THE AMERICAN NATION A HISTORY

FROM ORIGINAL SOURCES BY ASSOCIATED SCHOLARS

EDITED BY

ALBERT BUSHNELL HART, LL.D.

PROFESSOR OF HISTORY IN HARVARD UNIVERSITY

ADVISED BY VARIOUS HISTORICAL SOCIETIES

IN 27 VOLUMES VOL. 8

THE AMERICAN NATION A HISTORY

LIST OP AUTHORS AND TITLES

Group I.

Foundations of the Nation

Vol. i European Background of American History, by Edward Potts Chey- ney, A.M., Prof. Hist. Univ. of Pa.

" 2 Basis of American History, by Livingston Farrand, M.D., Prof. Anthropology Columbia Univ.

" 3 Spain in America, by Edward Gay- lord Bourne, Ph.D., Prof. Hist. Yale Univ.

" 4 England in America, by Lyon Gar- diner Tyler, LL.D., President William and Mary College.

" 5 Colonial Self - Government, by Charles McLean Andrews, Ph.D., Prof. Hist. Johns Hopkins Univ,

Group II.

Transformation into a Nation

Vol. 6 Provincial America, by Evarts Boutell Greene, Ph.D., Prof. Hist, and Dean of College, Univ. of 111.

" 7 France in America, by Reuben Gold Thwaites, LL.D., Sec. Wis- consin State Hist. Soc.

Vol. 8 Preliminaries of the Revolution, by George Elliott Howard, Ph.D., Prof. Hist. Univ. of Nebraska. " 9 The American Revolution, by Claude Halstead Van Tyne, Ph.D.,

" 10 The Confederation and the Consti- tution, by Andrew Cunningham McLaughlin, A.M., Head Prof. Hist. Univ. of Chicago.

Development of the Nation

Vol. ii The Federalist System, by John Spencer Bassett, Ph.D., Prof. Am. Hist. Smith College.

" 12 The Jeffersonian System, by Ed- ward Channing, Ph.D., Prof. Hist. Harvard Univ.

" 13 Rise of American Nationality, by Kendric Charles Babcock, Ph.D., Pres. Univ. of Arizona.

" 14 Rise of the New West, by Freder- ick Jackson Turner, Ph.D., Prof. Am. Hist. Univ. of Wisconsin.

" 15 Jacksonian Democracy, by Will- iam MacDonald, LL.D., Prof. Hist. Brown Univ.

Group IV.

Trial of Nationality

Vol. 16 Slavery and Abolition, by Albert Bushnell Hart, LL.D., Prof. Hist. Harvard Univ.

Group III.

Vol. 1 7 Westward Extension, by George Pierce Garrison, Ph.D., Prof. Hist. Univ. of Texas.

" 1 8 Parties and Slavery, by Theodore Clarke Smith, Ph.D., Prof. Am. Hist. Williams College.

" 19 Causesof the Civil War,by Admiral French Ensor Chadwick, U.S.N., recent Pres. of Naval War Col.

" 20 The Appeal to Arms, by James Kendall Hosmer, LL.D., recent Librarian Minneapolis Pub. Lib.

" 21 Outcome of the Civil War, by James Kendall Hosmer, LL.D., re- cent Lib. Minneapolis Pub. Lib.

Group V.

National Expansion

Vol. 22 Reconstruction, Political and Eco- nomic, by William Archibald Dun- ning, Ph.D., Prof. Hist, and Politi- cal Philosophy Columbia Univ.

" 23 National Development, by Edwin Erie Sparks, Ph.D., Prof. Ameri- can Hist. Univ. of Chicago.

" 24 National Problems, by Davis R. Dewey, Ph.D., Professor of Eco- nomics, Mass. Institute of Tech- nology.

" 25 America as a World Power, by John H. Latane, Ph.D., Prof. Hist. Washington and Lee Univ.

" 26 National Ideals Historically Traced, by Albert Bushnell Hart, LL.D., Prof. Hist. Harvard Univ.

" 27 Index to the Series, by David Maydole Matteson, A.M.

COMMITTEES APPOINTED TO ADVISE AND CONSULT WITH THE EDITOR

The Massachusetts Historical Society

Charles Francis Adams, LL.D., President Samuel A. Green, M.D., Vice-President James Ford Rhodes, LL.D., 2d Vice-Preside Edward Channing, Ph.D., Prof. History Harvard Univ.

Worthington C. Ford, Chief of Division of MSS. Library of Congress

The Wisconsin Historical Society

Reuben G. Thwaites, LL.D., Secretary and Super- intendent

Frederick J. Turner, Ph.D., Prof, of American His- tory Wisconsin University

James D. Butler, LL.D., formerly Prof. Wisconsin University

William W. Wight, President

Henry E. Legler, Curator

The Virginia Historical Society

William Gordon McCabe, Litt.D., President

Lyon G. Tyler, LL.D., Pres. of William and Mary

College Judge David C. Richardson J. A. C. Chandler, Professor Richmond College Edward Wilson James

The Texas Historical Society

Judge John Henninger Reagan, President George P. Garrison, Ph.D., Prof, of History Uni- versity of Texas Judge C. W. Raines Judge Zachary T. Fullmore

/

THE AMERICAN NATION : A HISTORY

VOLUME 8

PRELIMINARIES OF THE REVOLUTION

i 763-1 775

BY

GEORGE ELLIOTT HOWARD, Ph.D.

PROFESSOR OF INSTITUTIONAL HISTORY IN THE UNIVERSITY OF NEBRASKA

WITH MAPS

NEW YORK AND LONDON HARPER & BROTHERS PUBLISHERS

Copyright, 1905, by Harper & Brothers.

Printed in the United States of America

B—li

c\ ~) 3

CONTENTS

CHAP. PAGE

Editor's Introduction xiii

Author's Preface xvii

i. The French War Reveals an American

People (1763) 3

11. The British Empire under George III.

(1760-1775) 22

Hi. The Mercantile Colonial System (1660-

||; . 1775) . . . ';>■ 47

iv. The First Protest of Massachusetts (1761) 68

v. The First Protest of Virginia (1758-1763) 84

vi. The First Act for Revenue from the

Colonies (1763-1764) 102

vii. The Menace of the Stamp Act (1764-1765) 121

viii. America's Response to the Stamp Act (1765) 140

ix. The Repeal of the Stamp Act (1766) . . 158

x. The Townshend Revenue Acts (1 766-1 767) 174

xi. First Fruits of the Townshend Acts (1768-

1770) 193

xii. The Anglican Episcopate and the Revolu-

tion (1638-1775) 206

xiii. Institutional Beginnings of the West

(1768-1775) 222

xii CONTENTS

CHAP. PAGE

xiv. Royal Orders and Committees op Corre-

spondence (1770-1773) 242

xv. The Tea-Party and the Coercive Acts

(1773-1774) 259

xvi. The First Continental Congress (1774) . 280

xvii. The Appeal to Arms (17 74-1 775) .... 296

xviii. The Case of the Loyalists (i 763-1 775) . . 313

xix. Critical Essay on Authorities . . . . 327

MAPS

British Possessions in North America,

1765 (in colors) , facing 4

Designation of Members to General Con- gresses (1754-1765) 154

Indian Delimitations Made by Indian

Treaties (1763-1770) (in colors). . . 224

Proposed Western Colonies (1763-1775)

(in colors) 230

Designation of Members to General Con- gresses (1774-1775) 282

British Possessions in North America,

1775 (in colors) 298

Eastern Massachusetts (1775) .... 310

EDITOR'S INTRODUCTION

FEW periods of American history have been more written upon than the decade preceding the Rev- olution. Nevertheless, there is still room for a brief volume upon the subject ; all the world knows that the Revolution really began almost fifteen years before its beginning, because of the efforts of the British government to give greater unity and stiff- ness to its colonial system, both as to government and as to trade with other nations; but the real motives underlying the uneasiness of the colonies still need enlightenment.

In the arrangement of The American Nation, both Greene's Provincial America (vol. VI.) and Thwaites's France in America (vol. VII.) are in- troductory to this volume: the one showing the organization of government against which they complained, and the other the danger from the French, the removal of which opened the way for revolution; the volume is also most closely linked with Van Tyne's American Revolution (vol. IX.).

Professor Howard opens with two chapters on the conditions and political standards of the Americans on their side of the ocean, and of the

xiv EDITOR'S INTRODUCTION

British on their side; then follows (chap, iii.) an account of the system of Navigation Acts as it then existed, which may well be compared with chapters i. and xix. of Andrews's Colonial Self- Government, and chapters iii. and xviii. of Greene's Provincial America. The two preliminary episodes of the Parson's Cause and Writs of Assistance (chaps, iv. and v.) are followed by a discussion of the Sugar Act of 1766, which Professor Howard considers the starting-point of the Revolution. In three chapters (vii., viii., ix.) the Stamp Act, Stamp Act Congress, and repeal are considered; in two more chapters the Townshend Acts and the attempts to enforce them by the military are described.

The narrative then gives way to an indispensable discussion of the Anglican Episcopate, which fits into Greene's discussion of the same subject in an earlier volume (Provincial America, chap. vi.). The first appearance of the West as a distinct factor in national life is described in chapter xiii. and will be resumed in Van Tyne's American Revolution (chap, xv.) ; and, in a later stage, in McLaughlin's Confederation and Constitution (vol. X., chaps, vii.,

... V

m).

The final steps leading up to revolution, from 1773 to 1775, occupy chapters xiv. to xvii. The last chapter of text is the argument of the loyalists, a strong presentation of the reasons which led so many thousand Americans to adhere to the mother- country. It should be compared with Van Tyne's

EDITOR'S INTRODUCTION

American Revolution (chap. xiv.). The Critical Essay on Authorities is conveniently classified by subjects which do not follow strictly the order of the chapters.

The aim of the volume is to show what the issue really was and why people who had lived under one general government for a century and a half could no longer get on together. Professor Howard's investigations bring him to about the same point as those of earlier writers — viz., that war was inevitable because of long antecedent causes tending to inde- pendence, and was precipitated by the failure of the home government to understand either the sit- uation or the American people ; but that it was not a result of direct and conscious oppression. Yet this fresh study of the evidence results in a clearer view of the difficulties of the imperial problem; and brings out in sharper relief the reasons for the apparent paradox that the freest people then on earth insisted on and deserved a larger freedom.

VOL. VIII. 2

I

AUTHOR'S PREFACE

THE struggle between the English colonies and the parent state resulting in the recognition of a new and dominant nation in the western hemi- sphere is justly regarded as a revolution. Its preliminaries cover the twelve years between the peace of Paris in 1763 and the appeal to arms in 1775; but its causes are more remote. Up to the very beginning of hostilities the colonists disclaimed any desire for independence ; yet it seems clear to us that unconsciously they had long been preparing themselves for that event. The origin of the Revolution is coeval with the earliest dawning of a sentiment of American union. Its assigned causes are, indeed, mainly economic and political. It was not a social revolution in the conventional sense; yet it was profoundly sociological in character. The conditions were favorable to the rise of a more united and a freer society in America ; but this was hindered by the inertia of a colonial system which the American people had outgrown. Hence it is a grave mistake to see in the struggle between Great Britain and her colonies merely a useless contest provoked by the fanaticism, the ambition, or the

xvii

xviii

AUTHOR'S PREFACE

stupidity of a few leaders on either side. A rev- olution cannot be explained on the basis of per- sonal influences alone.

To the friends who have aided me in many ways during the preparation of this book I desire to con- vey my grateful thanks. The maps showing the en- virons of Boston and the Indian delimitations were prepared by Mr. David M. Matteson, of Cambridge. For the other maps I am mainly indebted to the skill and research of Professor Clark Edmund Persinger, of the University of Nebraska. Pro- fessor George Henry Alden, of the University of Washington, has generously placed at my disposal the maps in his New Governments West of the Alle- ghanies before 1780; and for like permission to make use of the map in his Western State-Making in the Revolutionary Era, I am under obligations to Pro- fessor Frederick J. Turner, of the University of Wis- consin. I have had the privilege of reading in manuscript the enlightening dissertation on The Foreign Commerce of the United States during the Confederation, by Professor Guy H. Roberts, of Bowdoin College.

George Elliott Howard.

%

PRELIMINARIES OF THE REVOLUTION

PRELIMINARIES OF THE

REVOLUTION

CHAPTER I

THE FRENCH WAR REVEALS AN AMERICAN

PEOPLE

(1763)

THE Seven Years* War left Great Britain the most powerful state on the globe, and heralded the rise of an English nation in the western hemi- sphere. Scarcely any other military struggle has produced so many events of decisive interest to mankind. At Rossbach Frederick achieved for Prussia the headship of the German people, thus in effect laying the basis of the present imperial union ; at Plassey Clive gained for England an empire in the East, whose borders are still expand- ing; at Quebec the victory of Wolfe won for the English race, though not finally for England, the political leadership of the western continents.

In a very real sense the year 1763 may be taken as marking the beginning of the American Revolu-

3

4 PRELIMINARIES OF REVOLUTION [1690

tion. The causes of that event are indeed far- reaching. They are as old as the colonial system itself. In many ways for more than a century, although they knew it not, the people of the thirteen provinces were being schooled and disciplined for their part in it. Almost in spite of themselves they were becoming moulded into one social body, an American society, which with the attainment of self -consciousness must inevitably demand a larger and freer, if not an entirely independent life. Their social consciousness was, in fact, stirred by the ex- periences of the war; and thereafter it was swiftly quickened and nourished by the blunders of the imperial administration.1

Looked at in this way, the revolutionary struggle reaches over a score of years, beginning with the peace of Paris and ending with the treaty of 1783. It comprises two well-defined stages. The first stage, closing with Washington's entrance upon command of the Continental army in July, 1775, is chiefly devoted to debate, to a contest of arguments, called out by the successive incidents of the halting ministerial policy, and occasionally interrupted by acts of popular or military violence. The second stage, except for the interval following the battle of Yorktown, is filled mainly with the agony of organized warfare, the clash of arms. With the history of the twelve years constituting the first of

1 For the condition and organization of the colonies, see Greene, Provincial America {American Nation, VI.), chap. xii.

1725] AMERICAN PEOPLE

5

these stages, it is the purpose of this book to deal, only now and then, as in the case of the writs of assistance or the navigation laws, reaching back to events of earlier origin.

For the colonists the moral and social results of the French and Indian War were very great. In the first place, they were relieved from the dread of a foreign foe whose garrisons, stretching in irregu- lar line from Quebec to New Orleans, had hemmed them in and checked their westward march. With the cession of the Floridas to England, the Spanish rival was thrust farther from their doors.1 The fall of the French dominion, the weakening of the arm of Spain, and the failure of Pontiac had much lessened the peril from the red race. With the French or Spanish pioneers the English colonists had not feared to compete; nor did they feel them- selves unequal to dealing with the Indian tribes. But there was always the anxiety lest the toma- hawk and the scalping - knife might be raised through intrigues of a white enemy; and they deemed it just that the imperial government should protect them from the encroachments of a foreign soldiery.

That the presence of the French was believed to be a very real danger is revealed by abundant evidence covering the whole period from the sur- prise of Schenectady, in 1690, to the end of the

1 For the French and Indian War, see Thwaites, France in America {American Nation, VII.), chaps, x.-xvi.

6 PRELIMINARIES OF REVOLUTION [1709

war.1 Thus, in 1709, Jeremiah Dummer, who the next year began his term of service as agent of Massachusetts in London, "shows how early and passionate among the English colonies in America was the dread of the American power of France," declaring "that those colonies can never be easy or happy ' whilst the French are masters of Canada.' "2 The effect of the French settlements, reports Lieutenant-Governor Wentworth, of New Hamp- shire, to the Lords of Trade and Plantations, in 1 73 1, "is that the Indians are frequently instigated and influenced by them to disturb the peace and quiet of this province, we having been often put to a vast expense both of blood and treasure, to de- fend ourselves against their cruel outrages/'3 At the close of the war the American colonists found themselves freed from this long-standing menace.

Moreover, their imaginations were quickened and their mental horizon was expanded by the geo- graphical results. For now, with the exception of the island of New Orleans, an imperial domain stretching from the Arctic to the Gulf, and from the Atlantic to the Mississippi, concealing illimitable riches within its mountains and its plains, was

1 See Monseignat's letter to Madame de Maintenon, in Hart, Contemporaries, II., 337.

2 Dummer, Letter to a Noble Lord, 4, quoted by Tyler, Hist, of Am. Lit., II., 119.

3 N. H. Hist. Soc., Collections, I., 227-230. Regarding the similar danger from the French on the Mississippi, see Spotts- wood, in Va. Hist, Soc., Collections, new series, II., 295.

1760] AMERICAN PEOPLE

7

thrown open to the industrial conquest of the English race. The enlarged view caused by this new environment is a fact of vast significance in estimating the forces underlying the contest for American independence. The colonist had grown in self-reliance, in mental stature. A greater des- tiny seemed to await him, and the friends of pro- vincial subjection were already jealous of the possi- ble consequences of his wider ambition. Before the war the Swedish traveller, Peter Kalm, writing in 1748, records the views of this class. It is "of great advantage to the crown of England," he says, "that the North American colonies are near a country, under the government of the French, like Canada. There is reason to believe that the king never was earnest in his attempts to expel the French from their possessions there; though it might have been done with little difficulty. For the English colonies in this part of the world have encreased so much in their number of inhabitants, and in their riches, that they almost vie with Old England." "I have been told" that "in the space of thirty or fifty years " they " would be able to form a state by them- selves, entirely independent" of the mother-coun- try.1 For like reasons, in 1760, when peace seemed near at hand, the ministry were urged to yield Canada rather than Guadeloupe to the French. According to William Burke, a friend and kinsman of the celebrated statesman, Canada in French hands

1 Kalm, Travels, I., 262-265.

8 PRELIMINARIES OF REVOLUTION [1763

was necessary to preserve the "balance of power in America." If "the people of our colonies," he in- sisted, " find no check from Canada, they will extend themselves almost without bounds into the inland parts. They will increase infinitely from all causes. What the consequences will be to have a numerous, hardy, independent people, possessed of a strong country, communicating little or not at all with England," he leaves to "conjecture."1

Replying to Burke's pamphlet, Franklin, then rep- resenting Pennsylvania in London, with character- istic eloquence and force presented the other side of the case in 1760. With Canada in English hands, "our planters will no longer be massacred by the Indians/ who must then depend upon us for supplies; and in the event of another war with France we shall not be put "to the immense ex- pense of defending that long - extended frontier." True, the colonists would thrive and multiply. In a century, at the present rate of increase, " British subjects on that side the water" would be "more numerous than they now are on this." But with right treatment their growing power would not affect their allegiance. They have different gov- ernments, laws, interests, and even manners. "Their jealousy of each other is so great, that however necessary a union of the colonies has long been, for their common defence and security against their

1 Burke, Remarks on the Letter Addressed to Two Great Men, 30-

1763] AMERICAN PEOPLE

9

enemies, and how sensible soever each colony has been of that necessity," such a union has thus far been impossible. If not against the French and the Indians, "can it reasonably be supposed there is any danger of their uniting against their own nation, which protects and encourages them, with which they have so many connexions and ties of blood, interest, and affection, and which, it is well known, they all love much more than they love one another?" While "the government is mild and just, while important religious and civil rights are secure, such subjects will be dutiful and obedient. The waves do not rise but when the winds blow." On the other hand, nothing is more likely to render "substantial" the "visionary danger of indepen- dence" than the heartless exposure of the colonists again to the "neighborhood of foreigners at enmity" with their sovereign. Will they then "have reason to consider themselves any longer as subjects and children, when they find their cruel enemies hallooed upon them by the country from whence they sprung ; the government that owes them protection, as it requires their obedience ? ' ' Should the ministry take this course, it "would prevent the assuring to the British name and nation a stability and per- manency that no man acquainted with history durst have hoped for till our American possessions opened the pleasing prospect."1 Pitt agreed with

1 Franklin, Interest of Great Britain Considered, with Regard to Her Colonies, in Works (Bigelow's ed.), III., 83.

io PRELIMINARIES OF REVOLUTION [1698

Franklin, taking a course consistent with broad statesmanship and generous humanism.

In another way the war had prepared the colonists for the approaching contest. They had gained military experience and become aware of their own military strength. Battling side by side with the British regulars against the veterans of France, they had won confidence in themselves. They had tested their own fighting capacity, and had learned the need of modifying European tactics and Euro- pean methods to suit the exigencies of frontier war- fare. Moreover, at the Revolution the colonies possessed some officers and men who had been trained in actual warfare.

