in Maryland's interesting history. "Political parties were formed along the alignment of approval of, or opposition to, the proclamation. They were suggestive arrays. On the one side were the governor; his council ; the established clergy, interested that, liv another proclamation, their fees had })een raised from thirty to forty pounds of tobacco per poll on the taxables of the Provinces; the courtiers of the Governor, and the office-holders ; on the o'ther the great body of the people and the lawyers, John •Hammond and Daniel Dulany alone excepted. This devotion to the cause of the people was unselfish and costly. From the almost royal Proprietary came the highest official posi- tions, the judicial places, with dignities and emoluments of 28 FIEST CITIZEN AND ANTILON. varied and lucrative character. These positions represented social status as well as official honors and rewards The people had little to give, and yet, when the doubtful and dangerous struggle came, the lawyers of Maryland surged to the forefront at the first sound of contest (Bench and Bar of Maryland, page 125) on the side of the people." Two clergy- men alone in the whole Province opposed the proclamation. Forced, finally, by the insistent events environing him. Governor Eden had to abandon the makeshift of prorouging the Legislature and of filling vacancies in the Lower House by special warrants of election, and dissolved the Assembly and appealed to the people by a general election for a new body of representatives in the Lower House. The election was ordered for May 20, 1773. From the beginning of the year down to the period of election, the Mnrijland Gazette, the single journal of the Province, was filled with the most bitter and interesting correspondence upon the proclamation and the vestry Act. The lawyers, by their magnanimous conduct and able leader- ship of the cause of the people, became the subject of general and personal abuse from the official party. For four months the Gazette teemed with communications on either side of the question. Second only in importance to the greater corres- pondence was that of Thomas Johnson, Samuel Chase and William Paca against the Governor's position on the vestry question, and the Eev. Jonathan Boucher, rector of St. Anne's, in upholding the executive. Mr. Boucher displayed extra- ordinary talents in research, originality and powers of invec- tive. Li minor notes on the general question were "A Client," Freeholders of St. Anne's," "A Protestant Whig," "A Tailor," "A Planter," "Plain Truth," "Patuxent," "A True Patriot," "Amicus Patrias," "An Eastern Shore Clergyman," "Lawyer," "Clericus," "Twitch," "Office Holder," "Brutus," "A Protestant Planter" and "Tradesman," and "An Inde- pendent Whig." The Whigs were the supporters of the ' Governor. As usual, with the opposition, the Maryland opponents of Governor Eden's proclamation were designated, " Tories." GOVEHNOK EDEN's ADMINISTRATION. 29 Rising pyramidal above all the minor notes came the letters of First Citizen and Antilon — a correspondence that created the intensest interest throughout the colony, and won for one of the writers the gratitude of the people of Maryland, and became national in its history. Daniel Dulany, Jr., also known as Daniel Dulany, of Daniel, was born at Annapolis, July 19, 1721, and was educated at Eton and at Clare Hall, Cambridge. He entered the Temple, and, returning to the colonies, was admitted to the bar in 1747. To him the profound and brilliant McMahon pajs this glow- ing tribute: "For many years, before the downfall of the Proprietary government, he stood confessedly without a rival in this colony, as a lawyer, a scholar and an orator, and we may safely regard the assertion that, in the high and varied accomplishments which constitute these, he had amongst these sons of Maryland but one equal and no superior. We admit that tradition is a magnifier, and that men even, through its medium and the obscurity of a half century, like objects in a misty morning, loom largely in the distance ; yet, with regard to Mr. Dulany, there is no room for illusion. ' You may tell Hercules by his foot,' says the proverb ; and this truth is as just when applied to the proportions of the name as to those of the body. The legal arguments and opinions of Mr. Dulany that yet remain to us bear the impress of abilities too com- manding, and of learning too profound, to admit of question. Had we but these fragments, like the remains of splendor which linger around some of the ruins of antiquity, they would be enough for admiration. Yet they fall very short of furnish- ing just conceptions of the character and accomplishments of his mind. AVe have attestations of these in the testimony of contemporaries. For many years before the Revolution, he was regarded as an oracle of the law. It was the constant practice of the courts of the Province to submit to his opinion every question of difficulty which came before them, and so infallible were his opinions considered that he who hoped to reverse them was regarded as 'hoping against hope.' Nor was his professional reputation limited to the colony. I have 30 FIRST CITIZEN AND ANTILON. been ciecliblj- informed that he was occasionally consulted from England upon questions of magnitude, and that, in the southern counties of Virginia adjacent to Marjland, it was not infrequent to withdraw questions from their courts and even from the Chancellor of England to submit them to his award. Thus unrivalled in professional learning, according to the representations of his contemporaries, he added to it all the power of the orator, the accomplishments of the scholar, the graces of the person, the suavity of the gentlemen. Mr. Pink- ney himself, the wonder of his age, who saw but the setting splendor of Mr. Dulany's talents, is reputed to have said of him that even amongst such men as Fox, Pitt and Sheridan he had not found his superior." Charles Carroll, of Carrollton, destined to meet the most learned and distinguished man in America in the gladiatorial field of forensic and political discussion, while these animated debates and exciting controversies were in progress, lived in Annapolis where he was born September 20, 1737. In 1745, he was taken to the College of English Jesuits at St. Olmer, France, where he remained six years, and then was sent to the Jesuit College, at Rheims. After one year's study of the civil law at Bourges, he went to Paris, studied two more years, and began the law in the temple. At 27 years of age, he returned to America, and at the breaking out of the Eevolutionary War, was worth $2,000,000. Though the richest man in America, learned in the law, polished with the Jatest culture of Europe, an upright citizen, and an ardent patriot, Charles Carroll, of Carrollton, was not permitted to vote at any election, municipal or provincial, because he was a member of the Roman Catholic Church, for at this period, while Roman Catholics were permitted to hold high lucrative and responsible offices, all were disfranchised under the intolerant spirit that permeated the English statutes and which had inspired the penal laws of Maryland, now under Protestant rule, a province which under Catholic had been first in the "wide, wide world" to raise the banner of perfect civil and religious liberty. GOVEENOK EDEN'S rUDMINISTRATION. 31 CHAPTER 5. DULANY'S FIRST LETTER APPEARS IN THE MARY- LAND GAZETTE. 1773. On Thiirsday, January 7, 1773, Dulan v's first commu- nication appeared in the Maryland Gazette, printed in Annapolis. The "dialogue" came suddenly like a meteor from a star-lit sky, and flashed with such brilliancy amongst the constellation of lesser lights that it completely obscured their milder rays. The communication in full was : " You will be pleased to give a place in your (rozette to the following dialogue, which was set down by a gentleman who overheard it, after a small recollection, perfectly in substance and nearly in words, as it fell from the speakers. ^The unhappy and prevailing aversion to read perforniances of elegance as well as moment to the publiclT^eems to bode that this so deficient in the first point will not find a multitude of readers — But if I am not grossly mistaken, those few who will not be frightened by its length from travelling throiigh it will receive both entertainment and instruction to requite them, in some degree, for their pains. A Dialogue between two Citizens. "1st Cit. What, my old friend! still deaf to the voice of EeasonV Will fair argument make no impression on you? Consider well the irreparable mischief the part you are going to act, may do to the Cause of Freedom : Your Steadiness, your Integrity, your Independence made us set you down, as a sure Enemy to Government, and one too, whose force would be felt. "2d. Cit. Let me repeat to you my caution, against this strain of compliment; it suits not with your professions of 32 HEST CITIZEN AND ANTILON. OPPOSITION, and is in truth, somewhat too courtly for my palate : But of this however you may rest assured, that no man is more open to conviction, than myselp. The publication of the opinionist, which you, with much zeal and devotion, would set up as the only rule of faith, has let in new light upon my mind. I worship not the golden calf ; but cleavetojhe. relig- ious rights and ceremonies establ ished by my forefathers ; and in this, lihink^Xam both conscientious. and politick. It was for the same despicable idolatry and falling off as yours that the unhappy and misguided king Jcrohoam and his peojDle were afflicted with those mighty evils, which are recorded in holy writ. 1 Kings, xii. 2 Chron. xiii. I have impartially examined everything you suggested in our last conversation, but, cannot discover therein, the least semblance either of reason, or argument ; and until you press me with some more weighty objections, I shall still continue a cordial, and deter- mined friend to Government, and, under favour, to Liberty too : But, in the name of Common Sense, no more fruitless experiments on my passions ; a truce to your threadbare topics of Arbitrary Princes, Proclamations, and your forty per poll! You pretend at least, to be so haunted with these terrors, that I varil y beli eve in my heart, if it were in my power, to produce t he o pinions of thejgreatesl_ Counsel in Englandpiipoii a full and fair state of the case, point blank in favor both of the Proclamation and Forty per poll, you would swear that they were forgeries; or if you allowed them to be genuine, that their authors were barefaced knavish Lawyers, who would at any time, sell opiniojis--eoitteHcy_-tcL_their consciences, to serve a -presBnt-tHrnfu) get an office on this'^iicte^tlie water~ for some importunate dependent, or relation in the fourth or fifth degree ; or that they would do it to support power, and very likely, that they were downright blunderbusses : "And this, too, would be all fair arj/iuiient. "1st Cit. I say nothing upon that matter for the present, but let such opinions appear when they will, there shall be those which shall confront them, though they come subscribed GO^'EENOK EDEN's .\DMINISTIiATION. 33 with the name of Cajidex, if that could possibly be.* But you declare yourself a deterroined friend both to Government, and Libert}-. Monstrous contradiction ! If this, however, be your final resolve, I am really very sorry for it; Government has but too many, and too powerful friends already ; the current sets so fatally strong that way, as to give us serious cause to dread, that we shall be overborn in all our struggles to resist it; the friends, of the Constitution, with whatever cheerfulness they may affect to gild their countenances, wear a cei'tain sadness about their hearts ; they see the strongest symptoms of the sickness of their cause, even unto death; Court-influence, a,nd Corruption, rear their glittering crests. " 2d Cit. Court-influence and Corruption ! But, my flowery antagonist, is every man who thinks differently from you on public measures, influenced, and corrupted '? Now, I must confess you give me no reason to complain of jour over- complaisance. Is the majority of your fellow-citizens, which you seem to apprehend will be against you, thus all blotched and tainted? "1st. Cit. God forbid it should be the case of every indi- VIDXJAL ! but alas ! it is so of too many. Tour conduct, and the conduct of such as you, we rather incline to impute to the irresistible bias of personal attachment, or to a certain unaccountable infatuation, which will sometimes overtake the wisest, and the best. " 2d. Cit. Your insinuation is too gross and injurious to be qualified, or atoned for, by this apology of yours ; it will not *Here it is difficult to determine the speaker's meaning. He may either intend that Lord Camden, after having heen a judge and otherwise dignified, can no longer give opinions as a practicing lawyer ; or that if he could, he cannot possibly difEer from our own great lawyers. And in this latter presumption he may think himself warranted by his Lordship's sentiments, which are cited in that fine monument of reasoning and litera- ture, the Address of the Lower House ; which may be seen in the Votes ?,nd Proceedings of 1771, page 66 ; which citation it is well worth review- ing and comparing with another of the sentiments of the same light and ornament of the present age, page 86. 'ii MEST CITIZEN AND ANTILON. pass upon one of my steadiness you knrnv. You would brand «very man with the odious appellations of Court-hireling and Sycophant, who dares to exercise his own judgment, in opposi- tion to yours, and that of your part3^ Is it not the most criminal, and unpardonable arrogance, thiis to strike at the public reiJutation ? I know not what, or whom you mean, by IVe and the friends of the Constitufion : but, whilst you are thus wrongheaded, and breathe so imperious and tyranical a spirit withal, you will be the constant object of derision, or hatred ; you may upbraid with the epithets of Tool, or Courtier (than which nothing can be more foul, or reproachful), you will still be regarded with the scorn, or j)ity of every man of sense and spirit ; the blessings of Order, will still be preferred to the horf'ors of Anarchy ; for to such must the principles of those men inevitaljly lead, who are fixed in their purpose, of oppos- ing Government at all adventures, and preposterously contend, that such. a system is neither interest, nor faction, but genuine patriotism. Alas Sir! ill must it fare with the popular interests, when theTjeading Representatives, and Great Speakers, instead of making amends to their country, by some master stroke of wise policy, for having rejected a regulation offered upon such advantageoi^s terms, as the most sanguine, and staunch friend of the people, never dreamed of ; still rush on in their destruc- tive career, laying their trains at each outset of public business, to blow up everything into a combustion, in order, that the rage and delusion of the present, may support and sanctify the mischiefs of the preceding Session ; whilst the public debt, without purchasing any benefits, is swelling to an enormous size, on the Journals ; our staple falling into disgrace in foreign markets ; and ever^- man's proi^erty in a degree, decreasing and mouldering away. Friends to the Constitution, whilst they are stretching every sinew to confound all the public counsels, and thereby, destroy every good effect of that Con- stitution. Gracious powers ! k imi this n inoiisfroKS contradic- tion ? "Take a liberal and impartial review of your adversaries, in every point of light : Have not they as deep a stake in the GOVERNOR EDEN's ADMINISTRATION. 35 safety of tlie Constitution as you, or your friends ? What can possibly tempt them to join in the demolition of that bulwark, which alone shelters them in the enjoyment of their fortunes, and of every comfort that can plead to the reason, and interest the heart of man '? If they are Tools and Hirelings for this purpose, then are they a kind of lunatic wretches, that no language can describe. Will the general behavior of none of them authorize you to entertain more honorable sentiments of their spirit, than you express ? Would they not, think you, spurn at an attempt to frighten, or bribe them, with indigna- tion equal to that which would fire the breasts of those, who are eternally carrying out as if the enemy were in the gate, and scattering distraction and distrust through the commu- nity? Who are forever reviling others, and bepraising their own integrity, wisdom, and I know not what'? Lay this truth sadly to heart, Sir, the Politician who stuns you wdth harangues on his own angelical purity, is as certainly an arrant imposter, as the woman who unceasingly prates of her own chastity, is no better than she should be ; or the soldier who is always the hero of his own boisterous tale, is at bottom but a rank coward. Are there among them no substantial merchants, who are much likelier to be gainers hj sticking close to their oviTQ business, than by watching the smiles or frowns of a Court '? These are men, whom I should hardly expect to find in a plot against Liberty ; since Commerce is ever engrafted on the stock (A Liberty, and must feel every wound that is given to it, for when Liberty is struck to the heart. Commerce can then put forth her golden fruit no more ; but, must perforce droop and die. Do you conceive, that such men can possibly be hired, unless they be overtaken by the infatnoiion you talked of, to engage in pulling down a fair and stately and useful edifice, with the ruins of which, as soon as it is leveled to the ground, they and their families are to be stoned to death ? For, they are not entitled, by their mercantile educa- tion, to keep a constant eye upon the great and gainful public offices, or to expect that any of them will fall to their share, as those of some other professions are. In all growing cities. 36 PIBST CITIZEN AND ANTILON. and communities at large, they are especial useful and able members, when acting in concert with the Commons, but, pu,t them into the other scale, and they that instant lose all their weight. I fancy yon will hear many of my brother-mechanics raising their voices against you, who scarce knoix' the meaning of your Court-influence, and Corruption, Avho will stand on the side of him, whom they think, from an imprejudiced observation of his manners, the likeliest to shield them from oppression ; or it may be, the encrease of whose business, as it is closely connected with the prosperity of the city, bids the fairest to enlarge the sphere of action, and importance, not only of every tradesman, but, of eveiy inhabitant who lives by his labor, and the sweat of his brow. "1st. Cit. To these questions I do not choose to give an answer. But, thus much I will venture to assert, that a thou- sand argiiments may be brought t guishable flames of hatred and animosity, even in the hearts of brothers. " 1st Cit. Wormwood ! Wormwood ! " '2d Cit. This indeed must turn the milkiest nature into bitterness. Had I been trained up in the schools of those orators who were heretofore the subjects of your glowing panegyrick, I should dress my thoughts in such language, as well might justify your exclamation. These shocking convul- sions have often tempted me to think, that I should not break my heart if a Law were expressly provided against this darling- privilege of canvassing ; that the suffrages of the people might be permitted to take their free course on the day of election. As to what you whispered to me yesterday, about the resolu- tion of some of your patriotick friends, not to serve, unless those whose principles chime in with their own were chosen along with them ; I must take the liberty to reply, that I look upon such a threat as a mere raw-head and bloody bones, which will not in the end advantage their cause ; but, be that as it n)ay, to speak in the language of the good old song of Che-\-y-Chaee : " ' I truft we have within the Realm, " Fi^'e hundred men as good as they.' " Farewell, >Sir, I shall tortuie your patience no longer with my tiresome and homely discourse ; but leavn, for the future, to be charitable to those who differ from you in opinion ; and judge not lest tit he Judf/eJ." An insight into the feelings of the people as to the object of the communication and the author of it, are displayed hy a shorted communication from another source that appeared in the Geizeite of January 21st : Me. Printee. " The dialogue, which you were so obliging as to publish in your Gazette, of the 7th Instant, has, it seems, inflamed the curiosity of your fellow-citizens, to an inordinate degiee. Numberless excursions have been made into the field of con- jecture, touching the editor, who is supposed, and on very 40 FIRST CITIZEN AND ANTILON. good grounds, to be the same with him who overheard the conversation, which is committed to paper. Stratagems, after much profound debate, have been devised to ensure the grati- fication of that universal passion of being in the secret. And many, after suffering repeated discomfitures in their efforts to discover mj person, have taken upon them to insinuate, with a significant shrug and arch leer, that thej have been favored with a peep behind the curtain — proceeding so far in confirmation of their importance as to offer a clue to con- duct the inquisitive through the labyrynth, by particulizing my dress, gait, and certain natural marks of designation, which I bear in mj visage. I can, however, safely protest that not one of these pretended mysticks know any more of the above circumstances than of the cut of the doublet which the present Spanish monarch made with his own royal hands, of the dimensions of Prester John's foot, or of the mole under Mahomet's ear. Indeed, the jDicture which they have been pleased to draw of me is so far from the true likeness, that I am a tall, thin, large boned man, with broad shoulders, black eyes, olive complexion, and a suit of black curled hair ; and in my dress and gait, after the common fashion. Nor do I, at present, recognize any singularity which distinguishes me from the rest rtf the world, unless it be a sudden and insensi- ble application of tny right hand to the region of the left hypocondrium, both in and out of company ; which is owing to a throbbing of the spleen — a disease I have contracted by remaining too long in an incuvvared postule, when engaged in contemiDlation of the publick miseries we are likely to be such deep sharers in, through the present prevailing influence, altogether as unaccountable as it is pestilent. — I have heard myself pronounced by some, who only ^cc me fi-'eUin/I/f, a con- temptible anonymous scribbler ; who wear my dagger under my cloak. I shall, however, continue in my invisible agency ; trusting that the eye, from which I shall prevail to purge the film, will not be fatally closed against the light of reason, through very perverseness, and anger, that the hand which exhibited the medicine is unknown. If my pen be guided by GOVEBNOE EDEN's ADMINISTKATION. 