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The political thought of Daniel Dulany, the Elder Yirush, Craig Bryan 1994

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THE POLITICAL THOUGHTOFDANIEL DULANY,bythe ELDERCRAIG BRYAN YIRUSHB.A., The University of British Columbia, 1990A THESIS SUBMITTED IN PARTIAL FULFILLMENT OFTHE REQUIREMENTS FOR THE DEGREE OFMASTER OF ARTSinTHE FACULTY OF GRADUATE STUDIESDepartment of HistoryTHE UNIVERSITY OF BRITISH COLUMBIASeptember 1994We accept this thesis as conformingto the required0 Craig Bryan Yirush, 1994In presenting this thesis in partial fulfillment of therequirements for an advanced degree at the University of BritishColumbia, I agree that the Library shall make it freely availablefor reference and study. I further agree that permission forextensive copying of this thesis for scholarly purposes may begranted by the head of my department or by his or herrepresentatives. It is understood that copying or publication ofthis thesis for financial gain shall not be allowed without mywritten permission.Department of__________________The University of British ColumbiaVancouver, CanadaDate / / I 7(Signature)ABSTRACTThis thesis is an examination of the political thought of Daniel Dulany, the Elder (1689-1753), a leading Maryland lawyer and assemblyman of the early 18th century.Starting with an examination of the structure of Maryland politics up to and including the1720’s, it argues that Dulany, as the leader of the Maryland lower house, used thatinstitution’s growing powers to make a vigorous challenge to proprietorial rule between 1722and 1729; and that this challenge was met by an equally strong one from the lord proprietor.The key issue was the lower house’s desire for the extension of the English statutes law. Bythe late 1720’s, this conflict had resulted in an administrative and political stalemate.The pamphlet that Dulany wrote came out of this context; and this paper argues that it is thebest expression of Maryland political thought in the early 18th century. It is also claimedthat, because it is one of the earliest surviving southern political writings, it can offer usinsight on the nature of ideas available to colonial Americans before the AmericanRevolution.The key concepts in the pamphlet are then examined in detail. A case is made that Dulanyhas a strong idea of the rights of the individual subject, and that this is the reason why hedesires the English statute law. His position on rights is examined, and an argument is madefor the influence of John Locke’s idea of natural rights on Dulany. Next the issue of virtueis taken up. Dulany is seen to have a non-civic conception of virtue, one that includes astrong respect for the protection of a private realm. Dulany’s views on the public good arealso seen to include a respect for the rights of the subject. Finally it is argued that his desirefor the protections afforded by English statute law involves a downp’aying of the role of theactive, publicly concerned citizen in favour of a formal legal setup. Lastly, the varioussources used in the pamphlet are examined.In the conclusion, a demonstration of the ways in which Dulany ‘s concept of rightscontributed to his overall political philosophy is offered. Finally, the reading of Dulany’spamphlet offered in this thesis is briefly compared to the reading of early modern politicaltheory presented in modern historiography.IITABLE OF CONTENTSAbstract iiTable of Contents iiiAcknowledgements ivINTRODUCFION 1I MARYLAND IN THE 1720’sBeginnings 6The Charter 617th-Century Struggles 8The Glorious Revolution 11The 1720’s: A Contentious Decade 13Political Philosophy in the StatutesControversy 21H THE RIGHT OF THE INHABITANTS OF MARYLANDTO THE BENEFIT OF TILE ENGLISH LAWSThe History and Significance ofthe Pamphlet 25The Argument of the Pamphlet:Law and Rights 28Dulany on Rights 39English Rights and Natural Rights 44Dulany on Virtue 56Dulany on the Public Good 61Law and Virtue 63Sources 69ifi CONCLUSIONDulany’s Political Thought: A Final Word 77Dulany and Modern Historiography 79Selected Bibliography 83U’ACKNOWLEDGEMENTSIn the preparation and writing of this thesis I have incurred many debts. Iwould like to first thank my thesis advisor, Alan Tully, for making my timeas an M.A. student a most congenial one. Dr. Tully has perfected the difficultart of providing timely advice while simultaneously letting the student fmd hisor her own voice. I was also privileged .to be able to read and discuss, inmanuscript form, Dr. Tully’s forthcoming book.From my good friend, Steve Jolivette, I received not only the original questionthat underlies this thesis - what was the nature of colonial political thought? -but also the benefit of many stimulating and engrossing conversations over thelast two years on the topics of early American political philosophy specifically,and on ideas in general.To my mother I owe a special thanks, not only for introducing me to theworld of ideas, but also for hours of careful and conscientious word-processingand editing on this thesis, and on the many other papers over the years.Without that help, this thesis would not have been finished, at least not in mylifetime! Finally, a special acknowledgement to my father who firstintroduced me to the joys of reading and the wonders of history.To all of the above I can only offer this thesis as thanks.iv1INTRODUCTIONMy interest in 1 8th-century political thought began as an undergraduate, with a paper thatI wrote on Jefferson. Since then, my interest has only grown. When it came time to choosea thesis topic for my master’s degree, my curiousity had already been piqued by the lack ofany in-depth scholarship on political thought in the American colonies in the fifty yearsbefore the Revolution. One came across, from time to time, scattered references to ideas innewspapers, broadsheets, and pamphlets, but little discussion or analysis was forthcoming.My interest in this period was further fuelled by the massive literature of classicalrepublicanism that has exerted such an influence on recent scholarship concerning the natureof political thought in both early modern Europe, and the new American nation. Briefly, thisliterature has claimed that at the heart of early modem political thinldng lay a revival of theclassical ideal of the virtuous, public-spirited citizen, ready and willing to sacrifice all of hisprivate concerns for the public weal. In the words of 3. G. A. Pocock, its foremostproponent, “civic humanism or classical republicanism ... revived the ancient assertion thatman was by nature a citizen, fulfilling his virtue ... in participation in a self-governingrepublic”.’Filling in the outlines of Pocock’s argument, scholars have argued that this revival of classicalconcerns was transmitted to the American colonies by the opposition writers of AugustanEngland, who utilized the classical ideal of the virtuous citizen to combat what they saw asJ. G. A. Pocock, “Early Modern Capitalism - The Augustan Perception ‘ in E. Kamenka and 1?. S.Neal, eds., Feudalism, Capitalism and Beyond (Canberra, 1975), 64-5.2the corruption of the court Whigs. This dichotomy of a virtuous country oppositioncombatting a corrupt court was then used by many historians, most notably Bernard Bailyn,to explain American political life in the 18th century. In this interpretation, the AmericanRevolutionaries become the heirs of Pocock’s classical values, striving to protect them fromthe English King and Parliament. Gordon Wood made the most forceful statement of theimpact of these classical ideals on the 18th -century mind. According to Wood: “Thesacrifice of individual interests to the greater good of the whole formed the essence ofrepublicanism and comprehended for Americans the idealistic goal of their Revolution”.2The greatest casualty of this classical republican interpretation has been John Locke. Froma thinker who was once thought to have defined America as a modern, liberal nation, he hasbeen consigned to an historically insignificant role. In particular his conception ofgovernment as limited to the protection of certain inalienable, individual rights, has beeneclipsed by the classical republican school which claims that the creation of virtue in thecitizenry is the end of government. Although the work of Joyce Appleby and IsaacKramnick, among others, has challenged this classical republican interpretation, its influenceamongst early American historians persists.32 Gordon S. Wooa The Creation of the American Republic. (New York: W W. Norton & Co., 1972), 53.See the various essays in Joyce Apple by, Liberalism and Republicanism in the Historical Imagination.(Cambridge: Harvard University Press, 1992); and Isaac Kramnick. Rgpublicanism and BourReois Radicalism:Political Ideolo,v in Late Eifhteenth-centur9 En2land and America. (‘Ithaca: Cornell University Press, 1990)3With my interest in early American political thought fuelled by the classical republicanchallenge, I resolved to combine it with my curiosity surrounding the nature of colonialpolitical theory. I decided to see if the American colonies before the Revolution were reallyas devoid of Lockean influences as modem scholars would have us believe. Early in myresearches I came across the name of Daniel Dulany, a prominent lawyer and leader of thecountry opposition in the Maryland lower house in the early 1720’s. Further investigationrevealed that he had written a pamphlet in Annapolis in 1728, entitled The Rights of theInhabitants of Maryland to the Benefit of the English Laws. Intrigued, I located the pamphletand found it to be a learned and well-argued piece of political writing. I also found that thetenor of Dulany’s thought confounded much of the received wisdom about the revival of civichumanist ideals and the unimportance of Locke. The results of my discoveries form the coreof this thesis.I have structured the thesis around Dulany’s pamphlet. It is the main focus. However, asback ground and context, I lay out in Chapter I a short history of Maryland government andpolitics, up to and including the 1720’s. The contentious nature of politics in this decade, andthe strong battle that ensued over the extension of the English statute law to Maryland areexamined. Dulany’s pamphlet, which arose out of this conflict, is then offered as the beststatement of Maryland political thought in the 1720’s. Equally important, I argue that, giventhe paucity of other contemporary sources, the pamphlet offers modem historians a uniquevantage point from which to view the nature of ideas available to colonial Americans. As4such, it constitutes empirical evidence with which to test the validity of the claims made bythe classical republican school.Chapter II, which focuses on the pamphlet, is my attempt to offer such empirical evidence.After a summary of the argument in the pamphlet, I devote the chapter to an analysis ofDulany’s key concern: the rights of the freemen of Maryland. I argue that these rights wereconceived as essentially barriers or protections around the individual subject. I further arguethat the idea of natural rights was a central influence on Dulany’s thought. In particular, Iclaim that he is aware of and employs the political ideas of John Locke. Having examinedhis view of rights, I turn to his views on virtue, and fmd that his natural rights’ influencescontributed to his downplaying of neo-classical conceptions of virtue and the public good.Rather, the idea of protecting rights emerges as one of his main ways of conceiving of theidea of virtuous action. A fmal section discusses some of the other intellectual influences onDulany. I note that he is both aware of and uses the arguments of natural law thinkers likeGrotius and Pufendorf, as well as those of the English legal scholars, but that his citationsfrom both classical sources and the Walpolean opposition are relatively insignificant.I conclude with an attempt to synthesize my analysis, looking at how all the parts of hispamphlet cohere around his focus on rights. Again I stress the importance for Dulany of sucha Lockean approach to politics. As a fmal word, I offer some suggestions for modernhistoriography, based on my fmdings.5IMAIIYLAND IN THE 1720’s6BEGINNINGSThe departure of two sailing ships, the jjç and the Dove, from England on November 22nd,1633, was the culmination of ten years of effort by George Calvert, Lord Baltimore, afavourite courtier of James I, to gain a colony in the New World. The two ships were boundfor “Mariland”, the name for Calvert’s vast grant of land on the Chesapeake coast, carryingthose who were to settle and colonize it.4 The size of the land grant was staggering:approximately 6,769,290 acres; perhaps even more startling were the powers granted by theKing to Calvert. According to Aubrey Land, “the Lord Baltimore was quite literally amonarch in his own New World reahn”.5 The vast powers laid out in Maryland’s Charterwould shape the history of the province for most of the 17th and 18th centuries, inciting astrong provincial response, and a century-long battle between The Lords Baltimore and their“faithfull tenants”. In order to understand the subsequent political history of Maryland, onemust come to grips with the nature of its founding document.THE CHARTERJohn Murrin has described the Calvert patent for Maryland as a “feudal proprietorship”.There had been other 16th and 17th century precedents, but the Calvert grant of 1632 “reallyFor a full discussion of George Calvert’s colonizing efforts, which included an abortive attempt tofound a colony in Newfoundland, see Russell I?. Menar4 Economy and Society in Early Colonial Maryland (NewYork: Garland Publishing, 1985), 1-30. George Calvert died before the Charter grant had been completecL Hisson and heir, Cecilius, was named as the grantee. The province was named after Charles I’s wife, HenriettaMaria.5Aubrey C. Lan4 Colonial Maryland: A History (New York: K TO. Press, 1981), 6.7defmed the type”. As a proprietary charter it “marked the fullest alienation of power by theKing that the Crown lawyers could devise”.6 Indeed it was based on a 14th-century grant tothe Bishop of Durham; and the powers it gave the Calverts were of a suitably feudal nature.David Jordan and Lois Carr describe the extent of Calvert’s “extraordinary power” under theCharter: “He owned all the land ... was the sole source of executive and judicial power. Hewas to establish courts as he saw fit, and all writs were to run in his name ... He couldestablish an anned force ... and he could exercise martial law in an emergency”.7 Accordingto Newton Mereness: “The lord proprietor of Maryland was, therefore, made the grantee ofthe territory with almost unrestricted privileges as to the use he might make of it”.8However, as many scholars have noted, the Charter was not without some countervailingelements; for among the vast feudal powers it conferred, was a grant to the freemen of theprovince of the right to be called by the lord proprietor for “advice, assent, approbation”concerning “the framing of laws”.9 Article Vifi of the Charter contained a further limit onthe proprietor’s palatine powers. It stated that these powers must be:Consonant to reason, and be not repugnant nor contrary, but (so far as mayconveniently may be done) agreeable to the laws, statutes, or rights of ourKingdom of England: and so that the same ordinances do not, in any sort,6Jolm Murrin, “Colonial Government”, in Jack P. Greene, ecL, Encyclopedia ofAmerican PoliticalHistory: Studies of the Principal Movements and Ideas (New York: Charles Scribner’s Sons, 1984), 2-7.Lois Green Carr and David William Jordan, Maryland’s Revolution of Government. 1689-92 (Ithaca:Cornell University Press, 1974), 5.8 Newton D. Mereness, Maryland as a Proprietary Province (New York, 1901; reprinte4 1968), &“The Charter of Maryland” is reprinted in IbkL, 510.8extend to oblige, bind, charge, or take away the right or interest ofany personor persons in member, lfe, freehold, goods or chattels.’°This dual legacy of the Charter - its grant of both princely powers and the right torepresentation and security of property - was to play itself out over the course of the 17th and18th centuries, with both the proprietor and the provincials clashing over their respectiverights. According to one recent student of the province: “Representative government inMaryland owes its legitimacy to this clause of the Calvert’s charter which made their provincethe first permanent English colony on the North American continent to provide from itsfounding for an assembly of resident freemen”.1117TH-CENTURY STRUGGLESThe first Assembly in Maryland convened in February 1635, a mere eleven months after thecolonists had landed. Almost from the outset, the freemen of the province began to use theCharter’s provisions for a representative body to offer “advice, assent and approbation” to theproprietorial deliberations. Lord Baltimore, however, had a slightly different conception oftheir role. He believed that, as he had “full, free, and absolute power ... to ordain, make andenact laws ... “, the freemen’s role was merely to approve or ratify his decisions. As a result,Baltimore, through the Governor, refused to ratify the laws that the freemen had made at the10 Ibid., 512.‘ David W. Jordan, Foundations of Representative Government in Mar9IancL 1632-1715 (Cambridge:Cambridge University Press, 1987), 1. I have drawn heavily on the scholarship of both Jordan and Susan Faib(cited below) for my exposition of 17th-century Maryland politics.9first assembly. He instead transmitted his own set of laws for the assent and approval of anew assembly, called to meet on 25 January 1639.12The four years that transpired between these two sessions ensured that the proprietor metconcerted and organized opposition from the small band of freemen or their delegates.13Immediately upon assembling, they voted two to one against accepting the lord proprietor’slaws. What emerged from the resulting impasse was an acknowledgement by Calvert thatthe assembly of freemen had the right to initiate legislation. According to Susan Faib’s studyof the early Maryland Assembly, Lord Baltimore’s “failure to have his legislation passedverbatim was the first example of prerogative erosion”. As Falb notes, even though “theprerogative as presented in the Charter was virtually impregnable”, concerted efforts by thefreemen of the province could erode proprietorial powers.14 More was to follow.The original assembly had been unicameral. Governor Philip Calvert, the proprietor’s brother,sat with the freemen, as did his tiny executive. However in the session of 1650, the delegatessucceeded in gaining the division of the assembly into two chambers. With this division, “the‘2See Land, Maryland, 34.‘ Ibici, 35, for a discussion of the attendance at these early assemblies. According to Land, manyfreemen sent proxies as “not every male ... could leave livestock and houses untendedfor si.s weeks to sit insolemn conclave making laws. Fewer than half the eligible freemen appeared at all, and many of these gavetheir proxies within a day or so to return Iwme”. This widespread use ofproxies made the Assembly nominallya representative body.14 Susan I?. Faib, Advice and Ascent: The Development of the Maryland Assembly, 1635-89 (New York:Garland Publishing, 1986), 79.JOlower house achieved a veto power over all proposed bills”. Significantly, they also received“the opportunity to develop a more independent political stance”.’5The gradual buildup in the power of the Maryland Assembly, and particularly in its electedlower house, continued through the mid to late 17th century, a time of frequent troubles, bothpolitical and economic, for the proprietorial camp. The Maryland Assembly slowlydeveloped a sense of its own privileges with which it tried to counterbalance the proprietorialpowers.’6 In its maturation, the assembly attempted “to emulate the House of Commons toa degree probably unmatched anywhere else in the New World”.’7 In the words of DavidJordan: “By the 1670’s, the Calverts needed extraordinary patience and clever tactics toachieve their legislative objectives u’18There is no doubting that these advances were real. The assembly, drawing on both itsCharter powers and the contemporary example of Parliament, had carved out a strong rolefor itself on the provincial stage; however, there is evidence that by the 1680’s, with areinvigorated proprietor making full use of his prerogative powers, the assembly was beingstymied. Despite a strong anti-proprietorial movement, the 1680’s were “a frustrating time‘ Jordan, Foundations, 235. FaIb, Advice and Assent, 56, notes the dependence on English exampleand theory in this move to bicameralism. Falb claims that bicameralism allowed the burgesses to make “thelower Iwuse the focus ofproprietary opposition”, IbkL,58.16 See FaIb, IbzcL, 59-78.17Jordan, Foundations. 