Most significant of all the results of the war was its influence in forcing out the already nascent sentiment of social unity. Founded at different times, under separate charters, and for diverse mo- tives, the American provinces were in fact thirteen distinct societies. Except for their allegiance to a common sovereign, they were in theory as inde- pendent as if they had been foreign states. They waged commercial and even physical war upon each other. Political, economic, and religious antago- nisms hindered their healthier growth. Social isola- tion is the mark of colonial as well as of Hellenic history ; and in the one case it was nearly as harmful as in the other. Its evils were early perceived ; and for more than a century before the outbreak of the French war one finds occasional experiments,

1763] AMERICAN PEOPLE

11

plans, or opinions which give expression to the desire for a political union of all or a part of the colonies. Such, in 1643, was the New England Confederation, which, in spite of its defects, served well for a time the needs of its members.1 Even the hated general government of Andros taught its adversaries an unintended lesson which bore fruit after many days.2 The value of federation was suggested, while the arguments, the methods, and the spirit with which the policy of Grenville and Townshend was resisted were then antici- pated.3

From this time onward, as population grew, busi- ness expanded, and the final struggle with France drew near, the need of a common colonial govern- ment was felt more and more keenly by thoughtful men.4 As early as 1698 William Penn prepared "A brief and plain scheme how the English colonies in the North parts of America . . . may be made more useful to the crown and one another's peace and safety with an universal concurrence. " Under the presidency of a royal commissioner a representative congress is to assemble at least once in two years. It is to be composed of two " appointed and stated

1 Tyler, England in America {American Nation, IV.), chap, xviii.

2 Andrews, Colonial Self -Government {American Nation, V.), chaps, xvi., xvii.

3 Letter of "Phileroy Philopatris," Colonial Papers, 1683, December 14, quoted by Doyle, Puritan Colonies, II., 223.

4 Greene, Provincial America {American Nation, VI.), chap. xi.

12 PRELIMINARIES OF REVOLUTION [1701

deputies" from each province; and its "business shall be to hear and adjust all matters of complaint or difference between province and province," in- cluding absconding debtors, extradition, commerce, and ways and means for securing the safety and united action of the colonies against the public enemies.1 In the same year Charles Davenant, praising this "constitution," suggests the creation of a " national assembly " to exercise powers simi- lar to those assigned by Penn to his "congress." "Though he advocated an exercise of the full power of the mother country over the colonies," says Frothingham,2 "yet he urged also a principle con- stantly put forth by them ; namely, that, in any gov- ernment that might be established over them, care should be taken to observe sacredly the charters and terms under which the emigrants, at the hazard of their lives, had effected discoveries and settle- ments" ; and " one of his liberal remarks is, that the stronger and greater the colonies grow, 'the more they would benefit the crown and the kingdom; and nothing but such an arbitrary power as shall make them desperate can bring them to rebel.'" A "Virginian," writing in 1701, criticises the schemes of Penn and Davenant, urging that the colonies ought to have, not an equal number of deputies in the general assembly, but a representa-

1 N. Y. Docs. Rel. to Col. Hist., IV., 296.

2 Davenant, Discourse on the Plantation Trade, quoted in Frothingham, Rise of the Republic, 11 1.

1754] AMERICAN PEOPLE

13

tion better apportioned according to their respective numbers and resources.1

In 1722 Daniel Coxe, anticipating some features of Franklin's plan, recommended that " all the col- onies appertaining to the crown of Great Britain on the northern continent of America, be united in a legal, regular, and firm establishment," under a "lieutenant, or supreme governour," and with a representative assembly for control of its finances.2 Plans more favorable to the prerogative were also suggested from time to time, as by Robert Living- ston in 1 701, and by Archibald Kennedy in 175 2. 3 Occasional congresses of governors and other of- ficials for conference with the Indians likewise did something to extend intercolonial acquaintance and to kindle the slowly dawning perception of the es- sential solidarity of provincial interests throughout the continent.4

Finally, in 1754, the famous Plan of Union drafted by Franklin was actually accepted by the Albany convention. This constitution for a united Amer- ican people, proposed by a representative conven- tion, is a new and significant event in the history

1 An Essay upon the Government of the English Plantations, 69, summarized by Frothingham, Rise of the Republic, 109-112.

3 Coxe, Description of the English Province of Carolana, Preface.

3 Livingston, in N. Y. Docs. Rel. to Col. Hist., IV., 874; Kennedy, Importance of the Friendship of the Indians, 7-15, 38; Frothing- ham, Rise of the Republic, 116; part of the texts in American History Leaflets, No. 14.

* Frothingham, Rise of the Republic, chap. iv.

VOL. VIII. — 3

14 PRELIMINARIES OF REVOLUTION [1754

of political science.1 Among its provisions are some far wiser than the corresponding ones in the Articles of Confederation, of which it is the prototype. It never became a law. In America it was rejected as allowing " too much to prerogative, " and in England " as having too much weight in the democratic part."

The assemblies did well to decline an instrument which by one of its provisions, not in Franklin's original draft, would have yielded to Parliament the right to change their local institutions. Yet in its failure Franklin's plan was a lasting success. The educational value of an earnest debate on the great problem of American union, taking place simultaneously throughout the thirteen colonies, should not be underestimated. At the very out- break of the war a problem, which thus far for a few leaders had possessed mainly a literary or speculative interest, had definitively entered the field of practical politics. Still the hope of federa- tion would have to flower before it could yield actual fruit. The heart of the plain people had not yet been touched. This is what the war effected. The experiences of the war called into being a real though inchoate popular opinion re- garding the social destiny of the English race in America — a rudimentary national sentiment which impending events would speedily force into full and unquenchable life.

Hitherto there had not been, and under ordinary

1 Thwaites, France in America {American Nation, VII.) , chap. x.

1763] AMERICAN PEOPLE

15

circumstances there could hardly be, much inter- communication. Travel was then a serious business. By stage, four days were needed to go from Boston to New York, and three days more to reach Phila- delphia. Even the "flying-machine," put on the road in 1766, required two days for the trip between the last-named cities. The newspapers were few, dear, and scant of information. In fair weather, to spread news throughout the colonies took three weeks, and much longer than that in winter. Few of the wealthy or public men of the south had ever seen those of the north. The common people of one colony had the vaguest notions regarding their neighbors in another, and often their intense provincialism was mingled with bitter prejudices bred by earlier antagonisms or rivalries. The war in many ways broke down the barriers and got people to know each other. Legislatures were called upon to discuss the same or similar measures. Men from Virginia or Pennsylvania met those of Massachusetts or Connecticut in council or on the march and by the camp-fire, and they succored one another in battle. The money and troops sent to the north by the southern and less exposed colonies bred " mutual good-will, ' ' and the colonial officers " forgot ' ' their "jealousies" in the contempt shown for them by the British subalterns. The private soldiers, too, resented the patronizing airs of the king's regulars.1

1 Andrews, United States, I., 158; Weeden, Econ. and Soc. Hist, of New Eng., II., 668.

16 PRELIMINARIES OF REVOLUTION [1754

Negatively, in still another way the colonies were being drawn together and apart from the British government. For it was precisely at this time that alarm was caused by the schemes of the ministry and the suggestions of governors like Shirley of Massachusetts, Bernard of New Jersey, and Din- widdie of Virginia, for raising a war revenue on the colonies and overriding their chartered rights. In 1754, as later in 1756 and 1760, the " British minis- try heard one general clamor from men in office for taxation by act of parliament."1 The governors were ordered to provide for quartering troops on the colonists and for impressing carriages and pro- visions for their support.2 Almost everywhere bit- ter disputes arose between the assemblies and the executive bodies. The proprietors of Pennsylvania selfishly declined to share with the people the bur- den of extra taxation, leading to a prolonged struggle, in which in 1760 the assembly was victori- ous. In Maryland a similar contest with the pro- prietor was carried on.3

Under Newcastle as the nominal head, suggests a recent English scholar, "the two ministers who were practically responsible for the disasters which brought Pitt into office were Halifax, as president

1 Bancroft, United States (ed. of 1885), II., 408-418, 443-449,

529-533-

2 See orders of 1758, in Hubert Hall, "Chatham's Colonial Policy," in Ant. Hist. Review, V., 664.

3 Black, Maryland's Attitude in the Struggle for Canada (Johns Hopkins University Studies, X., No. 7).

1760] AMERICAN PEOPLE 17

of the Board of Trade and Plantations, and Sir Thomas Robinson, as the departmental secretary of state. If we add to these military and naval ad- visers as pedantic as Ligonier and Anson, command- ers such as Braddock and Loudoun, governors of the type of Shirley, and the whole crew of brigadiers and post-captains, attorneys-general, vice-admirals, and revenue officers, all prepared to take their cue from the sententious loyalty which pervaded the optimist despatches from Whitehall, we shall not be surprised if 'the just grievances of his Majesty's loyal and faithful subjects' waited in vain for redress."1 Nor need we wonder if a nagging and hectoring policy, just when there was supreme need of conciliation, should have aided in awakening the social consciousness of America.

Governor Shirley, indeed, in 1755, did not sym- pathize with the "apprehensions" that the colonies "will in time unite to throw off their dependency upon their mother country, and set up one general government among themselves." Their different constitutions, clashing interests, and opposite tem- pers made "such a coalition" seem "highly im- probable." "At all events, they could not main- tain such an independency without a strong naval force, which it must forever be in the power of Great Britain to hinder them from having"; and he makes the sinister suggestion, that "whilst his

1 Hubert Hall, "Chatham's Colonial Policy," in Am. Hist. Review, V., 664.

18 PRELIMINARIES OF REVOLUTION [1730

majesty hath seven thousand troops kept up within them, with the Indians at command, it seems easy, provided his governors and principal officers are independent of the assemblies for their subsistence and commonly vigilant, to prevent any step of that kind from being taken." 1 Others had a keen- er vision. In the same year John Adams, then a village school-teacher, believed that "if we can remove the turbulent Gallicks, our people, accord- ing to the exactest calculations, will in another century become more numerous than England itself. Should this be the case, since we have, I may say, all the naval stores of the nation in our hands, it will be easy to obtain the mastery of the seas ; then the united forces of all Europe will not be able to subdue us. The only way to keep us from setting up for ourselves is to disunite us."2

Already, in 1730, Montesquieu had prophesied that because of the laws of navigation and trade England would be the first nation abandoned by her colonies.3 Not long thereafter, in his memoirs, Argenson predicted that the English colonies in America would sometime rise against the mother- country, form themselves into a republic, and astonish the world by their progress.4 In 1750,

1 Shirley to Sir Thomas Robinson, August 15, 1755, in Bancroft, United States (10 vol. ed.), IV., 214.

2 Adams, Works, I., 23.

3 Montesquieu, " Notes sur l'Angleterre," in CEuvres (ed. of 1826), VIII., 452.

4 Argenson, Pensees sur la Reformation de VEtat, I., 55, 56.

1760] AMERICAN PEOPLE

19

twenty-five years before Washington had begun to favor independence, Turgot had likened colonies to fruit which clings to the parent stem only until ripe, and predicted that what Carthage once did "America will sometime do."1 On learning of the terms of the treaty of 1763, Vergennes, then French ambassador at Constantinople, said that "the consequences of the entire cession of Canada are obvious. I am persuaded England will ere long repent of having removed the only check that could keep her colonies in awe. They stand no longer in need of her protection ; she will call on them to con- tribute toward supporting the burdens they have helped to bring on her; and they will answer by striking off all dependence."2

The population of the colonies was of first-rate quality for nation - building. The basis was of Anglo-Saxon stock. The New England people were almost pure English, with slight intermixture of Scotch-Irish and other elements. The Scotch were numerous, notably in New Hampshire and North Carolina. There were French Huguenots, partic- ularly in South Carolina, a few Swedes in Dela- ware, Dutch in New Jersey and New York, while perhaps a third of the inhabitants of Pennsylvania were Germans. According to the most careful estimate, the thirteen colonies in 1760 had a total

1 Stephens, Turgot, 165.

2 Vergennes, as quoted in Bancroft, United States (ed. of 1885), II., 564.

20 PRELIMINARIES OF REVOLUTION [1763

population of about 1,600,000; 2,000,000 in 1767; 2,200,000 in 1770; 2,600,000 in 1775; 2,800,000 in 1780.1 In 1763, therefore, the whole number of souls was not far from 1,775,000. Of this number about 360,000 were negroes, slave and free, of whom more than three-fourths were south of Pennsylvania.

In 1775 Massachusetts had about 335,000 in- habitants; Pennsylvania 300,000; New York 190,- 000; North Carolina over 265,000; and Virginia 450,000, of whom one - third were blacks. The colonial population was doubling itself in twenty- three years, and it was very largely rural. As in the Old World, the tide of migration to urban centres was only beginning. In 1763 there were but four towns of considerable size in the country: Boston and Philadelphia 2 each with about 20,000, New York with perhaps 12,000, and Charleston with 9000 persons. Baltimore may have had 5000, Provi- dence 4000, and Albany 3000. Nearly five per cent, of the colonial population was then urban; whereas, by the census of 1900, over forty per cent, of the people of continental United States dwell in towns of at least 2500 inhabitants.

At the beginning of the Revolution servants by indenture were still being advertised for sale. These included free persons, whom necessity forced into

1 Dexter, Estimates of Population in tlie American Colonies, 50; Bancroft, United States (ed. of 1885), II., 390.

'See estimates for 1759 by Burnaby, Travels (ed. of 1775), 76, 133; Lecky, England, III., 30.3, 307.

1775] AMERICAN PEOPLE

21

temporary bondage, as well as banished convicts.1 Thus, in 1753, it was announced that the Greyhound had arrived at the Severn, Maryland, "with 90 persons doomed to stay seven years in his Majesty's American plantations." Two years later the same newspaper informed the public that "more than 100 seven-year passengers have arrived at Annap- olis." Criminals were transported to the same colony as late at least as 17 74. 2 The fact is en- lightening. The propriety of receiving the foul harvest of the London prisons seems scarcely to have been questioned by the colonists. The slight prog- ress made in the knowledge of social as well as economic laws should never be forgotten in trying to understand the origin and long toleration of British colonial policy.

1 Weeden, Econ. and Soc. Hist, of New Eng., II., 520, 695.

1 Boston Gazette, May 8, 1753, and July 10, 1755. Cf. Butler, "British Convicts Shipped to American Colonies," in Am. Hist. Review, II., 29, 3c*

CHAPTER II

THE BRITISH EMPIRE UNDER GEORGE III

(1760-1775)

i \ British Empire comprised the united kingdom of England, Wales, and Scotland; the dependencies of Ireland, Man, and the Channel Islands; the sea fortress of Gibraltar and other stations ; the Asiatic possessions ; and the colonies in America. Together England, Wales, and Scotland had a population of about 8,500,000. Since the union in 1707 Scot- land had enjoyed full commercial and political equality with England, and already she was be- coming somewhat reconciled to the loss of inde- pendent nationality. Ireland, with perhaps 3,500,- 000 people, was a " satrapy" frightfully misgovern- ed. There the seeds of rebellion were already sown, and before the century was out they were to bear their own proper fruit. "Ireland," says a mod- ern English historian, "was absolutely subject to Britain, but she formed no part of it, she shared neither in its liberty nor its wealth." The forms of national life to her were a mere sham, and her peo- ple were ruthlessly exploited for the benefit of an

French and Indian War the

1742] BRITISH EMPIRE 23

1

arrogant and greedy Protestant oligarchy. In "all social and political matters the native Catholics, in other words, the immense majority of the people of Ireland, were simply hewers of wood and draw- ers of water for Protestant masters." 1 The Irish were excluded from the trade privileges enjoyed by Scotchmen and Englishmen: a heavy duty was laid on their woollen cloth; the trade in linen, one of their most important manufactures, was hampered; and they were forbidden to raise tobacco. Thus, in the interest of the colonies and her Scotch and English neighbors, Ireland was hindered from de- veloping even her meagre natural resources. Pov- erty, misery, and social anarchy prevailed.

On the other hand, the prosperity which England enjoyed had for near half a century been unbroken. During the long interval of peace under Sir Rob- ert Walpole (17 21-1742), industry had received a mighty impulse to which it still responded. The colonies flourished through the " salutary neglect" of the mother - country. At home land rents had advanced fifty per cent., and scientific methods of agriculture and stock - breeding were being tried with good results.2 The navigation acts, originally designed to transfer the monopoly of the carrying trade from Dutch to English bottoms and to control the market for colonial products, seemed justified by the vast increase in the volume of commerce.

1 Green, Hist, of English People, IV., 263.

1 Cunningham, English Industrial History, chap. viii.

24 PRELIMINARIES OF REVOLUTION [1760

During the reign of George II. exports had nearly doubled; and between 1760 and 1774, notwith- standing an unwise change in colonial policy, they grew from £14,693,270 to £17,128,029.* Among the nations of the world commercial and maritime supremacy already belonged to Great Britain.

In population and wealth the great towns were advancing with rapid strides. By 1763 London had not less than 650,000 inhabitants. Bristol, with about 100,000, had trebled its numbers since Charles II. ; while Norwich came next with some 60,000 souls. Furthermore, there were signs of the coming industrial era in the rise of new trading and manufacturing centres. Liverpool, with over 30,000 people, had " become indisputably the third port in the kingdom, and it was soon prominent beyond all others in the slave-trade." Other towns had grown with even more extraordinary speed. Birmingham now had at least 30,000; Newcastle 40,000; Man- chester, excluding the suburbs more than 45,000; while the whole population of Lancashire had risen from about 166,000 in 1700 to 297,000 in 17 50. 2 The future gave fair promise of great wealth. To be sure, the war had raised the national debt from near £72,000,000 to over £139,000, 000, 3 but with prudent management it would scarcely become a serious burden for the growing fiscal strength of the realm.

1 Craik, Hist, of Commerce, II., 202; III., 67. 1 Lecky, England, VI., 213-215.

* Adam Smith, Wealth of Nations (ed. of 1896), II., 463.

1763]

BRITISH EMPIRE

25

The government of the kingdom was vested in the crown and Parliament. It was, in fact, a govern- ment of two powers, for Montesquieu's famous theory of checks and balances — based mainly on his view of the English constitution — was not real. He distinguishes three functions of government — the executive, the legislative, and the judicial — each of which should be exercised by a separate au- thority.1 He may have been led to this conclusion by a consideration of the fact that the Act of Settlement (1701) had secured the independence of the judges, who could no longer be removed from office without the address of both houses of Parlia- ment. But in fact the courts did not exercise a distinct governmental function: their powers were mixed — partly legislative and partly executive. English 14 political ideas were not reconcilable with the existence of three powers of government. Parliament, it is true, made the law, but so did the courts in their power of deciding concrete cases. The laws also were enforced by authorities which at the same time administered justice." 2

Moreover, even the executive and legislative functions were not exercised exclusively by separate agencies. Since the reign of William III. the theory of government by responsible ministers with seats in Parliament had existed; and since George I. the members of the cabinet were selected in the king's

1 Montesquieu, Esprit des Lois, book xi., chap. vi. a Goodnow, Politics and Administration, 12.

26 PRELIMINARIES OF REVOLUTION [1760

name by the prime - minister, who was called to office directly by the crown. Already the right of members of the Commons to ask questions of the ministry on matters of public policy showed that the theory of responsibility was becoming a reality. Under normal conditions, the time would soon come when through the king's ministers the House of Commons would virtually govern the state.

The normal course of development was checked for a season through the character of the new king. The accession of George III. in 1760 marks the beginning of a retrogressive movement in the history of the English constitution. From the start, setting himself against the principle already established that the sovereign shall act only through responsible ministers, the king resolved to govern as well as reign. The experiment was in the highest degree perilous ; for the maxim "the king can do no wrong " holds good only so long as he acts not at all of his own motion. George was wretchedly educated, most unfortunate in such training as he had received. Under the influence of his mother, the ambitious princess dowager of Wales, and his groom of the stole, Lord Bute, he had developed notions of royal prerogative which entirely unfitted him for his duties as a constitutional king. According to Lord Waldgrave, at one time his governor, he was "full of princely prejudices, contracted in the nursery, and improved by the society of bed-chamber women and pages of the back-stairs." In his youth his

1760]

BRITISH EMPIRE

27

mother had repeatedly said to him, "George, be king." Following her counsel, as May says, he "came to the throne determined to exalt the kingly office; and throughout his long reign he never lost sight of that object." 1

Though the judgment is perhaps not too em- phatic that the third George "had a smaller mind than any English king before him save James the Second," and that "his only feeling towards great men was one of jealousy and hate," 2 yet he possessed a sturdy character which for good or ill was sure to leave a lasting mark on the history of his country. For several reasons he was favorably contrasted with his ancestors. In speech, feeling, and habits the first two princes of the house of Hanover were Ger- mans, while George III. was an Englishman. " Born and educated in this country, I glory in the name of Briton," are the words which his own hand added to the draft of his first speech to Parliament.3 His private life was simple and decorous. He exhibited the domestic virtues in an eminent degree. He was a good son, a faithful husband, a conscientious father, a devout and punctilious churchman. He loved to mingle with the people and to greet kindly the children whom he met on his walks. He was morally brave, and his remarkable physical courage

1 Waldgrave, Memoirs (ed. ofi82i),63; Albemarle, Memoirs of Rockingham, I., 3; May, Const. Hist, of Eng., I., 23.

2 Green, Hist, of English People, IV., 201. * Rose, Correspondence, II., 189.

28 PRELIMINARIES OF REVOLUTION [1760

stood more than one severe test during his reign. In addition he had a firmness of will, a tenacity of purpose, which might degenerate into obstinacy — a very dangerous gift for a prince of small intellect, inheriting vast and varied sources of influence and power.1

If George III. was a good man, he was decidedly a bad ruler. "It may be said without exaggeration that he inflicted more profound and enduring in- juries upon his country than any other modern English king. Ignorant, narrow-minded, and ar- bitrary, with an unbounded confidence in his own judgment, and an extravagant estimate of his pre- rogative, resolved at all hazards to compel his ministers to adopt his own views, or to undermine them if they refused, he spent a long life in ob- stinately resisting measures which are now almost universally admitted to have been good, and in supporting measures which are as universally ad- mitted to have been bad." 2 When he ascended the throne England was still in the hands of a Whig oligarchy which had controlled it for almost half a century. A few great families dominated Parlia- ment and enjoyed a monopoly of pensions, honors, and preferments. While there was still danger from the Young Pretender, the Tories were silenced. Pitt alone had made a breach in the solid Whig ranks, for he boldly proclaimed that he owed his place as

1 Thackeray, Four Georges (ed. of 1891), 72; on his courage, Lecky, England, III., 14. 2 Ibid., III., 15.

1782]

BRITISH EMPIRE

29

war minister to the voice of the people. But the king detested the Great Commoner, whom he called a "trumpet of sedition," and he determined to build up a party of his own through appeal to the Tories, who since Culloden had already begun to lift their heads. Pitt was disgraced, and in 1762 the Earl of Bute, leader of "the king's friends," became first lord of the treasury.

The new prime - minister was unpopular as a Scot, hated for his arrogance, and utterly devoid of statesmanlike qualities. His rise had been rapid. In thirteen months he passed from the stole through a series of honors to the head of the cabinet. " His sudden elevation resembled that of an Eastern vizier, rather than the toilsome ascent of a British statesman."1 But in calling his favorite to office the king was in reality taking the first step towards the establishment of his own personal rule. He was, in fact, imitating the dangerous policy of Edward II. and the first two Stuarts. With steady persistence he strove to create and then to master the Whig factions. In 1770 his victory was complete. For twelve years thereafter, in the name of Lord North, the king virtually governed the realm; and he did not drop the reins until his hand was forced by the loss of America, whose rebellion his fatuous course had done most to provoke.

