^Ss'^&^J^'i^itSLh,i"'Kt->''"'t'^-'''^^^ ,[>"J''j ''V"yj""j'Lf.f""" ■''''' '■,' LIBRARY OF CONGRESS DDDDSinSVl ■J>^. y ./ ^^^. ^!^B?,* >" ""^ . '•':^ ,^^'"-^ •••, "^o .'- '^^0^ ic °.. • ^- • *o' V-^- ,y 'o.. •^' •* .0 ■ y >. cT ^^-ffa^-. '^^ .v^ »: . -t. "•^^o^" :'. V .-t*"- •^a>«i'^ .^'"^ THE MEMORIAL OP REVERD7 J0HN80IT TO THE LEGISLATURE OF MARYLAND, Praying indertmity for the destruction of his property in the City of Baltimore, by a Mob, in Jiugust i835. To the Honorable The General Assembly of Alaryland, The memorial of Reverdy Johnson, of the city of Bal- timore, respectfully showeth unto your honorable body, that in August last, his dwelling house, furniture and li- brary, situated in that city and constituting with incon- siderable exceptions all the properly he had been able to accumulate after many years of assiduous professional labor, was, during the absence of himself and family, openly and with the knowledge of the whole city, and after they had had several days prior notice of the design, suffered to be destroyed by a lawless and savage mob, comparatively few in numbers, and easily to have been suppressed. For weeks preceding, violent and inflamma- tory communications, urging to this and other outrages ef a similar character, had been circulated with unex- ampled industry through the city and to the knowledge ol its civil authorities, and for four days prior to the de- struction of the property of your Memorialist, still more open and decided indications demonstrated that that event, and the other scenes which so deeply wounded the fair fame of the city and brought sorrow to evevy well wisher of its prosperity, were almost sure to take place, unless promptly restrained by the civil power. But the warnings were in vain. Instead of efficient and energetic measures that would have frowned down all opposition to the laws; instead of a timely and effective exercise of the powei s with which the chai ter of the city and the general laws invested them, the city authorities apparently, and no doubt honestly incredulous that such barbarous violences could really be contemplated, re- sorted to means grossly inadequate to the exigency, and actually calculated as the event proved, rather to en- courage than to subdue the rioters. The result is now matter of history, and the only consolation it leaves to her citizens is that it has taught them a lesson which it is confidently believed will cause them in all time to come effectually to protect their home from the disturbance disgrace and ruin, of like scenes of savage violence and outrage. That your Memoiialist is correct in stating that these outrages could readily have i)een avoided by proper and reasonable energy on the part of the authorities of the city, was not only demonstrated on the Monday succeed- ing the destruction of his property, when the mob in the pride of victory and almost in the absolute and uncon- trolled possession of the town and threatening indiscri- minate pillage, were instantaneously suppressed by the decided and patriotic stand assumed by General Smith and those who united with him, but was also abundantly shown by what a few men, unarmed at the commencement were able to accomplish in the defence of the property of your Memorialist, on the Saturday night preceding. No one acquainted with the history of that night does or can doubt, that had those gallant and excellent citizens been reasonably supported, instead of being virtually abandon- ed by the civil power, Baltimore would never have had to deplore the occurrences to which this memorial re- fers. Her only monuments would then have been testimo- nials of the enterprise, patriotism and gratitude of her citizens, teaching lessons of civil and military honor, untarnished by others, evidencing the temporary reign of anarchy, the dearest rights of her citizens violated, her laws trampled upon, and deeds perpetrated, over which even savages might have mourned. But the events have occurred, and sad as they are, your Memorialist is satisfied, that they will soon be for- gotteH in the prosperity which the general intelligence, virtue and industry of her people, is certain to produce. In every community of a dense population, there will always be materials upon which the designing and wick- ed may sometimes operate to excite to deeds of violence, if there is not a certainty that the laws will be executed at all hazards, and the Authors and the instruments of their violation, brought to sudden and exemplary pun- ishment. Such is the experience of our time, and such will it ever be, until man changes his nature. A feeble police is sure to invite to deeds of violence, whilst a strong and energetic one is as certain to prevent them. The scenes which he has mentioned and the manner in which he has spoken of them, your Memorialist deem- ed called for by the purpose of his application. He is not to,be understood as intimating that such things can again occur in Ballimore. So far from entertaining any such apprehension, he is satisfied that the first daring m'Screant who is found to raise his arm to disturb her tranquility and subvert the supremacy of the laws, will at once be made an object of their severest penalties. His pioperty however, has been destroyed by vio- lence, which it was in the power of his fellow citizens or of their constituted authorities to have prevented. Is