6.18 IbiS, 235.11for the elected lower house”.19 The real day of power for the lower house would have to waitthe fall of the proprietorial regime, and its replacement by royal government.THE GLORIOUS REVOLUTIONDespite desperate politicking, the Catholic Lord Baltimore fell victim to the massive changesthat swept through the British American colonies in the wake of the Glorious Revolution.Although he did retain full rights to all land revenues, he lost his colony. What ensued wastwenty-five years of royal rule. For the lower house, this meant far-reaching changes in bothits organization and its powers.Two historians of the period have summarized these changes as nothing less than a“revolution in government”.20 According to Aubrey Land, these changes, although largelyadministrative, were very significant. In the words of Land, “the Assembly of 1692 createda permanent committee infrastructure”. What this meant was that the elected lower housenow had, through its new committees, effective control over its internal affairs, and over alarger portion of those of the province. As Land comments, the lower house “had crossedits Rubicon”; it had become “a miniature Parliament”. Significantly it received control overthe fmancial affairs of the province. To quote Land again: “The power of the purseSee R C. Simmons, The American Colonies: From Settlement to Independence (New York: W. W.Norton & Co., 1976), 81-3. According to Si,nnzons the assembly was unable to stop the proprietor fromnarrowing the franchise and restricting the number of representatives allowed from each county. Baltimore feltthat a smaller electorate and legislature was “more amenable to proprietorial influence”. Baltimore could getaway with such actions because his “powers legally exceeded those the King in relation to Parliament”.20 Carr and Jordan, Maryland’s Revolution of Governmig, 180.12eventually became the essential force in self-government, giving the initiative to the electivebranch of the legislature”?’The irony of this development occuring under royal rule was not lost on later commentators.According to one: “Governors appointed by the Crown regarded the introduction of Englishparliamentary practices as normal and desirable, and ironically these royal placemen aidedthe advance of representative government”.22 This assessment held true for most of thetwenty five years of royal rule: the Maryland Assembly was treated much like Parliament ata time when Parliament was becoming the central political institution in England. By thetime that Maryland was finally returned to the Calverts in 1715, the “central place of theassembly within the governance of the province was safely ensured”. Moreover, “within thisnow well-developed institution, the assertive lower house with its elected membership hadachieved a position as the equal of the appointed upper chamber and as the more legitimaterepresentative of the people’s interests”. By 1717 the assembly was the “central institutionof provincial government”; it had “assumed most of these fundamental features and powersit was to possess through the years of the American Revolution”.23 It is against thisbackground of assembly strength that we must judge the tumultuous events of the followingdecade, a time of intense struggle between proprietor and assembly.21 Lan4 Marvg, 93.Jordan, Foundations, 7.IbkL, 233, 237, 7.13THE 1720’s: A CONTENTIOUS DECADEThe restoration of the Calverts to their palatinate in 1715 was the first of many factors thatcame together to create a situation ripe for conflict. For the first five years, there waspolitical calm. Charles Calvert, the new heir, was still a minor; the governor, James Hart,remained from the royal period; he continued to serve in that post under the proprietorshipuntil 1720. In that year Charles Calvert, a distant cousin, became governor. Both his attitudeand that of the new heir reflected a desire to return to the kind of prerogative powersexercised by the Calverts of old. It was with this attitude that the proprietary camp enteredthe 1720’s.To see the potential for conflict we must remember the new position of the assembly inprovincial government. According to Land, “there was no complete return to the old days.The Assembly held fast those legislative powers captured during twenty five years of royaladministration”?5 Furthermore, the assembly was not used to facing a concerted veto.During the quarter—century of royal rule the veto had been used sparingly, if at all. MoreoverMarylanders were well aware that since the late 17th century, the “Crown veto over acts ofParliament had ceased to be exercised at all”. Marylanders, having tasted “the sweets of self-control”, now faced a concerted challenge to the gains they had made since 1689, to whatJack P. Greene, quoting Charles Barker, characterizes Maryland politics in the 18th century as aclassic struggle between ‘court’ and ‘country’ in which the ‘local squirearchy’, which dominated ‘every phase ofthe growing 4fe of the province’ and expressed itselfpolitically through the elective House of Delegates, wasaligned against the absentee proprietor and his representatives who monopolized the seats on the proprietaryCouncil and all major public offices “. See his “Changing Interpretations of Early American Politics” in R A.Billington, ed., The Reinterpretation of Early American History: Essays in Honor of John Edward Pornfret (SanMarino: The Huntington Library, 1966), 161.23Lan4 Maryland, 119.14they liked to call “our happy constitution”?6 The new proprietorial governor at first affecteda moderate tone, claiming that he had been instructed by Lord Baltimore to act “as aBountifull Indulgent Father would towards a dutiful Deserving Son”; as well he expressed adesire to bring “our Prerogative” and “your Privileges into Ballance”.27 But in the words ofAubrey Land: “Calvert’s administration was to rest on the solid foundation of Baltimore’spalatine authority ...“?6 All remained quiet until the election of 1722, which coincided witha precipitous fall in tobacco prices. It was to prove a pivotal election. Unusually forMaryland, the election witnessed a high number of “fresh faces” entering the lower house.These men, members of a new generation of provincial politicians, arrived with a strongmandate from the electors: reverse the trend of plummeting tobacco prices.29 In a one-cropeconomy like Maryland’s, such an economic situation was calamitous. Falling prices affectednot only planters, large and small, but all who made any but the most rudimentary exchanges26Aubrey C. Land, The Dulanys ofMaryland (Baltimore: The Johns Hopkins Press, 1958), 45.27Archives ofMaryland Vol.35, 5. (Baltimore, 1882-); hereafter cited as Archives.Land, The Dulany 45. Jack Greene has argued that it is within this context (facing a strong Royalor proprietoruil government) that colonial politics can be best understooa As Greene argues: 7n the coloniesthe seventeenth-century opposition tradition, with its overriding fear ofprerogative power, and its jealousconcern with protecting the privileges and authority of the House of Commons, continued to occupy a prominentplace in politics at least until the middle of the eighteenth century”. See his “Political Mimesis: A Considerationof the Historical and Cultural Roots of Legislative Behavior in the British Colonies in the Eighteenth Century”,American Historical Review, LXXV (1969), 343. Maryland in the early 18th century would seem to fit Greene’sdescription well. It does not, however, fit into Bernard Bailyn’s general explanation of 18th-century politics andpolitical thought: that it was dominated to the point of obsession with the fear of ministerial corruption. SeeBailyn, Ori2ins ofAmerican Politics (New York: Vintage Books, 1967). Greene also points out that it was thepossession of prerogative powers by the executive that fueled the fear of corruption. See Greene, “Reply’LXXV (1969), 365.29 See Land, Maryland, 130, for a discussion of the members of this new generation and their impact onpolitics in the 1720’s.15- for tobacco was not only the main crop, it was also the sole means of exchange.3° Allofficers’ fees, including those paid to high proprietorial officials, were set in tobacco. Inaddition the Anglican clergy, established since 1704, received its salary in tobacco.The new faces in the lower house who attempted to rectify the economic situation were,therefore, embarking on a course of action fraught with conflict. One new member stood outin particular. Daniel Dulany was a young lawyer from Annapolis, who had come toMaryland twenty years before as an indentured servant and had risen to become a prosperouslawyer on the county court circuit. At the the time of the election, he held the office ofAttorney-General of the province.31 Both he and his new colleague in the Assembly, ThomasBordley, had long been considered the two best lawyers of their generation in Maryland.32The two immediately put their legal knowledge to good use in the Committee of Laws of thelower house, drafting a repealing act to rid the province of a burdensome tobacco regulation.33The members of the lower house unanimously adopted their act; however, the upper house,° Charles A. Barker, The BackRround of the Revolution in Maryland (New Haven: Yale UntversityPress, 1940, 71.31 See Lan4 The Dulanys of Marykzn 1-43. As well, St. George L. Sioussat, Economics and Politicsin MarylancL 1 720-1750 and Public Services of Daniel Dulany the Elder (Johns Hopkins University Studies, VI-VII) (Baltimore, 1903), 47-6Z For Dulany’s early life, see Richard Spencer, “Hon. Daniel Dulany, the Elder,1685-1753 “, Maryland Historical MaRazine, XIII (1918), 20-28.See Lan4 The Dulanys, 86-97, for an engrossing account of their legal battle - against each other -in a complicated commercial case, one that ended up being adjudicated in London after several appeals.See Archives, Vol.34, 415. For a contemporary discussion of tobacco regulation, see “A DeclarationConcerning the Conduct of the London Merchants”, in The Maryland Gazette. LXXIX, March 18, 1729.16sensing the danger that this act might pose to the proprietorial prerogative, as well as to theirown fee levels, refused to consent to the act.Dulany and Bordley then hatched a scheme that was to spark a decade of conflict, and wouldreverberate in the proprietorial closet for years.35 The result of their handiwork was aninnocent-looking resolution, which proposed to insert an additional clause into the currentjudges’ oath. This clause instructed judges:To Do equall Law and right to all the King’s subjects rich and poor and notto delay any person of Common right for the letters of the King, the LordProprietary ... or for any other cause. But if any such Letters come to themthey shall proceed to do the Law the same Letters Notwithstanding.These resolutions went on to claim that:This province hath allwaies hitherto had the Common Law and such GeneralStatues ofEngland as are not restrained by words ofLocal! Limitation in themthat therefore whoever shall Advise his Lordship or his Successors toGovern by any other rules ... are evil Counsellors ill wishers to his LordProprietary and to Our present happy Constitution and intend thereby toinfringe our English LibertiesTaken together, these Resolutions of 1722 constituted nothing less than an attempt at“provincial autonomy under lower house domination”. The intention was: “to settle in favorof provincials vital constitutional questions that had been in doubt since the Lords Baltimorehad retrieved their ancient rights from the Crown”. Most crucially, the intention was to openLand Maryland, 131.IbicL, 131.36 The text of these Resolutions can be seen in Archives, Vol.34, 441.17up to provincials “the vast reservoir of English statute law and common law, which theproprietor could not veto as he could ordinary acts of the assembly”.37The assembly’s claim for the extension of English statutes to Maryland met with aproprietorial rebuff; their radical attempt to carve out a space free from Baltimore’s veto haditself been vetoed. Both sides continued to exchange addresses and messages in the yearsbetween 1722 and 1725. Dulany and the Committee of Laws dug deep into the provincialarchives to prove that Maryland had had the benefit of English statute law in the past.38 Notsurprisingly, the committee found ample evidence that there had been such extension.Equally, the Lord Proprietor and his lawyers unearthed weighty legal precedents, proving thecontrary.39 The proprietor offered to enact any of the statutes Marylanders desired but only“De Novo” or individually; he adaniantly refused to “Introduce in a Lump ... any of theEnglish statutes”.4°He also took pains to veto any provincial act that introduced the statuesby implication - a tactic Bordley and Dulany had tried. He was particularly insistent onvetoing all of the judges’ oaths that Dulany attempted to introduce, based on the Resolutionsof 1722,’ as they usually contained a clause instructing the judges to adjudicate cases byreference to the English law. The Lord Proprietor’s conviction was that the people of37Lan4 Man’laiL 132.38 See their report in Archives. Vol.34, 661.-‘ See the lengthy discussion of the legal aspects of extension in St. George L. Sioussat, The EnglishStatutes in Maryland (Johns Hopkins University Studies, XXI) (Baltimore, 1903), esp., 17-31 and 43-61.4°Archives, Vol.34, 493.‘ See Dulany’s oath bill in Archives. Vol.35, 104.18Maryland would fare better “If the Statutes of England not expressly Located thither are notin Gross force among you”.42 This opinion, delivered to both houses of assembly in the fallsession of 1725, was answered by Dulany and Bordley in the same session. Their reply,which has been termed “the battle cry of the country party”43 by one historian, took up all ofthe proprietor’s legal objections as to extension, countering them with further precedent.Their address concluded with the claim: “that the Crown has no Right to give us otherConditions than in common with our Fellow-Subjects”. The Lord Proprietor was furtherwarned to not “treat us so much like men that owe their Lives and Liberties only to yourCharter”.’These exchanges, given in the fall of 1725, were the last for two years, as the Assembly wasdissolved and no new elections were called. These crucial years (1722-25) had seen theformation of a formidable country party, able and willing to build on the gains of Royal rule,and to further challenge proprietorial power at its root. In addition, these attacks by the lowerhouse on the proprietorial veto led to other political problems. All attempts at tobaccoregulation stalled, as the lord proprietor refused to countenance any act that would reduce thefees - paid in tobacco - that his officers received. The lower house, for their part, claimedthat officers’ fees were already too high and that the upper house, “Seem to be Assistants toPrerogative and Dependant on it, Rather than a State in which the people place a42 Ibid. 298.Sioussat, Enrlish Statutes in MaryicL 47.‘4Archjvc Vol.35, 417.19Confidence”.45 The lower house, as a result, never offered a bill to raise tobacco priceswithout including a reduction of officers’ fees, often on the order of 25 percent. Theresultant and inevitable proprietorial vetoes left provincial affairs in a mess. Officers weredeprived of any statutory basis for collecting fees; Anglican clergy who depended uponreceiving their tithe in tobacco were discontented; and, fmally, the continual vetoes by theproprietor of the judges’ oath, left the courts of Maryland in a precarious state. As CharlesBarker sums up the situation at mid-decade: “With economic distress and political agitation,all things seemed insecure, even the roots and foundations of proprietary government.47Politics remained stalemated for two years (1725-27). Tn 1727 a new governor arrived,Leonard Benedict Calvert, the proprietor’s younger brother. A scholar and student of theantiquarian Thomas Hearne, Leonard Calvert found the wilderness of Maryland a shock. Hereferred to it as “this unpolished part of the universe” and complained that “our Conversationruns on planting Tobacco and such other improvements of trade, as neither the Muses inspire,nor Classic authors treat of”. Unfortunately for provincial relations, his attitude toward theMarylanders did not improve during his governorship. The Lord Proprietor did not helpmatters much, delivering more crucial vetoes to provincial legislation in 1728 and 1729.Leonard Calvert, aghast at the situation, wrote to his brother that “This Supriority[sic], as IIbüL, 357.Lan4 Maryland, 141.Barker, Back2round of the Revolution. 129. Newton Mereness notes that ‘from the time of therestoration of the proprietary government to the year 1729 inclusive, the lord proprietor vetoed ... at least 15acts “. Maryland as a Proprietary Province, 226.quoted in Land, Maryland. 141.20may term it, of the people over the Government, seems unaturall[sicJ, and is I am surerepugnant to the very End for which Government was Instituted, viz. An AuthoritativeInfluence for the good order of Society”. As a final comment on the administrative chaosaround him, he claimed that “things can never go well in the plantations, whilst the Plantersare so generally proud, petulant and Ignorant, and have the common necessary Support ofGovernment so much under their thumb”.49If things looked bleak from the proprietorial camp, the provincial view was evidently nobrighter, for it was in 1728 that Daniel Dulany, despairing of the situation in Maryland, putpen to paper and articulated fully and publicly the provincial position. With Bordley, hiscolleague of many years, having passed away, Dulany was now the leader of the provincialcause. The pamphlet was to be his final statement on the statutes controversy in Maryland.Within five years sweeping changes were to come to Maryland. In 1732 Charles, LordBaltimore, arrived in the province in person, determined to break the legislative andadministrative impasse. With the aid of a new and more skilful governor, he was able toexercise the full range of his prerogative power. He simply declared a fee table forproprietorial officers; he passed a modified judges’ oath; and he was responsible for issuingpaper currency for the first time in the province’s history. Following his governor’s advice,Archives. Vol.25, 605.21he offered places to many of the senior provincial leaders, Dulany among them.5° Thus endedthe turmoil of the 1720’s.POLITICAL PHILOSOPHY IN THE STATUTES CONTROVERSYThree decades ago Clinton Rossiter characterized political thought in the 18th century in thefollowing terms:The pace ofpublic life was slow; indifference rather than eager participationmarked the average man’s attitude toward government. Yet there wereincidents - the founding of an unorthodox newspaper in Boston, the trial of apopular editor in New York, an attack on an unpopular proprietarygovernment in Pennsylvania, an arbitrary levelling of a landfee in Virginia -that touched offpolitical controversies of an intensely partisan nature. Menof opposing views rushed boldly into the lists, and arguments over specificissues were supported by appeals to general principles.5’In this fmal section I would like to emphasize the importance of this search for generalprinciples. All of the concrete factors that we have examined in 1720’s Maryland - the riseof a native elite; the desire for local control free from a strong veto; the economic downturn;the jealous desire to guard assembly privileges - were important factors in shaping theconflicts of the 1720’s; but they were not the only factors. There is another context, anintellectual one, that must be accorded a role in any explanation of why colonial Marylandersacted as they did. As Jack Greene, doyen of colonial political historians, has noted: it is “not3° See Barker, Background of the Revolution in Marvkmd 135-8. According to Barker, “when thelegislature faile4 now in Lord Baltimore’s presence, as it had earlier, to enact a satisfactory fee law, he issuedthe famous fee proclamation of 1733 ... The proclamation fixed officers’fees at rates acceptable to theproprietary element”. For a discussion of the motives for Dukiny’s move to the proprietorial camp, see LandThe Dulanys. 