To accomplish his purpose the king did not scruple to employ every questionable device known

1 May, Const. Hist, of Eng., I., 31.

VOL. VIII.— 4

30 PRELIMINARIES OF REVOLUTION [1760

to the politics of that corrupt age. Although Sir Robert Walpole may not have been the author of the cynical maxim "Every man has his price,"1 bribery flourished during his rule, but perhaps in no greater degree than under the ministries which followed. The low tone of public morality is strik- ingly revealed by the attitude of Pitt. Ostenta- tiously pure in his own methods, scorning to give or to take a bribe, he hesitated neither to share the government with Newcastle — past -master of the arts of political corruption — nor to advance his own measures through his colleague's sinister skill. "I borrow the Duke of Newcastle's majority," he said, "to carry on the public business."

There is a sharp contrast between the private and the public ethics of George III. Pious church- man though he was, he resorted to bribery in nearly every form to buy support for his policy. Gold, pensions, and places were freely used to reward his friends or to purchase votes in Parliament, while those who voted contrary to his wishes were pun- ished by having their honors, offices, or emoluments taken away. According to Horace Walpole, Lord Bute's unpopular preliminaries of peace were carried in 1762 by deliberate bribery. Through Henry Fox, who had been intrusted with the "manage- ment of the house of commons," a "shop was publicly opened at the Pay Office, whither the members flocked, and received the wages of their

1 Morley, Walpole, 127.

BRITISH EMPIRE

3i

venality in bank-bills, even to so low a sum as two hundred pounds for their votes on the treaty. Twenty-five thousand pounds, as Martin, Secretary of the Treasury, afterwards owned, were issued in one morning; and in a single fortnight a vast majority was purchased to approve the peace." 1 The same genial writer bears testimony to the naive and unblushing methods of corruption prac- tised by Henry Fox. Under Bute he wrote a letter to Walpole offering to appoint the latter 's neph- ew, Lord Orford, to the rangership of St. James's and Hyde parks, saying: 1 'If he does choose it, I doubt not of his and his friend Boone's hearty assistance, and believe I shall see you, too, much oftener in the House of Commons. This is offering you a bribe, but 'tis such a one as one honest, good-natured man may, without offence, offer to another." Walpole declined the bargain, and in consequence for several months he was deprived of payments due him in the exchequer.2

There is no doubt that the king himself sometimes suggested such disgraceful traffic. On October 16, 1779, he wrote to Lord North, "If the D. of Nor- thumberland requires some gold pills for the elec- tion, it would be wrong not to give him some assist- ance." To the same minister on March 1, 1781, he wrote : " Mr. Robinson . . . sent me the list of speakers ' last night, and the very good majority. I have

1 Albemarle, Memoirs of Rockingham, I., 127, 128; Walpole, Memoirs of George III., 1., 157. 2 Ibid., I., 1 68-1 71.

PRELIMINARIES OF REVOLUTION [1760

this morning sent him 6,oooZ to be placed to the same purpose as the sum transmitted on the 21st of August/'1 His corrupt use of secret pensions became a shameful abuse. "A bribe," declared Lord Halifax, "is given for a particular job; a pension is a constant, continual bribe. The jobbers are only a sort of day-labourers : but pensioners are domestic servants, hired to go through all the dirty business of the House." 2 Thus, early in the reign, " Rose Fuller — who had been a staunch whig — was bought off by a secret pension of 500/. The cause of his apostasy was not discovered till after his death."3 Furthermore, there were various indi- rect means of corruption. Lotteries, contracts, and loans were thus freely employed in the purchase of influence or votes. In 1763 Bute contracted a loan for £3,500,000, at an extravagant rate of in- terest, and distributed the shares among his friends. The scrip at once rose to a premium of eleven per cent. In this instance the wholesale bribery of members of Parliament cost the country £385,000; while in 1781, through Lord North's iniquitous loan of £12,000,000, the people lost in excessive interest £900,000, one-half of which found its way into the pockets of members of the House of Commons.4

1 Donne, Correspondence of George III., II., 286, 362.

2 Cobbett-Hansard, Pari. Hist., XL, 522.

3 May, Const. Hist, of Eng, I., 296.

AIbid., 304, 305; Adolphus, Hist, of Eng., I., 111* Cobbett- Hansard, Pari. Hist., XV., 1305; XXI., 1334-1386; Wraxall,iW>- moirs, II., 90, et seq.; Albemarle, Memoirs of Rockingham, II., 436.

1766]

BRITISH EMPIRE

33

During the American Revolution and for many years afterwards the people of England were very imperfectly represented in the House of Commons. That body consisted of 558 members: 45 from Scotland and 513 from England and Wales. Of this last number, 417 were borough members, 92 county members, and 4 were members chosen by the universities. The existing system of " virtual" representation left out of account the great mass of the population There had never been any attempt systematically to apportion representation according to population or wealth. In theory each member of the Commons represented all parts of the king- dom, even of the empire. The franchise was re- stricted in various ways. In the counties only forty - shilling freeholders could vote, and many of these were controlled absolutely by the influence of the great landholders. The state of the borough representation was much worse. This is 1 'the rotten part of our Constitution," said Lord Chatham in 1766. By common law the franchise was vested in the resident householders ; but in practice for ages monstrous irregularities had been sanctioned. In a few places the franchise still belonged to the rate- payers, those paying "scot and lot" ; in some towns it was vested only in those holding lands by burgage tenure ; in several it was enjoyed only by those upon whom corporate powers had been conferred by royal charter; while in many "these different rights were combined, or qualified by exceptional conditions."

34 PRELIMINARIES OF REVOLUTION [1760

As a result, in many towns a few persons monop- olized the franchise. "At Buckingham, and at Bewdley, the right of election was confined to the bailiff and twelve burgesses ; at Bath, to the mayor, ten aldermen, and twenty-four common-councillors ; at Salisbury, to the mayor and corporation, consist- ing of fifty-six persons." Where "more popular rights of election were acknowledged, there were often very few inhabitants to exercise them. Gatton enjoyed a liberal franchise. All freeholders and in- habitants paying scot and lot were entitled to vote, but they only amounted to seven. At Tavistock, all freeholders rejoiced in the franchise, but there were only ten. At St. Michael, all inhabitants pay- ing scot and lot were electors, but there were only seven." 1

The right of selecting places for the privilege of being parliamentary boroughs formerly belonged to the crown. As a rule, the honor was conferred upon the more important towns — those best able to grant aids for the king's service. In early days, accord- ing to Glanville, places were capriciously selected, even by the sheriff; and sometimes, notably un- der the Tudors, political reasons determined the choice. Moreover, no new parliamentary borough had been created since the Restoration. The result was remarkable. While flourishing cities like Bir- mingham, Liverpool, Leeds, or Manchester had no representation at all, small towns like Ludgershall

1 May, Const. Hist, of Eng., I., 266.

1763]

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35

or Old Sarum, with scarcely any inhabitants, con- tinued to return one or two members to Parliament. Such places were known as " nomination, " " pocket," or "rotten" boroughs, and their representation was often bought and sold in the market. Some of these places had regular "brokers" who offered them to the highest bidder.1 Sudbury publicly advertised itself for sale. In this way a great lord might actually send a number of members to the House of Commons. Thus the "Duke of Norfolk was represented by eleven members ; Lord Lonsdale by nine; Lord Darlington by seven; the Duke of Rutland, the Marquess of Buckingham, and Lord Carrington, each by six. Seats wrere held, in both houses alike, by hereditary right."2 According to Oldfield, "no less than two hundred and eighteen members were returned for counties and boroughs, in England and Wales, by the nomination or in- fluence of eighty -seven peers; one hundred and thirty-seven were returned by ninety commoners, and sixteen by the government; making a total number of three hundred and seventy-one nominee members," or more than half the entire representa- tion of the House of Commons.8

The condition of things in Scotland was even worse. In the entire kingdom there were not three

1 Walpole, Memoirs of George III., III., 112. * May, Const. Hist, of Eng., I., 267.

9 Ibid., 2 88, summarizing Oldfield, Representative History, VI., 285-309.

36 PRELIMINARIES OF REVOLUTION [1760

thousand voters; while even in 1831 the first two cities, Glasgow and Edinburgh, had each a "con- stituency of thirty -three persons."1 Moreover, through the skilful use of patronage, the whole representation was controlled by the government.

Shocking as was the state of representation, it must be confessed that at the beginning of George III.'s reign no class of excluded persons clearly de- manded the franchise. There were, indeed, signs that the wealthier and more intelligent among the unrepresented, particularly in the manufactur- ing and commercial centres, were growing weary of the corruption and selfishness of the ruling oligarchy, and were beginning to desire a voice in the government which they were called upon to support; but the ignorant, sodden masses were in- different and inert. Public opinion as an organized institution was just arising. The press, its organ, was feeble and its freedom was abridged. There was no adequate popular discussion of public ques- tions. The age of great petitions and monster mass-meetings was not yet.

Still, public opinion was already forming, and occasionally the voice of the people made itself heard. It exacted the unjust execution of Admiral Byng in 1757; it carried Pitt into the cabinet, and it sustained his war policy. It condemned the peace of Paris in 1763, and drove Bute from office.

1 Hansard, Pari Debates, 2d series, IX., 614, 615; 3d series, VII., 530.

1780]

BRITISH EMPIRE

37

The demands of the merchants were a powerful factor in securing the repeal of the Stamp Act and the Townshend revenue law. Public opinion sup- ported John Wilkes in the long struggle (1763-17 74), in which he maintained the liberty of persons against the abuse of general warrants, and de- fended the rights of constituents against the tyranny of the House of Commons. In at least seventeen counties public meetings were held in 1770 to support the electors of Middlesex, who thrice returned Wilkes to the Commons after his expulsion.1 Popular sentiment likewise encour- aged that statesman-like demagogue in the contest (1771) in which he won the liberty of reporting the debates of Parliament. Before the Revolutionary War the press, thus in part set free, had gained a position of real power such as hitherto it had never enjoyed. Near its close the wider use of public meetings, already noted, began to spread. In 1779- 1780 the " freeholders of Yorkshire and twenty- three other counties, and the inhabitants of many cities, were assembled by their sheriffs and chief magistrates to discuss economical and parliamentary reform." 2

In theory the more important rights and liberties of persons were safeguarded by Magna Chart a, the Bill of Rights, and the other great statutes. These were generally regarded as "constitutional" or

1 Annual Register, 1770, p. 58.

2 May, Const. Hist, of Eng., XI., 126.

38 PRELIMINARIES OF REVOLUTION [1753

organic laws which Parliament could not repeal without violating the most profound sentiment of the nation. It was becoming more and more com- mon to speak of the ''British constitution" as an entity beyond the reach of parliamentary inter- ference.

Yet the liberty of the subject was very far from being complete. Nonconformists and Roman Catho- lics still suffered under the harsh penal code of the seventeenth century, and could not even marry according to their own religious forms. By the intolerant Hardwicke act (1753) Catholics and dissenters alike — save only Jews and Quakers — against their consciences were forced to have their marriages solemnized before a minister of the es- tablished church and according to its rites. Until 1778 a Catholic priest was liable to perpetual im- prisonment for conducting the worship of his church ; a Catholic could not acquire land by purchase; and his child, if educated abroad, forfeited his in- heritance to the next Protestant heir. The in- famous Corporation and Test acts were in force until 1828; and until 1829 Catholics were excluded from both houses of Parliament.

Furthermore, while the weak, dependent, and helpless classes were treated by society with in- difference or cruel oppression, they were exposed to the vagaries of an absurdly inconsistent and savage criminal code. Life was held cheaper than prop- erty. There were more than one hundred and

i8o8] BRITISH EMPIRE 39

sixty capital offences, sixty-three being added to the code during the first fifty years of George III. Until 1808 picking a pocket for any sum greater than twelvepence was punishable by death. "On the other hand, it was not a capital offence for a man to attempt the life of his father; to commit premeditated perjury, even when the result was the execution of an innocent man"; or "to burn a house in which the incendiary had a lease, even though it was so situated as to endanger the lives of hundreds."1 Until 1836, the rule which de- prived a person accused of any capital crime ex- cept treason of the aid of counsel in his defence had been but slightly relaxed. By permission of the court, "in trials for felony a counsel now usu- ally stood beside the prisoner, instructed him what questions to ask, and even himself cross-examined the witnesses, though he might not address the judge or jury unless a legal question had arisen."2 The condition of the prisons, as disclosed by Howard's researches, was horrible beyond belief. The highwayman was almost an English institution. An immense number of criminals were executed, always in public, and usually the executions were exhibitions of sanguinary cruelty. Sometimes men and women were done to death in "batches." The records of the Old Bailey for the twenty-three years

,Lecky, England, VI., 247.

2 Ibid., 252; Blackstone, Commentaries IV., 27; Stephen, Criminal Law, I., 424.

4o PRELIMINARIES OF REVOLUTION [1760

between 1749 and 1772 show that one thousand one hundred and twenty-one persons were condemned to death; and the number of victims would have been much larger had the law been rigidly enforced. The brutalizing spectacle of the Tyburn processions was kept up until 1783; convicts were hanged in chains until 1834. So bloody and inconsistent was the criminal code that jurors refused to convict for the offence charged, preferring to perjure themselves in face of the clearest evidence of guilt ; while humane persons, for like motives, hesitated to bring offenders to account. In fact, the administration of the crim- inal law in England had become almost as much demoralized as in France under Louis XV.

Practically, slavery did not exist in the British isles, although before the decision of Lord Mansfield in the Somerset case (1772) slaves might be landed and retained by their owners on English soil. On the other hand, slavery was allowed to flourish in the colonies. On moral or humane grounds there was no public sentiment hostile to the institution. A few enlightened persons like Granville Sharpe, Thomas Clarkson or William Wilberforce might raise their voices against the evil, but the public conscience was not yet stirred.

On the contrary, the slave-trade was zealously fostered as a legitimate and lucrative industry. Since the seventeenth century its encouragement had become a cardinal principle of imperial policy; and the restrictive legislation of the colonies was

BRITISH EMPIRE

4i

frowned upon as an interference with the rights of British commerce. Until 1698 the traffic was carried on by chartered companies. In that year by act of Parliament it was thrown open to private traders.1 It became " highly beneficial and advan- tageous to this kingdom, and to the plantations and colonies thereunto belonging." A new impulse was given to the business by the treaty of 17 13, which secured to England a monopoly of the trade with the Spanish colonies, and gave the kings of England and Spain each one-fourth of the profits. Even so progressive a statesman as the elder Pitt made the encouragement of the slave-trade a " main object of his policy."2

In England Bristol, London, and especially Liverpool were foremost in the traffic; while their most active rivals were the great New England towns. The business was exceedingly profitable, and it was conducted on an enormous scale. Be- tween 1733 and 1766 — besides the large number imported by the colonists — about twenty thousand negroes annually were brought into the continental provinces of North America by English traders. In the West Indies, relatively, the number was even greater. For instance, during the three years pre- ceding 1762 the little island of Guadeloupe im- ported nearly 40,000 blacks;3 and between 1752 and

1 9 and 10 William and Mary, chap. xxvi.

2 Lecky, England, I., 547. Cf. Du Bois, Slave-Trade, 1-6. 8 Grenville Papers , II., 13.

42 PRELIMINARIES OF REVOLUTION [1757

1762 not less than 71,115 were brought into Jamaica.1 Moreover, the traffic — though attended by the most atrocious cruelty — was not prohibited in the colonies until 1807; and only in 1833 was slavery finally abolished throughout the British realm.

The picture of imperial growth seemed very bright. The withdrawal of France left Great Britain virt- ually mistress of the North American continent ; at Plassey, in 1757, Clive laid the solid foundation of her East Indian sway; while in the Pacific and Indian oceans Captain Cook was about to claim a vast island empire in her name. In 1768 he raised the British flag on the shores of New Zealand and New South Wales; and in two later voyages he gained other new lands for his country in the southern seas. A period of expansion through con- quest was thus followed (i768-i8i5)byan era of ex- pansion through exploration and discovery scarcely second in importance to that of Elizabeth's reign.

The theory of the empire finds its clearest ex- pression in the old colonial system, which presently will be examined. A broad distinction was made between the mother-country and the outside terri- tories. The imperial government rested on the assumption that the colonies and dependencies ex- isted primarily for the good of the parent state. They were to be made a source of England's political and military power, even at a considerable cost to themselves. In return they should have the pro-

1 Macpherson, Annals, III., 403.

1 768]

BRITISH EMPIRE

43

tection of the British flag, and be exempt from contributing directly to the imperial revenues. It " seemed fair to subordinate the economic interests of the colonies to the interests of the mother-coun- try, so that they might help to increase the fund of wealth from which the expenses of the common defence were defrayed." 1

Accordingly, the imperial government was exer- cised solely from England, and the administrative authority was vested mainly in the crown. The crown was the source of all land titles and of all charters, commercial or governmental. To the king belonged the prerogative of revising the acts of the colonial assemblies; and all the higher ap- pointments in the civil or military service were made in his name. On the other hand, general legislative authority in the empire belonged to Parliament. So far as applicable, all English statutes in force at the time of the first colonization were commonly held to be valid in the colonies, and all new statutes were binding if the colonies were specially mentioned therein. Moreover, the colonist enjoyed the full advantages of the common law wherever courts competent for its administration were created. Yet Parliament had relatively a small share in the direct government of the empire ; and this was in part due to the jealousy of the crown, which sometimes, as in the case of ecclesiastical matters, resented its interference.

1 Cunningham, English Industrial History, 133.

44 PRELIMINARIES OF REVOLUTION [1689

During the century preceding the accession of George III the colonists had generally accepted the imperial theory without serious protest, and exhibited a steadfast loyalty to Great Britain. They had yielded to the king's prerogative, accept- ed his protection when granted, and freely admit- ted the right of Parliament to regulate their trade and manufactures. They had prospered amazingly. Under the stimulus of local self-government they had become the freest people in the world, and therefore the most sensitive to the encroachments of the central power. Of a truth, in the quality of their civilization they had in some vital respects far outstripped the mother-country. In political ideals the contrast between Great Britain and her colonies was very great. Unquestionably in the finer sense the political education of the American peo- ple was far superior to that of their brethren in the old home. The standard of political morality was much higher. In place of the moral torpor which prevailed in England and Scotland, there had been developed in the colonies an extreme sensitiveness in regard to personal and constitutional rights. Through active participation in the town-meeting, the county court, and the assembly, a fierce spirit of liberty had been fostered which could not be subdued through appeal to worn-out precedents born of lower ideals.

The contrast in the ideals of private ethics was not less striking. The moral tone of " high " society

1768]

BRITISH EMPIRE

45

in England was unspeakably coarse and vulgar. Some of the foremost statesmen of the age were steeped to the core in vice. Gambling, drinking, and raking were patrician recreations. Henry Fox de- liberately encouraged his son Charles in a career of vice. Debauchery and prodigality were venial sins. "The Duke of Grafton, in 1768, was in the very depths of a scandal of which Junius took care that all the world should be cognizant ; and in the course of that very year his Grace was unanimously chosen Chancellor for the University of Cambridge." Lord Sandwich, a violent enemy of the Americans, had shared with Wilkes in the foul revels of Medmenham Abbey; yet "he had already run a dead heat for the High Stewardship of the same educational body. The University was saved from the ineffaceable disgrace which would have attended his success by the votes of the country clergy," who favored Lord Hardwicke in his stead.1

On the other hand, observing foreigners were struck with the simplicity, virtue, and hospitality of American life. Compared with the orgies of the fine gentlemen of London, the excesses even of the Virginian cavaliers were but innocent gayety. There was little in common between the lives of such men and the stern morality of John or Samuel Adams; while the moral ideals of George III., pre- scribing gold pills for the Duke of Northumber- land, compared with the stainless honor and lofty

1 Trevelyan, American Revolution, I.,64, 65. vol. vm.— 5

46 PRELIMINARIES OF REVOLUTION [1763

dignity of George Washington — risking all for his country without pecuniary reward — present a con- trast of profound meaning for him who would grasp one of the determining conditions of the American Revolution.1

1 See especially, Trevelyan, American Revolution, I., 28-99.

CHAPTER III

THE MERCANTILE COLONIAL SYSTEM

(1660-1775)

THE primary cause of the American Revolution must be sought in the character of the old colonial system, which was based on political and economic theories generally accepted as valid in the seventeenth century, but which, nevertheless, were the fruit of ignorance and inexperience. Politically, colonies were then looked upon as " de- pendencies," not as integral and fully privileged members of the growing parent state. Economi- cally, they were ''possessions," subject to exploita- tion for the benefit of the people who remained at home. These doctrines found partial expression in two ways: politically in the subjection of the colonies to "prerogative"; economically in their subjection to the "laws of navigation and trade." In both ways the Englishman who became a colonist sank somewhat in the social scale. The enterpris- ing men and women who bravely faced the perils and hardships of the savage wilderness, thereby extending the prestige and wealth of the British nation, were not intentionally rewarded therefor by

47

48 PRELIMINARIES OF REVOLUTION [1606

new political and economic privileges. On the contrary they were looked upon as having ex- patriated themselves, as having yielded some part of the constitutional and legal rights which they already possessed. If this seems strange to us now, it must not be forgotten that our vision has been sharpened by nearly a century and a half of ex- perience. It is very enlightening to reflect that the present wise colonial policy of Great Britain was adopted only after the bitter discipline of the American war. Furthermore, even now the " pro- vincial' ' does not entirely escape the social con- descension of his insular kinsman.1

Of a truth, to determine what ought to be the relation of colonies to the mother-country was not at all an easy problem for the men of the seventeenth century. Practically, the choice seemed to lie be- tween allowing them to set up for themselves as independent communities, after the manner of the daughter colonies of Hellenic cities, or of keeping them in a state of at least partial subordination, following the custom of other European states. To turn them adrift to shift for themselves would have seemed heartless and unjust to the colonists themselves; to recognize them as integral parts of the expanding nation, with the same status, the

*For the theories and practice of the colonial system in the seventeenth century, see Andrews, Colonial Self -Govern- ment {Am. Nation, V.), chap, i.; in the early eighteenth century, Greene, Provincial America {Am. Nation, VI.), chaps, ii.-v.

1763]

COLONIAL SYSTEM

49

same rights and duties as before migration, ap- peared impractical on account of the distance — always a puzzling factor in the problem — while to place them in a position of virtual autonomy, under the merely nominal sovereignty of England, perhaps to be a heavy burden upon the exchequer rather than a source of revenue, though according to modern ideas, would have been deemed a course devoid of common-sense by a generation under the full sway of the mercantile dogma.