41 truth, if I made it a religion to obtain from the private, unless where head-long indiscretion has involved and blended it with the publick character ; it is a thing of no magnitude, whether my real name or a fictitious signature appear at the bottom of my page. If I be contemptible, my folly must pour balm into the wound ^my malice inflicts. " Slander, it must be confessed, is defeatable enough, of all conscience, when it issues from the press. But there is yet -e Species of slander, infinitely more infernal — that which is forged on the spur of every occasion, and given out to be distributed by the well-trained hirelings of a court or faction. This is generally conveyed through so many dirty conduits, and discoloured with such a variety of poisons, that it is impossible to trace it to its true source, until it has done its work. I question not but that the Devil himself, who is the father of slanders, if it had been left to his choice, would have preferred this kind of vehicle, as more efiective than the instrumentality of all his nominal brethren of the press. But the charge that I am anonymous is, of all others, the most absurd and rash, as it suggests the strongest argument that I am not actuated by vanity or a lust of praise — and in this particular, I but pursue the track, with steps however unequal, trodden by those geniuses, who have shown the brightest, and done the greatest good in their generations. And to explain either the necessity, or proprietj^, of this method of instruct- ing the publick in a free government would be to insult the intellects of my readers. If I could possibly conceive that any advantage would redound to the publick by an open mani- festation of myself, I would, without a moment's hesitation, stand forth in my natural person ; sensible as I am, that by so doing I should take by the tooth, tivo ever angry bears; whose appetites, it is probable, are now pretty keen for prey ; considering their disappointment has constrained them, for a tedious and dreary season, to suck their own paws, after being set upon a much more substantial repast. " The rage of these monsters, for such I am informed one of the political constellation has vindicated to himself and his 42 PIBST CITIZEN AND ANTILON. fierce compeer, should not appeal to me, as I am convinced, that, in all public exertions, much is to be hazarded. The fury with which these personages inveigh against those who have prevented them in the lucrative posts of government, may, I think, be classed among the most pregnant instances of the short-sightedness of human nature. For let us suppose that their schemes of profit had been crowned with success, and they had attained to that pbefeement and pee-eminenc'E they reached after with such notorious and ardent longing. Their consequence must then have been no longer supported by the delusion, partiality or suspicions of the constituent ; but by the force of superior talents 'alone. And in how ample a degree they would have needed this superiority of talents we may form a tolerable judgment ; as we have room to suspect, from the tyranny, injustice and fatal tendency of the counsels they have had a principal share in, that their little fingers, if they had got into power, would htive been heavier on the people than the loans (if all the present ministers of the con- stitution. I think it would have been much the more subtile management for those who ivere in power, when the work which going ffirward was first discovered, to have retired and co-operated Leavtily with their assailants in breaking down all the hindrances to their promotion; as they could not have failed of being shortly entertained with a very grateful spec- tacle. They would have beheld them stretching from the barrier to the goal with the same unfortunate speed which is described, with the finest touches of genuine humor, in the following stanza — The puzzling Sons of party next appear'd, In dark cabals, and midnight juntos met ; And now they whisper'd close, now shrugging rear'd Th' important shoulder ; then as if to get New light, their twinkling eyes were inward set, No sooner Lucifer recals affairs. Then forth they various rush in mighty fret ; "When lo ! pusKd up to pow'T, uiid croirn'd their cures. In Cdiii.es ilic other set, and kieleth them doirii xtid'rs. Thomson's Castle of Indolence — GOVERNOR EDEN'S ADMINISTRATION. 4:'S "I hope, in my future communications to the publick, that I shall not be looked upon in the odious light of a common listner ; insomuch as I report nothing but the secret effusions of the hearts of others ; in which, however, I shall continue to act a faithful part ; telling the truth, the whole truth, and nothing but the truth ; and taking especial care to overhear no controversy which does not turn upon some popular topick, which it highly importes your fellow-citizens to know to the bottom ; and where one of the parties, at least, is a man of sound judgment, acute observation, and candid temper, and capable of disclosing a competent portion of solid matter upon the argument. Indeed, the gracious reception which the first born of my lucubrations has met with from the publick for- bicls me to prognosticate that so harsh a censure will be generally passed upon me ; but rather that I shall be admitted as a man exposing my health to the fatigues of unseasonal)le watchings, and the eager inclemency of a wintry sky, for the benefit of the weal. "It is not probable, that room will be quickly afforded me to impart anj'thing to the publick, through the medium of your Gazette : as a rumor has gone forth that it is appropriated to the use of the two lights and ornaments of the present age, as celebrated for their exquisite tastes as their profound juris- prudence ; who are determined, at length, to recreate them- selves therein with the delicious and welcome banquet of turtle and venison furnished out by their reverend provedore — since the Baltimore news-paper, though solemnly announced to be established, turns out to have as airy a foundation as another establish inent, which has received the sanction of the same sacred names ; and their country is now expecting, with anxious suspense, when they will fall to. When this entertainment is fairly cleared away, I shall then make my request, that you win be so indulgent as to serve up to your customers the auricular acquisitions of "Your sincere, humble servant, " The Editor of the Dialogue." 44 FIEST CITIZEN AND ANTDLON. CHAPTER 6. FIRST CITIZEN'S FIRST LETTER. 1773. The object of the communication of January 7th was too plain, and the sarcasm too severe, to be allowed to pass unnoticed by the people's party. A reply to it required the effort of a well-equipped mind, learned in the law, resourceful in debate. That man to champion the cause of the freemen of Maryland was Charles Carroll, of CarroUton. Under pretense of correcting errors in the communication of January 7th, Mr. Carroll replied to Dalany. In the Gazette of February 4, 1773, appeared the first letter of Mr. Carroll. It read : — Sir: " The intention of this address is not to entice you to throw off a fictitious, and to assume a real character : for I am not one of those who have puzzled themselves with endless con- jectures about your mysterious personage ; a secret too deep for me to pry into, and if known, not of much moment; of as little is it in my opinion whether your complexion. be olive or fair, your eyes black or gray, j'our person straight or incur- vated, your deportment easy and natural, insolent, or affected ; you have therefore my consent to remain concealed under a borrowed name, as long as you may think jDroper, I see no great detriment that will thereby accrue to the public ; you will be the greatest ! nay ! the onl}' sufferer ; your fellow citizens, ignorant to whom they stand indebted for such excel- lent lucubrations, will not know at what shrine to offer up their incense, and tribute of praise ; to you this sacrifice of glory wUl be the less painful, as yoii, are not actuated by vanity or a lust of fame, and in obscurity you will have this consolation still left, the enjoyment of conscious merit, and of GOA'EENOE EDEN's ADMINISTRATION. 45 Self-applause. Modest men of real worth are subject to a certain diffidence, called by the French h. •iiinnvaise hoiite, (awkward bashfulness), which frequently prevents their rising in the world ; you are not likely, I must own, to be guilty of their fault; in rithiin ducit cidpae fiuja : (the avoiding one fault is apt to lead us into another) ; you seem rather to have fallen into the other extreme, and to be fully sensible, of the wisdom of the French maxim, (7 fatilt se /aire tril(iir,.(iii the text these words have received a liberal interpretation; they mean strictly — That a person should assume a proper consequence), which for the benefit of my English readers, I will venture to translate thus — 'A man oiujlit to sti a liujli vuhie on Jits mun talents.' This saying is somewhat analagous to that of Horace — sunic siiperhiam qiidcHitain mcrifin. (Maybe translated — 'assume a pride to merit justl}' due.') As your manner of writing discovers vast erudition, and extensive reading, I make no doubt you are thoroughly acquainted with the Latin and French languages, and therefore a citation or two from each may not be unpalatable. "Having paid these compliments to joiw literary merit, I wish it were in my power to say as much in favor of your candor and sincerity. The editor of the dialogue between two Citi- zens, it seems, is the same person, who orvrheard and cmnmitted to icritiiig fhe coitvtrsaiion. I was willing to suppose the editor had his relation at second huid, for I could not otherwise account for the lame, mutilated, and imperfect part of the conversation attributed to me, without ascribing the publication {cPdownriglxt malice, and wilful misrepresentation. Where I can, I am always willing to give the mildest construction to a dubious action. The editor has now put it out of my power of judging thus favorably of him, and as I have not the least room to trust to his impartiality a second time, I find myself under the necessity of making a direct application to the press, to vindicate my intellectual faculties, which, jio. doubt, have suffered much in the opinion of the public (notwithstanding its great good nature) from the publication of the above-mentioned dialogue. . , , 46 FIRST CITIZEN AM) ANTILON. "The sentiments of the first Citizen are so miserably mangled and disfigured, that he scarce can trace the smallest likeness between those, whicli really fell from him in the course of that conversation, and what have been put into hjs mouth. "The first Citizen has not the vanity to think his thoughts communicated to a fellow citizen in private, of sufiicient import- ance to be made public, nor would he have had the presumption to trouble that awful tribunal with his crude and indigested notions of politics, had they not already Ijeen eggregiously misrepresented in print. Whether they appear to more advantage in their present dress, others must determine; the newness of the fashion gives them quite a different air and appearance ; let the decision be what it will, since much depends on the manner of relating facts, the first Citizen thinks he ought to be permitted to relate them his own way. " 1st Cit. I am sorry that party attachments and connexions have induced you to abandon old principles ; there was a time. Sir, when you had not so favourable an opinion of the integrity and good intentions of Clovernment, as you now seem to have. Your conduct on this occasion makes me suspect that formerly spine iiii'n, not meumires, ^xeve disagreeable to you. Have we reason to place a greater confidence in our presenf rulers, than in those to whom I allude? Some of the present set (it is true) were then in power, others indeed were not yet provided for, and therefore a push was to be made to thrust them into office, that all- power might centre in one fimnly. Is all your patriotism come to this ? " 2d Cit. I do not like such home expostulations, convince me that I act wrong in supjDorting Government and I will alter my conduct, no man is more open to conviction than myself — (Vide Dialogue to the words, 'Would be all fair argument.') " 1st Cit. I am not surprised that the threadbare topics of arbitrary princes, and proclamations, should give you uneasi- ness ; you have insinuated that the repetition of them is tire- some, but I suspect that the true cause of your aversion proceeds from another quarter. You are afraid of a com- GOVEENOK EDEN's ADMINISTRATION. 47 parison between the present miinsters of this province, and those who influenced Charles the First, and brought him to the block ; the resemblance I assure you would be striking. You insinuate that ' The opinions of the tjreotesf Counsel in England' are come to hand, in favor of the proclamation, and 40 per poll, and YOU seem to laj' great stress on those opinions. A little reflection, and actj^uaintance with history will teach you, that the opinions of Court Luici/f-rs are not always to be relied on; remember the issue of, Hoinhdeii's trial: 'The jtrejiiiliced or prostitidt'd> Ji.idserrafion may be applied to them ■all, they hare declared THAT to he LE G AI, which t he minister for the time tieing has deemed to he /EXPEDIENT.' Will yoir admit this to be fair argument ? " 2d Cit. I confess it carries some weight with it ; I cannot with propriety dispute the authority, on which it is founded ; make therefore the most of my concession; should I admit your reasoning on this head to be just, does it follow, that the Court and Country interests are incompatible; that Govern- ment and Liberty are irreconcilable? Is every man, who thinks differently from you on public measures, influenced or -corrupted ? 48 FIRST CITIZEN AND ANTILON. "IstOit. 'God forbid it shoidd he the c<(.se of ccvry individual.' I have already hinted at the cause of your attachment to Government; it proceeds, I fear, more from personal consid- erations, than from a persuasion of the rectitude of our Court .measures^; but I would not have you confound Government, with the Officers of Government ; they are things really dis- tinct, and yet in your idea they seem to be one and the same. " Government was instituted for the general good, but Officers intrusted with its powers, have most commonly perverted them to the selfish views of avarice and ambition ; hence the Country and Court interests, which ought to be the same, have been too often opposite, as must be acknowledged and lamented by every true friend to Liberty. You ask me are Government and Liberty incompatible ; your question arises from an abuse of words, and confusion of ideas ; I answer, that so far from being incompatible, I think they cannot subsist independent of each other. A few great and good princes have found the means of reconciling them even in despotic states ; Tacitus says of Nerva : 'Bes oliiu dissociables miscidi, piiiicijMiiinn, av Jihertidein,' (thus translated by Gordon — Nerva blended together two things, once found irreconcileable — Public Liberty and sovereign Power) ; a wicked minister has endeavored, and is now endeavoring in this free govennuvid, to set the power of the supreme magis- trate above the laws ; in our mother country such ministers have been punished for the attempt with infamy, death or exile; I am surprised that he who imitates their example,* should not dread their fate. " 2d Cit. This is not coming to the point, you talk at random of dangers threatening liberty, and of infringements of the constitution, which exist only in your imagination. Prove, I say, ovr iiiirdsfers to have advised unconstitutional measures, and I am ready to abandon them and their cause ; but upon your ipw di.rd, I shall not admit those measures to be uncon- stitutional, which you are pleased to call so, nor can I allow all those to be Court hirelings, ^\-hom you think proper to stigmatise with that opprobrious appellation, and for no other (>OVEKN(,)K EDEN's .^MINISTRATION. 49' reason, but that they dare exercise their oirii jmhpiitid iii, oppo- sition to yours — [Kead the 2d Citizen's harangue, from the last words (opposition to yours) to the following inclusively siveat of his brow.] " 1st Cit. What a flow of words ! how pregnant with thought and deep reasoning! if you expect an answer to all the points, on which you have spoken, you must excuse my prolixity, and impiite it to the variety of matter laid before me ; I shall endeavor to be concise, and if possible, avoid obscurity — you say — 1 1-I102V not ivJint or tchoiii I mean by ice, and the friends of the constitution — I trill tdl you, Sir,' whom I do not mean, from whence you may guess at those, whom I do. By friends of the constitution, I mean not those, whose selfish attachments to their interests has deprived the public of a most beneficial Law, from the want of which by your own account, 'our staple is faUtu into disgrace in foiritjn nutrkets und ervr/j man's property in a degree decreasing and' inoaldering an-ay.' I mean not those few, out of tenderness and regard to whom, the gen- eral welfare of this province has been sacrificed ; to preserve whose salaries from diminution, the fortunes of all their country- men have been suifered to be impaired ; I mean not those, who advised a measure, which cost the first Charles his crown and life, and who have dared to defend it upon principles more unjustifiable and injurious than those, under which it was at first pretendedly palliated. You see, sir, I adopt the maxim of the British constitution — TJie King can do no wrong. I impute all the blame to his ministers, who if found guHty and dragged to light, I hope will be maHe~tq feel tlie resentment of a free people. But it seems from your suggestions that we are to place an unlimited trust in the men, whom I have pretty plainly pointed out, because they are men of great wealth and have 'as deep a stake in tJie safety of the constitution as any of Its.' Property even in private life, is not always a security against dishonesty, in public, it is much less so. The jninisters, who have made the boldasL.attacks on liberty, have been most of them men of afiluence ; from whence I infer, that riches so 4 50 FIEST CITIZEN AND ANTILON. far from insuring a minister's honesty, ought rather to make us more watchful of his conduct. "You go on with this argument, and urge me thus : 'Do I arnceive that such men. can possibly be hired lailess they be over- taken by infatuation, to enijaije to pull down a fair and stately edifce, with tlie ruin of which, as soon as it is levelled to the ground, they and tlieir families are to be stoned to death.'' I have read of numberless instances of such infatuation ; there are now livini/ examples of it ; the history of mankind is full of them ; men in the gratification of sensual appetites, are apt to overlook their future consequences ; thus for the present -enjoyment of wealth and power — liberty in reversion will be easily given up ; besides, a perpetuity in office may be aimed at ; hopes may be entertained that the ijood thimj, like a precious jewel, will be handed down ivora father to son. I have known men of such meanness, and of such insolence (qualities often met with in the same person), who exclusive of the above motives, would wish to be the first slave of a sultan, to lord it over all the rest ; power, Sir, power, is apt to jjervert the best of natures ; with too much of it, I would^ not trust the milkiest niajj.ou earth; and shall we place confidence in a niiitister too long inured to rule, grown old, callous, and hackneyed in the crooked paths of policy ? "2dCit. ' I do not clioose to answer this last qiu'stion' — you gTow warm and press me too close. But -w^liy is all your indignation poured out against our ministers, and no part of it reserved for the lawyers — those cut-throats, extortioners — those enemies to peace and honesty, those reipublica- porlenta, ac poena fumera, {3Ir. Blehnoth, the eler/ant tinnslafor of Cicero's familiar letters, jn.aJces this remark in his notes on the 8th letter of the first -book, Vol. 1 — 'Cicero Jms delineated the clicn'acters at large of these consuls (Piso and, Gabinius) in several of his irratious, but he has in tivo ivords given tlie most e witt3:,I!and_jiQF to take my meaning. You want to shelter yourself under the protection of the Governor, and to draw him, and all the Council, into a justification of measures peculiarly yours, by endeavouring to make them responsible for your counsels. 'There can be no difficulty in finding out his (the King's) ministers ; the (lovernor and Council are answeiable in this. thqp gb just ice and judgment^ flow from him, yet Jie di spenses th gm by bis ministers, and has committed all bis judicial power to different courts; arrfffris-Mgbly necessary for his people's safety he should do so, for as Montesquieu JustlxJibsfiiras^Tbei-e is no liberty if the power of judging be^iot sepa£ated from the legislative, and executive powers . We re it joined with the l£gislativej_ £he_lifejuid l_ibeHy^oT3Tie"suI^ would be exposed Tto^rbitraiy controul, for the judge would then be legislator ; were it joined~to the executive power'TheJudge might hehavFwith all the violence of an oppressor." ' ■ ' " Here the Governor, who exercises the executive and a share of the legislative power holds and exercises also one of the most considerable judicial offices — for he is chancellor, a jurisdiction, which in the course of some years, may bring a considerable share of the property of this country, to his determinations." The Governor is so well satisfied of wanting advise, that in determining causes of intricacy, he always chuses to have the assistance of some gentleman, who from study, and a knowl- edge of the law, may be presumed a good judge, and able to direct him in cases of difficulty and doubt. He has recourse to the advise of his council in all matters of publick concernment ; it is therefore highly probable he took the advise of some, or of one in the council before he issued the Proclamation. It is well known, that in England the prime minister directs and governs all his Majesty's other ministers; in Charles the Ilnd'a time the whole care of Government, was committed to five persons, distinguished by the name of the Cahal : the other members of the privy council were Seldom called to any deliberations, or if called, only with a view to save appearances. 