125-8. Land notes, “the absence of direct accounts”, but emphasizes Dulany despair over theadministrative situation.51 Clinton Rossiter, Seed.time of the Republic: The Origin of the American Tradition of Political Liberty(New York: Harcourt, Brace & Co., 1953), 139-40.22universally valid” to think that “ideas are always subordinate to some concrete and tangiblefactors in politics”52. In fact, as Rossiter suggests, these “concrete and tangible factors” mayform the immediate context, the spark, for political conflict; but the ideas and values that theparticipants bring to this context are themselves crucial. There is no automatic orpredetermined response to concrete political or economic events. A response will alwaysbe dictated in part by one’s intellectual context, by the ideas one has available. As such, thethoughts of men must be accorded a role in explaining their actions and responses to theworld around them.53Maryland, with its authoritarian political structure, offers good evidence for this. Susan Falb,in her study of the Maryland Assembly in the 17th century, accords a central role to the ideasthat they inherited from 17th-century England in enabling them to challenge a then all-powerful proprietor. According to Faib, Baltimore’s absolutism forced the freemen to usewhat she calls “ideological persuasions”. Falb concludes that: “Ideas ... played a significantrole in the history of Maryland from 1635 to 1689”. Her point is that there was nothing52 Jack P. Greene, “Changing Interpretations of Early American Politics “, in Ray A. Billington, ed, TheReinterpretation of Early American History: Essays in Honor ofJohn Edwin Pornfret (San Marina: TheHuntington Library, 1966), 172.The recent literature of republican revisionism has been praised for returning to a focus on theimportance of ideas in history. But a close reading of the work of many of its leading firgues shows them to becaught up in what Daniel Rodgers has called “the structuralist turn in 1970’s intellectual history ‘ whichinvolved a switch from a more traditional focus on “ideas” to discussions of “ideology “. As Rodgers states: “Theneed of the moment was for means of investing the ethereal stuff of mind with convincing social power”. SeeDaniel T. Rodger, “Republicanism: The Career of a Concept”, Journal ofAmerican History, (June 1992), 20-1.However, some have questioned its overall methodology. See also Ralph Lerner, The Thinkin2 Revolutionary:Principles and Practice in the New Republic (Ithaca, 1987), esp., 1-38. Lerner sees the tendency to analyze pastthinkers in terms of ‘paradignzs” and “languages” as a new kind of determinism, one that puts “thought in itsplace “.23automatic about the rise of the assembly; there was no inherent impulse toward representativegovernment; rather it took decades of struggle by assemblymen, a struggle fuelled by certainfundamental ideas that they held about representative government.TMIn our discussion of the 1720’s in Maryland, we have seen examples of fundamental ideasabout government in the heated debates between the provincials and the proprietor. flResolutions of 1722 proclaimed that the judges should “do equal Law and Right to all theKing’s subjects, Rich and Poor”. They further claimed that this should be done, regardlessof any proprietorial instructions to the contrary. They also warned the proprietor not to“infringe” upon their “English liberties” or their “present happy Constitution”. It is with theconviction that a close examination of these ideas is important, both for our understandingof Maryland in the 1720’s and for our understanding of the nature of ideas available tocolonial Americans in the early 18th century, that this study is undertaken.55 In this spirit,let us turn to a close examination of Dulany’s pamphlet, as the best expression of Marylandpolitical thought in the 1720’s.Falb, Advise and Ascent, 2. FaIb documents in detail, the transfer of these ideas, and the awarenessin Maryland of the latest English developments, both political and intellectual. She even posits that “Levellerideas were discussed in the Chesapeake region “, 4, 28.For a good discussion of the nature of ideas available in early l8th-centuiy Marylan4 see Barker,BackRround of the Revolution, 27-68. Barker claims that Maryland was heavily influenced by Enlightenmentideas. He even argues that the ideas of this “rationalist age ‘ the “interest in the classical and secular, socommon everywhere, were not confined to the cultivated gentlemen ofAnnapolis clubs “. As Barker puts it:“many a brief comment in newspaper and in personal correspondence shows that the abrasives of contemporarythought cut wide and deep in Maryland”, j4, 60. See also the various essays by “The Plain Dealer” inMaryland Gazette on English Constitutional ism and on “Philosophical Doubting”, February 11, 1729 andDecember 17, 1728.2’1-IITHE RIGHT OF THE INHABITANTSOF MARYLANDTO THE BENEFIT OF THE ENGLISH LAWS25THE HISTORY AN]) SIGMFICANCE OF THE PAMPHLETIn the late autumn of 1728, Daniel Dulany took a small manuscript to the office of WilliamParks, the sole printer in Maryland.56 It was his final statement in the nearly decade-longconstitutional struggle between the proprietor and the lower house; a struggle in which he,as the principal spokesman for the “country” party had played the leading part. By Decemberit was in print, advertised for sale in Parks’ paper, The Maryland Gazette. Unfortunately weknow little about its circulation or readership; the sole surviving copy resides in the papersof the Calvert family - apparently unread by anyone in the proprietorial camp.57Unfortunately this neglect has continued with modem scholars. Apart from the work of thosehistorians who have written on 18th-century Maryland, Dulany’s pamphlet has received scantattention. Clinton Rossiter, in his Seedtime of the Republic, praises Dulany, but fails toaccord him much space.58 Benjamin Wright’s book on natural law in early America is theDaniel Dukiny, Sr., The Right of the Inhabitants of Maryland to the Benefit of the English Laws(Annapolis, 1728). It has been conveniently reprinted in St. George L Sioussat, The English Statwes inMaryland (Johns Hopkins University Studies, XXI) (Baltimore, 1903). All further citations from the pamphletwill refer to this reprint. Pagination will be inserted in the body of the text. In addition, all of Dukmy ‘sspelling and punctuation have been retaineiL.The advertisement appeared in The Maryland Gazette. 17 December 1728. Sioussat claims that this“indicates that it must have had some circulation through the province”. The English Statutes in Marvlaiid, 51.He adds that: “only one copy, to the present writer’s knowledge, survives ... This one imprint is among theCalvert papers in the possession of the Maryland Historical Society”.58 Clinton Rossiter, Seedtiine of the Republic: The Origin of the American Tradition of Political Liberty(New York: Harcourt, Brace and Co., 1953). Rossiter mentions Dulany, claiming that “serious considerationwas accorded Daniel Dukiny the elder for his The Right of the Inhabitants ofMaryland to the Benefit of theEnglish Laws”, fn.44, p.499. Rossiter fails to elaborate on the reasons for his choice.26only exception. Wright praises the quality of the argument in Dulany’s pamphlet, comparingit to the contemporary pamphlet of John Wise, and claiming that “it is a much moredeveloped argument than that of Wise”, particularly “for certain of the principles for whichthe colonists were, after 1760, contending”.59However much the pamphlet was neglected by this older group of scholars, its total absencefrom recent historical literature is even more of an oversight, given the sweeping reexamination of the nature of early American political thought that has been attempted in thelast twenty years. Bernard Bailyn, perhaps the most influential recent writer on colonialpolitics and political theory, accords Dulany no more than a few sentences, noting thatDulany’s work “fused” “Locke, Coke, Pufendorf and Grotius to produce a prototypicalAmerican treatise in defense of English liberties”.6° Unfortunately this cryptic remark is asextensive a discussion as Dulany has received. Gordon Wood, Bailyn’s student, has outdoneeven Bailyn in this respect. At least Bailyn is aware of the influence of Locke on Dulany;but Wood, who devotes the first chapter of his massive The Creation of the AmericanRepublic to a delineation of colonial political theory, fails to mention Dulany’s pamphlet at61Benjamin F. Wright, American Interpretations of Natural Law: A Study in the History of PoliticalThouRht. (New York: Russell & Russell, 1962), 58.60 Bernard Bailyn, The IdeoloRical Ori2ins of the American Revolution (Cambridge: Harvard UniversityPress, 1992), 43.61 Gordon Woo4 The Creation of the American Republic. 1 776-87 (New York: W. W. Norton & Co.,1972)27Given that Dulany’s pamphlet is one of the earliest surviving examples of colonial politicalwriting, these omissions are serious indeed;62 for an examination of Dulany’s work offers usa rare opportunity to observe the colonial mind at work, to see what ideas were available, andhow they were used.63 Given that the currently influential literature of republican revisionismhas largely assumed a position on the nature of the ideas available to Colonial Americans,the insight that a close examination of a pamphlet like Dulany’s can give us concerning thisperiod should not be ignored.It is with this object in mind that I will attempt to treat the pamphlet. I will try to break itdown, analyze its key premises and arguments, weigh the relative importance of the sourcesused, and endeavour to come to a conclusion concerning Dulany’s overall politicalphilosophy.TM As a result, I hope to provide some insight into the way men in the Americancolonies conceived of and talked about politics and political philosophy in the generationbefore the American Revolution.a Simmons, The American Colonies, calls it “one of the earliest southern political tracts”, 264.a For a good discussion of the nature of colonial poll tical theory, see Wright, American Interpretationsof Natural Law, 36-62. Wright singles ou Dulany’s pamphlet, as well as that of his near contemporary JohnWise, Vindication of the Government of the New-En2land Churches (Boston, 1717), as the two most importantfor the period 1700-1740. Significantly Wise draws his argument almost exclusively from Pufendorf’s Law ofNature and of Nations. The influence of Pufendorf and Grotius in colonial America has been large neglected byscholars, especially since the recent focus on classical republicanism.For a good example of such detailed analysis, see Alan C. Houston, Alernon Sidney and theRepublican Heritage in EnRland and America (Princeton: Princeton University Press, 1991).28THE ARGUMENT OF THE PAMPHLET: LAW AND RIGHTSDulany’s pamphlet is logically structured around the central claim expressed in its title: thatthe inhabitants of Maryland are entitled to the benefits of English law. Dulany marshals animpressive body of evidence, both legal and historical, to prove this contention. As aprecondition to an in-depth analysis of the political philosophy contained in the pamphlet, weshall examine the pamphlet’s overall structure, noting all of Dulany’s reasoning, and takinga view of the pamphlet as a whole.Dulany begins by noting that “there has been a pretty warm Contest” concerning the issueof the extension of the English law to Maryland. Dulany stresses the importance of thisissue, claiming that “Laws are absolutely necessary, for the good Government and Welfareof Society”.(81) Given the importance of law, Dulany claims that it is imperative to inquire“into the Right, which the People of Maryland have, to the Enjoyment of English Liberties;and the Benefit of the English Laws: which I take to be, and hope to prove are, convertibleterms”.(82) For Dulany this view of the law will continue throughout the pamphlet; hisargument will return to it constantly. In Dulany’s view the English law, and the rights itenshrines, is the only guarantor of the subject’s liberty.In order to fully understand the rest of the pamphlet, Dulany’s normative position on theEnglish law - that it exists to secure rights - must be examined. Dulany, in hischaracteristically logical fashion, realizes this, and offers the reader a “short Account of theLaw itself” (85) before he proceeds to his formal argument concerning the right of29Marylanders to English laws. According to Dulany, “the Law of England consists of theCommon and Statute Laws”. Dulany carefully defmes each type of law. The “CommonLaw”, he holds, “takes in the Law of Nature, the Law of Reason, and the revealed Law ofGod; which are equally binding, at All times, in All Places, and to All Persons. And suchusages, and customs, as have been experimentally found, to suit the Order, and Engagementof Society.”(82) According to Dulany, these “Customs” have “by Consent and Long Useobtained the Force of Laws”.(83) Dulany next defmes the “Statute Law”, which he claims“consists of such Acts of Parliament, as have been made from Time, to Time, by the wholeLegislature”.(83) In Dulany’s view, the statute law has often included Laws “which, aredeclaratory or alter the Common Law”.(83) As such, many statutes “have restored the Peopleto the Rights, that were theirs, by the Common Law’(83) Dulany claims that this was oftennecessary because “ill Men had at Times, invaded, and infringed” these common law rights;and thus it became essential to make “New Barriers ... to prevent future Jnfringements”.(83)Dulany is also specific about the type of statute law that he desires for Maryland. As he putsit: “Some Statutes are Introductory of new Laws, which may be divided, into such as are bythe words, or subject Matter of them, of general Use and Extent; such as are more confmed;and such, as are made for particular Ends, and Purposes”. Dulany emphatically states: “Ishall have occasion to treat of the first of these, only”.(83) That is, as we will see again inthe pamphlet, Dulany desires only the general statues - such as Magna Charta - that havebeen made to secure the subject’s rights at the common law.30Thus we can see Dulany’s fundamental view of the English law. It is composedof thecommon law and the statute law, the former being the primary source of the rights ofEnglishsubjects. in Dulany’s words, “The English subject” has “an undoubted Right tohis Liberties,Franchises, and Privileges, by the Common Law”. The statute law exists primarily tosupportand preserve these rights at the common law. As Dulany insists repeatedly in the pamphlet,the statute law is a means to preserve common law rights; and the English law as awholeis the best “means” to secure “the Enjoyment of English Liberties”. For him theyare“convertible Tenns”.(82) Having examined his understanding of English law, we can nowturn to Dulany’s overall argument for the right of Marylanders to the protections afforded byEnglish law.Dulany offers two reasons why the people of Maryland are entitled to the “benefit” of Englishlaw:I As the People are English, or British Subjects, and have alwaysadhered to, and continued in their Allegiance to the Crown.II As the Rights of English, or British Subjects, are granted untothem, in the Charter of the Province, to the Lord Proprietary.In his rigorous fashion Dulany takes up each of these contentions in turn.To prove the first, Dulany claims that “The First Settlers of Maryland, were a Colony ofEnglish Subjects, who left their Native Country, with the Assent and Approbation of theirPrince”. According to Dulany, these settlers went abroad “to enlarge his Empire in a remotePart of the World, destitute of almost all the Necessaries of Life ... “; and they did so “at agreat expense; ran all the Hazards, and underwent all the Fatigues incident to so dangerous31and daring an Undertaking”.(85) Furthermore, “Many perished, and those that survived,suffered all the Extremities of Hunger, Cold and Diseases”. Dulany is at pains to stress that“They were not banished from their Native Country, nor did They adjure it”.(85) Dulanywrites that in time they became prosperous and aided “their Mother-Country, by greatlyincreasing its Trade and Wealth”. As such, “they have been as advantageous to England, asany of her Sons, that never went from their own Homes, or underwent any Hardships”. Moreimportantly, “it cannot be pretended, that ever They adhered to the Enemies of their King orMother-Country; departed from their Allegiance, or swerved from the Duty, of loyal andfaithful Subjects”. According to Dulany, “These Truths are too evident, and too well knownto be denied ... “.(85) Thus for Dulany the allegiance of the citizens of Maryland, the greathardships they have endured and the great benefits that they have brought to England, isproof enough that they are still loyal subjects and are therefore entitled to the same laws andliberties as Englishmen at home.Dulany, with customary thoroughness, further expands upon this point, noting Lord Coke’sclaim that “as the Subject oweth to the King, his true and faithful Legiance, and Obedience;so the Sovereign is to govern and protect the Subject”.65(86) As Dulany concludes: “It is anestablished Doctrine, that Allegiance and Protection are reciprocal, and that a Continuancein the one, entitles the Subject to the Benefits of the other”.(86) For Dulany, the protectionthat the “Subject” receives in return for his allegiance is the protection of the English law.65 Dulany is quoting from Book IV of Coke’s Reports.32And, as he points out, “This Subjection, and this Protection, are not bounded by any Space,less extensive than the British Dominions”.(87)With characteristic rigor, Dulany adduces more evidence for his contention that Marylandersare entitled to the King’s protection. Dulany pens a lengthy passage discussing “the Case ofSt. Paul”, who claimed “The Benefit of the Roman law”, despite being born “in Judea”.Summoning historical precedent, Dulany claims that “There was no Dispute of his Right,because he was born in a remote Province of the Empire; There was no Pretence, that theLaws which were securitative of the Roman’s Rights, were confined within narrower limitsthan those of the Roman Dominions”.(87) Having set up the obvious parallel, Dulany writesthat “the Province of Maryland, is as much a Part of the British Dominions, as Tarsus theCity, or Cilicia the Country, of St. Paul’s Birth, was Part of the Roman Empire.Consequently, a Man, born in Maryland, hath as Good a Right, to demand the Benefit of theLaws of his Mother Country, as the Apostle had, to demand the Privileges of a Roman”.(87)With the example of St. Paul, Dulany draws this part of his argument to a close. His positionthus far is clear: since Marylanders have been loyal and faithful subjects, they are entitledto the equal protection of the law. He concludes with a two-fold claim. First he asksrhetorically: “Can any thing be more evident than that All the Subjects, of the same Prince,living within his Dominions, adhering to their Allegiance, and in a word, behaving themselvesas dutiful and legal Subjects ... should also be entitled to the same Rights, and Liberties, withthe rest of the subjects of the same Prince .... “(88) Dulany goes on to ask: “Or can anything33be more clear, than that Subjects, having an equal Right to Priviledges, must also have anequal Right to the Laws, made to create or preserve such Privileges. And without which,they cannot be preserved”.