The result was an ill-defined policy, confusedly blending two utterly antagonistic principles formed under the influence of Spain, whose experience reached back a hundred years before the first col- onies of England were planted. In "the first set- tlement of America the conception of a Spanish colony as an extension of Spain was mixed up with a different conception of it as a possession be- longing to Spain." 1 But if unconsciously England accepted the Spanish theory, she did not thoroughly imitate the Spanish practice. Politically and eco- nomically her colonies enjoyed far more liberty than did those either of Spain, France, or Holland. "On some points," admits Leroy-Beaulieu, "Eng- land showed a liberalism unusual at that epoch." 2

By the right of discovery, according to legal theory,3 the title to England's American territories

1 Seeley, Expansion of England, 62.^

3 Leroy-Beaulieu, Histoire de la Colonisation (4th ed., 1891), 119. 8 Peters, in U. 5. Statutes at Large, VII., 1-11.

5o PRELIMINARIES OF REVOLUTION [1660

belonged to the crown. From the crown, therefore, the colonists derived their charters and patents. They and their lands were spoken of indiscriminate- ly as the crown's "possessions." They were placed in subjection to the "prerogative," that undefined "sovereign authority" against which already in 1628 Sir Edward Coke had protested;1 to an au- thority, that is to say, which for Englishmen at home became more and more clearly recognized as "unconstitutional" with each step forward in the march of parliamentary liberty. All this was un- fortunate ; but it was not thought of as despotic by the people of that age. To them it seemed just that as possessions the colonies should be made fruitful to their owner. Economic equality, they fancied, might make the colonies a damage rather than a benefit to the mother-country. Such a policy would now be condemned as selfish and short-sighted. In the end it proved harmful to the colonies. Yet before the advent of the Physiocrats and Adam Smith, it was sanctioned by the best economic thought of Europe. Clearly the faults of the old restrictive system were due to "unconscious igno- rance " and not to "conscious malice." 2

Aside from the measures providing for its ad- ministration, the restrictive colonial system finds ex- pression in three series of laws : ( 1 ) the acts of navi- gation, strictly so-called, intended to protect Eng-

1 Creasy, English Constitution (15th ed.), 287.

2 Cf. Beer, Commercial Policy, 9.

1763] COLONIAL SYSTEM 51

lish shipping against foreign competitors; (2) acts of trade, designed to secure to the English merchants a monopoly of colonial commerce; and (3) acts giving to English manufacturers a monopoly of the colonial market. The first two subjects, navigation and trade, are sometimes dealt with in distinct parts of the statute, as in that of 1660. In its motive the whole "restrictive system" was class legislation pure and simple, of which the English merchant and the English manufacturer were the beneficiaries. In their interest the system aimed to control the imports of the colonies from abroad ; their exports to other countries ; their traffic with each other ; their carrying trade ; and their manufactures. Indirectly, of course, the English people remaining at home might profit by the monopoly ; but the gains were unequally distributed.

At the Revolution the three basic statutes of the seventeenth century were still in force. By the act of 1660, 1 (1) the importation of goods from any part of Asia, Africa, or America, whether British or foreign, is confined to English or colonial ships whereof the masters and at least three-fourths of the mariners must be English. (2) No commodities of foreign growth, production, or manufacture may be brought into England, Ireland, Wales, Guernsey, Jersey, or Berwick, in such English (or colonial) owned and built vessels, unless they come directly

1 12 Charles II., chap, xviii.; also summarized in Andrews, Colonial Self-Government {Am. Nation, V.), chap, i,

52 PRELIMINARIES OF REVOLUTION [1660

from the producing country or from the ports whence they are usually laden for transportation. (3) Foreign carriers are absolutely excluded from the colonial market whether shipping their own prod- ucts or not. " Noe Goods or Commodities what- soever," the act declares, "shall be Imported into or Exported out of" his majesty's possessions in Asia, Africa, or America except in English ships or ships built and owned in the plantations, "whereof the Master and three fourthes of the Marriners at least are English." (4) The coasting-trade is closed to foreigners, and no alien is permitted to be a factor or merchant in the colonies. (5) Furthermore, certain products are named in the act, later added to from time to time, and known as "enumerated articles," which may not be carried from the colonies, even in English ships, to any place other than to such Eng- lish plantations or to England or Ireland. These articles are sugar, tobacco, cotton-wool, indigo, ginger, fustic, and other dyeing woods. "This af- fected the English sugar islands of the West Indies and the southern colonies, which were obliged to send their products to the overstocked English or colonial markets, more than it affected New Eng- land, whose great staples, lumber, fish, oil, ashes, and furs, were free to find their best market, pro- vided only they were sent in English or colonial ships."1 Naval stores were not as yet included. This act, therefore, though by no means generous

1 Chamberlain, in Winsor, Narr. and Crit. Hist., VI., 7, 8.

1 73 1] COLONIAL SYSTEM 53

in its motive, is not intolerable. The colonists share equally with Englishmen at home in the rich monopolies of ship-building and the carrying trade. According to an elaborate tariff of 1660, dis- criminating against aliens, they may import all foreign goods, and, with the exception of the enumerated articles, export their own products to foreign countries, paying thereon the same import or export duty as when shipped to or from England by subjects of the crown residing in Great Britain.1 On the other hand, they have lost the benefit of competition: foreigners are no longer permitted to carry their own products to plantation ports. For a time at least Virginians felt it a grievance that they could no longer export their tobacco in Dutch ships; just as in England the cost of freight on European imports was raised.2 Throughout the act colonial ships and colonial seamen are recognized as "English," a statute of 1662 clearing up any doubt which may have existed on that point.3 Scotchmen, however, were not included until after the union in 1707; and "Ireland" seems to have been put in the law by mistake. Hence, in 1670, the shipment of enumerated goods from the colonies directly to Ireland was forbidden; and between 1696 and 1 73 1 even non-enumerated articles could not be sent to that country except by way of

1 12 Charles II., chap. iv. 3 Cf. Ashley, Surveys, 31 1-3 13. 3 13 and 14 Charles II., chap, xi., § 6; Channing, Navigation Laws, 9.

54 PRELIMINARIES OF REVOLUTION [1663

England. Likewise, the navigation laws prohibited the direct exportation of goods from Ireland to the colonies, although in 1704 an exception was made in the case of linen.1

The enumeration of colonial products was prompt- ed by a dual motive. The English merchant would thus gain a monopoly in the distribution of these goods, and the English manufacturer would secure a monopoly in the colonial supply of raw materials. Yet neither the merchant nor the manufacturer was satisfied with his advantage under the act of 1660. If now, after the model of the mediaeval "staple" towns, England were made the sole place for supply- ing the plantations with European goods, a still richer middleman's profit would be put within the merchant's grasp, and the manufacturer would find a greater demand from the colonists for his finished product in exchange for their raw materials.

Such is the aim of the "second" navigation act passed in 1663. 2 The preamble significantly de- scribes the people of his majesty's colonies as V Sub- jects of this His Kingdome of England"; and naively announces that the law is designed for "maintaining a greater correspondence and kind- nesse betweene them and keepeing them in a firmer dependance upon" that kingdom "and ren-

1 22 and 23 Charles II., chap, xxvi., §§ 10, 11; 3 and 4 Anne, chap. viii. Cf. 3 George I., chap, vii., § 29; and chap, xxi., § 2; Beer, Commercial Policy, 40; Channing, Navigation Laws, 12.

2 15 Charles II., chap. vii.

1689] COLONIAL SYSTEM 55

dring them yet more beneficiall and advantagious unto it," by making England the " Staple not onely of the Commodities of those Plantations but alsoe of the Commodities of other Countryes and Places for the support of them." Accordingly, with the exception of salt for the fisheries of New England and Newfoundland, wines of the Western Islands, or Azores, servants, horses, and victuals from Ireland and Scotland, the direct import trade of the colo- nies in European goods is entirely cut off ; while, as before, the export trade to all foreign countries is forbidden in the enumerated articles again men- tioned in the statute. Other goods the colonist might, indeed, carry directly to Europe; but his vessel must then return empty unless he was willing to transship his cargo by way of an English port.

Some advantages accrued to the colonists in case of such a re-exportation — a part or the whole of the duty was usually returned. Indeed, the people of England complained that Americans could get certain goods, such as German or Dutch linens, cheaper than they themselves could obtain them. Furthermore, it is strongly urged by Ashley, ac- cepting the view of Brougham, that England was the natural entrepot for the exchange of colonial and European products, so that the restrictions on the direct trade imposed by the acts of 1660 and 1663 were not really a hardship. In the case of tobacco transshipped to Europe, he admits that the cost

56 PRELIMINARIES OF REVOLUTION [1662

of freight may have been increased, though if so it would be " borne to some extent by the continental consumer."1 It seems to follow from this argu- ment that the colonial consumer would have to pay the extra cost of freight on goods transshipped to him from Europe.

The intercolonial trade still remained free. To appropriate a part of the benefits of this was the next step in the development of the restrictive system. The law regarding the enumerated com- modities had been evaded. As early as 1662 it appears that tobacco was being delivered to Dutch vessels at sea, shipped directly to the Dutch planta- tions, or carried to New England and thence re- exported in Dutch ships to Europe. "Moreover the products sent through England had paid duties, and the illegal trader was thus enabled to under- sell the English merchant in the European markets." 2 In admirable harmony with the spirit of the old colonial policy, the entire people of the plantations, guilty and innocent alike, were now to be pun- ished for this offence. By the act of 1672, creating the famous "acute triangle" of trade,3 the whole traffic in the enumerated articles between one plantation and another — whether the goods were intended for home consumption or not — is sub-

1 Ashley, Surveys, 317, et seq. Cf. Brougham, Inquiry into the Colonial Policy, 246.

'Beer, Commercial Policy, 39; N. Y. Docs. Rel. to Col. Hist., III., 44. s 25 Charles II., chap. vii.

1672] COLONIAL SYSTEM

57

jected to a penalty. The trader, for instance, who will carry sugar from Jamaica to New England, or tobacco from Virginia to New York, must either render tribute at the place of shipment according to a tariff prescribed in the statute, or else give bond to unlade his cargo in an English port, there paying the usual duty before proceeding to his colonial destination. On some articles the duties were heavy — tobacco, for instance, paying one penny a pound and white sugar five shillings the hundred- weight. In other cases the charges seem to have been designed only to secure a record of the clear- ance, entrance, or destination of cargoes; and as a matter of fact the colonists did not very seriously object to them.

It is, perhaps, not surprising that the restraint of American manufactures should be the next step in the expansion of the system. Before consider- ing this, however, the enumerated articles demand further attention. The history of these commod- ities is very enlightening as to the effects of the mercantile theory.1 According to that doctrine a monopoly of the colonial exports of raw materials would prove beneficial by encouraging English manufactures. The balance of trade would thus be secured, and the precious metals would come into the kingdom. " If England imported the raw materials from the colonies she could pay for the same in manufactures; the precious metals would

1 See especially, Beer, Commercial Policy^ 43-65, 91-106.

58 PRELIMINARIES OF REVOLUTION [1705

not be drained from England, but might even flow thither from the colonies. The question whether the balance of trade was unfavorable to both Eng- land and the colonies, regarded as a unit, affected the economists and statesmen but little. What they sought was a favorable balance for England alone." 1 New articles, therefore, were enumerated from time to time. Thus in 1705 rice and molasses were put upon the list. The war of the Spanish Succession was then at hand. Accordingly naval stores were enumerated and bounties offered for their production. Copper and furs came next in 1722. Tobacco "formed one-half of all the colonial exports."2 The enumeration with the excessive import duties did not in the end prove a serious in- jury to Virginia. There were compensations. The growth of tobacco in England — which at one time promised to become important — was prohibited; a much higher duty was laid upon the Spanish and Portuguese product; while the greater part of the charge on that of Virginia was returned on re-ex- portation, "between two-thirds and four-fifths" of the entire crop being thus carried to other countries. Nevertheless, the price fell — partly on account of over-production — and in 1733 the planters protested against the rate.3

1 Beer, Commercial Policy, 43.

2 3 and 4 Anne, chap, v., § 12, chap, x., § 8; 8 George I., chap.

xviii., § 22, chap, xv., § 24; Ashley, Surveys, 316.

3 Ashley, Surveys, 316-319; Beer, Commercial Policy, 50, 51, citing The Case of the Planters of Tobacco.

1735] COLONIAL SYSTEM

59

The first effect of the enumeration of rice, the staple product of South Carolina, was to deprive that colony of her monopoly of the Portuguese market. Consequently the law was relaxed. In 1730 South Carolina and in 1735 Georgia were allowed to send rice directly to any port south of Cape Finisterre, provided it was exported in ships built or owned in Great Britain. For in this in- stance, apparently, the colonists were excluded from a share in the profits of carrying their own goods. " Immediately American rice regained control of its former market."1 The enumeration of furs in 1722, though accompanied by a heavy reduction in the import duty, did not increase the supply for the English market. The trade was already passing rapidly into French hands ; and " neither restriction nor favor" had much effect upon a business " bound speedily to disappear."2 The placing of sugar and molasses on the list did not directly affect the con- tinental colonies. It gave occasion, however, for the Molasses Act of 1733, which will be again re- ferred to.

Equally instructive is the history of the bounty system. By the statute of 1705, already men- tioned, renewed and supplemented by later acts, liberal premiums were granted on colonial masts, hemp, tar, pitch, and allied products sent to Eng-

1 3 George I., chap. xxviii.,§ 2; 8 George II., chap, xix.; Beer, Commercial Policy, 53.

2 Ashley, Surveys, 315,316; Beer, Commercial Policy, 57-62.

6o PRELIMINARIES OF REVOLUTION [1714

land; while in 172 1 hemp and in 1722 all kinds of lumber were freed from English import duties.1 A monopoly of these products, which the plantations might thus be stimulated to produce, would, it was hoped, create a steady market for English manu- factures. To some extent the colonies were bene- fited by the experiment. The premium on indigo granted in 1748 was successful.2 In the southern plantations tar and pitch were produced and ex- ported in considerable quantities. Between 17 14 and 1774, it is alleged, £1,609,345 sterling were paid in premiums on colonial goods carried to British ports.3

Yet in the main the bounty system was a failure. For their staple products — their fish, lumber, and ship-timber — the northern plantations found their best market in Spain, Portugal, and the West Indies. The bounty system proved to be a vain effort to draw them from this lucrative commerce into new industries for the sake of the mother- country. Moreover, the disputes arising with the navy board touching claims for bounty, and with the king's officers regarding the execution of the laws for the protection of the forests, were a con- stant source of bad feeling. It is impossible, con- cludes a careful writer, "to determine to what ex-

1 12 Anne, stat. 1., chap. ix. ; 8 George T., chap, xii.; 2 George II., chap, xxxv.; 16 George II., chap, xxvi.; 24 George II. f chap, lvii.; 31 George II., chap. xxxv.

2 21 George II., chap, xxx., § 1 ; 28 George II.. chap, xxv., § 1. 9 Rights of Great Britain Asserted, 87.

1763] COLONIAL SYSTEM

61

tent the irritation of the New England woodsmen may have laid the foundation for the resentment which culminated in 1776"; but "so far as one branch of industry is concerned, the economic independence of New England was declared and maintained many years before the final rupture with Great Britain.' ' 1

Various circumstances favored the early rise of manufactures in the colonies. Everywhere there was plenty of iron, and the supply of fuel for smelt- ing was unlimited. Wool for homespun and for a time beaver for hats could be found in abundance. The forests were filled with the best timber in the world for ship -building. Moreover, among the peo- ple were many skilled artisans from Europe, nota- bly from Ireland, England, and France. But there was another cause more potent than even these natural conditions. The economic policy of Parlia- ment had partially deprived the colonists of the means of importing the manufactures which they needed. The restrictive laws by interfering with the profitable foreign market had lessened the supply of ready money with which to" make good the unfavorable balance of trade with England ; besides, who could say when those laws might be more rigidly enforced.

On the other hand, the corn laws enacted during the reign of Charles II. had closed the English

1 Lord, Industrial Experiments, 56, 87, 123, passim. Cf. Beer, Commercial Policy, 91-106; Channing, Navigation Laws, 16-19.

VOL. VIII. — 6

62 PRELIMINARIES OF REVOLUTION [1699

market to the staples which the colonists might have exchanged for manufactured goods. In the interest of the land -owner, "prohibitory customs duties were levied on agricultural products, such as rye, barley, peas, beans, oats, and wheat";1 the importation of provisions, including beef, pork, bacon, and apparently butter and cheese, were prohibited; and a discriminating duty was laid on oil and blubber imported in colonial ships.2 "Thus," concludes Beer, "New England, and later the middle colonies, not being allowed to exchange their normal products for England's manufactures, were forced to begin manufacturing for themselves." 3 This unforeseen result was intolerable to the disciples of the mercantile theory. According to that theory the colonies were useful chiefly as con- sumers of English goods for which they were ex- pected to supply the raw materials. Accordingly, having forced American manufactures into exist- ence by one economic blunder, Parliament tried to destroy them by another. The woollen industry was attacked in 1699; the exportation of beaver hats of American production was forbidden in 1732 ; while in 1750 the manufacture of rolled iron and of steel was restrained.4

1 Saxby, British Customs, cited in Beer, Commercial Policy, 74, 111-114. Cf. 'Lord, Industrial Experiments, 124-139.

2 18 Charles II., chap, ii.; 32 Charles II., chap, ii., § 9; 25 Charles II., chap. vii. 3 Beer, Commercial Policy, 75.

4 10 and 11 William III., chap, x., § 19; 5 George II., chap, xxii.; 23 George II., chap. xxix.

1767]

COLONIAL SYSTEM

63

Such in character was the old restrictive system. Its triple monopoly of shipping, trade, and manu- facture had the full and hearty approval of economic writers. Josiah Child — whose book was written in 1665 and first published in enlarged form in 1668 — frankly lays it down "that all colonies, or plantations, do endanger their mother-kingdoms, of which the trades of such plantations are not confined by severe laws, and good execution of those laws, to the mother-kingdom"; and that in particular "New- England is the most prejudicial plantation to the kingdom of England."1

Joshua Gee, an adviser of the board of trade, "who is said to have advised an American stamp act by parliament," produced a book in 1729 whose spirit is entirely in harmony with that of the colonial system. To make the plantations more profitable to Great Britain, he would "strengthen" the nav- igation act and imitate the policy of Spain and other European states in preventing "their natural born Subjects from going upon such Manufactures as doe interfere with theirs at home."2 In rec- ognition of the soundness of Gee's doctrine a new edition of his work was brought out in 1767, just as the new revenue acts were being matured. John Ashley in 1741 pleads for a mitigation of the rigor of some of the laws affecting the colonies. Yet

1 Child, New Discourse of Trade, 134, 135.

2 Gee, Trade and Navigation, 48-53, 77. Cf. Bancroft, United States (ed. of 1885), II., 241.

64 PRELIMINARIES OF REVOLUTION [1660

his point of view is the same as that of his prede- cessors. If he is more humane, it is because lenity will render the plantations — those " junior Branches " of the empire — more profitable to the mother- country.1 But in the works cited, neither Ashley nor Gee, as sometimes alleged,2 appears to have advised the taxing of the colonies for revenue; al- though, had the duty imposed been lowered as Ashley suggested, and the molasses act of 1733 en- forced, it would have become, in fact as well as in form, a revenue act.3

It may seem strange that for a century a system so selfish in motive and so false in principle should have been borne without more serious protest. The reasons, however, are not far to seek. The system as actually administered did not prevent the great material prosperity of the colonists; they had a commerce profitable to them, and they had a po- litical relation of great significance. On the one hand, from England they got capital and credit; under the English law their property and civil rights were secured; their commerce was carried on under the protection of the British flag; and in some measure they were partners of Englishmen at home in the very monopolies which they endured. In- deed, it is believed that the exclusion of foreign

1 Ashley, Memoirs and Considerations , 13-35, passim; pt. ii. (London, 1743), 96 and Preface.

'E.g., Scott, Development of Const. Liberty, 215-219.

* Ashley, Memoirs and Considerations , pt. ii., Preface, where a tax for revenue is discouraged; also 42.

1733] COLONIAL SYSTEM 65

competition in the carrying trade actually "stimu- lated ship-building and the shipping interest in the colonies."

Furthermore, the making of England the staple for the exchange of colonial and European goods was not a great hardship ; for it is almost certain that the English middleman would have had the bulk of this trade without the aid of restrictive laws. Even the harsh restraint of manufactures was quietly accepted, because, as it turned out, investments in land and other enterprises were found more lucra- tive.1 On the other hand, the colonists enjoyed local self-government and were relieved from contribut- ing directly to the imperial revenues. They were expected to aid in their own defence; but because they " were not a part of the realm of England " they were not taxed to support the army when sent against a foreign foe. They shared more actively in the functions of political life than most of them could have done in the old home.

Why, then, can the old colonial system be regarded as the primary cause of the Revolution ? Again the answer is near at hand. It was wrong in principle and degrading in motive. Such a r6gime of political and economic paternalism could not long be en- dured by a robust and liberty-loving people dwell- ing three thousand miles away from the seat of power. In American history as elsewhere the value of sentiments must not be overlooked. Psychic

1 See especially Ashley, Surveys, 317-360.

66 PRELIMINARIES OF REVOLUTION [1733

causes are in the end more potent than material causes. Besides, the paternal system had always been the source of more or less irritation and dis- content. Indeed, there is something misleading in representing the privileges permitted by it as "com- pensations." Were they not rights which in fuller measure the colonies, more justly looked upon as integral parts of the British nation, ought to have enjoyed without paying an extra price for them?

It must not be forgotten that in both of its aspects the colonial system was laxly administered. The prerogative was but fitfully enforced. The laws of trade were systematically evaded, although so far as the European traffic is concerned the amount of smuggling seems to have been less than is com- monly supposed.1 The failure during a century to make any serious effort to execute these laws in effect established a prescriptive right to such in- dulgence which could not be denied with safety. The molasses act of 1733, whose execution would have destroyed the most lucrative trade of the northern colonies, was a dead letter. It remained, nevertheless, a social menace. Who could say at what moment prerogative and Parliament might unite in its execution, or when it might be made in fact a revenue law?

This moment came at the close of the French and Indian War. Just as the American people were be- coming aware of their real strength, faintly per-

1 Ashley, Surveys, 336-360.

1763] COLONIAL SYSTEM 67

ceiving the great destiny which awaited them, the British ministry made the fatal resolve of rigidly enforcing the acts of navigation and trade and of depriving the colonists of those very li compensa- tions" which thus far had enabled them quietly to endure the colonial system. What would be the reply of the American people?