6 . ■ 82 FIRST CITIZEN AND ANTILON. character ; he cannot disavow an act, to which his signature is affixed.' Have not manj Kings of England revoked, and cancelled acts, to which their signatures were affixed? Have not some kings, too, at the solicitation of their parliaments, disgraced ministers, who advised these acts, and affixed to ihem the royal signature ? The Governor is improperly called "the King's minister ; he is rather his representative, or deputy ; he forms a distincT branch, or part of our legislature ; a bill though passed by both houses of assembly, would not be law, if dissented to by him ; he has therefore the power, loco Beyis, ■of assenting, and dissenting to laws ; in him is lodged the most amiable, the best of powers, the power of mercy ; the most dreadful also, the power of^ death. A minister has no such transcendent privileges — To help, to instruct, to advise is his province, and let me add, that he is accountable for his advice to the great Council of the people ; upon this principle, the wisdom of our ancestors grounded the maxim, 'The King can do no wrong.' They supposed, and justly, that the care and administration of government would be committed to ministers, whom, abilities, or other qualities had recommended to their sovereign's choice ; lest the friendship and protection of their master should encourage them to pursue pernicious measures, and lest they should screen themselves under regal authority, , the blame of bad counsels became imputable to them, and they alone were made answerable for the conse- quences ; if liable to be punished for male administration, it was thought, they might be more circumspect, diligent, and attentive to their charge ; it would be indecent and irreverential to throw the blame of every grievance on the King, and to be perpetually remonstrating against majesty itself, when the minister only was in fault. The maxim however admits of limitation. Est modus in rebus ; sunt certi denigue fines, Qiiox ultra, citragiw, nequit consisiere rectum. — " Should a King, deaf to the repeated remonstrances of his people, forgetful of his coronation oath, and unwilling to submit to the legal limitations of his prerogative, endeavour to subvert that constitution in church and state, which he swore GOVEBNOK EDEN'S ADMINISTRATION. 83 to maintain, resistance would then not only be excusable, but praiseworthy, and deposition, and impriaonment, or exile, might be the only means left, of securing civil liberty, and national independence. Thus James the second, by endeav- ouring to introduce arbitrary power, and to subvert the estab- ' lished church, justly deserved to be deposed and banished. " The revolution, which followed, or rather brought on Jame's abdication of the crown, 'is justly ranked among the most glorious deeds, that have done honour to the character of Englishmen ' In that light the first Citizen considers it ; and he believes the Independent Whigs entertain the same opinion of that event, at least, nothing appears to the contrary, save the malevolent insinuation of Antilon. It is high time to return to the Proclamation ; your digressions, Antilon, which have occasioned mine, shall not make me lose sight of the main object. 'It is not to be expected that any man will bear reproaches without reply, or that he, who wanders from the question, will not be followed in his wanderings, and hunted through his labyrinths.' We have seen, the Proclamation was apprehended sometime before its publication, and guarded against by a positive declaration of the lower house — ' Tfte people of tliis jirovince will ever oppose fhe usurpaiion of such, a right.' Nevertheless our viiuister, regardless of this intima- tion, advised the Proclamation. It came out soon afterwards cloathed with the specious pretence of preventing extortion in officers. I shall soon examine the solidity of this softening palliative. "In a subsequent session, it was resolved unanimously by the lower house, 'to he illeijal, arJjitrary, uncoustituiional and oppressive.'' It was resolved also, ' That the advisers (D) of the (D) It is plain from the above resolve of the delegates, that they con- gidered the Governor, not as my lord's minister, but as his deputy, or lieu- tenant, acting by the advice of others, nor pursuing his own immediate measure, and sentiments. It is no imputation on the broveFnor's~i5iider- standing to have been'guided by a counsellor, from whose experience, and knowledge, he niigbt have expected the best advice, when he did not suspect, or didjnot discover the interested motive, froni^ which_ it pro- ceeded; the minister has the art of covering his real views with fair pretences. "And seems a saint, when most he plays the devil." 84 FIRST CITIZEN AND ANTILON. said Proclamation are enemies to the peace, welfare and happiness of this province, and to the laws and constitution thereof "I shall now give a short extract from Petyt'is Jus Pa.rlia- menta.rium, page 327, and leave the reader to make the applica- tion : — In a list of grievances presented by the commons to James the first, are Proclamations, of which complaining bitterly, among other things they say, 'Nevertheless, it is apparent, that Proclamations have been of late years much more frequent than heretofore, and that they are extended, not only to the liberty, but also to the goods, inheritances and livelihood of men ; some of them, tending to alter some points of the laiv, and make them new: other Home made shortly after a session of Farlia'nient for matter directly rejected in the same session.' and some ronchint/ former Froclamntion, to countenance and, warrant the latter. "The Proclamation is modestly called by Aiddon, 'a. restric- tion of the officers,'' at another time, ' prevoitive of extortion,' though in fact, ,Lt-cuiglit rather-to-be considered as a direction tothejofficers,. what J;Q.demand, and to the people, what to pay, tii'dnii. reatriciinn '-'(iiii'e toto luvidiii iiitinnuit,stiiJftuii furor ahripintquA;. "Befoee I bestow any animadversion upon other imperti- nences, I shall endeavor to collect, and reduce to as much method, as they will bear, those parts of the Citizen's last performance, which have any apparent relation to the procla- mation, and if the intelligent reader should be mischievously inclined to entertain himself with my distress, and for this purpose have recourse to my former paper, and my adversary's answer to it, I shall readily forgive him, if he smiles at the trouble I take to arrange desultory cavils, and extract out of the effusions of ignorance, and malice objections for refutation. '"It is a very unfair thing (as Swift observes) in any writer to employ his ignorance, and malice togdher, because it gives his answerer douhle work. It is like the kind of sophistry GOVEENOR EDEN's ADMIMSTBATION. 97 that the logicians call two iiieJlurns, which are never allowed in the same s}'llogism, a writer with a iceak head, and a corrupt heart is an overmatch for any single pen, like a hireling jade, dull, and vicious, hardly able to stir, yet offering at every turn to kick.' " In my former letter I laid before the reader for his exami- nation, and comparison, the two transactions of the ship-money tax, and the proclamation, and shewed that the former imposed a direct tax on the people, and inforced the payment of it by the rigorous means of execution affecting the property, and personal liberty of the subject, and that the latter contained the sanction only of the Governor's threats of displeasure to officers dependant, and removeable without any enforcement extended to the people beyond that, which the ordinary courts might confer on the very ground of its legality. I also proved that without some settled rate, or standard no exaction of an officer could be punishable as extortion, and that judges and others not vested with a legislcdive authority, had settled, and ascertained the fees of officers for the very purpose of pre- venting the oppression of the subject, and concluded, the two transactions, were not only not equally arbitrary infractions of the constitution, but were entirely dissimilar. The Citizen professes his design to consider my reasons ia defence of the proclamation, and after having 'granted that the assessment of ship-money was a more open, and daring violation of the constitution, still contends that the proclamation, though more disguised, is equally subversive in its consequence of liberty.' The reader will remember that the Citizen to support the character he has attributed to the proclamation, must prove it to be an arbitrary tax. "He allows that the tax of ship-money was an 'open and avowed attack on liberty ' and seems to apply to the procla- mation the epithets, ' modest, mild, and conciliating.' He acknowledges that the methods pursued in levying the ship- money were the ' arbitrary seizure of property and deprivation of personal liberty ' and that there ' is no attempt in the proc- 7 98 FIRST CITIZEN AND ANTILON. lamation to subject the peoph to any execution ; ' but, notwith- standing his admission of so (jreat cUff'erence, he endeavours to maintain his position, that the proc-lamation is as subversive, in its coiisi'queiict, of liberty, as the levy of ship-money was. 'The most daring attacks on liberty, he sa,ys, are not ju^rhxipn the most ' dangerous, ' because extreme violence excites general indignation, and opposition ; but the ' modest, mild, conciliat- ing manner, in which the latent designs of a crafty minister come soini-'tiiaes recommended, ought to render them the more suspected, and should always inspire caution, and diffidence, ' let the operation, and effect of the proclamation determine its character ; but, because the manner is modest, &c. — let not .suspicion at once infer, that the design of it is to violate the peoples' rights ; for if one measure is to be opposed, because expressed in an imperative stile, and attended with the most rigorous enforcements, and another measure is also to be opposed, because it is 'modest, mild, cVc. ' in the manner, and unattended by any enforcement, except what it derives from the law, it would be difficult, indeed, for the best intentions to escape censure. In speaking of the ship-money exnrtion, the Citizen admits my account of it to be, ' in the main true,' but intimates that 'it is not impartial,' 'it is in the vn'iin true.' In what was it then not impartial? The exility of the insinuation shall not protect the principle of it, nor shall contempt so entirely extinguish indignation, as to . hinder me from exposing the subdolous attempt. The appella- tion, ' Tyrant' has, I suspect, rubbed the fore. The ' tax ' (says he) 'was veri/ moilcrate little exceed imj, £'200,000 sterling — it was levied with Justice and eipiity, etc.,' 'moderate?' When the people were plundered of every farthing of it? 'levied with justice and equity ; when extorted Ijy the rigours of distress, and imprisonment, in the most direct violation of every prin- ciple of liberty? The moderation, justice, and equity of a robber, who should suffer the plundered passenger to retain half a crown for his dinner, might be celebrated with equal grace and propriety. Again he whines — 'the boundaries between liberty, and prerogative were far from bemg ascer- GOYEBNOB EDEN's ADMINISTRATION. 99 tained.' What, had not Magna Charta so often (at least thirty- two times) confirmed the statute (he has referred to on another occasion) de tallagio non concedendo, the petition and act of rights (to mention no other) most clciirJi/ established the jyrin- cij>h\ that 'the people could not be taxed without their consent?' The boundary could not have been more clearly marked out by the utmost precaution of jealous prudence or more outrageously transgressed by the most determined, and lawless tyranny, and yet the Citizen, the (jeiieroiis frleiid of libeii//, though he has adopted the pretences of a iioforious apologist, has advanced them iritJiout niiy vitir to 'excuse the assessment of ship- mone}', or exculpate King Charles ' — he means not to apologize, though he lias adopted the very principles of the tyrant's apologist — again 'James the lid by endeavoring to introduce arbitrary power, and subvert the established cJiuirli (h^wrved to be deposed, and banished, and the revolution ratl/er' says the Citizen, 'hnmgld about, than fulhnvei] King James' aliiUoition. of the crown.' " Here reader j'ou have another proof of the staiinch whig- gism of the cJiniupion so properly celel^rated by our Independent Whigs. ' The revolution rather brought about, than followed King James' abdication ? ' " Those great men, by whom the cause of national liberty was supported, entertained very different ideas from our Iiide- liendtni Whigs and their champion. They received their instruction ix a very different svliool. The commons voted that King James lid ' having endeavoured to suljvert the constitu- tion of the kingdom, by breaking the original contract between king, and people, and by the advice of Jesuits, and other wicked persons, having violated the fundamental laws, and withdrawn himself out of the kingdom hath (didieeded the government, and the throne is thereby become vacant, and that it hath been found by experience to be inconsistent with this protestant kingdom to be governed by a popish jarince.' " The abdication of James was, the wrong done by him, ' the government is under a trust, and acting against, is renouncing 100 FIBST CITIZEN AND ANTILON. it; for how can a man in reason, or sense, express a greater renunciation of a trust, than by the constant declaration of his actions contrary to that trust.' " ' The revolution rather brought about than followed the abdication.' " The principles of this champion for whiggism having been developed, the InJepfixhi/fs, perhaps, may doubt the propriety of their jMlifical attachment, when they consider the effect of the Citizen's suggestions is, that the revolution was rather an act of violence, than of juntice, unless, indeed, the regard he has expressed for the estnliJinJieJ church, so cviininieut with his reliijiivis profession, should haply, divert their attention ; for this reijard, to be sure, is very commendable. " That the proclamation restrains the officers is certain, and, having this effect, if it has no other, it is beneficial — if it has moreover, the effect of binding the people to pay, as well as the officer to receive -according to the adopted rates, this effect flows from its legality', from the same principles, that the general protection, and security of men's rights are derived. " The ship-money was levied upon the people, when no part of it was due — the officer can receive nutliiiKj, when nothimi is due, and yet the Citizen alleges they eqiuiJJi/ correspond with the idea of ta.r, and of an arbitrary, tyrannical imposition — a tax cannot be laid unless by the Jeijislative authority ; but fees, the Citizen is constrained to admit, have been lawfidhi settled by the lords alone, by the commons edone, by the upper and lower houses separately, and by the courts of law, and equity in England — that these fees have not been settled liy the leijishdive authority is therefore clear. What is then the plain result? Xo tax can be imposed, except by the Icyishdure, but fees have been lawfidly settled in the manner premised, by persons, not vested unth legislative aLdhoriti/, consequently the settlement of fees is vot a tax. On this head the, Citizen remarks, that the lords and commons derive 'their right from long usage, and the law of pailiament which is part of the law of the laud ' — ■ be it so, but the law of parliament, which is part of the law of GOYEBNOE EDEN'S ADMINISTRATION. 101 the land, doth not vest the lords, or the commons alone with authority to tax. The amount then of the Citizen's reasonwg is, that the lords and commons separately settled fees, because they are enabled so to do by the law of the land. The judges have no share in the legislature ; but their settlement of fees is lauful too, whence is their authority derived; but from the law of the land? The 'chief danger of oppression (says Hawkins in his treatise of crown law) is from officers being left at liberty to set their own rates, and make their own demands, therefore the law has authorized the judges to settle them.' How are these settleineids, and the admission of their le'oper means of prerenfirnj extortion' according to Serjeant Hawkins' observa- tion already cited, and from the expressions, ' the table of fees should be registered in a book open to inspection gratis, and a copy of this table signed and attested, by the judges returned to each house of parliament,' it may also be justly inferred that the 'authority' meant was not reposed in themselves, and as they were to be informed by a copy, signed and attested by the judges 106 FIRST CITIZEN AND ANTILON. of the specifivl: exercise 'of it, that the judges, who were to give information under their signatures, and official attestation, were understood to be the persons vested with the authority to fix, and establish the fees. The settlement of fees a tax, and yet the commons acknowledged the authority of the judges to make the settlement. "Putat tonsor sibi poscere navim Luciferi rudis ? exclamat Melicerta, perisse Epontem de rebus. (A) 'Should a mere barber think to ask A pilot's trust, (an ardous task) Yet cannot, such a dunce is he. An observation make at sea, "Well *Melicerta miglit exclaim That he had lost all sense of shame.' " That questions ought not to be prejudged is another of the Citizen's objections. This is very true in a proper application, but extremely absurd in the Citizen's — if there were no prece- dents, or estaljlished rules, the measures of justice might be very unequal, and the scales uneven and unsteady. ' Misera est servitus, ubi jus est vagum.' The utility of precedents consists in the very effect, which is the cjniinid of the Citizen's objections, that similar cases are governed by them. Without this effect, contests would be infinite. What he calls prejudg- iiKj, is that which is the conseijuence, the salutary, beneficial consequence of legal certainty, preventive of endless litigation, vexation, and distress. The judges must have therefore, some fixed, stable rule for the ascertainment of costs. Indeed, reader, I find it to be a very irksome task to encounter such extreme ignorance, blended with such exuberant vanity, pertinacious impudence, and connate malignity, and to unravel the con- texture they have formed. I observed in my former letter, that the courts of law and equity had settled fees, and the Citizen asks by what authority. The passage in Hawkins, (A) I have taken some liberty with Perseus but not more than the Citizen has done in his motto with Pym's Speech — "jVcqiie eniiii le.r aqiiior tillii cut." *The marine deity. GOYEENOE EDEN'S ADMINISTEATION. 107 already quoted, answers the question. Admitting, however, that the judges have settled fees, the Citizen alleges the ' prece- dent does not apply.' Surely to prove that the settlement of fees is not a iax, which nothing less than the fidl legiHlative authoriti/ can establish, and therefore the precedent applies to destroy the very principle on which he has 'spent his feebla efforts ' to prove the proclamation an arbitrary tax, as subver- sive of liberty as the levy of ship-money. " Cereopithecus quam sapiens est animal, aetatem qui uno ostio nunquam committit suam, quia si unum ostium obside- atur, aliud perfugium gerit. (B) Bo wise the monkey, that he ne'er confides His safety to one passage ; but provides That, if th' adversary should one make sure, Another then may his retreat secure. "Lest the objection to the proclamation that it is a tax should be refuted, the sagacious Citizen has provided another outlet for escape. 