(88) This is the essence of Dulany’s argument: Marylanders havethe same rights as British subjects and, as a result, must also have equal title to “the Lawswithout which they cannot be preserved”.(88)Dulany next turns to the contention “of some Men, who have advanced, that the People ofMaryland, have a Right to English Liberties, but not to English laws”(89) Dulany challengesthis claim, stating in colourful fashion that “such Notions are the Effect of Ignorance ... And(as I hope to prove) are big with Absurdity”.(89) Dulany once again brings out his centraltheme of the connection between the English law and English rights. As he expresses it:“All the Rights, and Liberties, which the British Subject, so justly, values Himself upon; aresecured to Him, by the British Laws. And when, ... those Rights and Liberties are invaded,recourse must be had to the Law for Reparation”.(89) To reinforce the connection, Dulanymusters his legal erudition and points out that “Right and Remedy are inseparable”. Quoting“as great a Judge as ever sate in Westminster Hall”, Dulany claims that “Want of Right, andWant of Remedy, are ‘Termini convertibles”.(89) Appealing “to every Man’s Reason” Dulanysays that “it is well known, that in all civil Governments, the only certain and just Remedy,is the Benefit of the Law”.(89) He concludes darkly that “some who advance the foregoingNotions are aware” of this reasoning, but they keep their knowledge “carefully concealed,from those, that they would impose their destructive Doctrines upon”.(89)Dukiny’s citation is to “Holt and F. Salkeld’s, Rep.415, Vol.1”.34Dulany now deals with another criticism, one advanced by those who “are so good natured,as to allow the People of Maryland, the benefit of the Common Law; but contend stiffly, thatthey have no Right to any of the Statues”.(89) Dulany again makes short work of suchcritics, claiming “that we derive our Right to British Liberties ... as we are British subjects:That as such, we have a Right to all the Laws, whether Statute or Common, which secure tothe Subject, the Right of a Subject”.(89) Dulany claims that the benefit of the statute lawsis “inseparably incident” to the subject’s common law rights. He worries that if theMarylanders give up “any Part of that Right, without our consent ... We may by the sameReason, and Authority, be deprived of some other Part; and this will naturally render thewhole, uncertain; and our Lives, Liberties, and Properties, Precarious”.(90)The strength with which Dulany holds to the necessity of the statute law is evidenced by thelengths he goes to stress the inseparable connection between the common law and the statutelaw. To further illustrate this point, Dulany launches into a lengthy historical disquisition onthe fate of English liberties without such statutory protection. For, as he words it, “all theRights, which the English Subject was entitled to, by the Common Law, were at Times,invaded by Men of Power and Authority ... And that very Law, which was calculated, andinstituted for the Defence, and Safeguard, of Property; perverted to the Destruction ofProperty”.(90) In such cases even the viitue of the men of England was unable to securetheir rights against such “Iniquity”. As Dulany makes clear, there was a need for “somefurther Provision by positive Laws; such as our Statutes”.(91) Only this would “oblige Mento comply with, what the Love of Justice would not, but the Fear of Punishment, might35induce them to comply with, and to punish the Disobedient, and Refractory”.(91) ForDulany, such general statues as Magna Charta and the Petition of Right have served thispurpose; they have safeguarded and shielded the subject from such aggression, securing himin his common law rights. As further evidence, Dulany discusses the iniquities of the StarChamber at length, claiming that it was only ended by “Parliamentary Declaration”.(92)Dulany showers an equal amount of attention on “the Habeas Corpus Act”, the preamble towhich “shews what shifts, and Evasions, were used, to elude the Force of the Laws that wereinstituted, to secure the Subject’s Liberty”.(93) As he concludes, “the British Subjects esteemthe several statutes, that have been made to confirm their Common Law Rights” and they“would be alarmed” if “any Attempt should be made, to abrogate those great Defences andBulwarks of the People’s Liberty”.(95) For Dulany, the lesson to be drawn from Englishhistory was the absolute necessity of the statutes for the preservation of the people’s“Liberties”.Having exhaustively proved the right of the people of Maryland to both the statute andcommon law, Dulany next turns to address those who claim that the English Statues do notextend to Maryland, because of “several Book cases; wherein the Judges have resolved, thatthe English Laws did not extend; ‘til it was expressly enacted that they should. And that theEnglish Acquisitions in France, were never governed but by their own Laws: From whence,the Necessity of enacting the English Statues, in Maryland, before it’s [sic] Inhabitants canhave the Benefit of them, is often inferred”.(95) Dulany had faced this technical objectionfrom the proprietorial lawyers many times before in the heated debates of the 1720’s, and he36makes short work of it here. Differentiating Maryland from both Ireland and France, Dulanyclaims “that those Countries, were inhabited, by civilized, sociable People, conversant withArts, Learning and commerce”; as a result they “had Laws, suited, and adapted to the order,and Engagements of Society; by which, themselves, and others ... might be peaceably, andhappily governed”.(95) But, as Dulany is eager to point out, there is no such parallel toMaryland, for “before it was settled by the English” it was “as to Law, and government inthe same Condition, with an uninhabited Wilderness”. Citing legal opinion, Dulany notes that“in Case of an uninhabited Country, newly found out, by the English Subjects; All Laws inForce in England, are in Force there”.(95)Now that he has dealt with this technical issue, as well as with a similar legal precedentconcerning the non-extension of the statutes to the Isle of Man, Dulany pens an interestingpassage wherein, citing Grotius at length, as well as numerous classical sources, he attemptsto show the benefits that accrued historically to rulers of empires who treated their subjectswell. Dulany discusses a wide range of cases, citing Seneca, Tacitus, Caesar, Polybiusamongst others. Dulany concludes that “it appears plainly in History, that some of the wisest,as well as most successful Nations in the World have been very careful to avoid ... anirreconcilable Hatred between the Victors and the Vanquished”. As Dulany states, with theplight of Maryland clearly in mind, “there is neither Policy, nor Humanity, in making Peopledesperate”.(96)37Dulany now tunis to his second claim: that the Charter of Maryland explicitly grants itsinhabitants English rights. As he words it, “suppose even this, to be the Case, that theEnglish, by being brave and successful, had forfeited their Native Rights” they would stillhave the right to the benefit of English Laws, for “the Charter of Maryland, does not onlycontain a Grant of the Country, with several Prerogatives to the Lord Proprietary: But alsocontains a Grant, to the People, of all the Rights, Privileges, Immunities, Liberties andFranchises, of English subjects”.(98) Thus, Dulany concludes, even if the technical issuesof extension are against him, he has the unanswerable argument of the actual legal grant inthe Charter. After quoting at length the relevant passage, Dulany comments that “It wouldbe difficult to invent stronger, or more comprehensive Terms than these, whereby All theLiberties, Franchises, and Privileges, of English Subjects, are granted to the People ofMaryland”.(99) Dulany cannot resist adding that “This Charter, which I have seen in the OldBooks ... has been confirmed, by Act of Parliament”.(99) Dulany proceeds to reiterate hisearlier claim that if “by these words of the Charter, the Liberties, Franchises, and Privilegesof an English Subject, are granted fully, and amply, to the People of Maryland; the Benefitof the Laws, securitative of those Liberties, etc., as inseparably incident to the Libertiesthemselves, are also granted by Jmplication”.(99-lOO) Dulany again resorts to legal doctrineto defend this idea of an implicit grant, claiming that there are “established anduncontroverted maxims that when the Law gives a Thing, it gives Remedy to come at itwhen the Law gives a Thing, All Things necessary for obtaining it, are included”.(lOO)38Finally bringing the many strands of his argument together, Dulany informs the reader thathe hopes “the Passage out of the Charter, the Authorities produced, and the Nature of theThing are sufficient to convince every unprejudiced Person, that if the first settlers ofMaryland, had really lost their Native laws, and Rights, ... they, by this Charter, are put intothe same state, and condition, that their Fellow Subjects residing in England are in, as to theirRights and Liberties”.(lOO) As Dulany hastens to add, this must include “the Statute as wellas the Common Law”, the two together being “the only sure Defence and Bulwark of thesubject’s Life, Liberty, and Property”.(lOO)Having concluded our lengthy treatment of Dulany’s formal argument, it is important to notethat there are several points in the pamphlet where an argument from natural law and naturalrights appears; in addition, the pamphlet concludes with a complete break from Dulany’s legalargument. In its stead, he advances a bold claim for the benefit of English law and rights,from “a State of Nature and Equality”. These arguments and their implications for hispolitical thought will be examined in detail in the following sections.* * * *One further point needs to be made about the structure of the pamphlet. Although it is alearned and well-argued piece of political writing, it was not written as a systematic treatise.There are no sections where Dulany defines and delineates his position on rights or virtue orthe public good. His positions on these things must be extracted from around his formal39argument. However, this is not to say that the pamphlet eschews theory and that nothing ofsubstance can be gained from it. As we have seen, Dulany takes a strong normative positionon the English law: it exists to protect the rights and liberties of Marylanders. It is to anexamination of his view of the nature and origin of these rights that we now turn.DULANY ON RIGHTSThe idea of rights is the key one in Dulany’s pamphlet; it is his main focus, his centralconcern. As we have seen, his desire for rights is the reason that he wants the “benefit” ofEnglish law. This desire is the motive force behind the pamphlet. As such, it is necessaryfor us to inquire closely into what Dulany means by rights, to look at how he holds theconcept.According to Dulany, his concern in the pamphlet is the “sure Defence of the Subject’s Life,Liberty and Property”. (100) Indeed these three rights - to Life, Liberty and Property - areclaimed by Dulany several times in the pamphlet. He states that “Every Subject has a Rightto the Enjoyment of his Liberty and Property”(86); he worries that without the protection ofEnglish law, the “Lives, Liberties and Properties” of Marylanders will be rendered“Precarious”(90); and he is certain that the English statutes were made “to confirm, andestablish the Subject’s Right, in his Liberty and Property.(92) In order to fuily exploreDulany’s view of rights, we must examine in concrete terms what Dulany means by thesubject being secure in his life, liberty and property.40Primarily, for Dulany, to have these rights means to be secure from arbitrary rule, from“invasions” by “Men of Power and Authority”.(90) Throughout the pamphlet he evinces astrong concern for the protection of the individual subject from such assaults. He worries thatMarylanders “are to be governed by the Discretion (as some People softly term the Capriceand Arbitrary Pleasure) of any Set of Men”.(82) He praises the English law for having“paved out a certain, determinable Path, for every Subject, suffering violence and Oppression“.(83) In his examination of English history, Dulany cites with evident praise the legalprotections that the subject has been granted from the arbitrary acts of Kings and tyrants.Quoting Henry Care’s English Liberties, Dulany notes the numerous transgressions of the StarChamber against “the antient rights” of the subject”. These transgressions included allowing“the Great officers of the Crown, and other Great men to punish, where no Law did warrant,and to make Decrees for Things, having no such Authority; and to inflict heavier Punishmentthan by any Law was warranted”.(92) Dulany, still quoting Care, goes on to note that theStar Chamber “assumed to itself, a Power to intermeddle in civil Causes and Matters only ofprivate Interest, between Party and Party, and had adventured to detennine of the Estates andLiberties of the Subject, contrary to the Laws of the Land and the Rights and Priviledges ofthe Subject”.(92) This constituted “an intolerable Burthen to the Subject”; it was “the Meansto introduce an arbitrary Power and Government”.(92)Dulany sees the antidote to such attacks on the “Rights and Priviledges of the subject” in thelimits that Englishmen had historically placed on their rulers. According to Dulany, these41limits included “the antient and indubitable Right of every Freeman, that he hath full andabsolute Property, in his Goods and Estate”.67(84) For Dulany such rights constituted “NewBarriers” against “ill Men” in Authority; these rights were designed “to prevent futureInfringements” (83) and to create a “bulwark” around the individual subject.Dulany’s view of rights is brought out with particular clarity by his judicious citations fromCoke’s First Institutes. According to Dulany, “the great oracle of the law, the Lord Coke,saith of the Common Law, that it “is the best and most Common Birth-right, that the Subjecthath, for the Safeguard and Defence, not only of his Goods, Lands, and Revenues; but of hiswife, and Children, his Body, Fame, and Life, also”.(83) A further passage taken from Coke,indicates Dulany’s view on the importance of rights and freedoms in combating arbitraryauthority. The passage that Dulany supplies is as follows: “Tis by virtue of This Law, thata British Subject, may with Courage, and Freedom, tell the most daring and powerfulOppressor, that He must not injure him, with Impunity. This Law uprightly and honestlyapplied, and administered, will secure Men from all Degrees of Oppression, Violence, andInjustice; it tells the Magistrate what he has to do, and leaves him little Room, to gratify hisown Passion, and Resentment, at the Expense of his FellowSubject.6S(84)67 Dulany is quoting from Rushworth’s Historical Collections. His citation is to Rush LB. 513‘.Dulany cites from the first part of Institutes: “I.Inst. 142 “.42Rights, then, for Dulany, are essentially “negative”;69 they pertain to the individual subject,creating a space around him, securing him from the coercion of others, and protecting himin his person and property. He holds to this view of rights throughout the pamphlet, payingscant attention to any other conception of freedom or rights; specifically he fails to entertainany notion of freedom as the ability to participate in the polity.70 His main concern is withthe limits on political authority dictated by the need of the individual subject to be secure inhis life, liberty and property.Unfortunately for the student of early American political theory, Dulany has little to say aboutthe precise relationship between his three main rights - life, liberty and property. His concernto protect the individual subject is clearly basic to his whole approach to politics, but hesingularly fails to expand on any other implications of these basic rights. While he isadamant that the individual subject must be secure in his person and property, he gives littleor no guidance concerning what the individual subject is entitled to do with the private realmthat rights grant hint69 See Isaiah Berlin, “Two Concepts of Liberty” in his Four Essays on Liberty (London: OxfordUniversity Press, 1969), 118. Berlin famously defines freedom as “the area within which a man can actunobstructed by others”. For a dissenting view, one that challenges both the philosophical coherence of thisconception of liberty, as well as its historical importance, see Quentin Skinner, “The Idea ofNegative Liberty:Philosophical and Historical Perspectives ‘ in Rorty, Schneewind and Skinner, eds., Philosophy in History:Essays on the Historioraphy of Philosophy (cambridge: Cambridge University Press, 1984), 193-221.70 Lance Banning has recently claimed that “American Revolutionaries ... attempted to combine (andprobably confused) concepts of liberty deriving from a classical tradition - freedom - with more modernliberal concepts that associated liberty more exclusively with the private, pre-governmental realm - freedom•ft “. See his “Jeffersonian Ideology Revisited: Liberal and Classical Ideas in the New American Republic ‘William and Mary Quarterly, (1986) 43. Regardless of the veracity of Banning’s claim, Dulany shows littletrace of such a “confusion”. As well, a recent study of the political thought ofAlgernon Sidney concludes that,for Sidney, “the liberty of the ancients - the right to participate in political decision making - was a chimera andcould not be used to undermine authority of modern sovereigns”. See Alan Houston, AlRernon Sidney and theRepublican HeritaRe in EnRland and America (Princeton: Princeton University Press, 1991), 118.43There are, however, some tantalizing hints in the pamphlet. Returning to the lengthy passagedevoted to Coke’s First Institutes, we can see Dulany again quoting Coke with evidentapproval. According to Coke, the rights enshrined in the English law “effectually secureevery Honest Man, who has the Benefit of it, in his Life, the Enjoyment of his Liberty, andthe Fruits of his Industry”.(83) Here Dulany is not just using Coke to support the idea ofrights as a barrier to men of authority, he is also using him to put forth the notion, albeit ina brief and undeveloped way, that part of what rights secured was the right to take privateactions and to profit thereby - to enjoy the “Fruits” of one’s “Industry”.71This passage is interesting for it shows Dulany’s respect for a private realm, and hissanctioning of private actions taken within it. Unlike within the civic humanist tradition,property for him is not a precondition for the public role of the landed, independent citizen;it is rather something that is a security for the subject in his private concerns. Nevertheless,it would be a mistake to assume that Dulany is attempting to justify the pursuit of profit viaprivate economic activity,72 as he has nothing of substance to say concerning the proprietyof commercial activity. Given the paucity of discussion in the pamphlet, all that can be saidis that Dulany has an idea of the link between the right to own property and the ability to actfree from the control of others. Significantly, he speaks of the law being “perverted to the71 For a discussion of this issue that concentrates on American political theory later in the l8th-centwy,see the various essays in Ellen Frankel Paul and Howard Dickman, eds., Liberty. Property and the Foundationsof the American Constitution (New Yor!