he, can he be without redress? If he is, he is not only sadly ignorant of the Constitution of his State, and that of every free State in the civilized world, but he is also greatly mistaken in the temper and spirit of justice of the people of Maryland. Before proceeding to state to your honorable body, the grounds upon which he pre- dicates his application, he begs permission to refer for a moment to the pretext for the outrage of which he com- plains — About two years preceding the events in question, your memorialist with twelve others, became a Director, at the instance of its President, of the Bank of Maryland, a Banking Institution, situated in Baltimore. — It is not his purpose in this place, to trouble your honorable body with a history of his actual participation in the manage- ment of that Institution, nor to explain to you how impossi- ble it was in consequence of the engrossing nature of his professional duties, that he could have been, even had he been so disposed, more than nominally concerned in it. It is no doubt known to you, that he has already upon two occasions, fully disclosed to the public, his con- nexion with the Bank, and as far as he was able, the true causes of its unparalleled insolvency. All that he means now to say upon the subject, is, that he ardently desires if your honorable body approves of it, that you at once institute by a committee of your own, or in any other mode you may sanction, the most searching enquiry into the causes of the failure of that Institution and espe- cially in relation to his connexion with it, and that if it results in his being found in one single particular to have wronged it of a dollar, or to have been knowingly privy to any such wrong on the part of any one else, he will not only withdraw the present memorial, but will at once convey the small remnant of property left to him, and pledge the subsequent earnings of his life, to make the loss good. Your Memorialist served for seven years in one of the branches of your honorable body, has been for upwards of twenty years engaged in a professional practice unu- 6 sually extensive in his own district and in all the higher Courts of the State, and he proudly relies as ample evi- dence that he is incajjable of any moral wrong, on the continuing esteem of those who have had the best oppor- tunities of observing his public and professional con- duct. Amongst them it is his highest gratification to enu- merate many members of your honorable body. He may possibly deceive himself, but he has yet to learn that the bitter and malicious assaults which have been recently made upon his reputation, have lost him the regard of a single judge to whom lie was known, or of an individual member of his profession, having the slightest preten- sions to moral and professional character and standing. A recent trial in the County Court of Harford, as is known at least to one of the delegation from that eounty, if not to all, led to the fullest investigation of the con- duct of your Memorialist concerning the Bank, and re- sulted in a letter voluntarily tendered by the jury who tried the cause, denouncing the attacks upon him as li- bellous, and wholly exempting him from all censure. In this testimonial the judges who presided over the trial did not join, from (as your Memorialist knows) motives not at all inconsistent with an entire concurrence in opi- fiion with the jury, a:ui he is satisfied that if called upon by your honorable body, should you deem the enquiry at all material, they will unanimously confirm in every particular, the judgment of the jury. For the introduction of this topic, should you be of opinion that it is uncalled for by the present applica- tion, your Memorialist hopes to be excused. The lively sense which every man of honor feels at imputations upon his integrity, and the utter insignificance in which he holds all other possessions in comparison with his good name, will, he is assured, be deemed an ample apology for soliciting the investigation. Should it, however, be deemed unnecessary, he will confidently await other opportunities, w^hich must soon present themselves, of still further demonstrating his innocence in all that relates to the Bank of Maryland. For the loss of his property 3'our Memorialist is forced to apply to your honorable body for redress. The law as it now stands, gives no suflicient remedy by any re- sort to the courts of justice for relief. His reliance must therefore, be upon the justice of the Legislature, and it is a reliance which he has ever most confidently entertained. If the Constitution ot" our Slate was silent upon the subject, the general principles of freedom lying at the foundation of ev.