CHAPTER IV

THE FIRST PROTEST OP MASSACHUSETTS

d76i)

AFTER a century and a quarter of discussion J \ the American Revolution is to - day clearly emerging as an event of first rate importance in social as well as political history. In that discussion the wrong point of view has often been taken. On the one hand the struggle has been looked upon as a war of liberation from a despotism imposed on the colonies as if through conscious malice; on the other as a needless revolt inspired mainly by a few hot-headed demagogues taking advantage of a blundering royal policy. The second error, which some American and many British writers have committed, is not less grave than the first; for the Revolution was indeed a movement for liberation, not from a consciously planned tyranny, but from -a regime, economic and political, which was ham- pering the social growth of the colonies.

According to the usual definition, the American Revolution, unlike the French Revolution, is polit- ical and not social in character. It is not regarded as a struggle against class privilege. Yet in a very

68

1763] MASSACHUSETTS' FIRST PROTEST 69

real sense the old colonial regime treated the pro- vincials as an inferior class. As dominions the colonies were in theory subjected to the rigor of the royal prerogative while the favored people who remained in England were being freed from it; as communities they were valued chiefly as feeders of British trade. A system so artificial and so humil- iating could not long prevail with a proud and self- respecting people becoming aware of their strength. If the American Revolution was not a conscious social revolution, it was at any rate a struggle for free social expansion. "Of all events of English history," declares Seeley, "it is perhaps the Amer- ican Revolution which has suffered most from the application of these wrong tests." It "is an event not only of greater importance, but on an altogether higher level of importance than almost any other in modern English history," for "it . . . called into existence a new state."1

The American Revolution is unique, not only for its significance, but also in its form and progress. Like the French Revolution it is dramatic. The action unfolds itself with epic precision: at each shifting of the scene the right actor takes his place. But no other revolution has from the start produced leaders so thoroughly disciplined by experience for its guidance: each action is explained by learned and skilful argument; more than twelve years are given up to debate before the first blow is struck.

1 Seeley, Expansion of England, 142, 144, 147.

7o PRELIMINARIES OF REVOLUTION [1714

No other revolution is so instructive to the student of political science: the entire process of state building goes on before his eyes, and the reason for each step is clearly and exhaustively expounded by the builders as they proceed. For enduring quality, the forensic and constitutional literature of our Revolutionary epoch is not matched in the entire history of political struggle.

The speech of James Otis against the writs of assistance, if not the opening, was at any rate the prelude of the Revolutionary drama.1 Previous to the close of the French war in America the acts of trade had brought no profit to the British treasury. The cost of maintaining the commercial system was enormous. During the sixty years between 17 14 and 1774, on this account, including probably the support of the American fleet, the exchequer had paid out not less than £34,697,142 sterling, a sum greater, it is alleged, " than the estimated value of the whole real and personal property in the colonies."2 Grenville discovered that the entire ''revenue derived by England from the custom- houses in America amounted to between 1,000/. and 2,000/. a year; that for the purpose of collecting this revenue the English exchequer paid annually be- tween 7,000/. and 8,000/.; and that the chief cus- tom - house officers appointed by the crown had

1 Cf. Tyler, Lit. Hist, of Am. Rev., I., 30, et seq.

2 The Rights of Great Britain Asserted, 82; Chamberlain, "The Revolution Impending," in Winsor, Narr. and Crit. Hist., VI., 6.

1760] MASSACHUSETTS' FIRST PROTEST 71

treated their offices as sinecures, and by leave of the treasury resided habitually in England." 1 A vast amount of dutiable goods, both from Europe and the foreign West Indies, was continually being smuggled into the country, and the local officers either connived at the illicit traffic or were helpless to prevent it.

From the beginning of the French war there were ominous signs that a more rigid execution of the laws was resolved upon. Governor Shirley of Massachusetts is believed to have been influential in suggesting the new policy. In particular he led the clamor, elsewhere referred to, for raising a revenue on the colonies by act of Parliament.2 During the war the colonial merchants, sometimes with French or Dutch passports or under flags of truce granted by the American governors, had kept up an active trade with the enemy in the sugar islands and even on the main land. At the sug- gestion of Halifax in 1756, and again in 1760 through Pitt's instructions, the governors were commanded to put a stop to the practice.

If this conduct of the colonial merchants was un- patriotic, it must be confessed that necessity af- forded a plausible excuse. How else were they to contribute their share to the support of the war without the money gained from the West India

1 Lecky, England, III., 333, citing Grenville Papers, II., 114; see also Grenville, The Regulations Lately Made, 57.

2 See above, chap. i.

72 PRELIMINARIES OF REVOLUTION [1660

trade ? They were willing to tax themselves heavily for that purpose; but when also, suggests an English critic of the British policy, they "were required to desist absolutely from all commercial dealings with their best customers, their good friends, the enemy, the sacrifice seemed too great even for their simple loyalty." Indeed, the alleged purpose of "starv- ing" the French out of the West Indies is regarded by the same writer as a cause of the American rebellion.1

The machinery for the rigid administration of the commercial code was ample if zealously employed.2 In England, since 1696, the Board of Trade and Plantations was exercising general authority un- der the Privy Council. This body worked mainly through the governors, who in their respective provinces were sworn to a faithful execution of the laws of trade and navigation.3 Below the governor were the naval officer, the collector of customs, and the surveyor-general, besides the collectors and the surveyors and searchers for each port.4 Originally prosecutions for breach of the trade laws were tried in the ordinary colonial courts of record, but juries were slow to convict. Hence, in 1697, separate

lHall, "Chatham's Colonial Policy," in Am. Hist. Rev.tV., 666.

1 The best accounts are Greene, Provincial America (American Nation, VI.), chap, xvi.; Beer, Commercial Policy, 123.

8 13 Charles II., chap, xriii.; supplemented by 7 and 8 William III., chap. xxii.

4 Spotewood, Lett&rs, I., 29; 7 and 8 William III., chap, xxii.,

§§ 5. «•

1696] MASSACHUSETTS' FIRST PROTEST 73

admiralty courts for the colonies were created and these could act without a jury.1 In England rev- enue cases were tried, not in the courts of admiral- ty, but in the court of the exchequer, where juries were employed.

But the most effective instrument in the pre- vention of illicit trade was the "writ of assistance" created during the reign of Charles II. 2 According to the late Justice Horace Gray — whose critical essay should be used with John Adams's report of Otis' s speech — this warrant for the seizure of un- customed goods appears to be derived from the ancient "writ of assistance" or "writ of aid" ad- dressed to the sheriff from the court of exchequer; and it is "perhaps copied from the sheriff's patent of assistance." 3 By statute the writ is issued from the court of exchequer. It is general in form, au- thorizing the official in the day-time to search any vaults, cellars, warehouses, or other suspected places where he may suppose dutiable goods to be hidden, while ships lying in or near the port may thus be entered either by day or night. It is valid for an indefinite time, or until six months after the demise of the crown, and no "return" to the court of issue is required. In England this warrant was

1 Washburn, Judicial Hist, of Mass., 172; Chalmers, Revolt, I., 273-275-

2 12 Charles II., chap, xix.; confirmed by 13 Charles II., Stat. 1, chap, i., and later acts; supplemented by 13 and 14 Charles II., chap, xi., § 5; and often re-enacted.

8 Gray, Writs of Assistance, in Quincy, Reports, 395, et seq.

74 PRELIMINARIES OF REVOLUTION [1695

then in use ; and there in practically the same form as under William III. it continued to be enforced for many years after the Revolution. Yet it is easy to see that so dangerous a power, especially in the hands of petty officials, was capable of serious abuse.

A statute of William III. had expressly enjoined that the same aid should be given to the custom- house officers in America as was required by law to be rendered in England.1 But for more than half a century such writs were not used in the colonies. According to Hutchinson, "the collectors and inferior officers of the customs, merely by the authority derived from their commissions, had forcibly entered warehouses, and even dwelling houses, upon information that contraband goods were concealed in them. The people grew uneasy under the exercise of this assumed authority, and some stood upon their defence against such entries, whilst others were bringing their actions in the law against the officers, for past illegal entries, or at- tempts to enter."

Governor Shirley put himself for a time equally in the wrong: as civil magistrate he "gave out his warrants to enter"; but learning that such a course was illegal, he directed the " officers to apply for warrants from the superior court ; and, from that time, writs issued, not exactly in the form, but of the nature, of writs of assistance issued from the

1 7 and 8 William III., chap. xxii.,§ 5.

1760] MASSACHUSETTS' FIRST PROTEST 75

court of exchequer in England."1 The truth of this statement is confirmed by the documentary- evidence. In June, 1755, the superior court, Chief - Justice Sewall presiding, issued , the first of these memorable writs to Charles Paxton, surveyor of the port of Boston. Similar authority was presently conferred upon other officers.2 Many seizures were made. " The third part of the forfeiture of molasses which belonged to the province amounted before 1 761 to nearly five hundred pounds in money."3 Informers were rewarded for secret information, and popular feeling was kept in a state of continual irritation.

The death of George II., October 25, 1760, brought matters to a crisis, for in six months the validity of all existing writs would cease. Chief - Justice Stephen Sewall, who doubted the legality of the writs, died just after the new governor, Francis Bernard, arrived in Boston (August 2), bringing instructions to "be aiding and assisting to the collectors and other officers of our admiralty and customs in putting in execution" the laws of trade. George III. was proclaimed in Massa- chusetts December 30. On the same day Thomas Hutchinson, who already held the posts of council- lor, judge of probate, and lieutenant-governor, was

1 Hutchinson, Hist, of Mass. Bay, III., 92, 93.

2 Gray, in Quincy, Reports, 402, et seq.

3 Chamberlain, "The Revolution Impending," in Winsor, Narr. and Crit. Hist., VI., 12.

76 PRELIMINARIES OF REVOLUTION [1761

commissioned as chief justice of the superior court, and on January 27, 1761, he took his seat on the bench in Middlesex.

James Otis, the elder, had been promised the first vacancy on the bench by both Shirley and Pownall ; but, according to John Adams, Hutchinson was ap- pointed by Bernard "for the very purpose of decid- ing the fate of the writs of assistance, and all other causes in which the claims of Great Britain might be implicated."1 This statement is scarcely sus- tained by the evidence. Hutchinson was brought forward for the place by his friends; and at the time of his commission application for a renewal of the writs had not yet been made as Adams alleges.2 Yet it can hardly be doubted that the question of their legality was already a matter of earnest discussion^ The petition of the Boston merchants for a hearing against the writs, and the memorial of Lechmere, the surveyor-general, to be heard in reply, were filed in February, 1761. On the 24th the case of Charles Paxton, who sought a new warrant, came before the superior court sitting under the presidency of Chief -Justice Hutchinson, in the council chamber of the old Town House in Boston. For the writs appeared the attorney- general, Jeremiah Gridley, and the merchants were represented by Oxenbridge Thacher and James Otis.

No full report of this famous trial exists. Our

1 Adams, Works, X., 183, 247, 280. * Gray, in Quincy, Reports, 409-411.

i7<5i] MASSACHUSETTS' FIRST PROTEST 77

knowledge of it is derived almost wholly from John Adams's notes taken at the first hearing,1 together with his later and more extended report,2 and the letters addressed by him to William Tudor fifty- seven years after the event.3 Gridley, the foremost lawyer of Massachusetts, confined himself closely to proving the technical validity of the writs and the legality of their issue by the superior court, not touching upon the broader aspects of the case. He "argued," says Adams, "with his characteristic learning, ingenuity, and dignity," all depending, however, on the "if the Parliament of Great Britain is the sovereign legislature of all the British em- pire."4 It is true, Gridley admitted, that the " common privileges of Englishmen are taken away in this case"; but it is justified by necessity — the "benefit of the revenue," just as necessity justifies the distraint of goods and chattels by a local officer in the recovery of taxes.5

Thacher followed on the other side, speaking "with the softness of manners, the ingenuity and cool reasoning, which were remarkable in his amiable character. But Otis was a flame of fire! with a promptitude of classical allusions, a depth of re-

1 Adams, Works, II., 521-523.

3 As given by Minot, Hist, of Mass., II., 87-99; by Tudor, Life of Otis, 62, et seq.; and in the copy by Israel Keith: see Gray, in Quincy, Reports, 479-^482. A brief minute of the No- vember hearing is in Quincy, 51, et seq.

9 Adams, Works, X., Index. 4 Ibid., 247.

6 Minot, Hist, of Mass., II., 89, 90.

VOL. VIII. — 7

?8 PRELIMINARIES OF REVOLUTION [1761

search, a rapid summary of historical events and dates, a profusion of legal authorities, a prophetic glance of his eye into futurity, and a torrent of impetuous eloquence, he hurried away everything before him. American independence was then and there born ; the seeds of patriots and heroes were then and there sown . . . every man of a crowded audience appeared to go away, as I did, ready to take arms against writs of assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child independence was born. In fifteen years, namely in 1776, he grew up to manhood, and declared himself free."1

The fervid rhetoric of the venerable patriot who in his twenty-fifth year had been inspired by his hero's words may be accepted with some grain of allowance. Yet that Otis' s speech belongs to the epoch-making utterances there is small reason to doubt. It was a strong and a timely protest against a dangerous system; but its power was not due wholly to its quality as a discourse, for Otis's style of speaking and writing was rugged, with small claim to elegance of diction. It struck a responsive chord in the breasts of his countrymen. He gave voice to that which was moving their spirits; and is not that often the secret of the highest eloquence ?

Before the trial Otis had resigned his office of advocate-general, because he was not willing to

1 Adams, Works, X., 247, 248.

1761] MASSACHUSETTS' FIRST PROTEST 79

appear in support of the writs, which he believed to be illegal and tyrannical. This sacrifice his enemies explained as the result of pique because of his father's disappointment. But when has time-serving cynicism ever failed to sneer at the idealism which rebukes it or passes its ken ? Justice Gray has well said that the " charge commonly made by the supporters of prerogative against James Otis, that his subsequent public course was dictated solely by revenge . . . , may be classed with D'Israeli's insinuation that John Hampden's re- fusal to pay ship money was occasioned by an ancient grudge against the sheriff who levied it." 1

In the argument, which took up several hours, Otis first referred to his resignation. " I renounced that office, and I argue this cause from the same principle; and I argue it with the greater pleasure, as it is in favor of British liberty, at a time when we hear the greatest monarch upon earth declaring from his throne that he glories in the name of Briton, and that the privileges of his people are dearer to him than the most valuable prerogatives of his crown ; and as it is in opposition to a kind of power, the exercise of which, in former periods of English history, cost one king of England his head, and another his throne."

Having delivered this telling and daring blow at George III., he next exposed the dangerous charac- ter of the writs. Admitting that special writs

* Gray, in Quincy, Reports, 411; Nugent, Hampden, 224,

80 PRELIMINARIES OF REVOLUTION [1761

directed to special officers to search certain places were legal, he denounced the general warrant in use as "the worst instrument of arbitrary power, the most destructive of English liberty and the funda- mental principles of law, that ever was found in an English law-book"; as a weapon "that places the liberty of every man in the hands of every petty officer."

He then boldly appealed to guarantees of civil liberty, to principles of right, higher than statutory authority. "No act of parliament can establish such a writ " ; for " an act against the constitution is void; an act against natural equity is void"; and "the executive courts must pass such acts into disuse." This principle, destined to become so vital in our national life, is powerfully supported even by English authorities.1 Legalism may, in- deed, deny that a court can in practice actually nullify an act of Parliament as contrary to the constitution; but Otis proclaimed a doctrine which British statesmen might well have heeded. He was simply going one step further than Brougham many years later, who affirms that "things maybe legal and yet unconstitutional." 2

Departing from the immediate question before the court — according to Adams's later recollection3 —

1 Gray, in Quincy, Reports, 517, 520-530; Adams, Works, II.,

522, 525.

2 Brougham, in Wensleydale Peerage Case, 5 H. L. Cases, 979. 'Adams, Works, X., ziA'Z^I, 328~338, 345. 35 1 1 Tudor,

Life of Otis, 84.

1761] MASSACHUSETTS' FIRST PROTEST 81

Otis next arraigned the whole mercantile colonial system as contrary to natural equity. But it is highly probable that in Adams's failing memory the arguments of more advanced stages in the great revolutionary debate were blended with those brought forward in the case of the writs.

Apparently the majority of the judges were with Otis; and the judgment would have been against the writs had it been then given. The decision, however, was suspended in order that Hutchinson might obtain "information of the practice in Eng- land.' * At the November hearing "it appeared that such writs issued from the exchequer, of course, when applied for; and this was judged sufficient to warrant the like practice in the province."1 From that time until after the Stamp Act writs of assistance were freely issued.2 If strict legalism were to pre- vail, the decree of the court in this case was probably just. As a result of his careful inquiry, Justice Gray reaches the conclusion that the "decision of Hutchinson and his associates has been too strongly condemned as illegal: and that there was at least reasonable ground for holding, as matter of mere law, that the British parliament had power to bind the colonies; that even a statute contrary to the constitution could not be declared void by the judicial courts; that by the English statutes, as

1 Hutchinson, Hist, of Mass. Bay, III., 94. Cf. the inaccurate statements of Adams, Works, X., 233.

2 Gray, in Quincy, Reports, 405-434.

82 PRELIMINARIES OF REVOLUTION [1761

practically construed by the courts in England, writs of assistance might be general in form; that the superior court . . . had the power of the English court of exchequer; and that the writs of assistance prayed for, though contrary to the spirit of the English constitution, could hardly be refused by a provincial court, before general warrants had been condemned in England, and before the revolution had actually begun in America." Yet in none of the other provinces, except in New Hampshire and New York, does it appear that such writs were ever actually issued by the courts, although they were sometimes applied for.1

Otis' s argument aided powerfully in the formation of public opinion. In the next May he was re- warded by a seat in the assembly; and for several years he dominated the revolutionary scene in Massachusetts. A great writer refers to his speech as "incendiary." 2 It did, indeed, set fire to the tinder which British policy was amply providing. Yet if historical truth is violated by exaggerating the importance of Otis's argument, there is equal danger in minimizing it. With increasing knowl- edge it is becoming easier to see that its meaning was very great. The validity of the writs of assist- ance involved a vital change in a long-standing policy. Strict enforcement of the acts of trade meant commercial ruin to New England. To the

1 Gray, in Quincy, Reports, 501-512, 540.

2 Lecky, England, III., 331.

i8i7] MASSACHUSETTS' FIRST PROTEST 83

northern merchant the illicit trade with the French West Indies and in the Spanish main alone was virt- ually the bread of life. If from the time of its en- actment the molasses act had been rigorously en- forced by writs of assistance it is not unlikely that the Revolutionary contest would have been hast- ened by thirty years. Otis and his associates were but opening the struggle for constitutional liberty which was already at hand in the mother-country. For the writs of assistance were similar in their arbitrary character to those "general warrants" whose use two years later in the case of Wilkes stirred the resentment of patriots on both sides of the sea.

Furthermore, in 181 7 the British board of customs forbade the issue of a writ of assistance to any officer, "unless he should previously make oath be- fore a magistrate of his belief and grounds of be- lief that smuggled goods were lodged in a certain house." Henceforth, in harmony with Otis's inter- pretation of the original law, only "special" writs were to be issued in England, and "thus the reason- ableness of the position of the colonies was finally vindicated in the mother-country." 1

1 Gray, in Quincy, Reports, 535.

CHAPTER V

THE FIRST PROTEST OF VIRGINIA

(1758-1763)

HE strife between the assemblies and the

1 governors, royal and proprietary, was one of the chief incidents of the colonial system which prepared the temper of the people for resistance.1 Encroachments of the prerogative were more and more resented. The growing sensitiveness in Massa- chusetts is disclosed in 17 61 by the bitter contest over an alleged misappropriation of the colony's share of forfeitures under the molasses act. The superior court decided against the colony, thus in- creasing the " animosity which existed between the contending parties in the province. " It is significant that Otis, counsel for the colony, animadverted on the court of admiralty, where the abuse arose, "as not congenial with the spirit of the English constitution." 2

An event still more enlightening as to the state

1 Greene, Provincial America {American Nation, VI.), chaps, xii., xiii.; Greene, Provincial Governor, chaps, viii.-xi.

2 Hutchinson, Hist, of Mass. Bay, III., 89, 91; Minot, Hist, of Mass., II., 81, 87.

84

1762] VIRGINIA'S FIRST PROTEST 85

of popular feeling took place in 1762. Without legislative authority the governor had fitted out a sloop for the protection of the fishing-boats on the coast of Nova Scotia at a cost of some ^400. An acrimonious wrangle ensued between him and the assembly, which saw in this act an invasion of its jealously guarded right of granting all supplies.1 An incidental result of the contest was a pamphlet from Otis containing a bold and eloquent plea for civil liberty and democratic equality.2

While party antagonisms were thus being stirred in Massachusetts more serious resistance was pro- voked elsewhere by assertion of the royal preroga- tive. One of the most dearly prized safeguards of liberty won at the revolution of 1688 was the in- dependence of the courts. In England, after the Act of Settlement, the judges held office during good behavior. They could not be punished for conscientious performance of duty by summary dismissal at the king's pleasure. Thus far the provincial judiciary had in fact enjoyed the same security of tenure, but now, a year after the acces- sion of George III., the colonies were to be denied the guaranties of the Bill of Rights and again sub- jected to the arbitrary prerogative which had cost James II. his throne.

1 Minot, Hist, of Mass., II., 119, et seq.; Hutchinson, Hist, of Mass. Bay, III., 97-108; Tudor, Life of Otis, 117, et seq.; Adams, Works, X., 303, 310, 311.