ç 1989).Dulany’s extensive economic activities have been ably documented in Land The Dulanys ofMaryland(Baltimore: The Johns Hopkins Press, 1958), 98-117. Didany played a particularly important, and visionary,role in the settling of the Maryland baclccountry; as well he was an investor in an early iron manufacturingcompany.44Destruction of Property”, and he worries that this “would leave Us in a poor condition, withregard to our Liberties”.73(90)The fact that Dulany does not fully work out all the implications of his view of rights shouldnot detract from the fact that he does have a strong view of individual rights, and that thisis historically important for our understanding of colonial political theoiy.74 What becomesclear from a close reading of the pamphlet is his overall position on rights. For him rightspertain to the individual subject and their value lays in the protections they afford him in hisperson and property, protections which are necessary to secure him in both his private actionsand from the designs of “wicked Men in Power”.(94)ENGLISH RIGHTS AND NATURAL RIGHTSThe question of what, for Dulany, is the source of the rights of Marylanders is our next topic.At first glance, this may seem to be clearly stated in the pamphlet. Dulany claims openly° Robert Webking suggests an outline of the Americans’ view ofprope fly, and its role in preserving 4feand liberty: “When the fruits of a person’s labor are at the complete disposition of another, then that persondoes not work for himself but works, indeed as a slave, for another ... without some assurance of materialsufficiency, a human being cannot plan for the future and decide how he wishes to live his life. He has nofreedom or self-determination “. See The American Revolution and the Politics of Liberty (Louisiana StateUniversity Press, 1988), 113. Clinton Rossiter notes that “there was surprisingly little discussion ofproperty incolonial political theory “. Seedtime of the Republic, flu. 132, 493.‘ Scholars of colonial political theory need a better understanding of the Enlightenment’s view of rights,particularly such key concepts as “self-preservation” and the “right to life” which appear so frequently in 18th-century writings. For an outline of such an argument, see Garrett Ward Sheldon, The Political Phulosophv ofThomas Jefferson (The Johns Hopkins University Press, 1991), 9. According to Sheldon: “Modern, liberalpolitical philosophy conceives of man as naturally individual and independent ... this free and separate conditionderives from liberalism’s conception of man as essentially a material being ... motivated primarily by a desire forcontinued life, or “self-preservation “. And such material existence gives the natural right to those things (“life,liberty, and property”) which insure that continued existence. The power of reason is employed by man to bestsecure those individual rights and that self-preservation”.45“that we derive our Right to British Liberties, and Privileges, as we are British Subjects”.(90)Indeed the contention that the people of Maryland have British rights because they are Britishsubjects is a central theme of the pamphlet. Dulany refers again and again to “EnglishLiberties” (89) and the “antient rights of the subject” (99, 92, 94); rights derived from a“common Birth-Right” and from a long historical struggle. Trevor Colbourn discussesDulany solely in these terms, claiming that he “reasoned from a firm legal and historicalbase”. Colbourn claims that Dulany and the other colonial southern gentry grounded theirpolitical philosophy on “a knowledge of the law” and “a familiarity with the history of therights they sought to maintain”.75While this approach to rights can be accurately attributed to Dulany, it is not the whole story.A close reading of the pamphlet reveals Dulany also employing a different approach togrounding rights, one based not on English citizenship nor historical title but on the Europeannatural law tradition, and particularly on John Locke’s idea of natural rights.76Throughout the pamphlet, there are references to the “Rights of Manldnd”. At the start ofthe pamphlet, Dulany puts his case in the following terms: “the People of Maryland areFreemen and will certainly continue to be such as long as they enjoy the Benefit of Laws“ H. Trevor Colbourn, The Lamp of Experience: WhiR History and the Intellectual OriRins of theAmerican Revolution (Chapel Hill: The University of North Carolina Press, 1965), 134-5.76 Both Benjamin Wright and Charles Barker have noted tlzis duality in the pamphlet. Barker claimsthat Dulany argues from “philosophical as well as from legal grounds”. Barker, BackRround of the Revolutionin Mar9jg 165. Wright concurs, claiming that “the pamphlet consists of a remarkably learned legal argumentfor the benefit of English statutes. However, in a number ofplaces the theory of original natural rightsappears’ Wright, American Interpretations of Natural Laws 60.46calculated for the security of Liberty and Property, and the Rights of Mankind”.(82) Later,Dulany speaks of ill men who are “Violators of Laws and the Rights of Mankind”.(91) Thepamphlet also contains several references to the idea of “consent” as a precondition for theacceptance of any set of laws. Overall the pamphlet evinces a strong undercurrent of naturallaw and natural rights.77 To see this more fully, we will look at Dulany’s argument in detail,observing where and how he employs these ideas.Dulany uses natural law ideas at four key points in the pamphlet. The first comes at theoutset of the pamphlet when Dulany defines the common law in terms of natural law.According to him: “the Common Law, takes in The Law of Nature, the Law of Reason, andthe revealed Law of God; which are equally binding at All Times, in All Places, and to AllPersons”. (82) The crucial significance of this formulation of the common law is that, forDulany, the common law is the main source of rights. As we have seen, he speaks of thestatutes which “restored the People to the Rights that were theirs by the Common Law”.(83)For Dulany “it is evident that the English Subject had very ample Rights and Privileges, bythe Common Law”.(93) Given that the structure of his argument is that the English subjecthas rights by virtue of the common law, his inclusion of the “Law of Nature” at the core ofhis definition of the common law strongly suggests a naturalistic grounding for rights.I shall use these two terms interchangeably. However, the reader shozdd be aware that there isconsiderable scholarly dispute over their exact meaning. Dulany, however, sees no distinction between the two.He seems to follow Locke in the idea that it is the law of nature that gives rise to natural rights. See Locke:“The State of Nature has a law of nature to govern it, which obliges everyone. And reason, which is that law,teaches all mankind who will but consult it that, being all equal and independent, no one ought to harm anotherin his life, health, liberty or possessions ‘ David Wootton, ed. The Political Writings of John Locke (New York:Mentor Books, 1993), 263-4. Locke adds that “the law of nature ... which willeth the peace and preservation ofall mankind” includes “that all men may be restrainedfrom invading others’ rights ... “ j.J4, 264.47This linking of the common law with natural law can be seen again in the pamphlet whenDulany discusses historical instances of the violation of rights. For Dulany, “all The Rightswhich the English Subject was entitled to by the Common Law, were at Times, invaded byMen of Power and Authority”.(90) This, of course, is the reason that Dulany wants thestatute laws: to make such invasions illegal. Yet mere illegality is not Dulany’s maincomplaint against such “Men of Power”. Reciting the history of such rights violations, heclaims that it became absolutely necessary to make some further provision by “positive laws”(i.e., the statutes), because some men failed to comply voluntarily with “the Love ofJustice”.(91) The naturalism behind this statement is made clear by Dulany. To violatejustice is to violate natural equality, that is to deal with other men by force and to therebyact immorally. As Dulany puts it: “By the Law of Nature, All Men were equal; and by thatlaw, the Law of Reason, and the Revealed Law of God, Men are enjoyned to treat OneAnother, with Humanity, Justice and Jntegrity”.(90) Clearly Dulany is making a strongconnection between invasions of the subject’s rights at law - the destruction of their lives andproperty - and violations of natural law. From the very structure of the way he argues, it isevident that Dulany has a normative position, grounded in the law of nature, which tells ushow we should treat other people; and it is on this naturalistic base that he makes his call for“some further Provision by positive laws”(90) to reinforce these pre-existing rights.So far the “Law of Nature”, although used by Dulany at key points in his argument for rights,has gone unattributed. The first indication of its source comes when Dulany, in attemptingto prove that the Marylanders have the same rights at law as do subjects in England, has48recourse to “what the Learned Mr. Locke says of natural Equality”.(87) Dulany proceeds toquote from “that great Man”, citing at length a key passage from Locke’s Second Treatise,78wherein Locke claims that all men, being equal, have an equal right to be free from thedomination of others. The passage from Locke that Dulany cites is as follows: “A State ofEquality, wherein all Power and jurisdiction, is reciprocal, no one having more than another,There being nothing more evident than that Ceatures of the same species, and Rank,promiscuously born, to all the same Advantages of Nature and the use of the same Faculties,should also be Equal, One, amongst another, without subordination, or Subjection”. (88)Dulany here uses Locke to claim that Marylanders have the same rights as British subjectsbecause they share the same essential nature as men. In making this case Dulany has steppedentirely outside his historical and legal case for rights and has gone to a natural-lawgrounding for his position, showing himself to be fully aware of and conversant with Lockeantheory.Dulany’s substantial use of natural law ideas continues throughout the pamphlet. Indeed theradicalism that his leads him into is most noticeable near the end of the pamphlet. Havingconcluded the proof for his second contention that Marylanders are entitled to English lawsbecause they were granted them in the provinces’s founding charter, Dulany turns awaysharply from this legal argument, warning his readers that he has not given up “the first RightI mentioned” (that the Marylanders have British rights by being British subjects) by laying78 Dukiny’s citation reads Locke of Civil Government, Chap. 2, Sec. 4.49so great a stress on that which is derived from the Charter”. Dulany protests that he intendsno such thing - indeed “far from it, for I should think the Right good, had the Charter neverbeen made; as were the Rights of English Men, to all the Liberties, confirmed by MagnaCharta and other subsequent Statues, before they were Made”.(lOl) Dulany adds that “as theConfirmation of the subject’s antient or Common-Law Rights, by several Acts of Parliament,is very beneficial to the subject; so the Grant, or Confirmation of the same Liberties by theKing to the People of Maryland is also very advantageous”. Looked at closely, this passageis very revealing of Dulany’s deepest premises, for in it he claims that English subjects have“antient or common-law Rights” before Parliament or any other body - even the King - madethe “Grant or Confirmation”. For Dulany, these rights existed before the political authoritywas instituted and the political authority merely provides “Confirmation” of the rights, anaction that is “advantageous” to the subject’s liberty but not constitutive of it. In short,neither Kings nor Lord Proprietors create rights. Dulany goes on to make this idea of a grantclear. As he notes, “It is no new thing, even in particular cases, to have a Grant from theKing to a private Person, of a Thing in which he really had a right and the King had none”.(101) Although notions of natural law are not explicitly used by Dulany in this passage, hisidea of rights being based on a “higher law”, a law which even Kings must obey, shinesthrough.79 As a result, Dulany holds that the “antient or common law rights” can supersedeFor a full discussion of the American use of the idea of a “higher law” in both their political andconstitutional theory, see Edward S. Corwin, “The ‘Higher Law’ Background ofAmerican Constitutional Law”,Harvard Law Review, 149 (1928), 159-185. According to Corwin, “The influence of higher law doctrineassociated with the names of Coke and Locke was at its height when the American colonies were being settled”,Ibid., 394. Also see Clinton Rossiter’s comments about colonial political theory: The ancient doctrine ofnatural law and its latter-day corollary of natural rights were staples of political theory”, Seed.time of theRepublic. 142.50and even override the claims of both Kings and Parliamentary Acts.The fmal stage in Dulany’s transcendence of an historical or legal case for rights comes onthe pamphlet’s fmal page. Having ended his rigorous and exhaustive argument for Englishrights, Dulany pens a fmal passage that is worth quoting at length, for it captures the essenceof the naturalism in the pamphlet. It begins almost as an aside, with Dulany writing:And I beg leave to add, that Men, from a state ofNature and Equality, formedthemselves into Society, for mutual Defence, and Preservation, and agreed tosubmit to Laws that should be the rule of their Conduct, under certainRegulations. Let us suppose the first Settlers ofMaryland, to be a Society ofPeople, united and combined together, for mutual Defence and Preservation;and sensible, not only of the use, but also of the Necessity of Laws, andconscious of their own Incapacity, to make such as might suit their Occasions,and procure their Welfare and Safety: I say, suppose them under thesecircumstances, without any Regard to their Rights as English or BritishSubjects, or by Charter: And that they actually agreed to make the Laws oftheir Mother-Country, (of which it is to be presumed, they had a general, orat least some Notion,) to be the Rule of their conduct ... And that upon longTryal, and Experience, of those Laws; they became convinced, of the Equality,and Justice of them, and consequently fond of them : Will any one say, thatthey are obliged to change those Laws? Or, to have them upon other Terms,than they have always had them, without their own Consent. (103)In this fmal passage, we can see clearly both Dulany’s view of what rights consist of, as wellas his deepest reason for why Marylanders are entitled to those rights.Dulany’s negative view of rights emerges clearly from this passage. As he puts it “Men, froma state of Nature and Equality, formed themselves into Society for mutual Defence andPreservation”. Here we see the concern for the subject’s rights, for his “Defence andPreservation”, and we see it posited as the reason why men enter into civil society, why theyhave “agreed to submit to Laws, that should be the Rule of their Conduct ...“ (103). Here51Dulany’s negative view of individual rights is both the content of the law and, implicitly, theend of civil society. Society is entered into for certain ends - the protection of the subject’srights - and these ends serve as the standard by which to judge any polity.That the source of these rights is naturalistic is also clear from this final passage. Dulanyexplicitly starts with individual men in “a State of Nature and Equality”; he never mentionsEnglishmen or Marylanders. Indeed, the whole point of the passage is that Marylanderswould be entitled to these rights, regardless of any formal claim to them. As he puts it:“suppose them under these circumstances, without any Regard to their Rights, as English, orBritish subjects, or by Charter”. Indeed, he says, what if they “actually agreed, to make theLaws of their Mother-Country ... to be the rule of their Conduct”, having become convinced“of the Equality and Justice of them”.(103) Dulany is claiming here that men can “consent”to certain laws based upon those laws’ “Equality and Justice”, irrespective of whether or notthey have a legal or historical title to them.This final passage contains further proof that Dulany’s fundamental premises are those ofnatural law. It has abundant evidence that his political reasoning is based on a notion of thepre social individual, free and equal by nature, who consents to a society that protects hisrights and “procures” his “Welfare and Safety”( 103). This passage also provides strongevidence of the influence of Locke’s Second Treatise on Dulany. Locke is directly citedonce, and strongly echoed in this lengthy fmal passage. That Dulany would end the pamphlet52in this fashion is an eloquent indication of both the availability of natural law ideas to him,and his willingness to use them as a basis for the rights of Marylanders.* * * *There is one final issue that needs to be dealt with before we leave this discussion of whatDulany considers the source of rights to be: namely, what is the exact relationship betweenhis two methods - English rights and natural rights - of arguing for the “benefit” of Englishlaws. In particular we must ask which, for him, was the most fundamental reason forrights?80Several points are worthy of comment here. The first is that Dulany mixes the twoarguments and seems to see no incompatibility between them. This mixture occursthroughout the pamphlet. Several examples will suffice. In the definition of the common lawdiscussed above, Dulany first defines it in natural law terms, but then goes on to add that thecommon law also includes “such Usages, and Customs, as have been experimentally found,to suit the Order and Engagements of Society ... and which by consent, and long use, haveobtained the Force of Laws” (82). Dulany evinces a similar concern for long usage as thebasis of rights in the Lockean section at the end of the pamphlet. Again it comes right afteran argument for rights based, as we have seen, on the law of nature. According to Dulany,‘ David Mayer in his recent book on Jefferson, notes the propensity of Whig philosophers, as opposedto Whig historians, to defend the “Rights ofMen” on the grounds of natural rights. David N. Mayer, flConstitutional Thought of Thomas Jefferson (Charlottesville: University Press of Virginia, 1994), 20-4.53if Marylanders were men in a state of nature, they would choose to make “The Laws of TheMother Country ... to be the rule of their Conduct”; and they would only do so if “upon longTryal, and Experience, of those Laws; they became convinced, of the Equality, and Justiceof them, and consequently, fond of them”.(103) As we have seen, Dulany also cites manypassages in which he claims Marylanders have “a Right to English Liberties”(89); he speaksof “the Rights” Marylanders “were born to in Common, with their Fellow Subjects”.(102)At the start of the pamphlet he describes the English law as something the “Mother Countryhas experimentally found, to be beneficial to Society, and adapted to the Genius, andConstitution of their Ancestors”.