^ry free government, would secure him the protection he seeks. The duty of allegiance necessarily involves the correspondent obligation of pro- tection. If the property of the citizen is made to contribute to the support of the Government, if his personal services can be exacted in its administration and defence, if all his private and natural rights are held subordinate to his so- cial duties, he has a clear right to expect in return, that his remaining privileges of person and of property, will be adequately secured, as far, at least, as depends upon a reasonable and ordinary exercise of the powers of the Government. There may be injuries arising from sudden and over- whelming calamities, or from secret theft, fraud or vio- lence, for which society may not be liable, beeause by no reasonable diligence nor practical legislation, can they be avoided, but its moral responsibility, which with so- vereignty is ever esteemed the highest responsibility, to redress the wrongs of the citizen in person or in proper- ty, occurring from misgovernment or from the negligent and defective exercise of the powers with which govern- ment is clothed, is, your Memorialist believes, a propo- sition sustained by the clearest principles of reason, and approved by every political writer of reputation, since man enjoyed political freedom. But in Maryland, the citizen is not left to rely upon any such general principle, however clear and well settled it may be. The organic law of the state, guarantees the protection to him If it does, there can exist no doubt of his title to redress. Whatever the declaration of rights undertakes to secure, it is the bounden duty of the government effectually to secure. It would be an idle mockery to proclaim the right un- less its enjoyment is practically provided for. What avails it that he is told that his liberty and his property are to be his, unless adjudged forfeited by the sentence of his peers, or the law of the land. — What avails it that he is told that he is not to be "deprived of his free- hold liberties or privileges" — that he is not to be "de« 8 prived of his life, liberty or property, but by the judg- ment of his peers or by the law of the land,"* if without even the forin of a trial, if not only without law, but against all law human and divine, he may be deprived of every thing he possesses, by a deluded, or hired vio- lence, at any moment, when from any cause, no matter what, he may become an object of public prejudice or of private malice. If in such moments the civil power may slumber without responsibility, if the particular com- munity in which the oufra2;e may be perpetrated, may look on silent spectators of the enormity, and be safe from all liability, the boasted charter of the people's freedom, is a mere collection of unmeaning sentences, the pro- tection it professes to guarantee to the individual citizen, is but a name, it holds but the word of promise to the ear and breaks it ^o the hope. Let it not be said in such cases, that the individual is entitled to redress from the immedi- ate authors of his injuries. It is but to trifle with his misfor- tunes. Who were they for the most part, if not exclu- sively in the particular instance? who will they ever be? The very dregs and refuse of society. Bankrupts in fortune and in fame, actuated by an inherent lust of plunder, ministering to the vindictive passions of concea- led employers, or hoping to rise to comparative import- ance in moments of public agitation, from the obscurity to which their worthlessness would otherwise forever consign them. To expect indemnity at such hands is as idle as to search for striking instances of virtue amongst the inmates of a penitentiary. From the government alone can justice be obtained. Is there any doubt of their power to render it in the present instance. Your Memorialist in conclusion, begs leave respect- fully to add a few remarks upon this point. Assuming as true, what he supposes no one will be found to deny, that the citizen has a clear right to be pro- *See the 21st article of the Declaration of Rights — "That no man ought to be taken or imprisoned, or dis- seized of his freehold liberties, or privileges, or outlaw- ed or exiled; or in any vianner destroyed, or deprived of his life, or property, but by the judgment of his peers or by the law of the land." 9 tected against all injuries which the government can with facility prevent — the breach of duty on the part of the latte.i, if the city authoiities constitute a branch of it, in the case made by this memorial, is equally mani- fest. The peace of the city could have been preserved by fifty armed uen. assembled in proper time — any de- cided manifestation of a determination to uphold the laws would have driven the rioters to their hiding places. Your iMf-morialist ventures to assert that not an intelli- gent and honest citizen of the place, can be found to question this declaration. Are not the authorities then, of Baltimore, a branch of tiie government of the State.^ and indeed, constituted for the very purpose amongst others, of enabling the State the better to protect that particular portion of her population? But one answer can be given to this enquiry. Within the spheie of his jurisdiction, and the limits of his powers, the Mayor of the City is as much the Executive Oificer of the State, as is the Governor of the State, and the same may be said of all the other municipal officers of the corporation. The whole of them although holding their appointments immediately under the charter of the city, are but the agents of the government. She is as much bound to defend the citizen from the abuse or misuse of their du- tiofi as to defend him from the wrongful acts of any other branch of her municipal power. In what manner, when loss ensues to an individual from such causes, he is to be indemnified, it is for the Legislature, in the absence of any existing general law to provide. The obligation to protect necessarily assumes the obligation to ledress. To refuse the latter, would be not