'The precedents of judges having settled fees, says he, do not apply, because they have not settled their own fees ; but the commissary, secretary, judges of the land- office, being members of the council, and advisers of the proc- lamation (that is) (xmciirriiHj with the advice of the niiuister ; may he said to have established their own fees ; and the governor (C) as vliancellor, decreeing his fees according to the (B) Here too, after the e.xample of the Citizen, I have been a little free with Plautus. (C) What the Citizen has remarked, in one of his notes, to prove it inconsistent with the security, which the constitution of England affords in the distribution of the legislative, executive, and judicial powers, for the governor to be chancellor, proceeds from his very crude ideas of the British policy — "were the judiciary power joined with the legislative, the life aud liberty of the subject would be exposed to arbitrary coutroul : for the judge would then be legislator;" but this does not prove that if a branch of, and not the whole legislature exercises a judicial power, there would be this consequence. The lords who are a branch of the legislative exercise a judicial power; The king, in whom the executive power is lodged, exercises, personally, no judicial power, considering the royal dig- nity and pre-eminence the idea of his being a judge in an inferior, subor- dinate and controulable jurisdiction would be absurd, and if the judicial power should be reposed in him absolutely, and conclusively, and his 108 FIEST CITIZEN AND ANTILON. very settlement of the proclamation, would undoubtedly ascer- tain and settle his oiun fees, and be judge in his own cause. ' Here the idea of tax is dropped. Who the wicked minister is, we shall be puzzled to find out. The commissary, secretary, and judges of the land-office cuncurring ivith his advice, he is not to be sought after in this list of officers. ' It may be said, ' to be sure, Mr. Citizen, anything may be said — the proclama- tion however has no relation to the chancellor; *Plain Truth has sufficiently exposed the absurdity of this imputation. ' The governor decreeiinj his fees as chancellor ! ' ' He is generous, of a good heart ; but youthful, unsuspicious, diffi- dent. ' I shall not analyse your composition ; but pray, Mr. Citizen, let me ask, what reason, what experience, what prob- able conjecture have you to extenuate your af&ontive insinua- tion ? Has he ever been a judge in his own cause ? Has he ever betrayed any symptom of an inclination to be so ? Again at your iiiischievons tricls ' tarn forma A- mores sunt consimiles' decisions not subject to examination and controul on an appeal to a superior jurisdiction, tliere would be great danger of, because there would be no regular method to prevent, violence, and oppression — now the chan- cellor, though he exercises a judicial power, and is vested with the execu- tive, as governor, cannot commit the violence, and oppression dreaded, because there is an appeal to a superior provincial jurisdiction, and his decrees may be reformed, or reversed, and an ultimate appeal too is provided to the king in council; and, moreover, he is removeable, accountable, and even punishable, for violence and oppression — whence then the danger to liberty from the chancellor's violence and oppres- sion. In New York, and in the Jerseys, the governors are chancel- lors — in Virginia the governor, and also the members of the council, the executive, and two branches of the legislative exercise an exten- sive judicial power in matters of equity, law, and of crimes. Should any branch of the legislative, whether governor, upper, or lower house, assume, in any instance, all the powers legislative, executive, and judicial, without doubt, it would be an extreme violation of the constitution, and the Citizen's impartiality would severely condemn it, though a tenderness for his connexions may prevent his publick censures. A similar affection perhaps, inclined him to pass over a question, or two, in my former letter. I do not wish him to offend any of his connexions. Let those, whom he has honoured with his regard, still enjoy it, however opposite their polit- ical walks, political attachments, and the colours of their apparent politi- cal principles may have been. •*Bee the Gazette, No. 1436. GOVEBNOB EDEN's ADMINISTRATION. 109 the proclaroation has no relation to the judges of the land- office, their fees are settled in a different manner, and the legality of it does not depend upon any question of preroga- tive ; but on the j»;re'/' every oicner has over Ids projivrty, to dispose of it upon such terms, as he thinks proper. The advice of the council was not asked on this subject. This regulation too you have represented to be as arbitrary as the ship-money assessment, and with equal facility you may prove it to be a tax, or a rigadoon. "The governor and council were twelve in number, of whom two only can be said (I mean with truth) to have any interest in the effect of the proclamation. The governor was not to be directed by the suffrage of the council ; he was to judge of the propriety of their advice upon the reasons they should offer. It cannot be asserted (I mean again with truth) that they were not unanimous, though the citizen has the assurance to affront them with the reproachful imputation of being implicit depend- ants on one man. The proclamation was the act of the governor flowing from his persuasion of its utility. He had promised, publickly and solemnly promised that 'if the prerogative should interpose in the settlement of fees, he would take good care to act on mature consideration, and what he should Judi/e to be right and just, would be the only dictate to determine his con- duct.' He again, as publickly, and solemnly declared that, 'so clear was his conviction, of the propriety, and utility of a regulation to prevent extortion, and infinite litigation, if it was necessary, instead of recalling, he weuld renew his proclama- tion, and in stronger terms threaten all officers with his dis- pleasure, who should presume to ask, or receive of the people any fee beyond his restriction.' In his proroguing speech he again declared that ' He had issued the proclamation solely for the benefit of the people, by nine tenilis of whom, he believed it was so understood.' But you, Mr. Citizen, have asserted, an absolute, direct, impudent, malicious (I will give you, as it is upon paper, a dissyllable) falshood, that he was not determined by h,is oivn judgment, but by the dictate of a man whom sometimes you call a clerk, sometimes a register, 110 FIEST CITIZEN AKD ANTELON. and sometimes minister, and that nine tenths of the people do not believe the proclamation issued for the purpose, so pub- lickly, so solemnly declared. The contradiction, it must be confessed, is direct and pointed, and if advanced on sufficient grounds, the veracity, sincerity, and honor of — would be — but I know it to be an infamous, impudent calumny (character- istical of the author of it) jDrompted by the temerity of ungov- ernable malignity. To atone for this insolence, the maxim, ' the king can do no wrong,' is introduced, and on what principle ? Not such as would allow an application to a — who should happen to be old, or middle-aged, or cir- cumspect — He must be ' youthful, unsuspicious, etc. etc' — really this seems to be an innovation, lather arbitrary — legal ii/Kxiiris have been understood to be rather imjiUani : however as you cun so easily ijarhJe lunral ones, who will dispute your address in modifying the legal? Would he but act as he should — alas ! would he but — then ' he would be a little god below,' and be icorshipped arvonl'uKjhj ; something more than a king. ' The governor however, you say, is no king ' — but yet again you tell us, ' kings have revoked proclamations, and therefore, though the governor has affixed his signature, he may disavow his act.' Again, ' He is improperly called the king's ■)jiiuifiise, and sJiiiDieless (isscrerf that power, not only to see that the necessity is indeed invincible, but that it has not been occasioned by any fault of their own ; for, if it is not the one, the act is in no way justifiable, and if the other, that very necessity, which is the excuse of the act, will be the accusation of those, who occasioned it, and in place of being justifiable in 136 FIliST CITIZEN AND ANTILON. their conduct, they must be chargeable, first, with the hlame of the necessity, and next with the danger of the violation of the law, as the drunken man who commits murder, justly bears the guilt both of inebriation and bloodshed. (F) To whom is the blame of the supposed necessity, now plead as an excuse for acting against law, imputable? Is it not to those, who rather than submit to a regulation by law of their fees, and to an apprehended diminution of income, chose to shelter themselves under the wings of arbitrary prerogative, and to expose their country to all the difficulties, and distress, which the wanton exercise of an unconstitutional power was sure to introduce ? " Who, the least acquainted with the arguments in favour of ship-money, and the (lisj-ieiisinc/ jiou'er, does not perceive this part of Antilon's defence to be a repetition, and revival of those exploded, and justly odious topics tricked off in a new dress to hide their deformity, the better to impose on the unthinking and unwary. Antilon asserts, that the Citizen from some proceedings of the house of commons, infers a power in the commons ' afo»e,' to settle the fees of officers belonging to the courts of law. Want of accuracy in the expression has, I confess, given a colour to the charge; but Antilon to justify his construction of the sentence referred to, and to exclude all doubt of the Citizen's meaning, has inserted the word 'alone.' " ' If the commons, says the Citizen, had a right to enquire into the abuses committed by the officers of the courts, they had, no doubt, the power of correcting those abuses, and of establishing the fees in those courts, Imd they thought proper ' — he should have added (to prevent all cavil) — zvith the concurrence of the king ayid lords. This was really the Citizen's meaning, though not (F) Quoted from a pamphlet intitled a " a speech against the suspending, and dispensiuf; pjerogative " supposed to be written by my Lord Mans- field. Mr. Blackstone speaking of the vei-y measure, which occasioned that speech, observes, " A proclamation to lay an embargo in time of peace upon all vessels laden with wheat, (though in the time of a publick scarcity) being contrary to law — the advitiers of sucli a proclamation, and all persons acting under it found it necessary to he idemnifled by a special act of parliaihent, 7 Geo. 3d. 0. 7." OtOveenoe eden's administration. 137 expressed ; his whole argument shouhl be considered, and taken together ; he endeavours all along to prove, that fees are taxes, that taxes cannot be laid but by the, legislature, except in the instances already mentioned, which, as I said before, are exceptions to the general rule. The extracts from the report of the committee were adduced to shew, what abuses had crejjt into practice by ofEcers charging illegal fees; what oppressions the eiuroaching spirit of office had brought upon the subject ; and the controuling jiower of the house of commons over the officers of the courts of justice. They resolved, that all the fees should be fixed, and established by authority, that they should be registered in a booji, and inspected gratis, that the rates being publickly known, officers might not extort more than the usual, ancient, legal, and established fees. It does not appear, that the commons authorized the judges to create iiriv fees, or to alter, and increase the old, but insisted, that a table of all the fees should be made out under the inspection of the judges, and, to give it a greater sanction, should be signed and attested by them, to prevent, no doubt, the secret and rapacious practices of officers. That fees are taxes, I hope, has been proved ; but should it be granted, that they are not taxes, because they have been settled in England by other authority, than the legislature (which I do not admit, if by a settlement of fees under the authority of the judges, an imposition of new fees be meant) still I contend, that a settlement of fees in this province by proclamation is illegal, and unconstitutional, for the reasons already assigned ; to which the following may be added. If a table of fees had been framed hj the house of commons, con- firmed by act of parliament, and all former statutes relating to fees had been repealed, and a temporary duration given to the new act, that at its expiration, corrections and amendments (if expedient) might be made in the table of fees, if in conse- quence of a disagreement between the branches of the legisla- ture about ;those amendments, the law had expired, and the commons had resolved,. that an attempt to establish the- late rates by proclamation would be illegal, and unconstitutional, 138 FIEST CITIZEN AND ANTILON. would any minister of Great Britian advise his sovereign, to issue his proclamation, under colour of preventing extortion, but in reality for the very purpose of establishing the contested rates ? If a minister should be found daring enough to adopt the measure, a dismission from office might not be his only punishment, although he should endeavour to justify his con- duct upon legal principles, in the following manner. "The same authority distinct from the legislative, that has settled, may settle the fees, when the proper occasion of exercising it occurs : the proper occasion has now presented itself, we have no la-^v for the establishment of fees; some standard is necessary, and therefore the authority distinct from the legislative, which used to settle fees, must interfere, and settle them again ; necessity calls for its exertion, and it ought to be active ; recourse, I allow, should not be had to its interposition, but in a case of the utmost urgency. " Nee deus intersit nisi dignus vindice nodus. Nor let a god in person stand display'd, Unless the lubouriug plot deserve his aid." " Such reasoning would not screen the minister from the resentment of the commons : they would tell him, that the necessity, 'The tyrant's plea,' was pretended, not real, if real, that it was occasioned by his selfish vie\\s, which prevented the passage of a law, for the settlement of fees ; they would perhaps assert, that a power distinct from the legislative, unless authorized by the latter, had never attempted to impose fees, since they began to be paid by the people ; they might possibly shew, that a settlement of fees by the judges, does not imply an authority in them to impose tiew fees ; if it should, that the power is unconstitutional, and ought to be restrained ; they might contend that a settlement of fees by the judges, was nothing more than a publication under their hands, and seals of such fees, as had been usually, and of ancient time received by the officers of the courts ; that the publication bj authority was made, to prevent the rapacious practices of officers ; they would probably refer the minister to my Lord Coke, who says expressly — that, while officers ' could take no fees at all for GOYBENOB EDEN'S ADMINISTRATION. 139 doing their office but of the King, then had they no colour to exact anything of the subject, who knew, that they ought to take nothing of them, but when some acts of parliament, changing the rule of the common law gave to the ministers of the King, fees in some particular cases to be taken of the sub- ject, abuses crept in, and the officers and ministers did offend in most cases, but at this day, they can take no more for doing their office, than have been since this act allowed to them by authority of parliament.' (Westminster 1st.) " But let us leave fiction, and come to reality ; What will the delegates of the people at their next meeting say to time, that sensible men have been outwitted by a knave ? You are now trying to- engage therd on you]' side, and to make them parties to your cause. To raise their resentment against the Citizen, you endeavour to persuade them, that they have been treated as cyphers, dependent tools, idiots, a meer rabble, " Nos numerus, sumus et fruges consumere nati," "We are but cyphers, born to eat, and deeji. " To di-aw the governor into your quarrel, }'ou assert, that I have contradicted him in the grossest manner ; but, as usual, you have failed in your proof, 'In his proroguing speech he has declared, that he issued his proclamation solely for the 144 FIRST, CITIZEN, AND ANTILON. benefit of the people, by nine tenths of whom, be believed it was so understood.' That you persuaded him to think the proclamation was calculated solvJij for the benefit of the people, I easily credit, and that he really thought so, I will as readily admit: your subdolous attempts to involve the governor in your guilty counsels, and make him a partner in your crimes, dis- cover the wisdom of the m&xim.^J_The_Kuuj can do no wroiu/,' and the propriety, nay the necessity of its application toihe supreme magistrate of' this province. I shall adopt another maxim established by the British parliament, equally, wise, and just, ' TIw Kiinfs Spevches are the rninisters speeches.' The distinction, perhaps, will be ridiculed wdth false wit, and treated by ignorance, as a device of St. Omers. The prorogu- ing speech, though perhaps not penned, yet prompted by you, suggests that nine tenths of the people understood the procla- mation was issued for their benefit ; how is the sense of the people to be known, but from the sentiments of their repre- sentatives in assembly? To judge by. that criterion, the proc- lamation was not understood by nine tenths of the people as issued for their benefit. That the application of the above maxims should give you uneasiness, I am not surprised ; they throw guilt of bad measures on the proper person, on you, and you only, the real author of them ; the glory, and the merit of good are wholly ascribed to you, by your unprincipled creatures ; the spirited rejily to the petitioners for a bishop was delivered, it is said, in pursuance of your advice : be it so, claim merit wherever you can, I will allow it, wherever it is due ; but cease to impose on your countrymen, think not to assume all the merit of good counsels, and of bad to cast the blame on others. Hampden has been deservedly celebrated for his spirited opposition to an arbitrary, and illegal tax; a similar conduct would deserve some praise, and were the danger of opposition, and the power of the oppressor as great, the merit would be equal. The violent opposition, which Mr. Ogle met with, proceeded, I thought, in great measure from the cause assigned in my last paper ; it certainly occasioned great discontents. CtOVEENOR EDEN's ADMraiKTRATION. 145 "The decree for the payment of fees ' iKcordlntj in the vtrij stftleriit'iit iif the jiivclfnna/ioii,' was given, as I conceived, in his first administration. A misconception of Antilon's meaning led me into this error ; that I would wilfully subject myself to the imputation of a falsehood so easily detected, will scarcely be credited, unless it is believed, that the hardened impudence, and habitiKil inendav'dij of an Autilon, become jirorerhinl, had rendered me insensible of shame, and regardless of character. 'The Citizen has said, the proclamation ought rather to be considered as a direction to the officers, what to demand, and to the jjeople what to pay, than a I'estriction of officers ' — Antilon affects to be much jjuzzled about the meaning of the word direction ; it is surprising he should, when he holds up the proclamation, as the standard, by which the courts of jus- tice are to be governed in ascertaining costs, as the only remedy against the extortion of officers, by subjecting them to the governor's displeasure, and removal from office, if they should exceed the estal)lislied lates, or to a prosecution for extortion, should the legality of the proclamation be estali- lished in the ordinary judicatories. It is a common observa- tion confirmed by general experience, that a claim in the colony-governments of an extraordinary power as incidental to, or part of the prerogative, is sure to meet with the encouragement and support of the ministry in Great-Britian. That the proclamation is a point which the minister of Mary- land, {our Anfdoii) wants to establish, is by this time evident to the whole province. Ever}- artifice has been made use of, to conceal the dangerous tendency of that measure, to reconcile the people to it, and to procure their submission. Opinions of eminent counsel in England have been mentioned, the names of the gentlemen are now communicated to the publick ; the state, on which those opinions were given, though called for, the person, who drew it, and advised the opinion to be taken, still remain a profound secret. The sacred name of majesty itself, is pros- tituted to countenance a measure, not justifiable upon legal and constitutional prinoijiles, to silence the voit'e of freedom, and of 10 146 FIRST CITIZEN AND ANTLLON. censure, and to screen a guilty minister, from the just resent- ment of an injured, and insulted country. The whole tenor of Antilon's conduct makes good the old observation, ' That when ministers are pinched in matter of proceeding against law, they throw it upon the King.' (M) Antilon has repre- sented the proclamation, as the immediate act of the governor, 'TAe governor teas not to be directed, (h:." now, to give it a still greater sanction, we are told, the governor's conduct in this very business, has met with the royal approbation. To what purpose was this information thrown out? Was it to intimidate, and to prevent all farthei- writing, and discourse aboiit the proclamation? Unheard of insolence! The pride, and arrogance of this Antilon, have bereft him of his under- standing; quos deus vult perdere, primo deraentat. Speaking of the proclamation the Citizen has said, 'In a land of freedom, //lis arhifriirt/ e.rerfion of jjrerogative, will not, must not be endnred.' Antilon calls these nnngh/// u-jiorfei\ ore conviiic- iiig jii-oii/s. 'A tyrannical subject wants but a tyrannically disposed master, to be a minister of arbitrary power: if such a minister finds not such a master, he will be the tyrant of his prince' — or jirincc's rejirrKciiln.tict' — 'as much as of his fellow servants, and fellow subjects — I should be sorry to see ' the (forcrniir of this province 'in chains, even if he were content to wear them — to see him unfortunately in chains, from which perhaps he could Avith difficultj^ free himself, till the person, who imjinsed them, runs away : which every good subject would, iu^ that case, heartily wish might happen ; the sooner, the better for all." First Citizen. (N) Intitled, a speech against the suspending and dispensing preroga- tive. GOVERNOR EDEN's .VDMINISTRATION. 149 CHAPTER 1 1. "OLD MARYLAND MANNERS." 