(81) Yet, at the same time, he is equally capable ofcriticizing arbitrary rule as inimical to the “Rights of Mankind”. Finally he states that hiswhole argument in the pamphlet “for the Preservation, and Security of the Subject’s Liberty”,has been argued “from Reason and Authority”(103); that is, from the law of nature and froman historical precedent or title - the long tenure to such rights held by British subjects.Throughout, the pamphlet is characterized by a mixing of these two arguments for rights, onefollowing the other, with no explicit indication on Dulany’s part of any order or priority.Perhaps the most important thing to state is that Dulany clearly sees no conflict between therespective claims of English rights and natural rights. Both, for him, have the same essentialcontent: the preservation of the subject’s life, liberty and property. He makes no systematicstatement to this effect, but the structure of the pamphlet, his continual juxtapositioning ofthe two approaches, leaves one in no doubt that he regards them as compatible. Each, forDulany, protects the subject in his person and property. Moreover both the rights of54Englishmen and the rights of mankind have been violated by tyrants in the past, and each,therefore, need the benefit of English laws. It appears that Dulany is not alone in thisapproach to the issue. Several historians have noted the tendency of 18th-century Americansto conflate the claims of the “Ancient Constitution” and English law with those of the naturalrights tradition. According to Clinton Rossiter, although “sound Whig doctrine” dictated that“the antiquity of the English Constitution and liberties was their chief claim to devotion [as]colonists became increasingly conscious of natural law and rights, they began to setconformity to nature alongside antiquity as an explanation of the peculiar excellence of theEnglish scheme”. Rossiter cites the Connecticut Gazette of April 10, 1756, which declaresthat “It is the glory of the British Government that these natural Rights of Mankind, aresecured by the Laws of the Land”.81 While the issue of the relationship between these twoapproaches to rights, their relative influence on and importance for the colonial andrevolutionary mind, is too large an issue to delve into here, an examination of how Dulanyweighs their relative importance should provide some further insights into his deepestpremises.Despite the mixture that we have observed in Dulany’s pamphlet, there is strong evidencethat, for Dulany, the idea of natural rights, was the deepest premise in his politicalphilosophy. The most important indication that this was the case is his continual use ofnatural law theory at key points in his argument. As we have seen, he defmes the common81 Rossiter, Seed.time of the Republic, 143. See James Wilson’s statement: “The law of England speaksnot a language contrary to that of the law of nature” in his “On Municipal Law”, reprinted in Charles S.Hyneman and Donald S. Lutz, American Political Writing During the Founding Era, 1 760-1805. Vol. II.(Indianapolis: Libery Press, 1983), 1292.55law in terms of natural law, “a law which is equally binding, at All Times, in All Places, andto All Persons”(82); he makes his case for the equality of rights between Englishmen andMarylanders on the basis of a key passage from Locke’s Second Treatise; and he railedagainst those who would violate “all the Rights, which the English subject was entitled to,by the Common Law ... (90), branding such men as violators of “The Law of Nature”, a lawwhich states that “All Men were equal” and are therefore “enjoyned, to treat one Another,with Humanity, Justice and Jntegrity”.(90)Perhaps the most compelling evidence in the pamphlet regarding the importance of a naturallaw or natural rights approach on Dulany, is the fmal passage, quoted at length above, wherehe claims that Marylanders could contract into a society to protect their rights, regardless ofwhether or not they were English subjects. Again, he explicitly states that this could be done“without any Regard to their Rights, as English or British subjects, or by Charter”.(91) Infact his priority clearly is on a set of pre-existing rights that Marylanders would choose tohave enshrined “by the Laws of their Mother-Country”.(103) Here Dulany is claiming thatEnglish laws would be chosen by such a people, because they respect rights; and he is alsomaking an unmistakable claim that these rights are based on a freely entered-into compact.On the evidence of this passage, Dulany clearly believes that the laws of England are whatmen in a state of nature would consent to. That he would place such a strong statement ofnatural law concepts - consent and rights - as the fmal statement of a pamphlet arguing forthe “benefit” of English laws, is good evidence of their importance for Dulany. The fact thathe is aware of Locke this early and that he goes to him for fundamental theory is also56significant for our understanding of the pre-Revolutionary acceptance of Locke.82 ThatDulany, as early as the 1720’s, sees no problem with using a natural law approach to rightsin an important public pamphlet is good evidence of both the availability and importance ofsuch ideas in colonial America.DULANY ON VIRTUEThe idea of republican or civic virtue has become perhaps the key concept in recentscholarship on 1 8th-century American political theory. The central thesis of this scholarshipis that 18th-century thinkers held, at the core of their political thought, the ideal of thevirtuous citizen, sacrificing all his private concerns to the public good. Significantly, alongwith this development in the scholarly literature has gone a downplaying of the role of JohnLocke and the historical importance of his theory of individual, natural rights.83 AlanHouston summarizes the essentials of this trend, claiming that most modern historians assumethe existence of “a classical theory of virtue” and take it to be “distinct from and in tensionwith the liberal logic of rights and interests”. Given Dulany’s strong concern for rights, itAccording to Barker, in Dukmy ‘s pamphlet, “the idea of natural law was invoked hardly less boldlythan it was to be during the revolutionary period itself’. The Backeround to the Revolution in Marvland 163.For evidence concerning the influence of Locke on the early 18th-century New England clergy, see Alice M.Baldwin, The New En,land Clerv and the American Revolution (New York; 1928).‘ For a short, succinct, statement of this position see J. G. A. Pocock, “Virtue and Commerce in theEighteenth Century, Journal of Interdisciplinary History, III, (1972), 119-134. See also Pocock’s various essaysin his Virtue, Commerce and History: Essays on Political Thought and History. Chiefly in the EiRhteenthCentury (Cambridge: Cambridge University Press, 1985). For a strong critique of this classical view of virtuefrom a former adherent see Lance Banning, “Some Second Thoughts on Virtue and the Course of RevolutionaryThinking” in J. G. A. Pocock and Terence Ball, eds., Conceptual Chanfe and the Constitution (Kansas:University of Kansas Press, 1988), esp.,204.‘ Houston, Alernon Sydney and the Republican Heritage, 3.57will be interesting and infonnative to enquire into his view of what virtue is, and how itrelates to his overall political philosophy.Several points merit attention in this respect. The first is the marked lack of concern forcivic virtue in the pamphlet. As we have seen, Dulany’s main focus is on the politicalquestion of the proper limits to governmental action, on what rulers may or may not do. Theamount of space devoted to discussing the moral character of the citizenry pales incomparison. Modern historiography notwithstanding, Dulany treats issues of civic virtue andthe sacrifice of individual interests to the greater good as secondary.The second point to be made is that when Dulany does discuss the issue of virtue, hisconcern is not wholly with civic virtue. As Jack Greene has noted in an essay critical of thehistorical importance of classical or civic virtue, the colonial Americans were a society whose“conceptions of virtue were primarily personal and non-civic”.85 Dulany provides evidenceto support this contention: his view of virtue is a mixed one, incorporating a concern for bothprivate and public morality. A close look at some key passages from the pamphlet will allowus to explore these issues in greater depth.85 Jack P. Greene, “The Concept of Virtue in Late Colonial British America “, in his Imperatives,Behaviors. Identities: Essays in Early American Cultural History (Charlottesville: University Press of Virginia,1992), 232. According to Greene: “notwithstanding the recent emphasis given it by the Anglo-Americanhistorical community, the significance of the concept of civic virtue may have been considerably inflated’ ijj4,234. Joyce Appleby, one of the most trenchant critics of the classical republican tradition, describes this shiftaway from public virtues: Virtue had lost its public character and attached itself instead to the private rectitudeessential to a system of individual bargains. The instrumental attitude toward government implicit in Locke’sSecond Treatise was made explicit ... that the security of life, liberty, and property was the only reason forentering civil society and hence the punishment of offenses against violators the major task of government ‘Capitalism and a New Social Order: The Republican Vision of the 1790’s (New York: New York UniversityPress, 1984), 96.58Again, one of the most important places to look at is Dulany’s discussion of the common lawas an expression of the law of nature. Having made this crucial connection, Dulany goes onto add that this formulation contains “Nothing inconsistent with Honesty, Decency, and GoodManners”.(82) What can be made of this contention? The first point is that his discussionof these virtues is a secondary matter, it comes almost as an aside, a qualification. His mainconcern in this section is “to treat of these several Rights ...“(82) and their base in thecommon law and the law of nature. It is not that he is indifferent to the issue of virtue,merely that his main concern is political. The second point is that the virtues he lists are notprimarily public; they refer not to one’s capacity to sacrifice but rather to a man’s moralcharacter, to his “Honesty, Decency and Good Manners”, virtues that could as easily applyto the private realm as to the public.86 Indeed Dulany’s prime concern is with the formerrealm. This becomes evident when he discusses the kind of men that the English law is toprotect. According to him, its purpose is to “restrain those that are unruly amongst us, andto secure and protect those that are peaceable, and innocent ... “. (95) Although Dulanydoesn’t elaborate, it is clear from this passage that he believes in the existence of virtues inthe citizenry, and that these virtues are mainly private ones: he is arguing for “peaceable andinnocent” citizens to be secure in their common law rights, rights which contain “Nothinginconsistent with Honesty, Decency and Good Manners”.See Greene,, 234. Rossiter has an excellent catalogue of the range of virtues discussed incolonial newspapers and pamphlets. According to Rossiter, “the virtues themselves ... were an ill-assortedinishniash of Greelç Roman, christian, and latter-day English qualities ... He cites a huge list, including:“wisdom, justice, temperance ... honesty, fortitude, love, benevolence ... ‘ Seedtime of the Republic. 138.59Indeed Dulany has little to say on the issue of the virtuous citizen. He does not anguish overhis existence, nor fear for his corruption. Dulany takes it for granted that there are both goodmen and bad men, but has little to say on the subject. He does refer to the “Depravity ofHuman Nature” and laments how “little the Love of Equity, and Justice” has “prevailedamong Men”.(90) Yet he is also certain that virtue does exist, claiming that England is “ANation, that has abounded, with Men of great Abilities, great Interest, and opulent Fortunes;that were Patrons of Liberty, Lovers of Justice”. (91) In fact it is when describing the clashbetween these two types of men that Dulany’s view of what it is to act virtuously comes outwith particular clarity.As we have seen, good men for Dulany are honest and decent, peaceable and innocent. Moreimportantly, the evil men, the “Men of Power”, are those who use force to violate the rightsof their fellow subjects. As Dulany puts it, “all the Rights, which the English Subject wasentitled to by the Common Law, were at Times, invaded by Men of Power andAuthority”.(90) Here Dulany’s normative position can be seen. According to him, these evilmen are unvirtuous because they violate rights and thus the law of nature; they fail to treattheir fellow subjects “with Humanity, Justice and Integrity”.(90) Indeed when Dulany doesbemoan the “Depravity of Human Nature”, he offers as an example of this depravity menwho treat “One Another, with the greatest Cruelties imaginable” and thus discard “the Loveof Equity and Justice”.(90) So, for Dulany, the issue of virtuous action is inextricably boundup with respecting the rights of one’s fellow subjects. For him, to violate rights is theparadigmatic example of immoral or unvirtuous conduct. Rights are thus one way that he60holds the ideas of justice and virtue. Indeed this connection between rights and virtue is onethat has been ignored by much of the recent scholarship on the political thought of the 18thcentury; yet it is a theme that runs through Dulany’s pamphlet. Indeed the whole idea ofnatural law and natural rights, an idea that has such a strong hold on Dulany’s thought,contains strong normative claims concerning how men should act toward one another. It is,in fact, a form of moral universalism and contains a conception of virtuous action within it,one that according to Dulany’s strong statement at the outset of the pamphlet is “equallybinding, at All Times, in All Places, and to All Persons”.(82) On the evidence of thepamphlet, Dulany’s primary moral concern is with this law of nature and the equality of rightsthat it grants to all men. As a consequence, Dulany holds no simple notion of classicalvirtue, but rather includes the idea of respecting rights within his general notion of moralconduct. For him, unlike for modem scholars, rights and virtues are compatible, and therights which all men have are clearly intended to preserve a large private realm wherein“every subject has a Right to the Enjoyment of his Liberty and Property”.(86) Furthennore,the virtues that these rights protect are not wholly civic; indeed, it is clearly a moral priorityfor Dulany “to secure Good Men from Violence and Oppression”.(91) And, as we have seen,these “Good Men” are praised by Dulany for being “peaceable and innocent”, as well ashonest and decent - virtues that emphasize the subject’s private character and conduct, not hiscapacity to act in the public realm. To explore the issue of virtue more fully, we shall nextturn to Dulany’s views on the issue of the public good.61DULANY ON THE PUBLIC GOODAlthough we have attempted to diminish the importance for Dulany of a civic or public ideaof virtue, there clearly are hints in the pamphlet of the classical idea of virtuous sacrifice tothe public good. One passage in particular stands out, yet when it is looked at in the contextof the overall concerns of the pamphlet, it offers further proof for the contention that Dulany’sidea of virtue is a mixture of classical and modern notions, and that again the idea of naturalrights is a central one. The passage occurs as part of Dulany’s discussion of historicalinstances of rights-violations. He notes that England has had many virtuous men in the past,“Men of great abilities, great Interest, and Opulent Fortunes”; and “Men”, Dulany stresses“that were Patrons of Liberty, Lovers of Justice and such as preferred the Good of theirCountry to All their own particular Concerns”.(91) However, taken in context, this passagereveals the complexity of the issue, because Dulany goes on to claim that these men, actingin this way, “were therefore, Checks to Oppressors, and Violators of Laws, and the Rightsof Mankind”.(91)The combination of concerns in this passage should indicate to us something about Dulany’spremises: namely that he believes in both the existence of virtuous men and a public goodabove their own “particular Concerns” to which they should aspire; but that this public goodand this virtue exist in part to secure the “Rights of Mankind”. Here Dulany is exhorting “theMen of great Abilities” to combat those “Men of Power and Authority” who would violaterights.(90) Clearly Dulany includes in this seemingly classical definition of the public good,62a strong element of concern for rights;87 and it is toward this latter goal that the “Virtue,Resolution and Endeavours of These Worthies”(91) was to be directed. Here civic virtuebecomes a means to secure rights, and the protection of these rights comprise, at least in part,Dulany’s notion of the public good.88Something like this thesis has been glimpsed by modern scholars, as a way of reconciling thecompeting 1 8th-century notions - liberal or republican, classical or modern - with whichmodern historiography is wrestling. As Gordon Wood has noted, “public or political libertymeant participation in government. And this political liberty provided the means by whichthe personal liberty and private rights of the individual ... were protected”.89 Lance Banningoffers a similar characterization of the role of the virtuous citizen in 1 8th-century politicalthought. Referring to the Jeffersonian Republicans, he claims that they “inherited a way ofthinldng that accustomed men to move immediately from the concepts of a contractual originof government and inherent individual rights, to the assertion that a balanced form ofAlgernon Sidney, allegedly an early modern proponent of a purely classical view of the public goo4has this to say: “If the publick safety be provide4 liberty and propriety secure4 justice administere4 virtueencourage4 vice suppressed ... the ends of government are accomplished”. Although Sid.’wy includes theencouragement of virtue amongst the ends of govern,nent, he also believes that these ends also include “thedefence of everj private man’s We, liberty, lands and goods”. As such he exemplf1es the mixture of concerns -both private and public - that 17th and 18th-century political theory identified by theidea of the public goocLSee Discourses ConcerninR Government (London, 1698) III, 21. Reprinted by Liberty Press, 1990., ea byThomas G. West.See the excellent discussion of the “evolution” of virtue in the 18th century in Richard Vetterli andGary Bryner, In Search of the Republic: Public Virtue and the Roots ofAmerican Government (Totowa: Rowan& LittleflekL 1987), 3. According to these authors, for the “modern” conception of virtue, the task was nolonger “the organized development of civic virtue in the citizenry”; rather it became the “means to assureindividual liberty and self-government”.Gordon Woo4 The Radicalism of the American Revolution (New York: Alfred A. Knopf 1992), 104.63government and sufficient virtue to preserve that form are necessary guarantees of liberty”.9°As we have seen, Dulany provides support for this thesis: he clearly has a strong notion ofindividual rights, and includes this as part of his conception of the public good. In addition,he speaks repeatedly of the virtuous men of England, those “brave, honest Patriots” whostrove mightily in the public realm to defend rights. (94) However, there is a sense in whichDulany transcends even this idea of classical virtue as a means to liberty. To see this morefully, we will now turn to his discussion of the law and its relation to virtue.LAW AND VIRTUEAlthough Dulany clearly has an idea of classical or civic virtue as a means to secure thepublic good and the individual rights which comprise it, there are other aspects of Dulany’sthought, which confound a simple conception of civic virtue. This can be seen if we examinehis views on the relative importance of civic virtue and English law as a means of securingrights. Here Dulany comes the closest to transcending the venerable ideal of the participatorycitizen. Instead he employs the idea of law as the best means to protect the rights of thecitizens.This can be seen in his treatment of the efficacy of the English patriots in defending theirrights and those of their fellow citizens. As we have seen, Dulany describes these Englishmen of virtue as preferring “the Good of their country to All their own particularConcems”.(91) And, as such, he believes that they “were therefore, Checks to Oppressors,Lance Banning, “Jeffersonian Ideology Revisited: Liberal and Classical Ideas in the New Republic “,William and Mar’,’ Ouarterly, (1986), 12.64and Violators of Laws, and the Rights of Mankind”.