2 Otis, Vindication of the Conduct of the House of Representa- tives.

86 PRELIMINARIES OF REVOLUTION [1761

In October, 17 61, after the death of James de Lancey, chief justice of New York, Benjamin Pratt, a Boston lawyer, was appointed to the office " during the king's pleasure.' ' 1 The province was at once aroused. Some of the puisne judges at first ab- solutely refused to serve unless their commissions were renewed during good behavior. The assembly declined to provide salaries " except on the express condition" that independent commissions should be issued. Lieutenant-Governor Colden — who at the king's command had made the appointment — at first seemed to favor the tenure of the judges during good behavior, provided their salaries were also made perpetual ; yet in January, 1 7 62 , he wrote to the board of trade strongly favoring the unconstitu- tional policy ; but on his arrival Monckton, the new governor, censured it before the council. Pratt himself, after his selection for the vacant place on the bench, wrote that "as the parliament at the revolution thought it the necessary right of English- men to have the judges safe from being turned out by the crown, the people of New York claim the right of Englishmen in this respect." 2

Finally, on recommendation of the board of trade, the chief justice's salary was provided from the royal quit-rents. " Such a salary," suggested Pratt, "could not fail to render the office of great service

lN. Y. Docs. Rel. to Col. Hist., VII. , 467, 470, 500, 505, 528, 705, 797.

2 Bancroft. United States (ed. of 1885), II., 551, 552, 557.

1763] VIRGINIA'S FIRST PROTEST 87

to his majesty, in securing the dependence of the colony on the crown, and its commerce to Great Britain. " 1 Pratt died in 1763. He was a worthy man, with a high place at the bar, but he held views which might well have fitted him to serve an ar- bitrary prince. "The people," said he, " ought to be ignorant; and our free schools are the bane of society; they make the lowest of the people in- finitely conceited." 2 By advice of the board of trade the course taken in New York was adopted as a general policy. "On the ninth of December, 1 7 61, the instruction went forth through Egremont, to all colonial governors, to grant no judicial com- missions but during pleasure." 3 The next year Hardy, the governor of New Jersey, was summarily dismissed from his office for disobeying this com- mand. It may not have been the royal purpose to make the courts dependent, but worthy motives cannot rightly be pleaded in justification of an un- constitutional policy.

After the reign of Anne no act of Parliament was ever vetoed by the crown. Any attempt to do so would have been resented as an invasion of con- stitutional liberty. In the provinces, however, this branch of the prerogative was steadily maintained; and nowhere did its exercise cause more discontent than in Virginia. By royal grant the governor and

1N. Y. Docs. Rel. to Col. Hist., VII., 501.

2 Adams, Works, II., 97.

3 Bancroft, United States (ed. of 1885), II., 552.

88 PRELIMINARIES OF REVOLUTION [1748

assembly enjoyed the right of enacting statutes, if not repugnant to the laws of the realm. Within three months after passage all bills were to be sub- mitted to the king for approval or disallowance. The veto, through the Privy Council, was freely exercised, and gave rise to complaints. For in- stance, ten acts adopted in the revision of 1748 were "repealed" by proclamation October 31, 17 5 1, although the fact was not communicated to the assembly until April, 1752. Under royal in- structions to the governor, a measure once vetoed could not be re-enacted without "express leave" of the king. Accordingly, the council and burgesses united in an address praying that the repealed bills might be re-enacted. By the "antient con- stitution and usage" of the colony, they declare, all new statutes, if not repugnant to the laws of Great Britain, " have always been taken and held to be in full force, until your majesty's disallowance thereof is notified here"; but acts once approved by the king "cannot by the legislature here be revised, altered, or amended, without a clause therein to suspend the execution thereof 'til your majesty's pleasure shall be known therein, even tho' our necessities ... be ever so pressing." Therefore, they ask that in such cases the suspending clause may not be enforced, promising " not to enact any laws to take effect immediately that your majesty hath instructed your governor . . . not to pass without a suspending clause." Such enforcement,

1761] VIRGINIA'S FIRST PROTEST 89

they say, " will subject us to great hardships and in- conveniences, since it is not within the reach of human foresight to form any laws but what may, from experience, be found to want necessary and sometimes speedy amendment."1 This reasonable petition was denied by the crown.

As elsewhere shown, it was the imperial policy to encourage the slave-trade. American as well as English merchants shared in this lucrative traffic. Attempts to restrain it were frowned upon, and hence many of the acts of the provincial legislatures imposing duties on slaves imported were disallowed by the crown. In New England domestic importa- tion was restrained chiefly because slavery increased the dependent portion of the community; but the slave-carrying trade to the sister colonies was not in- terfered with. Farther south such duties were laid for more economic and social reasons, sometimes from dread of slave insurrection.

On both sides of the sea a moral sentiment against slavery was springing up; but before the Revolution colonial legislation was very slightly, if at all, influenced by humane motives. After 1761 two acts of the Virginia assembly, raising the duty on imported slaves, were vetoed by the crown.2 It is probable that these bills, like several others passed between 1723 and the Revolution, were

1 Hening, Statutes, V., 432-448, 567; cf. Meade, Old Churches, I., 217.

2 Hening, Statutes, VIII., 237, 337.

go PRELIMINARIES OF REVOLUTION [1763

designed both to raise a revenue and to place a check upon the slave-trade, for the law-makers were alarmed by the rate at which negroes were being brought into the country.1 Their motives were mainly prudential; they objected to the exercise of the prerogative, not primarily because the king was forcing upon them a traffic which they abhorred, but because they believed their welfare was being sacrificed in the interest of British merchants. They demanded a larger share in the control of their own economic and political affairs. The dislike for this branch of the royal prerogative was but an instance of the growing discontent of the colonies with the whole restrictive system of Great Britain.

Two years later (1763) Patrick Henry made his memorable protest against the crown's legislative prerogative in the " parson's cause." Almost from the beginning tobacco had been the currency of the province. It was legal tender in the payment of private and public debts, including taxes and the stipends of the established clergy. Such a currency must inevitably shrink or expand in value with the fortune of the season. A failure in the tobacco crop "involved the people in general distress; for by law if the salaries of the clergy and the fees of officers were not paid in tobacco by the tenth day of April, the property of delinquents was liable to be dis-

1 Du Bois, Suppression of the Slave-Trade, 12-15. Cf. Spears, African Slave-Trade, chap, vii.; Williams, Negro Race, I.,

1755] VIRGINIA'S FIRST PROTEST 91

trained, and if not replevied within five days, to be sold at auction."1 An act of 1748, confirming a law of 1696, fixed the salary of the clergy at sixteen thousand pounds of tobacco a year.

In 1755 a shortage in the tobacco crop threatened to increase the general distress caused by the heavy burden of the war taxes. Therefore, to release the "poor and needy," the assembly passed an act, to remain in force ten months, allowing all tobacco dues at the " option of the payer" to be paid either in kind or in money at the rate of sixteen shillings and eightpence for each hundred pounds of tobacco.2 Since 1748 this had been the appraised value of inspected tobacco,3 and it was even " better than the clergy in general " had commonly received.4 Be- cause the price set was equal to twopence a pound the law was called the "twopenny act." The act was general in its operation and did not apply merely to the clergy. Yet the latter may have suffered most, for, although they themselves raised tobacco on their glebes, they were mainly dependent for a living upon their salaries ; while^ as they com- plain, "others have different ways of gain, and if they lose by the bill one way, they may gain in an- other/'s

1 Campbell, Virginia, 510. Cf. Bland, Letter to the Clergy, 14.

2 Hening, Statutes, III., 152; VI., 88, 568.

3 Henry, Henry, I., 30.

4 Commissary Dawson, in Perry, Hist. Collections, I., 448. For a different statement, see Maury, Memoirs of a Huguenot Family, 402. 6 Perry, Hist. Collections, I., 436.

92 PRELIMINARIES OF REVOLUTION [1758

However, no formal protest followed, though meetings were held ; some of the clergy sent memo- rials to their diocesan, the bishop of London, and Commissary Dawson wrote in their behalf.1 But the crop was not so bad and the price did not rise so high as was expected; hence the majority of the clergy quietly accepted their loss. Among these was James Maury, plaintiff in the "parson's cause." "In my own case," he writes, "who am entitled to upwards of seventeen thousand weight of tobacco per annum, the difference amounts to a considerable sum. However, each individual must expect to share in the misfortunes of the community to which he belongs."2

Again in 1758, in mere expectancy of a short crop, a relief act was passed allowing for one year the payment of all tobacco dues in money at the same rate of twopence a pound.3 As in the former case there was no clause suspending the operation of the act until sanctioned by the crown. Therefore, the act was represented as a bold defiance of the pre- rogative As anticipated, the crop was a partial failure, and the market price of tobacco rose to about three times the statutory rate. It was a hardship to the clergy as well as other creditors that by this law debts were made payable in paper money which was worthless outside of the colony,

1 Perry, Hist. Collections, I., 434-448. Cf. Meade, Old Churches, I., 216. 7 Maury. Memoirs of a Huguenot Family, 402.

8 Hening, Statutes, VII., 240, 241.

1758] VIRGINIA'S FIRST PROTEST

93

and so could not be used for the purchase of supplies in England, where they might be had cheaper than at home.

There was now no lack of resistance by the clergy. A war of pamphlets ensued. A convention was held, and an agent sent to England to present their case before the board of trade.1 In a letter to that body Sherlock, bishop of London, denounced the act as "the work of men conscious to themselves that they were doing wrong"; as an "act of supremacy . . . inconsistent with the dignity of the crown," and manifestly tending "to draw the people of the plantations from their allegiance to the king when they find that they have a higher power to protect them." 2 In reply to a pamphlet by Bland,3 it was asserted that the only "dearth and scarcity" exist- ing that year in Virginia was "confined to one or two counties on the James River, and that entirely by their own fault." For "the cause of the short crop was want of plants," and the ground might have been planted "in corn or pease, which always turned to good account." Though the crop was short in some places it was on the whole "the best crop ever made in Virginia," being worth "near one third more " in cash value than any former crop.4 The act, it was further alleged, was passed in the in-

1 Rev. John Camm, in Perry, Hist. Collections, I., 459.

3 Ibid., 461. 3 Bland, Letter to the Clergy, 7.

4 Rev. William Robinson, in Perry, Hist. Collections, I. 465-467.

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94 PRELIMINARIES OF REVOLUTION [1758

terest of the rich, not in that of the poor. The " rich planters were the gainers by it," for they paid "the clergy and others to whom they were indebted at one- third of the price at which they sold their tobacco." 1 This evidence — although ex parte — according to an American critic, reveals the famous option law of 1758, "in all its fresh and unadorned rascality." 2 There is small ground for so harsh a judgment. The motives of the assembly appear to have been just, although in its effect the act may have dealt un- fairly with the clergy. The traveller Burnaby, who chanced just then to be in Virginia, while criticising the assembly's action, sharply censures the violent conduct of the clergy. " If, instead of flying out in invectives against the legislature; of accusing the governor of having given up the cause of religion by passing the bill; when, in fact, had he rejected it, he would never have been able to have got any supplies during the course of the war, though ever so much wanted; if, instead of charging the com- missary with want of zeal for having exhorted them to moderate measures, they had followed the prudent councils of that excellent man, and had acted with more temper and moderation, they might, I am persuaded, in a very short time, have obtained any redress they could reasonably have desired. The people in general were extremely well affected towards the clergy."3

1 Meade, Old Churches, L, 223. 2 Tyler, Henry, 37.

3 Bumaby, Travels (ed. of 1798), 22.

1759] VIRGINIA'S FIRST PROTEST 95

By advice of the board of trade the complaints of the clergy were brought before the Privy Council, where Lord Hardwicke, in particular, " delivered it as his sentiment that there was no occasion to dispute about the authority by which the act was passed, for that no court in the judicature whatever could look upon it to be law by reason of its manifest in- justice alone/'1 On August 10, 1759, the act was vetoed by the king in council, and through special instructions the governor was ordered to publish the fact by proclamation. Fauquier himself was reprimanded for not rejecting the bill, and he was threatened with recall.2

Rev. John Camm, agent of the clergy in London, at once directed his attorney to bring action in the general court of Virginia for the recovery of his salary against the vestry of his parish of York Hampton, if they "should stand out" after learning the king's decision. "The parish refused to stand suit, till they had obtained a promise that the ex- pence would be borne out of the publick funds. Ac- cordingly an order of the' house of burgesses was afterwards made that the expence of appeal where the clergy were concerned should be borne by the publick," thus bringing the clergy into direct col- lision with the assembly.3 In 1764, by a vote of five to four, the general court decided against the

1 According to Commissary Robinson, in Perry, Hist. Collec- tions, I., 510. 2 Campbell, Virginia, 514. 3 Perry, Hist. Collections, I., 511.

96 PRELIMINARIES OF REVOLUTION [1763

plaintiff on the ground that the act was valid until disallowed by the king. Camm then appealed to the Privy Council, and pending the decision the " court refused to hear any other similar case."1 The appeal was heard in 1767; but on the alleged ground of informality it was dismissed, the council seemingly being tired of the whole matter.2

Without waiting for the issue of Camm's suit some of the clergy had already brought action in the county courts. In the case of Rev. Thomas Warring- ton, of Charles parish, York County, " a jury of his parishioners found for him considerable damages, allowing on their oaths that there was about twice as much justly due to him as the act had granted. But the point of law was given against him," the court refusing to enter judgment in his favor. Next came the suit of Rev. Alexander White, of St. David's parish in King William. In this instance " the court refused to meddle in the matter and in- sisted on leaving" both law and fact "to the jury, who delivered their verdict" for the defendant.3

The suit which caused most interest was that of Rev. James Maury, rector of Fredericksville parish, Louisa, a man of high character. On November 5, 1763, the county court of Hanover, where the action was brought, adjudged the act of

1 Henry, Henry, I., 45.

3 Meade, Old Churches, I., 218; Henry, Henry, I., 45. 3 Perry, Hist. Collections, I., 413, 430, 496, 513. Cf. Henry, Henry, I., 34.

1763] VIRGINIA'S FIRST PROTEST 97

1758, "to be no law"; so it was ordered that at the next term "a jury, on a writ of inquiry, should determine whether the plaintiff was entitled to damages, and if so, how much." The clergy, look- ing on this as a test case, were naturally elated; for the point of law being settled the final issue seemed foreassured. John Lewis, "who had de- fended the popular side, retired from the cause as virtually decided." 1 In their extremity the de- fendants called in Patrick Henry, a young lawyer, whose success at the Hanover bar is clearly attested by the fact that during the three years and a half since he was licensed to practice he had charged fees in one thousand one hundred and eighty-five suits, besides attending to a proportionate amount of "office" business.2

The suit came to trial on December 1, 1763. A large crowd attended, including " more than twenty " of the clergy. On the bench, as presiding magistrate, sat John Henry, the young advocate's father. The sheriff was ordered to summon a "select jury." This he did in a way not wholly to the liking of the plaintiff, who alleges that, excusing all gentlemen, the officer made the selection entirely from "the vulgar herd." It even appears that three or four of the jurors were dissenters of the sort called " New Lights." The case for the plaintiff was soon pre- sented. By the testimony of "the two most con-

1 Campbell, Virginia, 514; Wirt, Henry, 23. a Henry, Henry, I., 25.

PRELIMINARIES OF REVOLUTION [1758

siderable purchasers of that county," it was proved that in 1759 tobacco "had currently sold at 505. per hundred." 1 It was, therefore, an easy matter to show the jury how much of the parson's salary was still legally due.

When Mr. Lyons, the plaintiff's counsel, took his seat, Patrick Henry rose and made a speech which is looked upon as a warning of the Revolutionary contest. More than half a century later William Wirt clothed in vivid fancy the impression made by Henry's eloquence on the minds of surviving hearers. "The jury seemed to have been so com- pletely bewildered, that they lost sight not only of the act of 1748, but that of 1758 also; for thought- less even of the admitted rights of plaintiff, they had scarcely left the bar, when they returned with a verdict of one penny damages.'" 2

For the chief points of the argument we are in- debted to a letter written just twelve days after the trial by a man in no wise tempted to rhapsodize in Henry's favor. According to Rev. James Maury, plaintiff in the suit, the speaker "labored to prove 'that the act of 1758 had every characteristic of a good law; that it was a law of general utility, and could not, consistently with what he called the original compact between king and people, stipulat- ing piotection on the one hand and obedience on the other be annulled.' Hence, he inferred, ' that a king,

1 Maury, Memoirs of a Huguenot Family, 420; Wirt, Henry, 25. a Wirt, Henry, 25-27.

1763] VIRGINIA'S FIRST PROTEST 99

by disallowing acts of this salutary nature, from being the father of his people, degenerated into a tyrant, and forfeits all right to his subjects' obedi- ence.' He further urged, 'that the only use of an established church and clergy in society, is to en- force obedience to civil sanctions, and the ob- servance of those which are called duties of im- perfect obligation; that when a clergy ceases to answer these ends, the community have no further need of their ministry, and may justly strip them of their appointments; that the clergy of Virginia, in this particular instance of their refusing to ac- quiesce in the law in question, had been so far from answering that they had most notoriously counter- acted, those great ends of their institution' . . . Then he perorates to the following purpose, 'that excepting they (the jury) were disposed to rivet the chains of bondage on their own necks, he hoped they would not let slip the opportunity which now offered, of making such an example' of the plaintiff 'as might, hereafter, be a warning to himself and his brethren, not ... to dispute the validity of such laws, authenticated by the only authority, which, in his conception, could give force to laws for the government of this colony, the authority of a legal representative of a council, and of a kind and benevolent and patriotic governor.'"

When he came to that part where he referred to the king as degenerating into a tyrant, "the more sober part of the audience were struck with horror,

ioo PRELIMINARIES OF REVOLUTION [1758

Mr. Lyons called out aloud, and with an honest warmth, to the bench, 'that the gentleman had spoken treason,' and expressed his astonishment 'that their worships could hear it without emotion, or any mark of dissatisfaction.' At the same in- stant, too, amongst some gentlemen in the crowd behind me, was a confused murmur of Treason, Treason!"1

It would be as easy to underrate as to overesti- mate the significance of this event. Patrick Henry's speech was not wholly a triumph of oratory. Its deeper meaning consists in its being a protest against a dangerous system. The relief acts of 1755 and 1758 were probably void from their inception; and it may be that the clergy were harshly dealt with both by the law and by the court. Yet, under the peculiar circumstances, a royal prerogative which absolutely denied to the colonists the privilege of self-help through legislation even of temporary force was fast becoming intolerable. Since they were so far from the seat of power, they might have to wait many months for the king's decision. More- over, his authority was often confessedly exercised in favor of commercial class privilege regardless of the wishes or needs of the provincials. Henry's protest stirred the hearts of the people because it gave voice to their deepening convictions. In the

1 Maury, Memoirs of a Huguenot Family, 421-423; Hart, Contemporaries, II., No. 37, pp. 103-106. Cf. Perry, Hist,

Collections, I., 514, 515.

1763] VIRGINIA'S FIRST PROTEST 101

parson's cause private right may have been ob- scured by the gathering shadow of a public wrong. Its issue was a forecast of the fate of the established church in Virginia ; a presage of the Revolutionary drama which was even then opening with the an- nouncement of Grenville's policy.

CHAPTER VI

THE FIRST ACT FOR REVENUE FROM THE

COLONIES

(1763-1764)

DURING the year 1763, the British ministry re- solved to adopt a more vigorous policy for colonial control. By the scheme then elaborated under the leadership of Charles Townshend, it was proposed (1) rigorously to enforce the acts of naviga- tion and trade ; (2) to raise a revenue on the colonies by direct and indirect taxation; and (3) to use this revenue for the support of a standing military force in America. The first step in carrying out the new policy was taken by George Grenville while at the head of the admiralty in Bute's cabinet. Grenville was an honest man, too independent to be counted among the " king's friends," but of small talent. He was devoted heart and soul to the old colonial system, and referred to the navigation act as "that palladium of the British commerce.' ' 1 At his in- stance new powers were now given to the vice- admiralty courts in the colonies ; and, by an ingenious device for putting an end to illicit trade, all the

1 Cobbett-Hansard, Pari. Hist, XVI., 102.

102

1763] FIRST REVENUE ACT

commanders of British ships - of - war serving in American waters were authorized to act as custom- house officers, with the usual share in the contra- band and confiscated cargoes.1

This unwise measure — put in force by royal order a few months later (October, 1763) — bore its natural fruit. It became a standing cause of strife. Naval officers, often wholly ignorant of the laws which they were suddenly called upon to administer, would scarcely fail to be guilty of hasty and arbitrary acts. In particular, the reckless seizure and confiscation of ships engaged in the West India trade caused bitter resentment and appeals for redress.

This ominous opening of the new policy was followed by other measures which speedily united the colonies in common opposition. In April, 1763, Grenville superseded Bute as head of the cabinet. On September 23, in pursuance of a minute made the day before at a meeting of the treasury board, the commissioners of the stamp duties were directed to transmit a draft of an act for imposing prop- er stamp duties in America. Soon thereafter a scheme for a new and efficient system of admiralty courts was formed; while stringent orders were issued for a more rigid enforcement of the acts of trade.

Grenville next took up the scheme for raising a revenue in the colonies. The burden of the na- tional debt had been vastly increased by the war.

1 3 George III., chap, xxii., § 4.

104 PRELIMINARIES OF REVOLUTION [1764

Since 1754 the volume of taxes had grown by more than £3,000,000. The minister was assured that the colonies could well afford to give a part of the money needed to maintain garrisons for their own protection. To support a force of about ten thousand men a revenue of £300,000 would be required, and it was intended that the colonies should bear one-third of this expense. At no time during the struggle was it proposed that the colo- nies should be taxed for the support of the home government, or even for the full support of the army in America.

Accordingly, on March 9, 1764, Grenville, in the House of Commons, suggested that a revenue from indirect taxes should at once be raised, and gave notice of his purpose at the next session to bring in a bill for the levying of stamp duties in the colonies. Declaratory resolves to this effect were agreed upon in committee, and the next day formally accept- ed by the House.1 April 5 the "sugar act" re- ceived the royal approval, and with it the Revo- lutionary struggle may be regarded as actually beginning.