only practically to en- feeble the former, but to enhance the wrong of its vio- lation. No government can be perfect in which the right to both is not secured to the citizen, and no government it is confidently asserted, can be found in these United States, in which the right is not effectually secured, (s there any limitation of either obligation in the Constitu- tion of Maryland? That there is none upon the duty of protection, will readily, he supposes, be conceded. Pro- tection through deiaultofthe government failing,is there any upon the duty to indemnify. In principle no such limitation should exist. In fact, does any exist? If it does, it can only be by reason of some clear, positive and un- equivocal limitation in the Constitution or Declaration o 10 of Rights — Unless it is contained there it can be found no where. Is it contained there? The unlimited power of taxation, for all the purposes of the government is in- vested in the Legislature. Whatever burthens the Con- stitution imposes, or the necessities of the government demand, requiring the public money orlhe public credit may. through this power, be provided for. Whatever appropriation of either, the Legislature may find, will be .advantageous to tiie .State, or reiiound to "the good go- vernment and benefit of the community," tliey are au- thorised to make without resti iction. They have not only the unlimited power over the appropriation but, un- der their responsibility to the peoj)le, they are the ex- clusive judges of the objects of the appropriation. — Amongst hundreds of instances which will readily oc- cur to your honorable body, illusttative of this proposi- tion, your xMemorialist contents himself with mention- ing appropriations for the support of education, for the improvement and deepening of rivers, for rail roads and canals, for the colonization of free people of color, for pensions to soldiers, for testimonials of gratitude andes- teem, lor the gallantly and patriotism of her native sons. These all demonstrate the unlimited nature of your con- trol over the funds and means of the people, and its libe- ral and constant exercise upon all occasions where ai> enlightened wisdom teaches that it is called for by any of the ends and obligations of a free and good govern- ment. What stronger, what more commanding appeal can be presented for its execution, than that of the citi- zen whose property has been wrested from him through the supinenesand incompetency of the agents of the go- vernment, and in the presence of thousands of his fel- low corporators. If the genius of good government does not invoke, in such a case, complete indemnity, a residence under the reign of a Czar of Russia, is a thousand times to be pre- ferred to a residence in Baltimore — Any government na matter how despotic, is better than anarchy — Any single tyrant, no matter how wicked., is better than the tyranny of a irob. Your Memorialist has, however, an abiding confidence ihatthe virtue and intelligence of his fellow- citizens there, as well as throughout the State, will en- tertain but one opinion upon the subject — that the honor and welfare of the city, and the honor and duty of the State, alike demand the indemnity. Before your honor- 11 able body, he has no fears but that (he enlightened and liberal spirit which governs all your deliberations, will amply secure hun the full measure of justice which he S9ek.s at your hands. The taxing power being subject to no restriction incompatible with the authority to grant the relief asked for, youi Memorialist proceeds to show that no such restriction exists in any of the express limitations upon your powers. The difference between the State Governments and that of the United States in questions of this description, is well understood. In construing the Constitution of the United States in order to ascertain the power of the General Government on any particular subject, you examine it to see if the au- thority is granted, and not to see if it is denied. It pos- sesses no jurisdiction which is not expressly bestowed, or which is not by necessary implication involved in what is expressly bestowed. It is exclusively a govern- ment of delegated powers. This would have been abun- dantly manifest from the very nature of its existence, but it is so described in the Constitution itself — the pow- ers not delegated are expressly reserved to the States or the people. A different and directly reverse rule of construction prevails in the State Governments. You look at their Constitutions, not to find whether the disputed power is granted, but whether it is prohibited. Their legisla- tive, executive and judicial departments, within their respective limits, are adequate to the attainment ot every end of good government They possess not so much delegated as inherent powers — As soon as constituted, and by mere force of tliat Constitution, they become seve- rally endowed with every legislative, executive and ju- dicial function which is not inconsistent with the spirit of our Institutions, and these they in all cases possess, except so far as they may be restrained by positive limi- tation. These principles will be iouiid sustained by a uni form course of judicial construction, by an equaliy uni- form approbation on the part of the other branches of the two gouernments, and by the constant sanction of the people. In every