(91) Here we can see Dulany’s beliefboth in the existence of the disinterested citizen, and in that citizen’s role in the preservationof rights. However, the passage that follows should give us pause for thought, for in itDulany offers a different approach to the issue of securing the public good, one that clearlydownplays the role of men of virtue. It is worth quoting at length, for having proclaimedthese “Men of great Abilities” to be protectors of the “Rights of Mankind”, Dulany addsthat:Yet the Virtue, Resolution and Endeavours of these Worthies, were notsufficient, to secure themselves, or their Fellow Subjects, in the Enjoyment oftheir Rights and Liberties; or the Law, from being polluted by All Men, inAuthority; or turn’d to the Destruction of the Best, for opposing the Ruin oftheir Country. That this, hath often been the Case in England, everybodyknows, who is at all acquainted with its History; and I believe it has been so,in all other Nations. Such calamitous Circumstances, were not to be born bya Free-People, who were possessed of the Means, to provide for their ownSafety. (91)In this passage Dulany is claiming that the “Virtue, Resolution and Endeavours of theseWorthies” was not enough “to secure themselves, or their Fellow Subjects, in the Enjoymentof their Rights and Liberties”. What is required, he claims, is the force of the laws,specifically the statutory laws like Magna Charta, which he so strongly desires for Maryland.Only these, he holds, can fully protect the subject’s rights. Alone, the endeavours of thevirtuous citizen can only lead “to the Destruction of the Best, for opposing the ruin of theirCountry”. Only by “further Provision by positive laws; such as our Statutes” can Men bestopped “from treating one Another, with the greatest Cruelties imaginable”.(90-1) ForDulany, then, only “the Fear of Punishment”, and not civic virtue, is able to deter the“Disobedient and Refractory”, and thereby “secure Good Men, from Violence and65Oppression”. In the final analysis this is why “a Free People” need legal protection as “theMeans, to provide for their own Safety”.(91)This theme of the importance of the law and the unimportance of civic virtue is sustainedthroughout the pamphlet. In emphasizing the need for the statute law in Maryland, Dulanyagain refers to English history, claiming “that there were great Numbers of brave, honestPatriots, who understood the Laws of their country, perfectly well, and who never fail’d touse their utmost efforts, in Opposition to every Violation of that Law; that notwithstandingall they could do, themselves, and others, were insecure in their Lives, Liberties andProperties”.(94) Dulany is at pains to point out that this happened despite the large numberof patriots “that England has been blest with, in all Ages”.(95) Thus “it became necessary,to confirm and strengthen, the antient rights by the Legislative Authority”.(94 As if toreinforce this point, Dulany asks rhetorically if Marylanders “have less Occasion for Laws,to restrain those that are unruly amongst us, and to secure and protect those that are peaceableand innocent” than Englishmen do, given that it is doubtful that in Maryland “the Number,Ability, Interest, or Fortune, of our Patriots bear any Proportion, to those that England hasbeen blest with, in all Ages”.(95) Given that the answer is clearly ‘no’, and that if England’svirtuous patriots were ineffectual, Maryland’s will be even more so, Dulany claims that thisis why Marylanders need “the Statutes to declare the subject’s Right at the Common Law; andto establish, strengthen, and confirm that Right”.(95) The danger is that without such law,the subject “must not only submit to past Injuries, if done by a Person superior to him in66Power; but be exposed to future Insults, whenever Power, and Inclination, concur to oppressHim”.(86-7)The hold that this idea of a fundamental law had on Dulany can be further illustrated. At onepoint he declares: “that the greatest Advantage, which the Subject can possibly derive, fromthe Royal Protection, is the Benefit of the Laws; that so long as the Subject hath that, he issecure of every Thing which belongs to Him; that when He loses It, he loses every Thing;or at best hath but a very uncertain and precarious Tenure, in any Thing”.(87) Dulanyaccords the same role to Parliamentary Declarations; for him, their prime function has alwaysbeen to secure and protect the subject’s common law liberties from violation. In his historicaltreatment, Dulany accords pride of place to such key Parliamentary Declarations as MagnaCharta and the Petition of Right. According to him these statutes gave evidence of “ample,and large Declarations in Parliament, of the Subject’s Rights; loud Complaints of the violationof those Rights; The Rights, themselves, confirmed; and the knavish chicanes and craftyInventions, that were introduced to deprive the Subject of his Rights, are abolished”.(93)Here, Dulany makes it clear that it was the role of fundamental statute law, not civic virtue,to protect rights, to abolish the acts of “Knavish Chicanes” and their “crafty Inventions”. ForDulany such acts of Parliament were necessary “to heal the Breaches that had been made inthe laws; and to establish and confirm the antient Rights of the Subject”.(99) Furthermoresuch Acts “have always been deemed as essential a Part of the Security of the Subject to hisRights and Privileges as the Common law itself’.(99) To emphasize the point, Dulany claims67that so important are these statues that their “Abrogation ... would in Effect, be an Abolitionof the Liberties themselves”.(99)* * * *The substitution of civic virtue and public spirit by Dulany, for the protection of fixed laws,and his clear downplaying of the role of the patriot, leads to our last topic, what may betermed his nascent constitutionalism. For in a tentative way, his call for the protection of theEnglish statutes is really a call for a fixed and written body of laws to secure the citizens ofMaryland in their rights,91 to free them once and for all from the proprietorial veto. He doesnot want to have to rely on Maryland having men of sufficient virtue and integrity to defendliberty - he clearly believes that this had proved ineffectual in the case of England - but wantsthe protections afforded by the great body of English statute law instead. Admittedly thepamphlet does not contain any call for a fixed constitution, but such a claim is consistent withhis overall position; which is that Marylanders’ rights, “Rights they were born to in Commonwith the Fellow Subjects”, are in a precarious position if only held at the common law ordefended solely by men of virtue. He is certainly aware of English constitutionalism, andpraises the early English experiments with written constitutions, noting that in 1688 “aParliamentary Declaration of the Rights, and Liberties of the Subject, was thought necessary;not because the Subject had forfeited his rights, and Liberties; or demanded new: But becauseHannah Arendt, the great 20th-century proponent of a classical approach to political life, captures theessence of this approach, labelling it “fundamentally anti-political”, a desire to “be rid of all public cares andduties; to establish a mechanism of government administration through which men could control their rulers ...On Revolution (New Yorlç 1963), 133.68those that antiently belonged to him had been invaded, and violated”.(93) Dulany is evenadamant that Marylanders should get the English statues “in a lump” and not be obliged toenact them “De Novo”, as the Lord Proprietor had offered. Clearly Dulany fears theproprietorial veto; but he also believes that if Marylanders have the right to English liberties,then they should automatically get “the benefit” of the fixed body of statute law that guardsthem so well. As he puts it: “Should We attempt to enact such of the English Statues as maybe supposed to suit the condition of the Country, upon a Supposition, that We have no Rightto them, without so doing; and that We should miscarry in that Attempt, which is notimpossible, it would be such an argument against the Right we contend for, as we could noteasily get over”.(105) Clearly, Dulany feels that the best protection for the “Right wecontend for” is in the wholesale transfer of the statute law to Maryland. In Dulany’s claimwe can see the beginnings of a modem approach to constitutionalism. Viewed in this way,his desire for the statutes constitutes further evidence of both his concern for the subject’srights and legal protection, as well as his relative lack of concern for a classical, participatoryapproach to politics.92Dulany here presages the American concern for constitutionalism, which reached its apogee in thelate 18th century, at both the state and federal level. This American interest in fundamental law was part of theEnlightenment’s “science of politics”; the project whereby the Americans “not only embraced the body ofEnlightenment principles, but wrote them into law, crystallized them into institutions, and put them to work”.Henry Steele Commager, The Empire of Reason: How Europe Imagined and America Realized the Enlithtenment(New York: Anchor Press, 1977), xi. See also Douglass Adair, “‘That Politics May be Reduced to a &ience’.David Hume, James Madison, and the Tenth Federalist”, in H. Trevor Colbourn, ecL, Fame and the FoundingFathers: Essays by Dou2lass Adair (New York: W. W. Norton & Co., 1974), 93-1 06.69SOURCESMuch of the current debates surrounding 18th-century political thought concern the issue ofwhich intellectual traditions were available, to whom, and when.93 We have alreadyexamined the influence of John Locke on Dulany. To conclude our analysis of the pamphletwe will discuss some of the other sources employed by Dulany in the pamphlet. This willallow us to round out our analysis of Dulany’s fundamental premises by an examination ofthe full-range of the intellectual influences on the pamphlet, seeing what each contributes toits argument.Fortunately for the historian, Dulany is, unlike many 18th-century authors, concise and clearin his citations; he always supplies the reader with full references and notes, and alwaysindicates these with clear quotation marks. As a result it is easy to identify his sources. Byfar the most frequently cited body of thought in the pamphlet is that of the English legalscholars and historians. The pamphlet abounds with quotations from Lord Coke’s Institutesand his Reports; from Rushworth’s Historical Collections; and from Henry Care’s EnglishLiberties. As we have seen, Dulany also exhibits an intimate knowledge with the history offundamental statute law, especially the Magna Charta and the Petition of Right. He is alsofamiliar with those statutes which resulted from the Glorious Revolution, giving us anSee Daniel Walker Howe, “European Sources of Political Ideas in Jeffersonian America”, Reviews inAmerican History (10), 1982, 28-44.For a listing of the contents of Dulany’s library, see Joseph T. Wheeler, “Reading and OtherRecreations ofMarylanders, 1700-1776”, Maryland Historical MaRazine. (38) 1943, 52-3.70example of “the first Act for settling the Succession of the Crown”, which included “aParliamentary Declaration, of the Rights, and Liberties of the Subject”.(93)The link between Dulany’s legal and historical erudition and his political philosophy is madeclear repeatedly in the pamphlet. The history of English law consisted of attempts to limitthe power of “the Great officers of the Crown, and other Great Men” from violating theSubject’s common law rights.(92) According to Dulany these legal steps were taken “notbecause the Subject had forfeited his Rights, and Liberties; or demanded new; but becausethose that antiently belonged to him, had been invaded and violated”.(93) The lesson Dulanylearned from this is clear: the subject’s “antient rights” were invaded by arbitrary authorityand thus the law of England was necessary to shore up these breaches of the subject’s rights.Dulany’s citations from English legal scholars also help us get a fuller picture of what hemeant by the subject being secure in his rights. One aspect of Dulany’s thought that comesacross strongly from his reading of the history of English law is his concern for due process.Dulany cites the 29th chapter of the Magna Charta which declares that no subject shall besubject to exile or imprisonment or have his property seized. According to Dulany: “The29th chapter is not long, and ought to be read by every Body, and (in my humble Opinion,)taught to children, with their first Rudiments”.(9l) Dulany continues with this theme,claiming that “By another statute, subsequent to Magna Charta, it is provided “That no Man,of what Estate, or Condition that he be, shall be put out of Land, or Tenement; nor taken, nor71imprisoned, nor disinherited, nor put to death, without being brought in to answer, by dueProcess of Law”.(91)For Dulany the lessons to be drawn from his study of the law and its history was thenecessity for the subject to be dealt with by fixed and settled law; a law that protected himby due process from arbitrary attacks. Only thus could the “Lands, Tenements,Hereditaments, Goods, or Chattels, of any of the Subjects of this Kingdom” be secured.(93)As Dulany concludes: “Great officers transgressing this Law, are liable to severePenalties”.(93)What is interesting about Dulany’s use of these legal history sources is the complete absenceof any references to the venerable Saxon constitution which exercised such a great influenceon many colonial Americans.95 The closest he gets to such an appeal is his repeatedinsistence on the importance of the subject’s “antient rights”. But even his linking of rightsto the common law does not include a claim that the common law dates from Saxon times;rather, as we have discussed, he describes the common law in terms of natural law. Heclaims that the Magna Charta “appears to be, A Declaration of the Common Law”, noting thatthis is something to which “all eminent Lawyers agree”.(91) But, for the most part, heresolutely avoids a discussion of the historical roots of the subject’s rights. He seems to becontent with just proclaiming their antiquity. By contrast he lavishes a great deal of attentionFor extended discussions of the importance of the Saxon idea in Colonial America, see H. TrevorColbourn, The Lamp of Experience, 21-39; and David N. Mayer, The Constitutional ThouRht of ThoniasJefferson. 11-18,72on the history of modem statute law and the great advances that it has brought about in theprotection of individual rights. Indeed this shift of attention puts him at odds with the waysome scholars have portrayed the Americans’ use of the history of English law. For Dulanyhas no trace of sentimentality or longing for a mythical past of Saxon purity and virtue. Inhis brisk and matter-of-fact way he seems to be content with the ability of modem law tosecure the subject in his person and property.Dulany also confounds modem scholarship in his lack of any real concern for the classics.As we have observed, he uses the example of St. Paul as historical evidence for the way theRoman Empire granted equal protection of the laws to all its subjects. He also cites manyclassical authorities, from Tacitus and Seneca, to Caesar’s Commentaries, for historicalevidence of the benefits that accrue to the rulers of an empire if they treat their subjects well.However, these two passages exhaust Dulany’s use of classical sources. More importantly,they contribute nothing fundamental to his argument, which is predicated on the Marylanderspossessing rights and laws, either by virtue of being British subjects or by their nature asmen. Dulany’s classical references do not speak to how one grounds a claim to rights, norto the issue of why the people of Maryland are entitled to them. They are offered as extraproof, as an example of how well some empires in the past have dealt with their subjects; butDulany never claims that Marylanders have rights because of any classical precedent.Moreover, a close inspection of the passage which contains the bulk of Dulany’s classicalcitations, indicates an even weaker acquaintance with the classics on Dulany’s part; for mostof the examples he cites, such as Tacitus’ account of Cerealis addressing the Gauls, or73Polybius’ admiration of Antigonus’ moderate attitude toward the Spartans, are taken verbatimfrom Grotius’ Rights of Peace and WarY(97)In fact, Dulany’s awareness of both Grotius and Pufendorf is made clear in the pamphlet.Much in the manner that he uses Locke, he employs both Grotius and Pufendorf to establishthe equality of rights between Colony and Mother Country. Dulany claims that:It will not be amiss, to observe the Opinions of the two great Civilians, andPoliticians, Pufendoif and Grotius, in Relation to Colonies: The first, says,“That Colonies may be, and often are, settled in dfferent Methods; For, eitherthe Colony continues a Part of the Common-wealth It was sent from; or elseis only to pay dutiful Respect to the Mother-Common-wealth, and to be inReadiness to defend and vindicate its Honour”(86) ... And Grotius saith: “thatsuch, enjoy the same Rights of Liberty with the Mother City”. And again, inanother Place, “For they are not sent out to be Slaves, but to enjoy equalpriviledges, and Freedom “. (86)Dulany’s use of “these great Men” supplies further evidence for the claim that natural law andnatural rights were key components of his thinldng. As recent scholarship has suggested,both men were key figures in the early modem revival of the idea of natural law. Dulany’semployment of them as sources for his claim of equal rights for, Marylanders should givemodem scholars food for thought. Unfortunately, the recent downplaying of the role of JohnLocke has meant that there has been very little scholarly investigation into the influence ofother natural law thinkers on colonial thought. Perhaps the evidence presented in Dulany’sThe citation reads “Grotius of the Rights of Peace and War, B.3, Chap.15 “.See Richard Tuck, “The ‘Modern’ Theory of Natural Law” in Anthony Pagden, ed, The Lantuaes ofPolitical Theory in Early Modern Europe (Cambridge: Cambridge University Press, 1987), 119. Tuck claimsthat: “the moral theories of the late 17th and 18th century natural lawyers constituted in many ways the mostimportant language of polities and ethics in Europe, influential over a huge area and in a wide variety ofdisciplines ‘74pamphlet, and in that of his near contemporary John Wise, will be a catalyst for further workon the transmission of natural law ideas to the American colonies.Given the tenor of the current scholarly debate, a discussion of some of the sources thatDulany fails to employ will be entertained here. We have seen the marked lack of any useof the classics by Dulany; what is more intriguing is his failure, with a single exception, tocite any of the members of the “Real Whigs” or “Commonwealth Men”, figures supposedlyexercising a determinative influence on pre-Revolutionary political theory, with their revivalof classical ideals and concerns.98 The sole exception to this is Dulany’s brief use of Cato’sLetters. He employs them as support for the important role of the statutes in providing atleast some check on “wicked Men in Power”. Referring to Cato as “an ingenious Author”,Dulany cites the following passage: “If Men will be great Knaves, in spight of Opposition;how much greater would they be, if there were none”.(95) Although this passage indicatesDulany’s awareness of Cato, its importance in the overall scheme of the pamphlet isdiminutive. Dulany does not employ Cato to provide new ideas, or fundamental theory, ashe does with Locke; he merely adduces him in support of a point already well established.On the evidence of this pamphlet, Dulany would seem to defy the generalizations profferedby Bailyn and others, that the literature of the Walpolean opposition was a formative one isthe shaping of colonial political theoryYAlthough not employed in the pamphlet, Dulany library included the following radical Whig writers:Gordon ‘s Tacitig, Molesworth ‘s Account of Denmark: as well as “Locke’s Works “; Grotius”; “Polibius History”;and “Pufendorfs Law of Nature “. See Wheeler, “Reading and Other Recreations “, 53.See Bailyn, The OriRins ofAmerican Politics (New York: Vintage Books, 1967), esp., 3-58.75One fmal component of Dulany’s thought is revealed in the pamphlet: his knowledge of thelegal history of Maryland. We know from the scholarship of Aubrey Land that Dulany wasnot only the prime spokesman for the Maryland Country party in the 1720’s, he was also theirmost knowledgeable member concerning issues surrounding the legal history of the province.Dulany sat on the powerful Committee of Laws of the lower house of assembly, and as suchspent many hours searching through the provincial archives, gathering knowledge for hisspeeches and addresses in the lower house.’