King George III. was much pleased with the new policy. On proroguing Parliament, April 19, he referred with approval to " the wise regulations which had been established to augment the public revenues, to unite the interests of the most distant possessions of the crown, and to encourage and

1 Commons Journal, XXIX., 933, 935.

1764] FIRST REVENUE ACT

secure their commerce with Great Britain." What a "commentary on this sentence," exclaims Froth- ingham, "were the events that occurred eleven years later, on the anniversary of the delivery of this speech."1

The preamble of the statute of 1764 2 declares that the duties authorized are given and granted to the king because "it is just and necessary, that a revenue be raised in" his American dominions "for defraying the expenses of defending, protecting, and securing the same." The act of 1733 is con- firmed and extended. The duty laid by it on sugar is raised, while that on molasses is lowered. Heavy duties are also levied on various foreign products, England now being made the staple for Asiatic as well as European goods. The drawbacks on re- exportation are diminished, to the advantage of the English exchequer. The colonies are absolutely forbidden to import rum or spirits from foreign plantations, or to trade with the French islands of St. Pierre or Miquelon. New and stringent reg- ulations for the enforcement of the acts of trade are prescribed. The penalties for breach of the trade laws at the option of the informer or prosecutor may be recovered either in any court of record in the colony where the offence is committed or in any court of admiralty in America. The defendant is thus denied the right of trial by jury, and may be

1 Frothingham, Rise of the Republic, 164. 1 4 George III., chap. xv.

106 PRELIMINARIES OF REVOLUTION [1764

compelled to go five hundred leagues to defend himself before a strange tribunal. Though he him- self is required to give ample security for costs, in case the suit goes against him, yet, should he chance to win, he is not entitled to any costs if the judge certifies that there was probable ground of action; nor is the person making the seizure liable to prosecution therefor.1

The orders for the enforcement of the molasses act with the report that it was to be renewed were received in America with the "strongest appre- hensions."2 They "caused a greater alarm in this country," wrote Governor Bernard in January, 1764, "than the capture of Fort William Henry did in 1757." 3 The law of 1733 was enacted, not for the benefit of the English merchant, but in the interest of the British sugar islands, at the expense of the colonies. It laid a prohibitory duty on the importation into the colonies of all foreign sugar and molasses; and so, if enforced, would have de- stroyed the best trade of the northern provinces. In the foreign West Indies and the Spanish main the staple products of the northern colonies found a ready market. Fish, lumber, grain, and pro- visions were exchanged for sugar, molasses, and money. The molasses was used for the manufact- ure of rum, of which in 1731 New England made

1 Bradford, Mass. State Papers, 18, et seq.

2 Minot, Hist, of Mass., II., 140; Adams, Works, X., 345. • Bernard, Select Letters, 9.

1763] FIRST REVENUE ACT 107

one million two hundred and sixty thousand gal- lons. 1

Only through the island trade could the money be obtained for the purchase of English goods, since as in part a result of the restrictive system the balance of trade was always against the colonies. On the average about £1,000,000 sterling were needed each year to make good the unfavorable balance with Great Britain. According to Frank- lin, Pennsylvania imported from England goods to the value of £500,000 and in return exported but £40,000, the balance being largely made up with the West Indies.2 Indeed, this trade was absolutely essential to the progress and prosperity of New England. It was so admitted by Bernard in 1763 and by Pownall the next year. Without it, said Defoe, in 1741, "these colonies would perish. " Ten years earlier Gee was of the same opinion, referring particularly to the export of provisions.3 In 1763 fifteen thousand hogsheads of French and Spanish molasses were brought into Massachusetts alone.4 After the war the trade with the foreign islands had rapidly revived. This traffic would now suddenly be cut off.

1 Cf . Bradford, Mass. State Papers, 19-21; Macpherson, An- nals. III., 176; Anderson, Hist, and Chron. Deduction, III., 438.

2 Franklin, Works (Bigelow's ed.), III., 413. Cf. Macpherson, Annals, III., 175; Beer, Commercial Policy , 107.

3 Bernard, Select Letters, 6, it; Pownall, Administration (ed. of 1765), 5; Defoe, A Plan for the English Commerce (ed. of 1741), 356; Gee, Trade and Navigation (ed. of 1731), 72.

* Bernard, Select Letters, 10.

108 PRELIMINARIES OF REVOLUTION [1764

Very instructive are the arguments which Mau- duit, the agent of Massachusetts in England, was directed by the general court to present against the sugar act. " The business of the fishery, which, it was alleged, would be broken up by the act, was at this time estimated in Massachusetts at £164,000 sterling per annum; the vessels employed in it, which would be nearly useless, at £100,000; the provisions used in it, the casks for packing fish, and other articles, at £22,700 and upwards: to all wmich there was to be added the loss of the ad- vantage of sending lumber, horses, provisions, and other commodities to the foreign plantations as cargoes, the vessels employed to carry fish to Spain and Portugal, the dismissing of 5,000 seamen from their employment, the effects of the annihilation of the fishery upon the trade of the Province and of the mother - country in general, and its accumu- lative evils by increasing the rival fisheries of France."

A forcible argument turned upon the means of 1 ' remittances to England for goods imported into the Province, which had been made in specie to the amount of £150,000 sterling, besides £90,000 in treasurer's bills for the reimbursement money, within the last eighteen months. The sources for obtaining this money were through foreign coun- tries by the means of the fishery; and would be cut off with the trade to their plantations." The agent was also instructed to protest against the naviga-

1763] FIRST REVENUE ACT

tion act of 1663, requiring European goods to be shipped through England. The " expense of carry- ing some articles received for fish in Spain and Portugal to London, to enter them in the custom- house there, would be so great as to exceed the amount of the cost, and many times the value of the duty also ; and fruit so necessary for the health and comfort of the inhabitants would be lost from the length of voyage." 1

The first result of the new policy was to organize public opinion throughout the colonies. A senti- ment of union was fostered and forms and modes of concerted action were developed. For a year memorials, petitions, state papers, protests, pam- phlets, and public meetings were the order of the day. The sugar act and the menace of a future stamp tax were before the country at the same time ; but it is very significant that the first movement in America was against the sugar act. Even before its passage the measures of 1763 for the execution of the commercial code had aroused hostile dis- cussion. Rhode Island prepared a remonstrance to the lords of trade, to be presented by her agent "if any three of the agents of the other colonies would unite with him in the same." 2 "To promote a union or a coalition of all their councils" against the renewal of the molasses act, committees of

1 Minot, Hist, of Mass., II., 146-148, 150. Cf. the facts collected by Weeden, Econ. and Soc. Hist, of New Eng., II., 745-768. 3 In the Boston Evening Post, November 21, 28, 1763.

VOL. VIII. — ©

no PRELIMINARIES OF REVOLUTION [1764

merchants were formed in various towns, and these corresponded with each other.1

The earliest action against the new sugar law by a political body was taken at the Boston town-meet- ing on May 24, 1764. It was supposed that the law was already enacted although as yet only its passage by the Commons had been reported.2 A committee of five was then appointed to prepare instructions for the town's newly chosen representatives in the assembly of the province. The instructions were drafted and presented by Samuel Adams, a gradu- ate of Harvard, who even thus early comes forward in the great role he was to take in the Revolution as the organizer of public opinion. The representatives are enjoined to use their "influence in maintaining the invaluable rights and privileges of the province " ; and to " preserve that independence in the house of representatives, which characterizes a free people." " Our trade," they add, " has for a long time laboured under great discouragements; and it is with the deepest concern that we see such further difficulties coming upon it, as will reduce it to the lowest ebb, if not totally obstruct and ruin it." The assembly is rebuked for not taking earlier notice of the "in- tentions of the ministry, to burden us with new taxes," referring to the agent's report that the molasses act was to be renewed.-3

1 Frothingham, Rise of the Republic, 162, 163.

2 Hutchinson, Hist, of Mass. Bay. III., 106, 107. 8 Ibid., III., 104, 105.

1764] FIRST REVENUE ACT

in

The Bostonians enlarged on the nature of im- perial trade. If "our trade is to be curtailed in its most profitable branches, and burdens beyond all possible bearing laid upon that which is suffered to remain, we shall be so far from being able to take off the manufactures of Great Britain, that it will be scarce possible for us to earn our bread." Further- more, "if our trade may be taxed, why not our lands? Why not the produce of our lands, and every thing we possess or make use of? This we apprehend annihilates our charter right to govern and tax ourselves. It strikes at our British privi- leges, which as we have never forfeited them, we hold in common with our fellow-subjects who are natives of Britain : If taxes are laid upon us in any shape without our having a legal representation where they are laid, are we not reduced from the character of free subjects to the miserable state of tributary slaves ? ... As his majesty's other northern American colonies are embarked with us in this most important bottom, we farther desire you to use your endeavours, that their weight may be added to that of this province : that by the united applica- tion of all who are aggrieved, all may happily obtain redress." 1

Though this initial document of the Revolution deals with the restrictions on trade, it deftly in- cludes three principles of immense moment in the

1 Otis, Rights of the British Colonies (London ed.), App., 100- 105.

ii2 PRELIMINARIES OP REVOLUTION [1764

approaching struggle. (1) It asserts the doctrine of "no taxation without representation"; and at the same time scorns the attempted distinction between internal and external taxation. (2) The full rights of Britons are claimed. (3) The united protest of all the colonies is suggested.

The general court of Massachusetts met on May 30. A committee was appointed by the house of representatives to consider the instructions of the Boston meeting, and the letter from Mauduit received early in the session announcing the final enactment of the revenue law.1 This committee submitted a "memorial" drafted by Otis, stating the rights of the colonies. This famous argument contains a fourth revolutionary principle, in the hope expressed that " it will not be considered a new doctrine that even the authority of the parliament of Great Britain is circumscribed by certain bounds, which if exceeded, their acts become those of mere power without right, and consequently void"; for "it is contrary to reason that the supreme power should have right to alter the constitution. This would imply that those who are intrusted with sovereignty by the people have a right to do as they please."

The memorial, like the instructions, deals almost wholly with the trade problem. "The fishery is the centre of motion, upon which the wheel of all the British commerce in America turns." It "is

1 Hutchinson, Hist, of Mass. Bay, III., 108.

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certain that without the fishery seven-eighths of this commerce would cease." If "it can be demon- strated that the sugar and molasses trade from the northern colonies to the foreign plantations is upon the whole a loss to the community, by which term is here meant the three kingdoms and the British dominions taken collectively, then, and not till then, should the trade be prohibited." Such is "the extent of this continent, and the increase of its in- habitants, that if every inch of the British sugar islands was as well cultivated as any part of Jamaica or Barbadoes, they would not now be able to supply Great Britain" and her American colonies.1

An elaborate letter to the agent, also written by Otis, was reported. Mauduit is sharply rebuked for his concessions to the ministerial policy; and he is instructed to urge the repeal of the sugar act and to protest against the proposed stamp duties. "The silence of the province," he is told, "should have been imputed to any cause, even to despair, rather than be construed into a tacit cession of their rights, or an acknowledgment of a right in the Parliament of Great Britain to impose duties and taxes upon a people, who are not represented in the house of commons." They protest against the "burden- some scheme" of "obliging the colonies to maintain an army " as unconstitutional. To prove that it was unjust they refer to their services, particularly in the

1 Otis, Rights of the British Colonies (London ed.), App. 106- 120.

ii4 PRELIMINARIES OF REVOLUTION [1764

recent war, and to the debt which the province is still bearing.1 This letter and the memorial were sent to the agent in London. On June 13 a com- mittee of correspondence, with Otis at the head, was authorized to acquaint the other governments with the action of the house and to " desire the several assemblies on this continent to join with them in the same measure."2 Accordingly, twelve days later, a circular letter was sent to all the colonies asking their "united assistance."

In these proceedings the Massachusetts house of representatives had acted separately from the council, apparently the first instance of their so doing in any general question relating to the whole province. Such an irregular course seemed un- wise to the more cautious party. On their petition, therefore, the governor called the general court to meet in special session on October 18.3 In reply to the governor's speech the council and house joined in a forcible argument against the act of 1764, with a mere incidental reference to the proposed stamp tax. A petition to the House of Commons (Novem- ber 3), drafted by Hutchinson, was also agreed upon.4 It contained a weak protest against laying

1 Journal of the [Mass.] House, 1764, pp. 72-77. Cf. Bradford, Mass. State Papers, 25-28.

2 Journal of the [Mass.] House, 1764, p. 77; reappointed on November 3 by the general court, ibid., 137.

3 Hutchinson, Hist, of Mass. Bay, III., no, 112; Journal of the [Mass.] House, 1764, p. 93.

* Bradford, Mass. State Papers, 18-23.

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stamp duties, but did not claim exemption from parliamentary taxation as a right. Its real weight bears on the injustice of the sugar act. Further- more, in their letter to Mauduit, transmitting the petition, they distinctly say " that the late act of parliament" imposing additional duties "affects this colony more than any other."1

From the facts already presented it seems very clear that for at least seven months after the declara- tory resolves the people of Massachusetts were far more alarmed by the enforcement of the sugar act than they were by the menace of a stamp tax. The other colonies, too, as the next chapter will dis- close, were quite alive to the supreme importance of this first internal revenue law. An examination of the pamphlet literature for the same period leads to the like result. In July appeared James Otis's Rights of the British Colonies Asserted and Proved. This is the calmest and most carefully prepared of Otis's political writings. It is a clear and temper- ate exposition of natural rights and constitutional principles as equally concerning all members of the British nation. He argues that colonists have lost none of their privileges as men and Englishmen by leaving the old home. "If I were to define the modern colonists, I should say, they are the noble discoverers and settlers of a new world; from whence, as from an endless source, wealth, and plenty, the means of power, grandeur, and glory,

1 Bradford, Mass. State Papers, 24, 25.

n6 PRELIMINARIES OF REVOLUTION [1764

in a degree unknown to the hungry chiefs of former ages, have been pouring into Europe for three hundred years.' * A colony "is a settlement of subjects in a territory disjointed or remote from the mother country, and may be made by private adventurers or the public; but in both cases the colonists are entitled to as ample rights, liberties, and privileges as the subjects of the mother coun- try are, and in some respects to more."

Otis, however, freely admits the legislative su- premacy of Parliament. All of the colonies "are subject to, and dependent upon Great Britain" ; and "therefore as over subordinate governments" Par- liament "has an undoubted power and lawful au- thority, to make acts for the general good, that, by naming them, shall and ought to be equally binding as upon the subjects of Great Britain within the realm." The colonists "should not only be con- tinued in the enjoyment of subordinate legislation, but be also represented in some proportion to their number and estates in the grand legislation of the nation." Without such representation taxation is unconstitutional. "Is there the least difference, as to the consent of the colonists, whether taxes and impositions are laid on their trade, and other prop- erty, by the crown alone, or by the parliament?" If Parliament "have an equitable right to tax our trade, it is indisputable that they have as good an one to tax the lands " ; for " there is no foundation for the distinction some make in England between an

1764] FIRST REVENUE ACT 117

internal and an external tax on the colonies." 1 To have the whole tax for a standing army in America " levied and collected without our consent is extraor- dinary.' ' That privilege "is allowed even to tribu- taries, and those laid under military contribution."

Yet there is no thought of independence in Otis's argument. Were the colonists "inclined to it, they know the blood and the treasure it would cost." Could they have the choice between inde- pendency and subjection to Great Britain, "upon any terms above absolute slavery, I am convinced that they would accept the latter." They "will never prove undutiful, till driven to it, as the last fatal resort against ministerial oppression, which will make the wisest mad, and the weakest strong." 2

About two months after the appearance of Otis's tract, Oxenbridge Thacher published his Senti- ments of a British American. This is a loyal, con- ciliatory, but firm protest against the new ministerial policy. It is devoted almost wholly to analyzing the act of 1764, showing that its provisions are unjust to the colonists and dangerous to British subjects everywhere. The effect of the act will be to deprive England of her best customer; for the colonists will be compelled either to manufacture their goods or do without. About the same time that the pamphlets of Otis and Thacher were issuing from the Boston press, two essays were

1 Otis, Rights of the British Colonies, 37, 53, 57, 63, 99. *Ibid., 65, 77.

n8 PRELIMINARIES OF REVOLUTION [1764

anonymously published in the middle colonies. They are written from the stand-point of the Amer- ican merchant, and each deals with the trade problem in a broad, tolerant, and enlightening spirit, showing that the welfare of the entire British people would be served better by increasing rather than restricting the liberty of commerce.1

According to Moses Coit Tyler, it is very curious that these writings, though published long after the announcement of the proposed Stamp Act, make no reference to that measure. In his view the American "people, bewildered in the thicket of passing events, did not at first perceive their true relations and proportions. But, at about the time of the appear- ance of Thacher's pamphlet, that is, in the early autumn of 1764, the appalling significance of the notice of the stamp act began to dawn upon them ; and then, almost at once, the centre of gravity shifted from the immediate past to the immediate future, — from the measure that had become a law in the preceding March2 to the measure that might be- come a law in the following March." 3

In several ways this statement is misleading. The American people were by no means " bewildered " by the swift development of the ministerial policy. On the contrary, they very clearly saw the vast

1 An Essay on the Trade of the Northern Colonies, etc.; Some Thoughts on the Method of Improving and Securing the Ad- vantages, etc. 2 A slip for "April "

3 Tyler, Lit. Hist, of Am. Rev., I., 60, 6?.

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FIRST REVENUE ACT

119

relative importance of the act of 1764. Its signifi- cance was not less " appalling" than that of the proposed stamp tax. It was even more alarming, so far at least as the northern provinces were con- cerned. The tax levied by it was the same in principle as the stamp duties; while the swift destruction of trade which it threatened meant an immediate sacrifice more harmful than the stamp tax could possibly cause for years to come. Nor was there such a sudden change in sentiment as here represented. Feeling simply became more in- tense because the grievance was growing. The effect of the stamp tax was cumulative. In the struggle against it, presently to be considered, the sugar act was not forgotten. It lies at the bottom of the revolutionary contest.

This is so not merely because it taxed the Amer- ican people without their consent, but chiefly be- cause it confirmed the molasses act which was al- ready being executed by new and unconstitutional devices. In the words of a writer who rejected the popular idea that the "Revolution began in the stamp act," "neither the duties laid in 1764 nor the collection of the taxes anticipated from the stamp act of 1765 would have produced a tithe of the evil that would have followed" from the enforce- ment of the molasses act.- "They went to war

Chamberlain, "The Revolution Impending," in Winsor, Narr. and Crit. Hist., VI., 24-26, 63. Cf. the similar view of Weeden, Econ. and Soc. Hist, of New Eng., II., 753.

120 PRELIMINARIES OF REVOLUTION [*764

against a preamble. They fought seven years against a declaration."1 This epigram of Webster, like most epigrams, is only true in part. The revolutionary debate did, indeed, turn mainly on constitutional principles ; but below the question of constitutional right lay the economic grievance as a stern reality.

1 Webster, Works, IV., 109.

CHAPTER VII

THE MENACE OF THE STAMP ACT

(1764-1765)

HE renewal of the molasses act and the en-

1 forcement of the commercial code were pecul- iarly the work of Grenville. For the Stamp Act, too, he must be held responsible. Yet the policy of American taxation was not original with him. It was in a sense " devolved" upon him. Its elements may be found in the administrative records of the preceding thirty-five years. Save for the form of the molasses act, Parliament had steadily observed the distinction between external and internal taxes. Duties were levied solely for the regulation of trade, although some revenue might actually accrue.

Taxation of the colonies had already been thought of: even a stamp duty was suggested in 17281 and again in 1739 2 by Sir William Keith, governor of Pennsylvania; and a " scheim" for a similar tax was submitted to Governor Clinton by Lieutenant-

1 Keith, A Short Discourse, in Byrd^ Dividing Line, II., 215-227.

2 Lecky, England, III., 343; Adams, Works, X., 74, 80.

121

122 PRELIMINARIES OF REVOLUTION [1751

Governor Clarke of New York, in 1744.1 In 1754 and in 1756 2 Shirley of Massachusetts advised the levy of a common war fund on America. His project was ably resisted by Franklin,3 and the ministry declined to accept it; as it did also the similar counsel of Governor Hardy of New York and Governor Dinwiddie of Virginia.

The actual initiative in the new revenue policy was taken by Charles Townshend, first lord of trade in the Bute cabinet. Like Grenville, he prided himself on having an accurate knowledge of the colonies; and with Halifax, in 1 751-1753, he had urged a firmer exercise of the prerogative in secur- ing provincial control. He now (1763) favored a policy to be enforced by acts of Parliament. The colonial governments were to be remodelled accord- ing to a uniform plan ; the acts of trade enforced ; a revenue raised in America, to be disbursed under the king's sign manual without appropriation by Parliament; and this revenue used for the salaries of the royal officers and the maintenance of a military establishment in the colonies.

The carrying out of Townshend's scheme was prevented by the dissolution of the Bute ministry in April, 1763. In part his policy was taken up and developed by Grenville, as already seen; but he positively rejected its harsher features. He de-

1 N. Y. Docs. Rel. to Col. Hist., VI., 268, 269.

2 Knox, Controversy, 196-197; Lecky, England, III., 341.

3 Franklin, Works (Bigelow's ed.), II., 376-383; Knox, Con- troversy, 194.

1763] MENACE OF THE STAMP ACT 123

clined to interfere with the colonial charters or to allow the salaries of the royal officers in the colonies to be paid from England. " Nor would he listen to the suggestion that the revenue to be raised in America should constitute a fund to be disposed of under the sign manual of the king; he insisted that it should be paid into the receipt of the exchequer to be regularly appropriated by parliament." 1

To a man of Grenville's narrow statesmanship a revenue tax laid by Parliament on America seemed reasonable. That it would be strictly legal ap- peared clear, unless it was unlawful for Parliament in any case to legislate for the colonies while they were unrepresented ; and even the colonies had not yet made that claim. Moreover, he urged, there was pressing need of money in consequence of the war.2 Equally reasonable to him appeared the design to place a small military force in America and to tax the colonists for its support. There seems to be no ground to question the justice of Lecky's view that the "primary object" of the government was to defend the provinces and to guard the wider imperial interests; although he admits that 4 'it is possible, and indeed very probable, that a desire to strengthen the feeble executive, and to prevent the systematic violation of the revenue laws, was a motive with those who recommended the establish- ment of an army in America."

1 Bancroft, United States (ed. of 1885), III., 68.

2 Almon, Biographical Anecdotes, II., 88.

I24 PRELIMINARIES OF REVOLUTION [1764

With the new conquests in India and America the increasing expense of maintaining the empire bore more heavily upon the eight million English- men at home, "weighed down with debt and with taxation, and with a strong traditional hostility to standing armies." Furthermore, in both India and Ireland the precedent of dividing the military bur- den with the dependencies of the crown had already been set. At that moment, though impoverished and groaning under almost intolerable ecclesiastical and political oppression, Ireland was supporting a force of twelve thousand men.1 Yet it must be con- fessed that the example of these " conquered'' coun- tries could hardly afford a persuasive argument against the traditional dread of a standing army which in the colonies was even more acute than in England.