ca*, therefore, of a contested power in a State Government, the first enquiry is, is it a power fit in itself, naturally belonging to a good and free govern- ment, and to either of the branches, legislative, execu- 12 tive and judicial, into which it may be divided. This being aFcertained, the second (juestion is, not whether the particular Constitution in terras invests it in the ap- propriate branch; but whether it expressly repudiates it; and if not, tlie third and only remaining enquiry is, does the Constitution of th« United States prohibit it. To apply these tests to the authority involved in this me- morial. First — Is the power a propo^r and wholesome one. Is it the attribute of a good and free government. Is the citizen safe under any government in which it does not exist. These questions turnish their own answer. But one opinion can possibly be entertained npon them. — They contain a proposition which no one can deny, and which, therefore, need not be proved — where such a power is not found, the safety and security of the citi- zen in person and in property, exists but upon a frail and insecure tenure. He has but barely improved the pro- tection which a state of nature would have furnished him. He lives under a system which is any thing else than govarnraent has been described to be 'a contrivance of human wisdom to provide for human wants." Second and third — The power being a legitimate one, is it expressly denied in the case here [)resented, either by the Conititution of Maryland or of the United States.^ These questions may be well considered together. It has been seen that no such negation is to be found in the taxing power. Is it to be seen elsewhere. The only two grounds upon which your Memorialist has ever heard it questioned, are first, that its exercise would be ex post facto legislation, and therefore, within the re- striction of the 15th article of the declaration of rights, and secondly, that it would be a violation of a part of the 1st clause of the lOth section, 1st art of the Constitution of the United States, which, amongst other things, de- claaes that no State shall "pass any ex post facto law, or law imposing the obligations of contracts.'' A word or two upon each objection. The prohibition of ex post facto laws, is common to both constitutions. What then as there used is an eccpost facto \3lw} Whatever doubts in relation to this question might well bftve been origin- ally entertained, it is not now open to controversy. To adopt the language of Mr. Justice Story, in his commen- taries on the Constitution of the United States. "The 13 current of public opinion and authority has been so ge- neially one way as (o the meaning of this phrase in the State Constitutions, as well as in that of the United States, evei since their adoption, that it is difficult to feel that it is now an open question. The general inlerpretatitn has been, and ?s, that the phrase applies to acts of a criminal nature only"' — S vol, p. 212. And indeed, it will be seen by the article in our declaration of rights, that this is the very interpretation there given of the phrase. Its words are "that retrospective laws punishing facts com- mitted before the existence of such laws, and by them only Jec/arcrf cr??7iiaa/, are oppressive, uujust and incom- patible with liberty, Wherefore, no ex post facto law ought to be made." Under such a restriction it is im- possible to bring the law now solicited. No personal punishment of any individual is proposed. An appropri- ation of the money of the whole, a species of legislation of every days occurrence, alone is asked to indemnify an individual injury which the whole were bound to have prevented, and which it is the chief obJ3ct of government to prevent. In the second place, if in the manner of ac- complishing it, the particular city is made to bear the burthen, it is because justice requires that it should more peculiarly fall upon those who have been especial- ly to blame. Their own immediate agents and them- selves could have avoided the injury, if their powers had been reasonably exerted, and being able to do it, it was their duty to have done it. Let me mention a few in- stances as conclusive of this proposition. Baltimore county has a joint interest with the city, in the court house and jail. Suppose the city from design, from su- pineness, from timidity, sufTer them to be lawlessly razed to the ground by an mfuriated mob. They must be rebuilt — should the county be saddled with a share of the expense, or ought it not to be borne exclusively by the city. The State has property there of great value. She has a large interest in some of the Banks, in rail roads, in tobacco inspeciions, &c. Suppose these, or any of them to be destroyed by lawless violence, which reasonable diligence on the part of the city, could have frustrated, ought not tiie loss to be made good by the city. Thousands of dollars of individual property belonging to citizensof the Stare, are in her inspection houses,and share the fate of the public property, are these individ- 14 uals not to be indemnified, and e, by his friend and counsd Roger B.J Taney, Ln] at such pciiod as may suit your convenience, and i9 in the mean time, he most respectfully submits the whole subject to your care. REVERDY JOHNSON. Annapolis, February 15, 1836. 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