1773. The unruffled current of "Old Maryland Manners" was not disturbed by the storm of political events and contro- versal debates in progress within " the antient capital " of Maryland. Governor Eden received, from friend and foe alike, marked respect in the private circles of Annapolis society. Official consideration he commanded. As Governor of the Province, on March 28th, 1772, he laid the foundation of the present State House, the third on the same site since Annapolis became the capital of Maryland in 1694-5. As his official mallet struck the stone, a severe clap of thunder from a cloudless sky, on a beautifully clear and serene day, resounded from the skies above. (Ridgely's Annals, page 146.) Annapolis, at this date, was the most delightful residential city of America. Its society was polished and cultivated ; among its citizens were the best educated people in the colonies ; the drama flourished ; the arts were encouraged ; its commerce extended to all seas ; the trades were promoted ; its bar was the most profound of the thirteen colonies ; its beautiful women were elegant and accomplished ; the races were run at stated intervals ; foreign, provincial and local news was disseminated weekly by the single newspaper of the ropvince ; education was advanced ; and the courtly practice, in every position of daily life of the charming code of "old Maryland manners " made Annapolis an ideal residential city and whose praise tradition still recounts with affectionate regard. Nor was this all. In this decade many of its beautiful and' commodious dwellings, surrounded by spacious grounds, and 150 FIRST CITIZEN AOT) ANTTLON. each resident protected from the petty noises of contiguous residents, and defended from molestation by magnificent walls, were erected. Then no endless rumbling of rattling vehicles, driven by reckless and uncontrolled Jehues, over vitrified brick pavements, disturbed the twilight sleeper or the late riser. The mechanic and tradesman could retire at sunset with assurance that the quietude of the early hours of evening would not be broken by aggressive wagoners over solid stone streets, nor yet by the screeching horn and clanging cow-bells of unrestrained youth, enjoying the noisy amusement of a straw ride over cemented road beds. No rouring trains, no screaming engines, no humming dynamos, no encircling cock-lofts counted the hours of night with the periodic stroke of a town clock. Then, no hawkers of peddling vegetables cried their wares at early hours, for municipal law recpiired all venders of vegetable food to repair to the market in market hours ; so blue-eyed maidens who had danced the night out and morning in, could gain refreshment by slumber in a day as peaceful as the night. Mr. William Eddis, the English collector of the port, who saw Annapolis at this time, wrote in his lotteis of this delightful place : "At present the city has more the appeaxance of an agreeable village, than the metropolis of an opulent province, as it contains within its limits a number of small fields, which are intended for future erections. But, in a few years, it will probably be one of the best built cities in America, as a spirit of improvement is predominant, and the situation is allowed to be equally healthy antl pleasant with smy on this side of the Atlantic. Many of the principal families have chosen this place for their residence, and their are few towns of the same size, in any part of the British dominions, that can boast of a more polished society." The courtesies and attentions that the Governor, the embodi- ment of the invasion of public right in the creation of fees of ofiice ^vithout license from the people, received from those who composed the opposition to his policy, "Antilon" in his first letter, outlines, and in recounting these entertainments sneers at the objects of them in this language : "but to pursue GOVERNOB EDEN's ADMINISTRATION. 151 my train ; If I can tell them with truth, that I have not only been those, who have stared with astonishment at their childish and unguarded Court familiarities even in the public streets, but that I can recount to them their courtly voyages by water, and journeys by land, their carousings, their illuminations, their costly and exquisite treats, to gorge the high-seasoned appetite of Government ; if I can name the very appointments they have laid their very fingers upon, and assure them, that I have been well informed of their eager impatience for the removal of every impediment, which stood in the way of their exaltation, with many other glorious and patriotic particulars." Mr. Eddis looked with a more conservative eye, upon the consideration the Governor received, and, as late as November 8th, 1774, when the thunders of a greater revolution were heard in the distance, wrote, when Eden was again iu Annap- olis, after a visit to England : — " The Governor is returned to a land of trouble. He arrived about ten this morning in perfect health. He is now commenced an actor on a busy theatre ; his part a truly critical one. To stem the popular torrent, and to conduct his measures with consistency, will require the exertion of all his faculties. The present times demand superior talents, and his, I am persuaded, will be invariably directed to promote the general good. Hitherto his conduct' has secured to him a well-merited popularity ; and his return to the province has been expected with an impatience which sufficiently evinces the sentiments of the publick in his favor." On March 13, 1776, Mr. Eddis said : "It is with pleasure I am able to assert, that a greater degree of moderation appears to predominate in this province, than in any other on the continent, and I am perfectly assured we are very materially indebted for this peculiar advantage to the collected and consistent conduct of our Governor, whose views appear solely directed to advance the interests of the community ; and to preserve, by every possible method, the public tranquility." Not only, to the select circle of a private company of his intimate friends, did Governor Eden dispense his generous 152 FIRST CITIZEN AND ANTILON. hospitality, but when the little city appeared in all its splendor on the anniversary of the proprietary's birth, he " gave a grand entertainment on the occasion to a numerous party ; the com- pany brought with them every disposition to render each other happy; and the festivities concluded with cards, and dancing w^hich engaged the attention of their respective votaries till an early hour." xllthough the governor led in the festivities of the province he was not unmindful of the weightier cares of state. Mr. Eddis, who spoke with the unction of a grateful heart and sanguine temperament, said of him: "He appears competent to the discharge of his important duty. Not only in the summer, but during the extreme rigour of an American winter, it is his custom to rise early ; till the hour of dinner he devotes the whole of his time to provincial concerns ; the meanest individual obtains an easy and immediate access to his person ; he investigates, with accuracy, the complicated duties of his station ; and discovers, upon nvevy occasion, alacrity in the dispatch of business ; and a perfect knowledge of the relative connexions of the country." That "men, high-minded men," constitute a State, received additional force in tliat, though Annapolis, in poj)ulation, was least of all the cities of America, rating scarcely over a thou- sand inhabitants, yet such men as Daniel Dulany, Jr., Charles Carroll, of Carrollton, Thomas Johnson, Jr., Samuel Chase, William Paca, Bev. Jonathan Boucher, Robert Eden, William Steuart, William Eddis, AYilliam Hammond, Edmund Jen- nings, Jonathan Pinkney and John Eogeis vitalized its life and made it famous for its culture, wealth and retinement, and gained for it the title of the "Athens of America." Its social life was created and maintained l)y such elegant and accom- plished women, refined in manners, and lovely in person, as Mary Ogle Eidout, Ann Eidgely, Martha Eowe, Miss Hallam, a queen of the stage, Annie Ogle, Peggy Steuart, Caroline Eden, Catherine Eden, Anna Peale, Mrs. William Paca, Jane Bordley, Eleanor Calvert and a host of unnamed beauties. GOVERNOR EDEN's ADMINISTRATION. 1.5;:> Therefore its social life, with such women as these as its rep- resentatives, Annapolis was "The Paris of America." What interested these great and learned people? Dulany, the counsellor of courts ; Chase, the " torch of the coming Revolution ; " Paea, the interpreter of constitutions ; Johnson, the friend of Washington, and his nominator as Commander- in-Chief of the Continental armies ; Carroll, the future diplomat of the infant Republic — the races, the theatre, the social party, the evening sail on the tSevern, and the ball — the last enjoyed in a fine commodious building 3 et standing that had been bviilt for that purpose, and here Col. George Washington, of Virginia, often came to enjoy the dance and the company of the cultured men and beautiful women, who made the society of Annapolis so captivating. As early as September '20th, 1750, a race was run on the race course, "between governor Ogle's Bay Gelding, and Col. Plater's Grey Stallion, and won by the former. For next day six horses started, Mr. Waters's horse Parrott, winning, dis- tancing several of the running horses. On the same ground some years after, Dr. Hamilton's ' horse Figure,' won a purse of fifty pistoles — beating two, and distancing three others. Figure was a horse of great reputation — it is stated of him that, 'he had won many fifties — and in the year 1763 to have received premiums at Preston aud Carlisle, in Old England, where no horse would enter against him — he never lost a race.' Subsequently, the race course was moved to a field some short distance beyond the city, on which course some of the most celebrated horses ever known in America have run. It was on this latter course that Mr. Sevan's bay horse 'Oscar,' so renowned in the annals of the turf, first ran. Oscar was bred (in Mr. Ogle's farm near this city, — he won many races, and in the fall of 1808, it is well remembered, he beat Mr. Bond's ' First Consul ' on the Baltimore course, who had challenged^ the continent — running the second heat in 7m. 40s., which, speed had never been excelled" — (Eidgely's Annals of Annapolis.) 154 FIBST CITIZEN AJSTD ANTILON. "Old Ranter" was "Oscar's" great, great, grand sire. To these races Gen. Washington used to repair, and in his diary naively recounts his gains on the bets on the successful pacers. The Jockey Club, established in 1750, at Annapolis, con- sisted of many principal gentlemen in this, and in the adjacent provinces, many of whom in order to encourage the breed of the noble animal, imported from England, at a very great expense, horses of "high reputation." This club existed for many years. " The races at Annapolis were generally attended by a great yoncourse of spectators, many coming from the adjoining colonies. Considerable sums were bet on these occasions. Subscription purses of a hundred guineas were for a long time the highest amount run for, but subsequently were greatly increased. The day of the races usually closed with balls, or theatrical amusements." "Twenty-one years later, 1771, 'The Haint Tamiua Society,' was inaugurated in Annapolis, and continued its anniversary celebrations for many years. The first day of May was set apart in memory of ' Saint Tamina,' whose history, like those of other venerable saints, is lost in fable and uncertainty'. It was usual on the morning of this day, for the members of the society to erect in some public situation in the city, 'May-pole,' and to decorate it in a most tasteful manner, with wild flo-ixers gathered from the adjacent woods, and forming themselves in a ring around it, hand in hand, perform the Indian war dance, with many other customs which they liud seen exhibited by the children of the forest. It was also usual on this day for such of the citizens, who choose to enter into the a,musement, to wear a piece of buck's-tail in their hats, or in some con- spicuous part of their dress." The first lottery drawn in this province, was at Annapolis, on the 21st September, 1753, for the purchase of a " town clock, and clearing the dock." The highest prize 100 pistoles — tickets half a pistole. The managers were Benjamin Tasker, GOVEBNOK EDEN'S ADMIMSTBATION. 155 Jr., George Stenart, Walter Dulany, and ten other gentlemen of Annapolis. The witch haunted Annapolis in those days. Tradition tells us, tliat when they built the "Brig, Lovely Nancy" — at the launch of which the following incident occured: "She was ou the stock, and the day appointed to place her on her destined element, a large concourse of people assembled to witness the launch, among whom was an old white woman named Sarah McDaniel, who professed fortune-telling, and was called 'a witch.' She was heard to remark — ' The Lovely Nancy will not see water today.' The brig moved finely at first, and when expectation was at its height to see her glide into the water, she suddenly stopped, and could not be again moved on that day. This occurrence created much excitement amongst the spectators ; and Captain Slade and the sailors were so fully persuaded that she had been ' bewitched,' that they resolved to duck the old woman. In the meantime she had disappeared from the crowd ; thej kept up the search for two or three days, during which time she lay concealed in a house." " The Lovely Nancy, " did afterwards leave the stot'k, and is said to have made several prosperous voyages. Underneath the bubbling current of their trifling entertain- ments ran the deep waters of political and econmnic discus- sion. Beneath the roar of the great torrent of debate over the proclamation and fee-bill that excited and entertained the citizens of Annapolis, was heard the sound of arms over the rates to be paid the established clergy. When the fee-bill expired in 1770, provision for the clergy failed, and the question arose under vihat statute they would receive their tithes. Many contended that the statute of 17(J2 revived. This gave the clergy forty pounds of tobacco per poll instead of thirty, that they now received. It was Mr. Samuel Chase's opinion, given to the Eev. Mr. Barclay, first on April 3rd, and next on May 29th 1772, that the clergy had the right to sue on the sheriff's bond for the tobacco, and the sheriff himself 156 FIRST CITIZEN AND ANTILON. for money had and received. The sheriff could levy on the delih-' quent's property for these amounts as for other unpaid taxes. No discretion was left to the county courts to make the assess-, ment. The sheriff had to collect. The question itself was at besfe difficult. The issue became more involved when the validity of; the act of 1702 was attacked. It was claimed that the act was, invalid because King William III, in whose name the legisla-; ture had been summoned, had died before the assembly had met and passed the law. Answer was made to this that, then, if the act of 1702 was not law, the act of 1700, repealed by the statute of 1702, was still in force, and that, also, made the rates of the clergy forty pounds of tobacco per poll. The replication to this was that the act of 1704 repealed all prior laws with few exceptiors, and that had taken force of the law of 1700. Rejoinder was made by the friends of the clergy that the act of 1701 confirmed the act of 1702, and that four succeeding statutes recognized the latter act as a binding law. Others claimed for the clergy that the act of 1700 had pre- served the rights of the clergy. It- can be well imagined what a ripple of excitement was created in the midst of the already animated city when the two earlier opinions of Chase, now a leading and violent partisan of the people's party against the clergy, were pub- lished in the Gazette. To defend Mr. Chase from this flank attack on his new position, it was claimed that one of the. opinions, at least, was a forgery. Other friends of Chase's held that the opinions were carefully guarded, merely stating what the law would be if the statute were valid. The foes of Mr. Chase accepted no excuses, but claimed that his former opinion on the statute "gives undoubted testimony" as to the vitality of the law and was a proof of the inconsistency of Chase in his bitter addresses in the Lower House of Assembly against the act. Occupying a large portion of the Gazette was the corres- pondence of the advocates of the clergy and those, who stood in opposition. Samuel Chase, Thomas Johnson, and William Paca maintained the discussion in opposition to the forty rtOMLllNOE eden's apministeation. 157 pounds of tobacco per poll for the clergy. The validity of the act of 1702 was sustained in a vigorous and powerful argTi- ments bv the Rev. Jonathan Boucher, rector of St. Anne's Church, Annapolis. Himself lio lawyer and with three of the brightest intellects of the law against him, Mr. Boucher sup- ported his position with rare ability and extraordinary force. Mr. Paca advanced strong arguments against the constitu- tionality of the act of 1702. He quoted precedents showing that all similar statutes, passed after the death of the sovereign, in whose name the legislature had been called, had to be expressly confirmed by subsequent acts. One occurred in Maryland after the death of Charles Lord Baltimore. He held, therefore, that the act of 1702 was void when passed, and had never been properly confirmed. Many writers took opposing sides ; but none equalled in length, interest or ability the correspondence that was maintained between Chase, John- son and Paca on the one side, and the liev. Mr. Boucher on the other. The keen personal allusions and direct thrusts of the rector at his opponents gave additional flavor to the cogency and fierceness of his arguments. 15S FIEST CITIZEN AND ANTILON. CHAPTER 12. THE FOURTH LETTER OF ANTILON, 1773. Mr. Dulany now ^^Tote his fourth and last letter in reply to First Citizen's third letter. The communication of Mr. Dulany appeared in the GuzefU: of June 3, 1773. The letter in full was : " Dti.reyis lit nen)i« aluitif: iinilnle lignii iii ."' Hor. Thou thing of wood, and wires by others play'd. Fbancis. "The Citizen in a former paper expressed his expec- tation, that 'lawyers would not be wanting to undertake a refutation of Antilon's legal reasoning, in favour of the procla- mation,' and signified it to be his design to examine the measure, on the more general principles of the constitution. His expectation I am induced to believe from various circum- stances, from occurrences extrinsick to the last performance published with his signature, and from the many peculiar marks with which the work abounds, has not been disap- pointed. The artifice of this shifting management obliges me to enter into a minute detail, and in this to repeat some pas- sages of my former letters, for the jDurpose of giving a plain view of the subject, which my adversaries have endeavoured to perplex by their cavils, and obscure by their declamations ; for I am persuaded that the better the measure, which has been branded with the character of an arbitrary tax, is under- stood, the more will its legality, and expediency appear. "When the late inspection law expired, as there remained no regulation of the fees of officers, so would they have had it in their power to commit excessive exactions, if there existed no competent authority to restrain their demands, or if such CtO%'E1!NOII EDEN's .U)MINISTBATI0N. 159 authority did exist, and was inactive. If such authority i existed before the temporary act was made, it of course revived on the expiration of this act, and no declaration, or resolve of the lower house could prevent the exercise of it ; because if the "authority was competent, its competency was derived from the law, which can't be abrogated, altered, or in any manner controuled, but by an act of the whole legislature. The question relates to old or conMitiAtioniil officers, who are supported not by salaries, but by casual fees, whose incomes are not fixed by stipend, but turn out to be more or less according to the services they perform. As the offices are old and i-onsfihdlonal, and thus supported by incidental fees, so is the right, to receive such fees, old. and consfiintioncd. There have been, as will appear hereafter, difierent regulations of these fees at different periods, none of which remained, when the late inspection law expired. The officers, being entitled to these rewards for their support, they could not be guilty of "^'extoriioii merely for receiving fees — when they perform services. They could not commit extortion, but by taking Jar(jcr fees than they ought, and consequently, without some positive rule, or standard, it would not be extortion, if an officer should exact mn/ fees for his services. In this situation, when there was no regulation of fees, no restriction of the demands of offi- cers, the proclamation issued, with the professed design of preventing the excessive exactions of officers, and for this pur- pose ordered, that, no officer should receive (jrecder fees, than the rates settled by the then last regulation, under pain of the Clovernor's displeasure, which rates were the most moderate of any, that had before been established, and in consequence of the falling of the inspection law, less beneficial to the officers. Such in substance is the proclamation. It has, however, been objected, that it did not proceed from the profvHi^ed design of preventing extortion; but the r<':, or the exception stands on a mere suppositif)n to evade the force of my conclusion, without any proof to support it. Now I call upon my adversaries to jjrove, on the principles of our constitution, that there are cases of tax, warranted by usage, linon-n to have received no legishitivt^ sanction, but to have been established by the lords or com- mons, the upper or lower house of asseiul)ly, separately, or by 11 162 FIEST CITIZEN AND ANTILON. the judges. If they fail in their proof, my argument, that ' no tax can be imposed except by the legislature ; but fees have been lawfully settled by persons not vested with a legislative authority, consequently the settlement of fees ia not the imposition of a tax,' remains in full force. If the original settlement of any fees was a tax, it continues a tax, if it was not a tax, it can't become so from the acts of officers, and parties receiving, and paying the fees. The (irujiu of it being ■uHi-ertaiiied, 'and not left to prvsmiijitioii, if the settlement of iees was originally a tax, and therefore unlawful in the com- mencement, the usage, or, in other words, the repeated acts of paying, and receiving, can't make it lawful : for it is an estab- lished maxim of law, if, on enquiry into the legality of custom, or and afteudauce are established fees,' a position which corresponds with Hawkins doctrine. Coke's exposition of the statute de tallagio non concedendo is again cited. 