°° This knowledge is put to good use in thepamphlet, as he skilfully incorporates the grant of “the Rights of English, or British Subjects”in the Maryland charter into his broader argurnent.(82, 98-9) Here Dulany gives evidenceof the self-confident colonial, able to blend European influences and local knowledge, toarticulate a powerful and well-reasoned case against proprietorial power.10’ Having examinedthe full range of sources that Dulany employs in the pamphlet, we will now conclude witha consideration of the work as a whole.Land The Dulanys ofMarykind 62-75.101 For a glimpse of the richness of intellectual lfe in the colonial south, see Richard Beale Davis, “TheIntellectual Golden Age in the Colonial Chesapeake Bay Country’ The Virrinia Magazine of History andBioraphv, 78 (1970), 131-143.ioismio:III9L77DULANY’S POLITICAL THOUGHT: A FINAL WORDIn conclusion I would like to bring the various strands of my analysis together, and take aview of Dulany’s political philosophy as a whole. We have already dwelt at length on theimportance he places on the idea of the rights of the individual subject. What I propose todo in this conclusion is to look at the way that this central idea structures the rest of hisconcerns.We have seen this happen in our examination of his views on virtue. The strong emphasisthat he places on securing the subject from invasions of his rights, necessarily involves himin a downplaying of the civic or public dimensions of virtue. His focus is shifted from thepublic realm to the private; he desires to preserve Marylanders from political power, not toinvolve them in its exercise. As well, his views on rights assume the propriety of the citizenacting in this private realm; his desire is to secure the individual subject from aggression, asecurity that allows the “peaceable and innocent” to pursue their private concerns.The strong emphasis that Dulany places on natural law also contributes to this overall reorientation. As we have seen, claims of natural law function for Dulany as a guide or normto how individuals should act towards one another. As he expresses it: “By the Law ofNature, All Men were equal; and by that Law ... Men are enjoyned to treat One Another, withHumanity, Justice and Integrity”.(90) Thus Dulany is saying that to act virtuously, to treatothers with “Humanity, Justice and Integrity”, is dictated by the “Law of Nature”; a law that78declares that all men are “equal” and thus deserve to be accorded a degree of autonomy. Weknow from the rest of the pamphlet that such treatment is inseparably connected to protecting“the Security of Liberty, and Property, and the Rights of Mankind”.(82) Thus Dulany’s focuson natural rights gives him a new conception of virtue: treat others as equals, respecting theirrights. Here Dulany combines rights and virtue in a way that confounds currenthistoriography. He is not, however, jettisoning any concern for virtuous action. Far from it.Rather his emphasis on natural rights, while shifting his view away from civic virtue, leadshim to emphasize private virtues. As we have seen, rights exist to protect “Good Men” from“Violence and Oppression”; they are indispensable to secure the “peaceable andinnocent”.(91) As Dulany remarks, the law of nature that undergirds common law rights,contains “Nothing inconsistent with Honesty, Decency and Good Manners”.(83) This linkingof the natural law tradition to virtue is something that has been noticeably absent from recenthistorical debate.The way that he grounds rights is also important for an understanding of his thought. I havemade a strong argument that Dulany bases his claim for rights on natural equality, i.e., on thelaw of nature. Rights for Dulany are thus inviolable; they rest on nature, not precedent orauthority. This has been discussed at length in the pamphlet. What is of interest here is theboldness of his use of this Lockean theory. He uses a Lockean view of government to claimthat Marylanders would consent to English laws, if those laws protected their natural rightsand “procured their Welfare and Safety”.(103) Although Dulany did not advocate dissolving79the bonds of civil society, his claim that rights can predate the political authority is a strongprecursor of later American theory.This naturalistic approach to the issue of rights also shapes Dulany’s view of the law. If weall have rights by nature, then the sole purpose of the civil authority is to create a legalstructure to protect them. Such a legal structure is then bound by the ends for which it wasentered into. If those ends - the protection of our natural right to life and liberty - areviolated, then the civil authority can be dissolved. Dulany does not go this far, but hisreasoning is clearly congenial to such an approach. Once again this involves a radical shiftaway from a classical approach to politics.Thus Dulany’s focus on rights leads him to begin to re-draw the boundaries between thepublic and private. As a result, his conception of virtue encompasses a respect for rights.Concomitantly, his naturalistic grounding for these rights leads him to advance the Lockeanidea that the civil authority is to be held accountable to a standard - the protection of life,liberty, and property - derived from man’s nature. Having seen strong evidence that Dulanyis aware of and uses such a political theory early in the 18th century, we will now turn to adiscussion of our fmdings in relation to modem historiography.DULANY AND MODERN HISTORIOGRAPHYWhat can be concluded about the nature of early American political thought from a study ofDulany’s pamphlet? The first point is that, contemporary historiography notwithstanding,80Locke was clearly a central, and not merely a peripheral, figure. If Dulany is not unique inhis influences, and there is no reason to think that he is, then his pamphlet constitutes furtherevidence that Locke does not deserve his recent marginalization. In fact, the most strikingthing about the pamphlet in this context is how early Locke’s influence appears. Evenhistorians who argue for a Lockean influence later in the 18th century, are usually willing toconcede that he was a marginal figure earlier in the century. However, the pamphlet showsDulany employing him confidently as early as the 1720’s, more than a generation before theRevolution.Further evidence of the importance of Locke has been offered recently by modem scholars.The late Herbert Storing, in his seminal collection of Anti-Federalist writings, said that heexpected to fmd the Anti-Federalists employing classical ideas in their criticism of theFederalists. However, upon closer inspection, he found that “the Anti-Federalists are liberalsin the decisive sense that they see the end of government as the security of individualliberty, not the promotion of virtue or the fostering of some organic common good”.’°2Ronald Hamowy has undertaken a similar reappraisal of Cato’s Letters. He concludes that“it would be very hard to read the Letters and not be struck by how similar Cato’s analysisof the origin and functions of government is to that which appeared in the Two Treatises”.’°3Robert Webking, in analyzing the political thought of late the 18th century, notes the102 Herbert Storing, Wlwt the Anti-Federalists Were For (Chicago: University of Chicago Press, 1981),83.103 Ronald Hamowy, “Cato’s Letters, John Locke, and the Republican Paradigm “, History of PoliticalT1wught (11) 1990, 292.81predominance of a Lockean approach to politics upon members of the Revolutionarygeneration. According to Webking: “The American Revolution was not undertaken with thegoal of creating virtue in the citizens of the community. It was undertaken to secure theliberty of human beings to act as they might choose”.104 Alan Houston, in a majorreassessment of the political thought of Algemon Sidney, argues that “virtually all of the‘republican’ principles drawn from Sidney’s writings - from the rule of law to the right ofrevolution - were perfectly compatible with Lockean liberalism”.’05 Finally, Garrett Sheldon,in a reassessment of the political thought of Thomas Jefferson, makes a strong critique of theclassical republican thesis.. Noting the strong influence of Locke on Jefferson, Sheldonaccuses the proponents of the “classical republican paradigm” of a “lack of theoreticalclarity”. Most notably, he draws historians’ attention to the necessity of maintaining adistinction between classical and modem political thought: one being concerned with thestructuring of a political regime to achieve the good life; the other focussing on the protectionof rights.’06This issue of the importance of rights in early modern political thought is a crucial one. AsPaul Rahe reminds us, the ancients had no equivalent conception.’°7We have seen in Dulany104 Robert Webking, The American Revolution and the Politics of Liberty (Baton Rouge: Louisiana StateUniversity Press, 1988), 131.105 Houston, Th.e Republican HeritaRe. 8.106 Sheldon, The Political Philosophy of Thomas Jefferson. 159.107 See Rahe’s massive Republics Ancient and Modern (Chapel Hill, 1992), for a rumination on thethfferences separating ancient and modern political thought. See also his “The Primacy of Politics in ClassicalGreece” The American Historical Reyk 89 (1984), 265-293. Rahe quotes Thomas Pownall, royal governor ofMassachusetts Bay, who criticized Greek polities. According to Pownall: “They destroyed or perverted all82a small example of the influence of the idea of individual natural rights in the 18th century;but more work needs to be done on the philosophical origins of this idea in Europe,’°8as wellas the manner and timing of its transfer to the American colonies.’09 The recent interest inthe early modem revival of classical ideas has forestalled such inquiry. However, the recentflowering of scholarship on Locke and on other early modem natural law thinkers shouldprove beneficial.”° For, if we have a better understanding of the language of natural rightsand its early modem origins, we may finally have a proper context for understanding thenature of the ideas on politics and political theory bequeathed to colonial Americans in thegenerations before the American Revolution.Personal Liberty, in order to force into establishment Political Freedom [and] they found themselves cut offfrommany of the essential inalienable rights of the Individual which form his happiness as well as his freedom “,Lj4, 288.108 See Richard Tuck; Natural RiRhts Theories: Their OriRin and Development (Cambridge, 1979). Aswell, see James Tully “After the Macpherson Thesis ‘ in his An Approach to Political Philosophy: Locke inContexts (Cambridge,1 993), 71-95, esp. 82-84, where he discusses the distinctive context within which 17th-century political theory developed: namely the debates over the origin ofpolitical power.109 See Alan Tully, In Search of Early American Politics: Particularism, Tradition and Innovation in theArticulation of British-American Political Culture, 1664-1770 (unpublished manuscript, in the author’spossession), for a discussion of the importance of the idea of rights to colonial Americans. According to Tully:NOne of the most important characteristics ofpublic 4fe in New York and Pennsylvania was the extensive rights-consciousness of the provincial citizenry ‘ 4.j.4, 188.110 For a summary of the new Locke scholarship, see David Wootton’s “Introduction” to The PoliticalWritings of John Locke (Mentor, 1993), 7-130. See also the various essays in Pagden, edL, The LanfuaRes ofPolitical Theory in Early-Modern Europe (Cambridge, 1987).83SELECTED UIIXLIOG1IAPHYIPHIMAIIY SOURCES1) Archives of Maryland. (1883- ), Volumes, XXV, XXXIV - XXXVI.2) Daniel Dulany, Sr., The Right of the Inhabitants of Maryland to the Benefit of theEnglish Laws. Annapolis, 1728, reprinted in St. George L Sioussat, The EnglishStatues in Maryland. Johns Hopkins University Studies, XXI. Baltimore: 1903.3) The Maryland Gazette. Annapolis: 1727-34.IISECONDARY SOURCES:MARYLAND IN THE 17TH AND 18TH CENTURY1) Barker, Charles A. The Background of the Revolution in Maryland. New Haven: YaleUniversity Press, 1940.2) Carr, Lois G. and Jordan, David W. Maryland’s Revolution of Government: 1689-1692. Ithaca: Cornell University, 1974.3) FaIb, Susan R. Advice and Ascent: The Development of the Maryland Assembly.1635-1689. New York: Garland Publishing, Inc., 1986.4) Jordan, David W. Foundations of Representative Government in Maryland, 1632-1715.Cambridge: Cambridge University Press, 1987.5) Land, Aubrey C. Colonial Maryland: A History. New York: KT.O. Press, 1981.6) Land, Aubrey C. The Dulanys of Maryland: A Biographical Study of Daniel Dulany,The Elder (1685-1753) and Daniel Dulany. The Younger (1722-1797). Baltimore: TheJohns Hopkins University Press, 1955.7) Menard, Russell R. Economy and Society in Early Colonial Maryland. New York:Garland Publishing Inc., 1985.8) Mereness, Newton D. Maryland as a Proprietary Province. New York: 1901; reprinted1968.9) Sioussat, St. George L The English Statutes in Maryland. 1720-1750 and the PublicServices of Daniel Dulany, The Elder. Johns Hopkins University Studies, VI-VIl, 1903.8410) Spencer, Richard H. “Hon. Daniel Dulany, the Elder, 1685-1753”, Maryland HistoricalMagazine, XIII (1918), 20-28.11) Wheeler, Joseph T. “Reading and Other Recreations of Marylanders, 1700-1776”,Maryland Historical Magazine, XXXVIII (1943), 167-180.IISECONDARY SOURCES:POLITICS AND POLITICAL PHILOSOPHYIN THE 17TH AND 18TH CENTURIES1) Appleby, Joyce. Capitalism and a New Social Order: The Republican Vision of the1790’s. New York: New York University Press, 1984.2) Appleby, Joyce. Liberalism and Republicanism in the Historical Imagination.Cambridge: Harvard University Press, 1992.3) Bailyn, Bernard. The Ideological Origins of the American Revolution. Cambridge:Harvard University Press, 1967.4) Baldwin, Alice M. The New England Clergy and the American Revolution. New York:F. Ungar Publishing Co., 1928.5) Banning, Lance. “Jeffersonian Ideology Revisited: Liberal and Classical Ideas in theNew American Republic”, William and Mary Quarterly, (1986), 3-19.6) Colbourn, Trevor H. The Lamp of Experience: Whig History and the IntellectualOrigins of the American Revolution. Chapel Hill: University of North Carolina Press,1965.7) Corwin, Edward S. “The ‘Higher Law’ Background of American Constitutional Law”,Harvard Law Review, XLII (1928), 149-185, 365-409.8) Greene, Jack P. “Changing Interpretations of Early American Politics”, in R. A.Billington, ed. The Reinterpretation of Early American History: Essays in Honor of JohnEdwin Pomfret. Huntington Library: 1966., 151-177.9) Greene, Jack P. “The Concept of Virtue in Late Colonial British America”, in hisImperatives, Behaviors, Identities: Essays in Early American Cultural History.Charlottesville: University Press of Virginia, 1992., 208-235.10) Greene, Jack P. “Political Mimesis: A Consideration of the Historical and CulturalRoots of Legislative Behavior in the British Colonies in the Eighteenth Century”. flAmerican Historical Review, LXXXV (1969), 337-360. See also Bernard Bailyn, “AComment”. lbkL, 361-63; and Green, “Reply”, 364-67.8511) Greene, Jack P. “The Role of the Lower Houses of Assembly in Eighteenth-CenturyPolitics”, in Jack P. Greene, ed., The Reinterpretation of the American Revolution.New York: Harper & Row, 1968., 86-1 09.12) Hamowy, Ronald. “Cato’s Letters, John Locke, and the Republican Paradigm”.History of Political Thought, Xl(1990), 273-293.13) Hamowy, Ronald. uDeclaration of Independence”, in Jack P. Greene, ed.Encyclopedia of American Political History: Studies of the Principal Movements andIdeas. Vol. I. New York: Charles Scribner’s Sons, 1984., 455-465.14) Hamowy, Ronald. “Rights”, in Jack P. Greene and J. R. Pole, eds. The BlackwellEncyclopedia of the American Revolution. New York: Basil Blackwell, 1991., 682-687.15) Houston, Alan C. Algernon Sidney and the Republican Heritage in England andAmerica. New Jersey: Princeton University Press, 1991.16) Mayer, David N. The Constitutional Thought of Thomas Jefferson. Charlottesville:University Press of Virginia, 1994.17) Murrin, John M. “Colonial Government”, in Jack P. Greene, ed. Encyclopedia ofAmerican Political History: Studies of the Principal Movements and Ideas, Vol. I. NewYork: Charles Scribner’s Sons, 1984, 293-315.18) Murrin, John M. “The Great Inversion, or Court versus Country: A Comparison of theRevolution Settlements in England (1688-1721) and America (1766-1816)”, in J. G. A.Pocock, ed. Three British Revolutions: 1641, 1688. 1776. Princeton, 1980.19) Murrin, John M. “Political Development”, in Jack P. Greene and J. R. Pole, eds.Colonial British America: Essays in the New History of the Early Modern Era.Baltimore: The Johns Hopkins University Press, 1984., 408-456.20) Pangle, Thomas L The Spirit of Modern Republicanism: The Moral Vision of theAmerican Founders and the Philosophy of Locke. Chicago: University of ChicagoPress, 1988.21) Paul, Ellen F. and Dickman, Howard, eds. Liberty, Property and the Foundations ofthe American Constitution. New York: 1989.22) Pocock, J. G. A. “Between Gog and Magog: The Republican Thesis and ‘IdeologicalAmericana’”. Journal of the History of Ideas, (1987), 325-346.23) Pocock, J. G. A. The Ancient Constitution and the Feudal Law: A Study of EnglishHistorical Thought in the Seventeenth Century. Cambridge: Cambridge UniversityPress, 1987.24) Pocock, J. G. A. The Machiavellian Movement: Florentine Political Thought and theAtlantic Republican Tradition. Princeton: 1975.8625) Pocock, J. G. A. “Virtue and Commerce in the Eighteenth century’. Journal ofInterdisciplinary History, III (1972), 119-134.26) Rahe, Paul A. Republics Ancient and Modern: Classical Republicanism and theAmerican Revolution. Chapel Hill: University of North Carolina Press, 1992.27) Robbins, Caroline. The Eighteenth-Century Commonwealth Man: Studies in theTransmission, Development and Circumstance of English Liberal Thought from theRestoration of Charles Il until the War with the Thirteen Colonies. Cambridge: HarvardUniversity Press, 1959.28) Rossiter, Clinton. Seedtime of the Republic: The Origin of the American Tradition ofPolitical Liberty. New York: Harcourt, Brace & Co., 1953.29) Rorty, Schneewind and Skinner, eds. Philosophy in History: Essays on theHistoriography of Philosophy. New York: Cambridge University Press, 1984.30) Shallope, Robert E. “Republicanism and Early American Historiography”. William andMary Quarterly, 39 (1982), 334-356.31) Sheldon, Garrett W. The Political Philosophy of Thomas Jefferson. Baltimore: TheJohns Hopkins University Press, 1991.32) Simmons, R. C. The American Colonies: From Settlement to Independence. NewYork: W. W. Norton & Co., 1976.33) Tuck, Richard. Natural Rights Theories: Their Origin and Development. Cambridge:Cambridge University Press, 1979.34) Tully, Alan. In Search of Early American Politics: Particularism, Tradition, andInnovation in the Articulation of British-American Political Culture, 1664-1770.Unpublished manuscript, in the author’s possession.35) Tully, James. “After the Macpherson Thesis”, in his An Approach to PoliticalPhilosophy: Locke in Contexts. Cambridge: Cambridge University Press, 1993.36) Webking, Robert H. The American Revolution and the Politics of Liberty. BatonRouge: Louisiana State University Press, 1988.37) Wood, Gordon S. The Creation of the American Republic, 1776-1787. New York: W.W. Norton & Co., 1972.38) Wright, Benjamin F. American Interpretations of Natural Law: A Study in the Historyof Political Thought. New York: Russell & Russell, Inc., 1962.


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