Nevertheless, Grenville proposed the stamp tax with some reluctance. He was urged to it by men at home like Welbore Ellis and the Marquis of Halifax, as also by Pownall, Bernard, and other American officials.2 Even Franklin — who it is much to be feared more than once resorted to special pleading — at this time professed to view with com- placency a tax for the support of an army in the colonies.3 Therefore Grenville decided to give a

1 Lecky, England, III., 339.

3 Pownall, Administration (ed. of 1765), 89, et seq.; Bernard, " Principles of Law and Polity," in his Select Letters, App., 75, et seq. 3 Franklin, Works (Bigelow's ed.), III., 299.

1765] MENACE OF THE STAMP ACT 125

year's notice of the proposed act, as if to invite a constitutional discussion ; or, as his critics said, to "allow time for mooting the question of right and preparing in the colonies an opposition to the law." To the provincial agents at the close of the session he said he had "proposed the resolution in the terms the parliament has adopted, from a real regard and tenderness for the subjects in the colonies." If "they thought any other mode of taxation more convenient to them, and made any proposition which should carry the appearance of equal ef- ficiency with the stamp duty, he would give it all due consideration." 1 But it seems clear that he meant the tax, whatever its form, should be levied by Parliament.2

The reception in America of the notice of the Stamp Act should have been ample warning to the ministry of the dangerous course on which it was entering. The effect in Massachusetts has already been considered.3 Even the timid Hutchinson, in a letter to the secretary of the chancellor of the ex- chequer, forcibly presented the case of the people. In most of the colonies the proposed stamp tax and the new revenue law were discussed. Memorials, petitions, and addresses were sent to England. The assembly of Connecticut desired the governor, Thomas Fitch, to "prepare an humble and earnest

1 Knox, The Claim of the Colonies (London, 1765), 32.

2 Cf. Knox, Controversy, 199, with Burke, Speech on American Taxation (ed. of 1775), 53—55- 3 Chap, vi., above.

VOL. VIII. — IO

126 PRELIMINARIES OF REVOLUTION [1765

address" to Parliament against the "bill for a stamp duty, or any other bill for an internal tax on the colony"; and this address with the "Book of Reasons " was ordered sent to the agent in London.1 The book referred to was the Reasons Why the British Colonies in America Should not be Charged with Internal Taxes by Authority of Parliament, written by the governor himself as member of a committee. It admits that Parliament has "a general authority, a supreme jurisdiction over all his majesty's subjects," and that this jurisdiction properly extends to duties for the regulation of trade. But since the people neither have nor can have representation in Parliament, the charging of stamp duties or other internal taxes "would be such an infringement of the rights, privileges, and authorities of the colonies, that it might be humbly and firmly trusted, and even relied upon, that the supreme guardians of the liberties of the subject would not suffer the same to be done."2

The attitude of Pennsylvania was much bolder. At this moment the selfish policy of the proprietors was arousing earnest opposition. Franklin and Galloway, with the great body of the Quakers, desired that the province should be made a royal government, while Dickinson and others dreaded the change lest their civil liberties should be still

1 Conn. Col. Records, XII., 299.

2 Fitch, Reasons Why, etc; also in Conn. Col. Records, XII., 651-671.

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more imperilled.1 Both parties, however, were united against the schemes of Grenville. The as- sembly showed a willingness to grant requisitions in the customary way; but they would have nothing to do with the "financier." The king always ac- companied his request with "good words"; but Grenville, "instead of a decent demand, sent them a menace, that they should certainly be taxed, and only left them the choice of the manner." 2 Parlia- ment "had really no right at all to tax them." Therefore, they resolved that as "they always had, so they always should think it their duty to grant aid to the crown, according to their abilities, when- ever required of them in the usual constitutional manner." 3

This sentiment is repeated in the instructions to Richard Jackson, the colony's agent. "Taxes as- sessed in any other manner, where the people are not represented, and by persons not acquainted with the colonies, would be unequal, oppressive, and unjust, and what we trust a British parliament will never think to be right." 4 The agent is required to remonstrate against the proposed stamp tax, and to endeavor to secure a repeal or modification of the sugar act. Indeed, the two sets of instructions sent to him deal largely with the evil effects of the acts

1 Pa., Votes of the House of Rep., V., 345, 346, 379, 380; also Franklin, Works (Bigelow's ed.), III., 286, et seq.

2 Franklin to Alexander, in Works (Bigelow's ed.) , VI., 143-145.

3 Pa., Votes of the House of Rep. (Bigelow's ed.), V., 383. 'Ibid., 363, 364, 377, 378.

128 PRELIMINARIES OF REVOLUTION [1764

of trade, and in particular with those caused by the prohibition of the European trade in lumber and iron. At this time Franklin was sent to England to act with Jackson as colonial agent, and letters from the committees of correspondence brought en- couraging word of the resistance of Massachusetts and Rhode Island.1

North Carolina protested strongly against the sugar act. October 31, 1765, in addressing Gov- ernor Dobbs, the assembly said: "We observe our commerce circumscribed in its most beneficial branches, diverted from its natural channel, and burthened with new taxes and impositions laid on us without our privity or consent and against what we esteem our inherent right and exclusive privilege of imposing our own taxes."2 The governor him- self regarded the acts of trade as harmful to the colony.3

In some cases the governors took a course not at all likely to soothe the popular resentment. Thus the assembly of South Carolina was prorogued before any statement of its wishes was agreed upon, but not before a committee with power to act had been appointed. In the instructions to Charles Garth, the colony's agent, the committee complain of the severity of the acts of trade, and declare that the stamp tax would be inconsistent

1 Pa., Votes of the House of Rep., V., 355, 356, 383 (September

376, 383 (October). 2 N. C. Col. Records, VI., 1261.

3 Ibid., VI., 1020-1023, especially 102 5-1035.

1765] MENACE OF THE STAMP ACT 129

"with that inherent right of every British subject, not to be taxed but by his own consent, or that of his representatives. For, though we shall submit most dutifully at all times to acts of parliament, yet, we think it incumbent on us humbly to remonstrate against such as appear oppressive, hoping that when that august body come to consider this matter they will view it in a more favorable light, and not deprive us of our birthright, and thereby reduce us to the condition of vassals and tributaries." 1 In like spirit, through repeated prorogations, the governor of Maryland prevented the assembly from coming together before the Stamp Act was passed; yet the hostile public opinion made itself known through the press.2

The course taken by Virginia was firm and dignified. A committee appointed by the council and burgesses 3 on November 1 4 prepared an ad- dress to the king, a memorial to the Lords, and a remonstrance to the House of Commons. The colonists, it is claimed in the address, have "every right and privilege" which their ancestors had in the mother-country. Exemption from taxes with- out consent is a "fundamental principle of the British constitution"; for "property must become too precarious for the genius of a free people, which

1 Gibbes, Doc. Hist, of Am. Rev., I., 1-6.

2 Mereness, Maryland, II., 477; Scharf, Maryland, I., 524.

3 Journal of the House of Burgesses, 1764, p. 38; Wirt, Henry, v4pp., note a.

130 PRELIMINARIES OF REVOLUTION [1764

can be taken away from them at the will of others, who cannot know what taxes such people can bear, or the easiest mode of raising them; and who are not tinder that restraint, which is the greatest security against a burthensome taxation, when the representatives themselves must be affected by every tax imposed."

Not less courageous was the response of New York. That province, as already seen,1 had re- cently suffered from the interference of the pre- rogative with the independence of the courts; and now Governor Colden was urging a project to allow final appeal to the king in all cases tried before a jury in the common law courts, even without a writ of error.2 Early in March, 1764, a memorial of the merchants against the renewal of the molasses act came before the council ; 3 and in June, when the news arrived that this was actually done, the people were stirred to strong resentment. Men spoke in the temper of the later non -importation resolves. " It appears plainly," said Robert Livingston, "that these duties are only the beginning of evils. The stamp duty, they tell us, is deferred, till they see whether the colonies will take the yoke upon them- selves, and offer something else as certain. They talk, too, of a land-tax, and to us the ministry

1 See chap, v., above.

7 N. Y. Docs. Rel. to Col. Hist., VII., 681-685, 695, et seq. 3 Council Minutes, XXV., 512; Calendar of Council Minutes, 464.

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appears to have run mad."1 Even Colden ad- mitted the folly of the molasses act.2

In October the New York assembly appointed a committee of correspondence, and presented a strong statement of grievances to the king and another to the Lords. In the petition to the Commons — which Colden describes as "indecent" — they de- clare that "the thought of independency upon the supreme power of the parliament we reject with the utmost abhorrence. The authority of the parlia- ment of Great Britain to model the trade of the whole empire, so as to subserve the interest of her own, we are ready to recognize in the most extensive and positive terms; but the freedom to drive all kinds of traffic, in subordination to and not incon- sistent with the British trade, and an exemption from all duties in such a course of commerce, is humbly claimed by the colonies as the most essential of all the rights to which they are entitled as colonists, and connected in the common bond of liberty with the free sons of Great Britain. For, since all im- positions, whether they be internal taxes, or duties paid for what we consume, equally diminish the estates upon which they are charged, what avails it to any people by which of them they are impover- ished?" The loss of their rights, they suggest, is likely to "shake the power of Great Britain."3

1 Bancroft, United States (ed. of 1885), III., 78.

2 N. Y. Docs. Rel. to Col. Hist., VII., 612.

3 Bancroft, United Slates (ed. of 1885), III., 89.

132 PRELIMINARIES OF REVOLUTION [1765

The opposition in Rhode Island was led by- Stephen Hopkins, who, like Fitch of Connecticut, was governor by popular choice. In October the committee of correspondence, of which he was chairman, sent out a circular letter saying, "the impositions already laid on the trade of these colonies must have very fatal consequences. The act in embryo for establishing stamp duties, if effected, will further drain the people, and strongly point out their servitude" ; it "will leave us nothing to call our own." Therefore, it is hoped that some method may "be hit upon for collecting the senti- ments of each colony, and for uniting and forming the substance of them all into one common defence of the whole." 1 The assembly's petition to the king, in November, professes alarm at the resolution to impose a stamp tax ; declares that " the restraints and burdens" laid on their trade by the late act are such, if continued, as " must ruin" them ; and claims the "essential privilege" of Englishmen of being governed by laws made by their own consent, and of parting with their property only "as it is called for by the authority of such laws." 2 November 22, by authority of the assembly, appeared at Provi- dence a pamphlet by Stephen Hopkins, in which the American case was admirably stated.3 It was re-

1 See the letter in Pa., Votes of the House of Rep., V., 376. Cf.R. L Col. Records, VI., 403. 2 R'. I. Col. Records ,VI., 414-416.

3 Hopkins, The Rights of the Colonics Examined; reprinted by Almon as The Grievances of the American Colonies Candidly Examined.

1765] MENACE OF THE STAMP ACT 133

printed in nearly every colony ; and both in America and England its strong argument and conciliatory tone must have made a powerful impression on public opinion.1

In reply to Hopkins the case of the loyalists was most skilfully presented by Martin Howard, a rep- utable lawyer of Newport. He boldly attacked the new doctrine of nullification at its vital point, deny- ing "that the colonists have rights independent of, and not controlled by, the authority of parlia- ment." First, under their charters they have not all the political rights of Englishmen at home. " I fancy," he says, "when we speak or think of the rights of freeborn Englishmen, we confound those rights which are personal with those which are political. . . . Our personal rights, comprehending those of life, liberty, and estate, are secured to us by the common law, which is every subject's birthright, whether born in Great Britain, on the ocean, or in the colonies; and it is in this sense we are said to enjoy all the rights and privileges of Englishmen. The political rights of the colonies, or the powers of government communicated to them, are more limit- ed; and their nature, quality, and extent depend altogether upon the patent or charter which first created and instituted them. As individuals, the colonists participate of every blessing the English constitution can give them; as corporations created

1 Foster, Stephen Hopkins, II., 57-59; Tyler, Lit. Hist, of Am. Rev., I., 63-69.

i34 PRELIMINARIES OF REVOLUTION [1765

by the crown, they are confined within the primitive views of their institution." Secondly, the colonists are not exempt from taxation because they do not send delegates to Parliament. They are virtually represented. The members of the House of Com- mons are "representatives of every British subject wherever he be, and therefore, to every useful and beneficial purpose, the interests of the colonists are as well secured and managed by such a house, as though they had a share in electing them." There- fore, he concludes, the colonists may justly challenge the justice or wisdom of the particular measures of Parliament, but not its jurisdiction.1

While these and other writings in America were called out by the notice of the Stamp Act, two notable tracts issued from the London press. One, by the famous wit, member of Parliament, and man of letters, Soame Jenyns, assails in a jaunty though effective manner the objections of the colonists to being taxed by Parliament ; the other, by Grenville himself, is perhaps the ablest defence of the minis- terial policy produced during this stage of the con- troversy. Like Jenyns,2 he bases the right of taxa- tion on the alleged fact of "virtual representation," and he refers with satisfaction to the palliative measures by which the late revenue act was accom- panied. For the bounties on hemp and flax had

1 Howard, A Letter from a Gentleman at Halifax, 6, 8, 21.

2 Jenyns, The Objections to the Taxation of Our American Colonies Briefly Considered (ed. of 1765), 4-9.

1765] MENACE OF THE STAMP ACT 135

been renewed ; the American whale - fishery en- couraged by the repeal of the high discriminating duties; and the rice of South Carolina and Georgia admitted directly to the foreign plantations of America as by earlier laws it might be carried to European ports south of Cape Finisterre.1

The remonstrances of the colonies were of no avail. Under the rule against receiving petitions against a money bill their appeals were rejected without a hearing.2 The lords of trade reported to the king the action of the assemblies of Massa- chusetts and New York as "indecent" and fitted to disturb the "dependence" of the colonies.3 For a moment, it is said, Grenville, like Adam Smith, did, indeed, look with favor on the recommenda- tion of Franklin 4 and the repeated suggestions of Otis,5 that colonial representation should be ad- mitted to Parliament ; but in both America and Eng- land the idea was generally regarded as imprac- ticable.

The passage of the Stamp Act attracted scarce any notice in England. February 2, 1765, a final re- monstrance of the colonial agents proved fruitless.

1 Grenville, The Regulations Lately Made, 47-56, 104, et seq.; see his speech in 1766, in Cobbett-Hansard, Pari. Hist., XVI., 102.

2 Ibid., XVI., 35; Kimball, Correspondence of the Col. Gov- ernors of R. I., II., 360.

3iV. Y. Docs. Rel. to Col. Hist., VII., 678. 4 Smith, Wealth of Nations (ed. of 1887), II., 135, et seq.; Franklin, Works (Bigelow's ed.), II., 384-387. 6 Tudor, Otis, 185-200.

136 PRELIMINARIES OF REVOLUTION [1765

As a substitute Franklin could only urge the usual method by royal requisition ; but Grenville silenced him by asking how the apportionment was to be made. Four days later the fifty-five resolutions comprising the details of the proposed law were submitted by Grenville to the House of Commons in the committee of ways and means.1 On the 13th the bill was introduced without debate; on the 27th it was sent to the Lords ; and on March 22 it received the royal sanction by commission, the king then being insane. The debate was languid, being en- livened only by Colonel Isaac Barre's eloquent reply to Charles Townshend, in which he referred to the colonists as "sons of liberty,"2 and by Conway's defence of the right of petition.

During the progress of the bill there was but one division, and then the minority did not amount to "more than forty." It was passed in the Commons by a vote of 205 to 49, and by the Lords without "debate, division, or protest." 3 The arrogance and blind indifference with which the sentiments and petitions of the colonists were treated during the enactment of this fatal measure place the re- sponsibility for the American Revolution squarely on the shoulders of the British government.

1 Commons Journal, XXX., 97-101.

* Cobbett - Hansard, Pari. Hist., XVI., 38, 39, n. On the question of the genuineness of this speech, see Adolphus, Hist, of Eng., I., 167, and especially, McCrady, Hist, of S. C, 1719-

I776> 579. n. 2.

3 Cobbett-Hansard, Pari. Hist., XVI., 40-

«

1765] MENACE OF THE STAMP ACT 137

The Stamp Act1 required that every broadside, newspaper, or pamphlet; every bill, note, or bond; every lease, license, insurance policy, ship's clear- ance paper, or college diploma; every instrument used in the conveyance of real or personal property ; and all legal documents of every kind should be written or printed on stamped vellum or paper, to be sold by public officials appointed for the purpose. In some cases the cost of business transactions would thus be increased many fold. The penalties imposed are cognizable, "at the election of the in- former or prosecutor," in any court of record or admiralty having jurisdiction in the colony where the offence is committed. The revenue derived is to be paid into his majesty's exchequer, and ex- pended under direction of Parliament solely for the purpose of " defending, protecting, and securing the said colonies."

To lessen the opposition, Grenville informed the agents that he did not think of sending stamp officers from England, " but wished to have discreet and respectable persons appointed from among the inhabitants; and that he would be obliged to them to point out to him such persons." 2 They all com- plied with his request. Even Franklin named his friend, John Hughes, as stamp distributer for Penn- sylvania ; and through his influence Jared Ingersoll, the agent of Connecticut, accepted the same office

1 5 George III., chap. xii. Cf. Mac Donald, Select Charters, 281-305. 2 Gordon, United States, I., 166.

138 PRELIMINARIES OF REVOLUTION [1765

for his colony. The duty "will fall particularly hard on us lawyers and printers," said Franklin. The next day after the act was passed he wrote home to Charles Thompson, "we might as well have hindered the sun's setting. . . . Since it is down, . . . let us make as good a night of it as we can. We may still light candles. Frugality and industry will go a great way towards indemnifying us."1 Neither Franklin nor any of his colleagues seems to have doubted that the act would be quietly enforced. In fact, Knox, agent of Georgia, wrote a pamphlet in its defence.2

At the same time Grenville extended his palliative measures. New bounties were offered on the im- portation of timber from the plantations; the re- strictions on the export of iron and lumber were relaxed; and the rice of North Carolina was given the same advantage as that of the two neighboring provinces.3 In the effect on colonial sentiment these favors were far more than offset by the provisions of another unwise law of this session.4 By the so-called "billeting act" British troops in America might be quartered in barracks provided by the colonies ; or when these did not suffice, in ale-houses, inns, barns, and uninhabited houses; the owners

franklin, Works (Sparks's ed.), X., 430.

2 Knox, The Claim of the Colonies, etc.

3 5 George III., chap, xlv., §§ 11, 19, 22, 23.

4 5 George III., chap, xxxiii.; MacDonald, Select Charters, 306-313.

1765] MENACE OF THE STAMP ACT 139

might be compelled to furnish them with food and drink at a fixed rate; and the money needed for the purpose was required to be levied " in such manner as the public charges for the province are raised."

CHAPTER VIII

AMERICA'S RESPONSE TO THE STAMP ACT

HE effect of the passage of the Stamp Act soon

1 revealed how fatally the ministry and even the colonial agents had misjudged the temper of the American people. The spontaneous formation of parties, begun two years before,1 now made rapid progress. The party of resistance, the patriots, were called Whigs ; the party of submission, Hutchinson says, as early as 1763 were branded as Tories. The former, more numerous and aggressive, suc- ceeded eventually in uniting all the provinces, from New Hampshire to Georgia, in common opposition to the new tax.

There was, however, a period of suspense. For some time after it was known that the bill had be- come a law the colonists paused as if weighing the tremendous responsibility of defying the jurisdiction of Parliament. To many of the leaders it seemed inevitable that the act would be enforced. Five weeks after news of its passage Hutchinson wrote to

(1765)

Hutchinson, Hist, of Mass. Bay, III., 103.

140

9

1765] STAMP ACT CONGRESS 141

the ministry, "The stamp act is received among us with as much decency as could be expected; it leaves no room for evasion, and will execute itself." 1 April 27, Colden of New York assured Halifax that his province remained in "perfect tranquillity," not- withstanding "the efforts of a faction to raise dis- content in the minds of the people."2 Governor Sharpe of Maryland reported that the "warmth" of those who had a "notion" that the charter ex- empted them from such requisitions "would soon abate," and that in spite of the violent outcries of the lawyers the Stamp Act would be carried into execution.3

Although the "assembly of Pennsylvania was in session when tidings of the passage of the stamp act reached Philadelphia," it adjourned without taking "public notice of it." 4 Even Otis, who in 1764 had said "it is our duty to submit" to the sugar act,5 now again declared it to be the "duty of all humbly and silently to acquiesce in all the decisions of the supreme legislature. Nine hundred and ninety-nine in a thousand of the colonists will never once entertain a thought but of submission to our sovereign, and to the authority of parliament in all possible contingencies. . . . They undoubtedly have the right to levy internal taxes on the colo-

1 Bancroft, United States (ed. of 1885), III., no. 9 N. Y. Docs. Rel. to Col. Hist., VII., 710. 8 Browne, Sharpe Correspondence, III., 210.

4 Gordon, Pennsylvania, 433.

5 Otis, Rights of the British Colonies, 40.

^OL. VIII.— II

142 PRELIMINARIES OF REVOLUTION [1765

nies. ' ' 1 But appearances were deceptive : there was a smouldering fire of popular resentment which might at any time be stirred into a living flame.

The first organized resistance came from Virginia under the lead of Patrick Henry. From the moment of his victory in the "parson's cause " that young lawyer was marked in the province as a rising man. He was now rewarded with a place in the house of burgesses, where, his biographer says, " he was promptly to gain an ascendency that constituted him, almost literally, the dictator of its proceedings, so long as he chose to hold a place in it." 2 Early in May, 1765, he was chosen to fill a vacancy in the representation of Louisa county, of which he was not then a resident. The old leaders of the assembly were cautious and seemed inclined to yield.

It was not until four weeks after the opening of the session that the first action regarding the stamp tax was taken. On May 29 a motion was carried "that the house resolve itself into a committee of the whole, immediately to consider the steps neces- sary to be taken in consequence of the resolutions of the house of commons of Great Britain, relative to the charging certain stamp duties in the colonies and plantations of America." In the committee Patrick Henry, who had taken his seat but nine days before, stepped boldly forward to assume the

1 Otis, Brief Remarks on the Defence of the Halifax Libel; Vindication of the British Colonies, 21, 26.