'All ueir offices erected with new fees, or old offices with new, fees, are a tallage (or tax) put upon the subject, and therefore can't lie done without common assent by act of 'pa/rliamient .' Whenever therefore, a fee 164 FIRST CITIZEN AND ANTILON. is a tax, it can't be established wit/totif a// ii the not hefore, duv, but fixing their rates, be a tax, or not. " Objection. The council advised the regulation of fees. Such of the provincial judges as were of the council, concurred in the advice. The legality of the regulation may be ques- tioned before them, as judges ; but this question was, ' //) mine degree,' prejudged by the advice they gave in council. The court of appeals is constituted of the council, and the question may ultimately receive a decision in this court. The council in Nov. session 1770 declined giving an opinion upon the question put by the lower house, ' whether any officer had been guilty of extortion by the usual charges,' upon this principle, that 'it might come before them for decision in the court of appeals.' *Conflclent, and boisterous, of such bitterness of speech that he would outstrip the Sisennae, and Barri (most infamous for their Tirulence) if ever so well prepared to exert their talent. t — " When two hundred waggons croud the street, And three long funerals in procession meet. Beyond the fifes, and homes his voice he raises, And sure such strength of lungs a ponderous praise is." Feakcis_ 13 178 FIBST CITIZEN AND ANTILON. "Answer. Upon the principle of this objection, the judge's ought to establish no rule, 'till the legality of it is brought in question before them by the contest of parties, because the rule would, in some degree prejudge the question of its legality, which a party may choose to advance, therefore no rules or ordinances ought to be made by the courts, 'till a case between A. and B. is brought before them, and lawyers heard pro, and "Con, on the legality of them. This objection is, to be siire, very ingenious, though an observance of the method suggested is liable to the dull exception, that it would promote litigation, and a considerable consequential expense. The judges, with- out paying •a.jtisi regard to the principle, have settled the rates ■of fees ; they have occasionally informed themselves, by iiiipai)- eUing a Jury of off>cer><. The rates of fees have been settled in cimsequence of a royal commission issued on the address of the commons — the commons in 1752 thought the establish- ment of fees, the proper means of preventing excessive exac- tions. Various orders, and regulations of practice have been established h\ the courts, frequent have been the conferences of the judges for the purpose of settling general rules, and an uniformity of conduct. Judges have been called upon, in council, to advise their sovereign on questions of law. Judges, in inferior jurisdictions, have acted as judges, in the house of lords in the same cause. In all the cases put, the objection would apph' with equal force ; but I suspect, he would be deemed to be rather an odd sort of a person, who should make it, in any of them — it would be a very difficult thing, such are the uarroiv prejudices of judges, to establish the liheral senti- ment — expedit reipublicae ut (»()».) sit finis litium, (it would be of publick advantage to have no end to siiits,) and bring into contempt the adage, misera est servitus, ubi jus est vagum, (wretched is the slavery where the law is unsettled.) The question put l)y the lower Ik >use, and which the iipper declined answering, related to the construction of an act of assembly, and transactions under it, whether certain charges were crim- inal or not, and consequently \\het\ieT penallivs hml hnm hinirrcd or not. The principle, on whicli the upper house acted, will GOVERNOR EDEN'S ADMINISTRATION. 179 best appear from their own words. | The regulation of fe63 was in prospect, the question was put to obtain an,answer, with retrospect. The one to prescribe a rule for the future conduct of officers, the other to draw a censure, of what they had done. " Objection. Two of those, who advised the governor, were interested, and if a suit be brought before twelve judges, and two of them plaintiffs, should those two sit in judgment on their own case, and deliver their opinions in favor of their own claims, the judgment would be void. Besides in the present cases the other advisers might be swayed by the prospect of a remote interest. The governor, as chancellor, might decree his own fees, under his own regulation, or refuse to affix the seals, without immediate payment. "Answer. This is putting one case, in the place of another of a very different nature. The advisers of the proclamation, restraining the officers, did not act in the cupucliij of judjjes ; it flowed from the governor's authority over officers removeable by him, and as I have already said, his conduct was not to be dii'ected by the votes of the majority of the advisers, they having no authoritative influence. I have already shewn that Lord Hardwicke had the advice, and assistance of the master of the rolls in settling the tables of fees, in which the fees, due to the latter, were included — that officers, and clerks of the courts have assisted the judges in their establishment of tables of fees. Their opinions were not binding, but their t"The questions, as you have proposed them, are of a very extraordi- uary nature, and of a tendency inconsistent with the spirit of our consti- tution. The resolves, or declarations of one, or both houses, however assertive in opinion, and vehement in expression, are not laws, nor ought they to he promulgated to influence the determination of the legal appointed courts. Juries, and judges ought there to give their decisions without prejudice, or bias. Whether any officer has been guilty of extor- tion, is a question, which neither your, nor our declaration ought to preju- dicate ; but that our declarations held out to the publick would have, in no small degree, this efEect, can hardly be doubted, and on our part, par- ticularly such a declaration would be the more improper, the last legal appeal in this province being to us ; it would be to anticipate questions before they come to us through their regular channels, to decide first, and hear afterwards." 180 FIR8T (CITIZEN AND ANTILOX. information was called for. The authorit}' to regulate was reposed in«the chancellor, and judges, and the establishments flowed from iJieir authority. As to the suiDposition that the other advisers might be swayed by their prospects, it is of such a kind, that it may be applied on all occasions — it may be applied to the iiiokI oioleid (leniat/oijiivs and ('.rperieiice would give it a colour. The absurdity in supposing, that the gov- ernor is included in a proclamation threateniDg those officers with his displeasure, who should not obey hin orders, has been sufficiently exposed. If he should have occasion to sue for fees due to him as chancellor, he could not, in the court, where he is the sole judge. He receives his fees now, and would be equally entitled to receive them if the proclamation had not issued. This part of the objection is not more extraordinary, on actount of the extreme ignorance it Ijetrays, than on this, that the fee for the seals was the same in all the proposed regulations. " Objection. Any person, the /rrf.s/ acquainted with the arguments in favour of ship-money, and the dispensing' power, will perceive that Antilon's defence of the regulation of fees is a repetition, and revival of them ' ti icked off in a new dress to hide their deformity, the lietter to impose on the unthinking and unwary.' "Answer. A person, the least acquainted with those argu- ments, may ivuujine they have been revived ; but no one, loell, or (■/•('// a little acquainted Avith 'em, caia. The assertion of the objectors is at random. They might as well have called the defence, a papal anathema, or bull in caena Domini — such imputations, unsupported by proof, would almost disgrace the character of a spouting declaimer, too contemptible to be regarded. " Objection. That the argument from precedents doth not prove the right; it proves nothing more than a deviation from the principles of the constitution, in those instances, wherein the po\\er hath been illci/dlly exercised — that the inference from the precedent in New-York ought to be treated with GOVEENOR EDEN's ADMINISTEATION. 181 great contempt, perhaps, even with some indignation, and a pamphlet is quoted to shew, that the arguroent from precedent ' is inconsistent with the doctrine advanced by the author of it. The quotation is too long to repeat here, and therefore I refer the reader to the Citizen's last letter. "Answer. This pointless shaft hath been before thrown, without reaching the object, and ' if I comprehend it right,' there would be no difficult}' in ascertaining the quiver, whence it was supplied. " ' The use of precedents, must be perceived, when the incon- veniencies of contention, which flow from a disregard of them are considered and especially when they are severely felt ; when we reflect, that the intercourse of the members of politi- cal bodies, the measures of justice in contests of private property, tne prerogatives of government, and the rights of the people are regulated by them.' (See the message from the upper house, December session 1765.) "But I most readily admit that, 'if what has been done, be icronij it confers no right' to repeat the wrong, that 'oppression, and outrage can't be justified by instances of their commission,' and that 'if a measure be incompatihle with the constitutional rights of the stitij'ecf, it is so far from being a rational argument, that consistency requires an adopjtion of the proposed measure, that, on the contrary, it suggests the strongest motive for abolishing* the precedent, and therefore when an instance of deviation from the constitution is pressed, as a reason for an establishment striking at the root of all liberty, it is inconclusive.' " The precedents, I have cited, directly apply. I have not attempted to draw any consequences from them, in support of a 'measure incomjDatible with the constitutional rights of the subject, or an establishment striking at the root of all liberty.' The common law results from general customs, precedents are the evidences of these customs, judicial determinations and decisions the most certain proofs of them, and the arguments therefore from precedents, the practice of courts, the decisions 182 MEST CITIZEN AND ANTTLON. of judges respectable for their knowledge, and probity, and from the convenience of uniformity, are of great weight. I have proved that justice can't be administered, nor the laws duly executed without a settlement of the rates of fees, that an authority to settle them is necessary to the protection of the people, who, if officers were not restrained, would be exposed to the hazard of very great oppression. The con- clusion, I confess is not very favotirahle to the Jiheral sentiments, and generous views of those, who are adverse to the narrow restrictions of si/steni.atical certairitij, and if aJloiced to choose their ground would, like Archimedes, undertake to turn the world, which way they please. " ' You knew me of okV You have the advantage, if your memory hath not been impaired, for / did not know you and yet Cimex, you have my wish, • ut dique, deaeque, Vestrum ob consilium, donent tonsore * take back your shaft, and preserve it. There may be a future occasion, for its use. " Objection. If fees may be settled at one time, they may be increased at another, as happened in the year 1739, when the fees of shei'iffs were increaset called by the general suffrage, nor perhaps, by the deliberate choice of his master himself.' Dedication to the dissertation upon parties. " The noble author of the dissertation upon parties begins his fourth letter with the following sentiment taken from Cicero's treatise on the nature of the gods — 'Balbus, when he is about to prove the existence of a supreme being, makes this observation (opinionum commeuta delet dies, naturae autem judicia confirmat) : Groundless opinions are destroyed, but rational judgments, or the judgments of nature, are confirmed by time.' The observation may be applied to a variety of instances, in which the sophistry and ingenuity of man have been employed to confound common sense, and to puzzle the understanding, in order to establish opinions suited to the viewn of interest, or of power. "An examination of Antilon's arguments, and answers to mine, will show how forcibly the judicious remark of Balbus applies to the legal subtleties and metaphysical reasoning of GOVERNOR EDEN'S ADMINISTRATION. 197 my adversary. I shall take his arguments and his answers nearly in the order they occur in his last paper. "The revival of the governor's authority to regulate the fees of officers, on the expiration of the inspection law, is admitted, provided that authority had, a legal existence ; but the legality of the authority is denied ; for, whether it be legal or not, is the very matter in debate — ' The officers being old and consti- tutional, and supported by incidental fees, the right to receive such fees is old and constitutional,' and therefore my adversary would infer, that the fees settled by proclamation are old and constitutional. " This inference does not follow from the premises notwith- standing the crafty insertion of the word suvli. The officers being old, the right to receive fees may be old ; but the question recurs, what fees'? of whom? wh e3:^_j[sa.idps the authority of fixing tl)£jate*.2._fqr, fixed they must_bej„by some ajithoritv- That they may be fixed by the legislature, is admitted on all sides ; should the different branches of the legislature disagree about the settlement, what authority must then interjDose, and settle the rates hitherto unascertained ? , Antilon conlends-tliatin such case, tlie_ supreme magistrate, or .acting_und£rj!^authority.iielfigai£d_frqmTim, may settle_tliem^__If_this doctrine be constitutional^ what security have we against the impr>sition~of Excessive fees? Does it not give a "discretionaiy power to the governor of making what provision he may think proper for his officers, and of rendering them independent of the people? When a service is per- . formed, the performer is clearly intitled to some recompence, but whether he is to receive that recompence from the person served, or from another, may be a matter of doubt ; the quantum of the recompence may not be ascertained, either by contract, by usage, or by law ; and then in case of a dispute, must be settled by the verdict of a jury. "If the authority to regulate the fees of officers by proclama- tion be illegal, the proclamation can prevent the extortion of officers only by operating on their fears of the governor's 198 ITBST CITIZEN AND ANTTLON. displeasure, and of a removal from office ; ' But if the procla- mation had not issued prohibiting the officers from taking other, or greater fees than allowed by the late inspection act, then would the officers have had it in their power to have demanded any fees' "Their rapacity perhaps might have prompted them to demand most excessive fees ; but under what obligation were the people to comply with their exorbitant demands ? " Suppose a person should carry a deed to be recorded in the provincial office ; the clerk refuses to record it, unless the party will pay him fifty guineas; must he submit to this unreasonable exaction, or run the risk of losing his property by suffering his title to remain incompleat? To avoid that danger, the money is paid ; will he not be entitled to recover of the officer by the verdict of a jury, what they might think above the real value of the service? or suffering his title to remain incompleat, might he not sue the officer for damages, first tendering a reasonable fee adequate to the trouble and expence of recording the deed? Answer, Antilon, without equivocation, yes — or no. If the officer might be indicted for extortion, what benefit could the people expect from such a prosecution, when the power of granting a noli prosequi is confessedly vested in the government? The. present regula- tion, we are told — 'contains no enforcement of payment from the people, the officer being left to his legal remedy. ' There is not, it is true, any immediate enforcement of payment, unless indeed the officer should refuse to do the service, if not paid his fee, at the very instant of performing the service, which as I formerly remarked, would be in most instances an effectual method of enforcing payment. " Suppose the officer should not insist on an immediate payment, and that his account of fees should be contested : he brings an action to recover his fees, according to the very settlement of the proclamation ; to whose decision is this question to be left ? To the judges ? or to a jury ? If to the former, and they should be of opinion, that the governor has GOVEENOE EDEN'S ADMINISTRATION. 199 a riglit to regulate fees by proclamation, when there is no prior establishment by law, and the defendant should refuse to submit to the sentence of the court, he will be committed to jail, or the sum will be levied by execution of his effects ; distress, though delayed for some time, will surely overtake him in the end. Some of the judges discover a disinclination to remain in office ; they solicit a removal ; granted, and approved of ; others are requested to succeed them ; should we not have cause to suspect the rectitude of application made to men, who have publickly declared their opinion of the legality of the measure, attempted to be enforced by the sanction of the courts of justice? " Other methods may be employed to enforce the proclama- tion. The frowns of government will awe the timid into a compliance ; the necessitous cannot withstand the force of temptation, or the threats of power; the disobedient, and refractory must relinquish all hopes of promotion, or of pro- moting their friends ; who have favours to ask at court, must merit court-favour by setting examples of duty, and sub- mission. "It has been alleged that fees are taxes; to prove the assertion, the authority of Coke, and reasons grounded on the general principles of the constitution have been produced : mark, how Antilon has endeavored to get over the authority, and confute the reasons. One of the great objections to the proclamation is, that it imposes a tax on the jDeople, and con- sequently is competent to the legislature only. Antilon con- tends, that fees are improperly stiled taxes, because they have been settled by the separate branches of the legislature, which only can impose a tax. I have already exposed the sophistry of this argument, I hope, to the satisfaction of the unpre- judiced ; some farther elucidation however, may be necessary to men not thoroughly conversant with the subject. The lords and commons, and the upper and lower houses of- assembly have each separately settled the fees of their respective officers by the particular usage of parliament, which must be deemed an exception to the general law, and ought, as all 200 FIRST CITIZEN AND ANTILON. exceptions, to be sparingly exercised, and in such cases, and in such manner only, as the usage will strictly warrant. It was foreign to my purpose to inquire into this usage, custom, or law of parliament, to investigate its origin, or to examine its constitutionality. On an inquiry, it would perhaps be found co-eval with parliaments. But do you, Antilon, admit the right of the lower house to rate the fees of its officers? If you do not admit the right, to argue from the mere exercise of it, is certainly unfair in you. You still insist that I have admitted the right of the judges to settle the fees of officers attendant on their courts ; be pleased to turn to the passage in my answer to your first paper, part of which you have cited, and then be candid enough to acknoledge, if you have not wilfully misrepresented, that you have mistaken my meaning. "The major proposition, that taxes cannot be laid, but by the legislature, I have admitted with this exception, 'saving in such cases, itc' " It was not incumbent on me to prove the exception, it is sufficiently proved by the jc>urnals of parliament ; the rigid, or the power, if jovl like that word better, has been fre(|uently exercised, whether constitutionally, or not, is another question. The two _ houses _ of parliament are. -the,, sole judges of their own privileges, with which I shall take care not to intei'meddle. Inconsistencies in all governments are to be met with; in ours the most perfect, -s^hich was ever established, some may be found. "A partial deviation from a clear and fundamental maxim of the constitution cannot invalidate that ma.rim. " To explain my meaning. It is a settled principle of the British constitution, that taxes must be laid by the whole leg- lature, yet in one instance, perhaps in more, the principle hath been violated. The sep;irate branches of the legislature have settled the fees of their own officers Antilon has inferred from that exception to the general rule, or maxim, which exception should be considered as the peculiar privilege of GOVERNOR EDEN'S ADMINISTRATION. 201 parliament, 'that fees are not taxes.' He has admitted, (if I comprehend his meaning) that fees are sometimes taxes, that is, when imposed by the legislature ; but when regulated by the judges they come not within the legal definition of a tax. "Thus the fees regulated by the late inspection law were taxes : the same fees now attempted to be established by proclamation cease to be taxes because regulated by an auth- ority distinct from the legislative; but are their nature and effects altered by these two different modes of settlement? should an act of parliament pass for the payment of the identical fees, said to be paid to officers, under the sole authority of the judges ; according to Antilon's doctrine, the fees thus established by act would become instantly taxes ; but are they less oppressive, because settled by the discretion of the ju dge s? I presume to think theni more oppressive, l^ecause ,oL a . EQore dangeroiis tendency, particularly if on a disagree- ment between the branches of 'the legislature, that authority may interpose, and establish the very fees, and along with them a variety' of abuses, which" the representatives of the people wish to have reformed. ' The judges are not governed by the law of parliament, they have no authority to tax the subject, but their allowance of fees to their necessary officers is lawful' — of auck'iit fees — admitted. I had observed — ' li does not oppenr that the judges hare ever imposed new fees by their sole autlioriiy .' In answer to this Antilon remarks: — 'that the fees when originally allowed were new, and the allow- ance being made by the judges therefore they originally allowed new fees, and if fees were originally taxes when new, they have not ceased to be taxes in consequence of the frequent repeti- tion of the acts of payment and receipt, and of their havgin obtained the denomination antie id fees' — It will be proper to remind Antilon of another observation, which I made in vaj former papers on this very subject, and of which he has taken no notice. The King originally paid all his officers out of his own revenue; the subject was not taxed to support the civil establishment; in extraordinary emergencies, as foreign, or 202 FIRST CITIZEN AND ANTILON. civil wars, tenths, fifteenths, and other impositions were granted by the commons in parliament to defray extraordinary expenses. " It was consistent with the principles of the constitution, and agreeable to justice, that the King who paid all his officers out of his own purse, should have the right of ascertaining their salaries, or of delegating that right to his judges. " The antient fees so often spoken of, were those perhaps, which the King formerly paid, and were settled by the judges. I say perhaps, for in a matter so obscure, it would be rash to pronounce decisively. If I am right in this conjecture, antient fees were not originally taxes, because not paid originally by the people. Ancient usage according to Bacon gives fees an equal sanction with an act of parliament, upon this principle I apprehend, that sncli fees are presumed to have been originally established by the proper authority, although their com- mencement and the authority, which imposed them at this day be unknown — 'At common law, none of the King's officers, whose offices did «//// ivaij concern the administration of justice, could take any reward for' doing their office, but what they received of the King' — These words are sufficiently compre- hensive to take in all the inferior ministers and officers of the courts of justice. The fee of 20s. commonly called the bar fee — was 'an antient fee, says Coke 1al-en time tint of mind by the sheriff — of every prisoner acquitted of felony;' and there- fore according to the above fii'inciple laid down by Bacon, acquired an equal sanction with fees established by law — 'an office erected for the publick good, though no fee is annexed to it, is a good office, and the party for the labour and pains, which he takes in executing it, may maintain a quanfnni meruit, if not as a fee, yet as competent recompence for his trouble.' This clearly relates to an office newly erected ; but what follows seems to include the unsettled fees of all offices new and old. ' Where a person was libelled in the ecclesiastical court for fees, upon motion, a prohibition was granted — for no court has a power to extahlish fees ; the judge of the court may think them reasonable, but this is not Imnliinj.' But if on a GOTEENOH EDEN'S ADMINISTRATION. 203 quantum meruit — a jury_ think them reasoncMe, then they become established fees — probably the fees, which now go under the denomination, antieut fees, and not expressly given by act of parliament, were originally established by the verdict of a jury, and their having been long allowed by the courts of justice, may be deemed presumptive evidence of such estab- lishment. The method of reforming abuses in the courts of justice by the presentment of experienced practicers upon oath, appointed by the judges, to enquire what fees had been exacted other than ' the antient and usual fees,' seems to favour this conjecture. "'In the year 1743 an order was made in chancery by Lord Hardwicke reciting, that the King upon the address of the commons, had issued his commission for making a diligent and particular survey, and view of all officers of the said court, and inquiring what fees, and wages every of those officers might, and ought lawfuUji to have in respect of their offices, and what had of late time been unjustly incroached, and imposed upon the subject ttc' — 'Then are added' — continues Antilon ' tables of fees of the respective officers, and among the fees settled by this order are the fees of tjie master of the rolls, ' who advised and assisted the chancellor in making the settlement. How is this transaction to be reconciled with the doctrine of Hawkins, ' that the courts of justice are not restrained from allowing reasonable fees to their officers, as the chief danger of oppression is from officers being left at liberty to set their own rates and make their oion demands?' In this instance certainly, if by the settlement aforesaid an imposition of new fees, and not an authentication of the old and established fees be understood, the master of the rolls was advised with, and assisted in settling his own rates. Is this proceeding consonant to the principles of justice? What says Hawkins ? ' There can't be so much fear of abuses when officers are restrained to knoivn and stated fees, settled by the discretion of the courts, because the chief danger of oppres- sion' — &c. Should the judges be any ways interested in the 204 FIIIWT CITIZEN AND ANTILON. settlement (A) of their officers' fees, would not the reason assigned by Hawkins for the interposition of their authority, in the manner explained by Antilon, operate most forcibly against the exercise of it ? ^ _ Would it for instance l^e agreeable to equity and natural justice, to permit tTie secfelary of this province to settle the fees of the county clerks, on the gross amount of whose lists he receives a clear tenth ; carry the case a little further : suppose the jDractice had long prevailed of offering the secretary a genteel present on every grant of a commission for a county clerkship, "^'ould it not be' his interest to enhance the value of county clerkships^? The gratuity would probably bear some proportion to the value of the place bargained for. Do the judges in Westminster-hall receive gratuities on granting offices in their appointment? — If they do, Hawkirs' reason is felo de se — it is the strongest that can be urged against the power, which it is meant to support. " If the judges have an interest in the offices in their dis- posal, a discretionary power to allow fees to their officers, is in some measure a power of settling their own raics and making their ivcii derinnnh. Coke's authority proves most clearly, that new fcvH annexed tophi offices are taxes ; whether the fees settled by proclamation are new fees remains to be considered; 'fees, says. Antilon, may be due without a precise settlement of the rates, and the right to receive them, may be co-eval with the tirst creation of the offices, as in the case of our old and constitutional offices ; when such fees are settled they are not projDerly new fees, and therefore a regulation restraining the officer from taking beyond a stated sum for each service, when he ^vas before intitled to a fee for such service, is not granting or annexing a uew fee to an old office.' " The question therefore is now reduced to these two points — 1st. Has not government attempted to settle the rates of officers' (A) If such settlement implies a discretionary power in the judges to fix the precise rates to be paid to their officers, when they are not fixed by ancient usage, the verdict of a jury, or by act of parliament. GOVEENOK EDEN's ADJnNISTEATION. 206 fees by proclamation ? 2dly. Are not fees so settled — new fees ? If tliey are, upon Antilon's own principles, government hath no right to settle them. The restraint laid on officers, by the proclamation from taking other or greater fees, than allowed by the late regulation, can be considered in no other light, than an implied affirmative allowance to take such fees, as were allowed by that regulation, and of course must be deemed an intended settlement of the rates. (B) The fees payable to our old, and constitutional officers, have been differently rated, by different acts of assembly ; those various rates, were never meant to be extended beyond the duration of the temporary acts, by which they were ascertained, for, one principal reason of making those acts temporary, we have seen, was to reduce the rates occasionally, and to lessen the burthen of them. On the expiration therefore of the late inspection law, the regula- tion of officers' fees expired with it, that is, there remained no obligation on the people to pay the rates settled hj that, or any former regulation, and consequently the fees, as to the quantum, or precise sum, were then unsettled. Government entertained the same opinion, and issued a proclamation to ascertain the rates, or as is sometimes pretended, to prevent extortion, because the rates being unsettled, the officers might have demanded OH?/ /ees; the fees therefore not being settled, when the inspection law fell, the settlement of them by procla- mation was a new settlement, and of course the fees so settled were neiv ; but new fees according to Cokecatanot be annexed to old offices unless— by IuJF6f~parTiament ; his authority there- fore, -even- asr~esplaiued by Antllon,,. proye§_tiha,t- a settlement by proclamatton of _feej„ due,- to a^,-Offices_jsniegal. A mere right in officers to receive fees, cannot be oppressive; the actual receipt only of excessive or unreasonable fees is oppressive, now, who are the properest^ JHilS?^ whether fees be excessive or moderate ? Officers certainly are not, the same objections which" may be made to their decision, apply to the governor, and most of them to the judges — (B) I say intended, because the settlement by proclamation being illegal, is in fact no settlement. 206 FIRST CITIZEN AND AKTILON. juries may be partial, or packed. All these considerations plead strongly for a legislative regulation, which is liable to none of the objections hinted at. The doctrine laid down by Antilon in opposition to Coke's, teams with mischief and absurdities — ' Old officers have a right co-eval with their insti- tution to receive fees,' the inference ihereiorejjvheii their fees are not ascertained by the legislature, tJie judges may ascertain- them ' is by no means. logical, it coutradicts the most notorious and settled point of the constitution, it lodges a discretionary power in the judges appointed by the crown, and formerly removeable at pleasure, to impose excessive fees, and conse- quently to oppress the subject, without a possibility of redress, should the king, or lords refuse to concur with the commons in passing a law to moderate the rates, and to correct abuses — ' The governor adopted the late rates as the most moderate of any' If he might have adopted any other rates, his exceeding lenity deserves our ivarmest thanks; but then we are more indebted to his indulgence, than to the limitation of preroga- tive ; we cannot therefore be said to^ enjoj true liberty, 'for that, (as Blackstone justly observes) consists not so much in the gracious behaviour as in the limited power of the sover- eign.' According to Antilon — 'The late regiilation of fees expiring with the temporary act, the governor's authority to settle the rates revived,' and he insinuates, ' that it was optional in him to adopt the rates of the late, or of any prior regulation, or even to prescribe rates intirely new.' If the old and constitutional officers have a right to receive fees, have they not, it may be asked, a remedy to come at that right, and if so. What remedy ? The remedy, which the constitution has given to every subject under the protection of the laws. If,a — contest . should arise betw^ei^Jh^of^ and the person for whom the service is done about the quahtiiih' of the recom- pence, the former must have recourse to the only^Tue, and constitutional remedy in that case provided, the trial by jury. Among other great objections to the proclamation, at least to Antilon's defence of it, are his endeavours to set aside that mode of trial, the best security against the encroachments of GOVERNOR EDEN'S ADMINISTRATION. 207 power, and consequently the firmest support of liberty. The person, who calls himself Antilon, has filed a bill in chancery for the recovery of fees principally due for services done at common law: b}- aj)pealing to the court of chancery, of which the governor is sole judge, and in whom, he contends, the will to ordain the rates, and the power to enforce them are lodged, he has endeavoured to establish a tyranny in a land of freedohi. (C) In answer to the declaration of chief justice Roll — I shall give the declaration of a subsequent chief justice, of greater, at least, of equal authority. The case I allude to is reported by Lord Raymond 1 vol. jj. 703 — It was asserted by council that the court of King's bench, or judge of assize respectively, would exert their authority and commit persons refusing to pay fees due to the old officers of the courts, and that this was the constant practice. 'But Holt, chief justice said, he knew of no such practice ; he could not com- mit a man for not paying the said fees. If there is a right, there is a remedy ; an indebitatus assunqisit will lie, if the fee is certain, if uncertain, a quantum meruit' — and in both instances, a jury is to be judge. From hence it may be col- lected, that when the fees claimed by the old and consiiiutioiKd officers were unascertained recourse was had to a jury, that their verdict might ascertain them. When fees are_djia_to old offic ers, and no t_§.&ttlBd-by -the legisIatureTa-jiHy-only, upon the principles of our constitution, can settle them. "The uniform practice of the courts cannot establish a doctrine inconsistent with those principles. 'If on enquiry into the legality of a custom, or usage, it appears to have been derived from an illegal source, it ought to be abolished; if originally invalid, length of time will not give it efficacy ' — It has been already noticed, that the authority exercised by the judges of settling fees, that is, of ascertaining the antient and legal fees, in pursuance of a commission issued by the King, on the address of the house of commons, is very difl'erent from the authority now set up, of settling fees by proclama- (C) See the governor's answer to the address of the house of delegates in 1771. 208 FIRST CITIZEN AND ANTILON. tion, issued contrary to the declared sentiments of the lower- house of assembly ; if judges in this province may settle fees, because the judges in England have settled them, in the manner above mentioned, where was the necessity of ascertaining fees by proclamation? Was it to influence and guide the decision of our judges? If they have a right to exercise their own judgment in settling fees, in fact, in imposing them, AVhy was a standard held up by the supreme magistrate for their direction? In setting up that standard, is it not notorious, that he was advised, and principally guided by the very man, who is most benefited by that illegal settlement? Notwith- standing the misrepresented power of the English judges to regulate fees, and the different orders of the courts in West- minster-hall, for restraining the exaction of illegal fees, the encroaching spirit of ofiice had rendered all the precautions of the judges ineffectual ; insomuch that the commons in the year 1730 were obliged to take the matter under their own consideration. I mentioned in a former paper that transac- tion. In consequence of the enquiry — a report was made by the committee in 1732 to the house of commons, from which I gave some extracts in my first answer to Antilon. It appears from the report, 'That orders had been sometimes made for the officers to hang up publickly lists of their fees, most of which lists are since withdrawn, or have been suffered to decay and become useless ; that the officers themselves seemed often doubtful what fees to claim, and most of them relied upon no better evidence than some information from their predecessors, or the deputies of their predecessors, that such fees had been demanded, and received ' — it is hereby evident, that the regula- tion of officers' fees had been long neglected, that in conse- quence of such neglect, excessive abuses had crept into prac- tice, and had grown from length of time into a kind of established rights : that a thorough discovery and reformation of those abuses required more time and attention, than the commons could spare from more important objects. As well might they have attempted to cleanse the Augean stables, a work, which the strength only of a Hercules could accomplish ; GOVEKNOR eden's administeation. 209 disgnsted with the tediousness and intricacy of the inquiry, they probably chose to refer the correction of abuses to the judges, men of integrity, and best acquainted with the prac- tices of their own oiScers, and of course, best qualified to reform them. It is asserted by Antilon that the legislative provisions do not extend to any considerable proportion of the fees of officei-s and therefore, that by far the greatest part of officers' fees hath been settled by allowance of the courts, and not by statutes — this fact may be admitted, and the inference he would draw from it be denied ; that judges have allowed fees to their officers in the first instance, without the intervention of a jury to ascertain them. If the judges have acted thus, they have certainly assumed a power contrary to the petition of right, contrary to this first and most essent ial p rinci]:ile of the constitution, .'that the subject shall not be compelled to contribute to any tax> tallage, aid, or otlier lih- c/nnyje, not set by common ^consent in parliament '— All levies of money from the subject, by way of loan, or benevolence, are also cautiously guarded against by the petition of right. The very puitiiKj or sviiing a tax on the people, though not levied, has been declared illegal; even a voluiifary imposition on merchandize granted by the merchants, without the approbation of parliament, gave umbrage to the commons, was censured and condemned. ' This imposition though it were not set on by assent of parliament, yet it was not set on by the King's nhsoJnfe power, but was granted to him by the merchants themselves, who were to be charged with it. So the grievance was the violation of the right of the people in setting it on without their assent in parliament, not the damage, that grew by it, for that did only tonch the merchants, who could not justly complain thereof, because it was their own act and grant ' — Petyt jus parliam. page H68, 369. — A tax may be defined a rate, settled by some publiok charge, upon lands, persons or goods. By the English constitution the power of settling the rate is vested in the parliament alone, and in this province in the general assembly. 14 210 FIBST CITIZEN AND ANTILON. "Representation has long been held to be essential to that power, and is considered as its origin : upon this principle the house of commons, who represent the whole body of the people, claim the exclusive right of Jraming__monej^l3ills, iind will not suffer the lords to amend them. The regulation of officers' fees in Maryland has been jgg herally" rna 3"e" by the assemblies. The authority of the governor to settle the fees of officers, has twice only, as we know of, interposed, but not then, without meeting with opposition from the delegates, and creating a general discontent among the people, a sure proof, that it has always been deemed dangerous, and unconstitu- tional. The fees of_officers, whether imposed by act of assem- h\j, or settled hj proclamation, must be "considered as a publick charge, rated upon the lands, persons, or goods of every inhabitant holding lands, or possessed of property within this province. That they have been looked upon as such by the officers themselves, is evident, from their lodging lists of their respective fees with the deputies from this province, to the congress at New York, who might thereby be enabled to make known to his majesty, and to the jDarliament, the great expence of supporting our civil establishment. The author of the considerations once entertained the same idea, but such is the versatility of his temper, such his contempt of consistency, that he changes his opinions, and his principles, with as little ceremony as he would change his coat. Speak- ing of the sundry charges ( m tobacco — ' The pLrnter (says he) pays a tax, at least, equal to what is paid by any farmer of Great-Britian possessed of the same degree of property, and moreover the planter must contribute to the support of the c.V2n'iisivc hdvrnal (jovcrninvnt of the coJcunj, in which he resides.' Nov^, the support of civil officers, unquestionalilj- constitutes a part of that expence — he then refers to the appendix, where we meet with the following note : " ' The attentive reader will observe, that the nett proceeds of a hogshead of tobacco at an average are 44; and the taxes Si! together 1 £. — Quaere — how much per cent, does the tax amount to which takes from the two wretched tobacco colonies GOVBRNOK EDEN's ADMINISTRATION. 211 3X out of every 7£ — aucl how deplorable must their circum- stances appear when their vast debt to the mother county and the aiiniiaJ harthei) of tJwir civil esiablishments are added to the estimate.' "Impressed with tlie same idea were the same conferrees of the upper house in the year 1771. In their messages of the 20th of November they assert — ' Publick offices were doubtless erected for the benefit of the community, and for the same purpose are emoluments given to support them.'. All taxes whatever are supposed to be imposed, and levied for the benefit of the community. If then fees are taxes, or such lilx cJutrges, it may be asked, how came parliaments to place such confi- dence in the judges, as to suffer them to exercise a power, of which those assemblies have always been remarkably tenacious, and which is competent to them only? I might answer this question by asking another ; how came many unconstitutional powers to be exercised by the crown, and~suHered by parlia- ment? for instancJT" the dispensing^ jjower — the answer is obvious; it required the wisdom of ages, and~EEe~a6cumulated efforts ofjiatriotism, to bring the constitution to^ its jDresent point of perfection ; a thorough reformation could not be effected at once ; upon the whole the f abrick is stately, and magnificent, yet a perfect symmetry, and correspondence of parts _is wanting]; in some places, the pile appears to be deficient in strength, in others the rude and unpolished taste of our Gothic ancestors is discoverable — ' hodieque manent vestigia ruris. ' It does not appear in what instances, upon what occasions, and in what manner, the judges have allowed fees to their officers — that is have permitted them to take fees, not before settled by law, usage, or the verdict of a jury. The power if conclusive on the subject, and if exercised in the manner explained] by Antilon, is unjustifiable, and may be placed among those contradictions, which formerly subsisted in the more imperfect state of our constitution, and of which, some few remain even unto this day. How it came to be overlooked by parliament, may perhaps be accounted for somewhat after 2V2 FIRST CITIZEN AND ANTILON. this manner. The liberties which the English enjoyed under their Saxon kings, were wrested from them by the Norman conqueror ; that invader intirely changed the ancient constitu- tion by introducing a new system of government, new laws, a new language and new manners. The contests, which some- time after ensued between the Plantagenets, and the barons, were struggles between monarchy, and aristoci'acy, not between liberty, and j^rerogative ; the common people remained in a state of the most abject slavery, a prey to" lioth' "parties, more oppressed by a number of petty tyrants, than they probably would have been l)y the uncontrouled power of one. Towards the close of the lo^greign_of Heury the 3d., we meet with the first faint traces of a house of commons ; that house, which in process of tiTore, l>eeame tlie most powerful branch of our national assemblies, which gradually rescued the people from aristocratical, as well as from regal tyranny, to wdaich we ov.e our present excellent constitution, derived its first existence from an usurper. (D) Edward the first has merited the appellation of the English Justinian by the great improve- ments of the law, and wise institutions made in his reign. He renewed, au])nNISTEATION. 243 November, 1770, was illegal, arbitrary, unconstitutional, and oppressive. "Eesolyed Unaotmously, That the paper writing, under the great seal of this province, issued in, the name of the late Lord Proprietary, on the 24th day of November, 1770, for the ascertaining the fees and perquisites to be received by the registers of the land of&ce, was illegal, arbitrary, unconstitu- tional, and oppressive. "Eesolved Unanimously, That the advisers of the said proc- lamations were enemies to the peace, welfare, and happiness of this province, and the laws and constitution thereof. " Ordered, That the said resolves he printed, in the next week's Maryland Gazette, and be continued therein, six loeeks successively. Signed by order, John Duckett, CI. Lo. Ho." To weave the laurels that now encircled the brow of First Citizen into the perfect wreath of fame and honor, tradition tells us, that the Lower House conferred upon the illustrious writer a dignity unique in the annals of a legislative assembly. As one body, the members repaired to the stately mansion of Mr. Carroll on the Spa, and thanked him in person for the valor and success with which he had defended the rights of the people in his controversy with AntUon. 244 FIRST CITIZEN AND ANTILON. CHAPTER 15. REVOLUTION FOLLOWS RESISTANCE TO USURPATION. 1773-1776. For almost three years the Province of Mary- land was rent with internal dissension over this attempt of the Governor to usurp the taxing power in settling the fees of the officers of the government and in establishing the rates of the clergy. Angry contentions and bitter discussions had resounded from one end of the commonwealth to the other, the Governor, haughty and determined in his illegal course, the people sullen and positive in opposition ; all public transactions were filled with a harsh and angry spirit of an unusual severity. During the existence of these three years of conten- tion, the province was without any public system of tobacco inspection. This was a great trial and serious inconvenience to the people — as tobacco was the staple article of commerce and the chief revenue to the planters who constituted the main body of the people. Private associations of inspection had been formed to escape the rigors of trade produced by the want of a public inspec- tion. The general necessities of the people, for a Provincial system, opened the way to a compromise between the Governor and the Lower House on this particular point, and a general inspection law was enacted in 1773, and the Legislature passed, immediately afterward, an act regulating the fees of the clergy. One element alone of dissension remained — that of the regula- tion of the fees of public officers. That the Governor had right to regulate them by official proclamation had been the main cause of controversy — to this claim the Lower House would not yield, and the Governor would not retreat from his position. So the Province of Maryland stood bravely at GOVERNOR EDEN's ADMINISTRATION. 245 its post, resisting the right of any power, save the constitu- tional authorities of the Province, to lay any tax, or charge, or fees upon them without their consent, until the thunders of another and a more formidable revolution, though none the less as just and patriotic, were heard at the portals of the commonwealth. Governor Eden in June, 1774, made a visit to England. The position of the people of Maryland, on the new and more extensive issue, had already been shown to the Governor before his departure. On May 25th, 1774, the people of Annapolis had assembled in town meeting, and passed resolu- tions reciting "That it is the unanimous opinion of this meet- ing, that the town of Boston is now suffering in the common cause of America." The spirit of union, breathing in this vital resolution, was supported in a statement "that it was incumbent on every colony in America to unite in effectual measures to obtain a repeal of the late act of parliament, for the blocking up of the harbor of Boston." Then the city pledged itself to join in an association, throughout the colonies, to hrmk off trade ivith England, and to cease traffic luith any colony or jjrocince that will not join the association ! Gov. Eden returned to Maryland in November. In the meantime, June 22, 1774, the first State Convention prepartory of resistance to British encroachments, had been held at Annapolis, the intent of the Annapolis resolution of May was enforced, and delegates to Congress were appointed, and, on October 19th, the Peggy Stewart, with its hateful boxes of tea was burned. Then it was, November 8, 1774, that Eddis, the English collector of the port of Annapolis, and friend of the Governor, wrote : "The Governor is returned to a land of trouble." That the Governor had an arduous position, the stirring events, in progress about him, thoroughly indicate. The dignified and circumspect bearing of Eden is faithfully depicted by his ardent admirer, the solicitous Eddis, who on March 13, 1775, writes: "It is with pleasure I am able to 246 FIEST CITIZEN ANB ANTELON. assert, that a greater degree of moderation appears to predom- inate in this province, than in any other on the continent, and I am perfectly assured we are very materially indebted for this peculiar advantage to the collected and consistent conduct of our Governor, whose views appear solely directed to advance the interests of the community ; and to preserve, by every possible method, the public tranquility." On Maj' 13, Mr. Eddis writes : "The Governor continues to stand fair with the people of this Province ; our public prints declare him to be the only person, in his statioH, who, in these tumultuous times, has given the administration a fair and impartial representation of important occurrences ; and I can assert, with the strictest regard to truth, that he conducts himself in his ardiTOus department, with an invariable attention to the interest of his royal master, and the essential welfare of the province over which he has the honor to preside." Governor Eden was in the midst of difficulties that tried every measure of his talent and ability. On May 28, 1774, three days after the meeting of the citizens of Annapolis to express their sympathies with suffering Boston and to concert measures for the public defense, William Eddis wrote to England saying, "all America is in a flame! I hear strange language every day. The colonists are ripe for any measures that wiU tend to the preservation of what they call their natural liberty. I enclose you the resolves of our citizens; they have caught the general contagion. "Expresses are flying from province to province. It is the universal opinion here, that the mother country cannot support a contention with these settlements, if they abide strictlv to the letter and spirit of their associations." Events, portentious in importance to the Governor himself personally, now daily occurred around him. The June con- vention of the provincial deputies, chosen by the several counties of Maryland, reassembled at the city of Annapolis, November 21, 1774. The convention adjourned until Friday the 25th, when fifty-seven deputies were present. Mathew GOTEKNOR EDEN's ADMINISTBATION. 247 Tilghman, "the patriarch of the province," was chosen chair- man. The delegates, from Maryland, at the late continental Congress, presented the proceedings of Congress to the con- vention. These proceedings were approved by a unanimous vote, and the convention went forward with a calm and dignified bearing to assume the reins of government and to administer the affairs of State. Thus the Governor found himself sud- denly, by a bloodless revolution, transferred from the position of the chief magistrate of a prosperous province to the modest station of a private citizen and to the disagreeable attitude of a political prisoner. Yet, amidst the positive measures of the brave men who were the head and front of the new revolution in Maryland, the Governor was treated with marked considera- tion, and when the regulation went forth that all must join the association against British importation, and for kindred measures of opposition, the Governor and his family were the single exceptions to the command. It was a gloomy day for the Governor and his iew loyal friends who sought, as Mr. Eddis says, his agreeable company where, in the strained and cautious language of this earliest letter writer from Annapolis, "political occurrences engrossed their conversation in which hope appeared to operate but weakly with respect to the transaction of the times." With all the show of respect for the governor's title and his personal popularity, he was only a royal prisoner where he onoe ruled with lordly pomp and political authority. All of the Governor's letters had to pass the ordeal of examination by the new provincial officers appointed by the State convention. Eddis, hopeful to the last, writes that the Governor continued " to receive every external mark of attention and respect ; while the steady propriety of his conduct, in many trying exigencies, reflected the utmost credit on his moderation and understand- ing." The sentiments of the times in Maryland, as early as May 24th, 1775, were evinced by the passage of these resolutions by the State convention : 248 FIEST CITIZEN AND ANTILON. " Eesolved, That we acknowledge King George the Third as our lawful sovereign." " Eesolved, That the formation of militia he continued, and suhsa-iptuyns for the same he levied by the several counties." Loyalty to the king ! Legions for the people ! Reverence and revolution in the same resolution. The times were too big with conjflict for matters to remain in even this partially beatific condition for the Governor. In April, 1776, a vessel containing a packet of letters from Lord George Germaine, Secretary of State for the American Depart- ment, was seized by an armed vessel in the Provincial service. In the packet was a letter that acknowledged that Governor Eden had sent important information to the government, and Eden was assured "of his Majesty's entire approbation of his conduct, and was directed to proceed in line of his duty with aU possible address and activity." Gen. Lee, to whom the letter was sent, who had command of the Southern district, immediately despatched the letter to Maryland, with an urgent recommendation that the Governor be seized, together with all the papers and documents of his office. Important State secrets, it was thought, would be dis- covered. The Council of Safety in Maryland acted with great moderation in this critical and delicate situation. The State Convention had promised Gov. Eden his personal safety. The Governor, by his moderation, had won universal regard. The Whig Club, of Baltimore, almost precipitated matters to a crisis by urging that the Governor be arrested, and report went abroad in Annapolis that members of that body, — an extra- executive and unwarranted organization, — were on the way to the capital to seize the (^^overnor's person. The Council of Safety discreetly avoided haste and violence, and only recpiired the Governor to give his parole that he would not take any steps to leave America until after the meeting 'of the next State Convention. The Governor resisted this requisition for some time ; but it was unavoidable, and he had to give his word. This he did on April 16th. GOYERNOE EDEN's ADMINISTRATION. 249 Straining the critical situation still further, the Continental Congress urged, too, the seizure of the Governor. Maryland stood by its State's rights and its word, and acquitted itself — with the honor that always attaches to public events when Marylanders are called upon to act for their country's safety or credit. Virginia had joined in the request of Congress ; but, with all these forces accumulated to make the commonwealth unfaithful to its promise, the Maryland Convention kept its proffered word, and steadfastly refused to break its plighted faith to the Governor. On the seventh of May 1776, the Maryland Convention assembled at Annapolis. On the 23d, it resolved that Gover- nor Eden's "longer continuance in the Province, at so critical a period, might be prejudicial to the cause in which the colonies were unanimously engaged ; and that, therefore, his immediate departure fOr England was absolutely necessary." An address was ordered to be prepared and presented to the Governor. This was done the next evening by a Committee of the Con- vention. The address acknowledged the services rendered by the Governor to the country on many former occasions ; and it expressed the warmest wishes, that "when the unhappy dis- putes which at present prevail, are constitutionally accommo- dated, he may speedily return and reassume the reins of government." In this severe tension in public affairs and during the period of serious threatenings of violence to his person. Gov. Eden remained self-possessed and relied upon the pledges of the Maryland Convention to give him a safe-conduct out of the Province. On Sunday, June 23d, the British Erigate, Eowey, Captain George Montague, arrived to take Gov. Eden to England. The first Lieutenant of the ship came ashore under a flag of truce, the militia were under arms, and a general confusion prevailed in the city on the Severn. "Till the moment of the Governor's embarkation," writes Mr. Eddis, "there was every reason to apprehend a change of disposition to his prejudice. Some 250 FIRST CITIZEN AND ANTILON. few were even clamorous for his detention. But the Council of Safety, who acted under a resolve of the Convention, gen- erously ratified the engagements of that body ; and, after they had taken an affectionate leave of their late supreme magis- trate, he was conducted to the barge with every mark of respect due to the elevated station he had so worthily filled. "A few minutes before his departure, I received his strict injunctions to be steady and cautious in the regulation of my conduct and net to abandon my situation, on any consideration, until absolutely discharged by an authority, which might, too probably, be erected on the ruins of the ancient constitution. I promised," says Mr. Eddis, " the most implicit attention to his salutary advice; and rendered my grateful acknowledge- ments for the innumerable obligations he had conferred on me ; at the same time I offered my most fervent wishes that his future happiness might be in full proportion to the integrity of his conduct, and the benevolence of his mind. "In about an hour the barge reached the Fowey, and the Governor was received on board under a discharge of cannon ; his baggage and provisions were left on shore, to be forwarded in the course of the ensuing day. "During the night, some servants, and a soldier belonging to the Maryland regiment, found means to escape on board his Majesty's ship, which being almost immediately discovered, a flag was sent off, with a message to Captain Montague, demand- ing the restitution of the men, previous to any further com- munication. " Captain Montague, in reply, acquainted the council of safety, 'that he could not, consistently with his duty, deliver up any persons who, as subjects of his Britannic Majesty, had fled to him for refuge and protection ; he had strictly given it in charge to such pfficers as might be sent on shore, not to bring off any of the inhabitants without the express permission of the ruling powers ; but that the case was extremely different respecting those who had, even at hazard of life, given evidence of their attachment to the ancient constitution. ' GOVERNOR EDEN'S ADMINISTRATION. 251 " This message not being deemed satisfactory, a letter was dispatched to the governor demanding his interference in this critical business, with an intimation, that the detention of the men would be considered as a manifest breach of the regula- tion under which flags of truce are established. "Governor Eden received the officer with proper attention, but replied, he had only to observe, that on board his Majesty's ship, he had not the least authority ; and that Captain Mon- tague was not to be influenced by his opinion, as he acted on principles which he conceived to be strictly consistent with the line of his duty. "The event of this negotiation was disagreeable in its consequence to the governor. The populace were exceedingly irritated, and it was thought expedient not only to prohibit all further intercourse with the Fowey, but also to detain the various stores which the governor had provided for his voyage to Europe. This resolution was intimated in express terms ; and, on the evening of the 24th, Captain Montague weighed anchor, and stood down the bay, for his station on the coast of Virginia." Eight years after this dramatic departure of Governor Eden, a man broken in health, yet brave in spirit, came to Annapolis. It was Robert Eden. He sought the restitution of his prop- erty. A brief period of life remained to him, and, in the house now owned by the Sisters of Notre Dame, on Ship- wright street, — ^the mansion made famous by the novelist as the home of Kichard Carvel — the once lordly Governor of Maryland, on September 2d, 1784, of dropsy, superinduced by fever, at the age of forty-three years, died. Under the Episcopal Church, in old St. Margaret's Parish, on the North Side of Severn, overlooking the site of " ye antient capital " of Maryland, where once Robert Eden was its leading citizen and chief magistrate, the ashes of the last English Governor of the Province were buried. The sacred edifice has since perished in sacrificial fires; but the stone cross, over an 252 FIRST CITIZEN AND ANTILON. unlettered grave, still supports tradition in its legend that "here lies buried an English Lord." To that man of whom William Pinkney, " the greatest of advocates," said : — " Even amongst such men as Fox, Pitt and Sheridan, he had not found his superior;" who had been America's greatest defender with that weapon mightier than the sword in his " Considerations " against English taxation in 1765 ; who had given, it is believed, from all the proof at hand, the elder Pitt, his arguments in defence of the Colonies in Parliament in 1766 ; he, who is named as the projector and "Father of American Industries," that man who had never abandoned his belief that the English nation had no right to tax, without their consent, the American colonies ; was awarded the fate of the exile. The Whig Club of Baltimore demanded his expulsion from the Province. From Maryland Daniel Dulany went to England and his property was confiscated — the estates of a man who had never breathed an unfriendly breath to America and had never raised his hand in one overt act. After the Revolution, Mr. Dulany returned to Maryland, and settled in Baltimore. A new order of things had arisen. The talents of this distinguished jurist and statesman no more flashed from the lofty altitude of public position; for his supeiior ability, in the brisk atmosphere of the young Republic, was no longer recognized in ofiicial station. Dulany died in Baltimore, on March 19, 1797, in the 76th year of his age. To "First Citizen," came an illustrious career — a delegate to Congress ; a diplomat of the young nation to Canada to enlist the French Catholics in the cause of the colonies ; a signer of the Declaration of Independence; United States Senator; the revered citizen and honored statesman, he lived to be the last of those who appended their signatures to the immortal document that gave birth to the nation, and, in the long array of distinguished soldiers, captains, statesmen, advo- cates, jurists, and diplomats, that Maryland has given the Republic, no name excites warmer glows ef State pride and national enthusiasm in the " Land of the Sanctuary," than that of Charles Carroll, of Carrollton. ADVERTISEMENT. "First Citizen and Antilon," Is for sale at $1.50 per copy, in cloth, by the Publisher, Francis 0. White, Jr., 19 State Circle, Annapolis, Maryland. Also, by John Murphy Company, 44 West Baltimore Street, Baltimore, Maryland. And at 70 Fifth Avenue, New York City. 'Ye Antient Capital of Maryland." By Elihu S. Riley. 70 pages. Illustrated. $1 . Francis O. White, Jr., Publisher, Annapolis. "The Ancient City." A History of Annapolis. By Elihu S. Riley. 395 pages. $2. Francis O.White, Jr., Publisher, Annapolis, Maryland. t, -' ::v-:-ii^^M