Conceived in Liberty (153 page)

It did not take the American colonists long to see what was going on. Colonel Eliphalet Dyer, a member of the Council of Connecticut and the leading lawyer of eastern Connecticut, wrote from London in the spring of 1764 that Parliament “seems determined to fix upon us a large number of regular troops under pretense for our defenses,” with the revenues to be raised from the colonies to support them. Rather than for defense, the army was “designed as a rod and check over us.” And a leading young lawyer, John Dickinson of Philadelphia, condemned the “formidable force established in the midst of peace, to bleed [America] into obedience....”

Enthusiasm for the British troops among the colonists was hardly strengthened by an incident between General Amherst and the Massachusetts recruits stationed in Halifax, Nova Scotia. The troops’ terms of enlistment were up on May 1, 1763; yet the British refused to discharge them. One refusal begat another, and finally the troops refused to serve any longer. The British retaliated by cutting off all provisions to the colonial troops, who were thus forced to buy their own supplies. General Amherst was responsible for forcing the troops to stay, in violation of the Massachusetts Charter, which required consent of the General Court before Massachusetts’ troops could be forced to serve outside the colony.

Since the beginning of the French and Indian War, there had been an appointed commander in chief of the British armed forces in America; and now, in mid-1763, the Board of Trade recommended that the commander in chief also be made military governor of the western territory. The commander—who after 1763 was General Thomas Gage—was also in charge of western Indian affairs. To Newcastle, this military regime portended an upheaval in the colonies, which would expect a similar fate to descend upon them.

We have seen that Townshend’s premature bill for taxing the colonies was defeated, but the plans continued brewing in the upper echelons of the British government. English taxation of the colonies to raise revenue had been suggested by royal officials in America for half a century, but had never been adopted during the Whig regime. The proponents had largely been governors anxious to secure their salaries independently of colonial assemblies, or royal officials asking for troops to enforce customs or other regulations. The latter included Colonel Robert Quary, chief customs officer, and Colonel David Dunbar, surveyor general of the King’s Woods; among the governors, the arch-imperialist William Shirley and Robert Dinwiddie of Virginia were the most insistent. During the war their voices were joined by such military commanders as General Braddock and Lord Loudoun.

In England, during the French and Indian War, Lord Halifax was an early champion of parliamentary taxation of the colonies, and he was quickly joined by Charles Townshend. Halifax suggested a stamp tax, but the most influential and fateful plan for a stamp tax was proposed in 1761 to Lord Bute by the royal bureaucrat Henry McCulloh. So long as the great Newcastle
remained as prime minister, there was no chance of approving taxation of America without its consent. But Newcastle’s fall completely turned the tables, and Bute, Halifax, and Townshend began to drive toward English taxation of the American colonies.

Henry McCulloh, one of the chief theoreticians of a stamp tax, was a London merchant who for thirty years had been a Crown official and a power in North Carolina. He tried to impose quitrent payments on the reluctant colonists and participated in large-scale land grants and speculation in land in North Carolina and across the mountains. His transmontane land speculation led him to espouse the British acquisition of eastern Louisiana from the French. In the autumn of 1763, McCulloh, along with a colleague, was assigned to write a draft for a stamp tax on the North American colonies. Of the two drafts, McCulloh’s was the more daring, calling for a broad stamp tax that would finance not only the cost of colonial troops but also an entire royal civil bureaucracy in America. McCulloh’s draft was rejected, however, and the competing bill, which confined the stamp money to financing the standing army, was selected by the Crown at the end of 1763. The draft of the bill was completed the following spring. Caution, however, dictated postponement of the stamp plan for another year.

*
The extent of salutary neglect is indicated by the complete absence of condemnation proceedings in the Massachusetts admiralty court between
1745
and spring
1760,
and of enforcement against colonial smuggling between 1743 and mid-1764.

*
Indeed earlier, as can be seen from the truly ominous dispatch of Massachusetts’ London agent Thomas Bollan in 1756: that the British intended to govern America as they governed Ireland—specifically to keep a standing army there and to demand the right of prior approval of the acts of colonial assemblies. During the same year, Lord Loudoun wrote from New York: “Governors here are ciphers; their predecessors sold the whole of the King’s prerogative, to get their salaries; and till you find a Fund, independent of the province, to pay the governors, and new model the government, you can do nothing with the provinces....”

*
See Bernhard Knollenberg,
Origin of the American Revolution: 1759–1766
(New York: Macmillan, 1960), pp. 88ff.

Having secured its army in America, the Grenville administration proceeded to a comprehensive plan of enforcing its mercantilist restrictions and imposing its imperial power. The various regulations, so long a dead letter because of the policy of salutary neglect, were now to be imposed in all their rigor. The Navigation Act, the Wool Act, the Hat Act, the Sailcloth Act, the Iron Act, the White Pine Act, the particularly crippling Molasses Act—all were now to be enforced and some to be strengthened and updated.

Actually the first crisis of tightened enforcement had begun earlier during the French and Indian War. The Crown was frantically trying to stamp out the flourishing illegal commerce with the French and Spanish West Indies. To this end, the government ordered the customs officers in Massachusetts to use “general writs of assistance,” that “terrible menacing monster” as John Adams labeled it. The writs of assistance authorized customs officers to break into and enter warehouses, stores, and even private homes, to search for smuggled goods without having to present any grounds for reasonably suspecting contraband to be there. In short, warrants could be general rather than specific, and a virtual
carte blanche
was given to the customs officers (who needed to be accompanied only by a local constable) to invade private property at will. In contrast, “special writs of assistance” (as in common law or in present-day “search warrants”) required specific evidence to be presented to a judge before the writs could be issued. The Massachusetts merchants, the citizens most harassed by these writs, did not protest the original writs issued from 1756 on, but they became alarmed by the petition of customs officers to renew the writs after the death of George II in October 1760. Under a British law these general writs automatically expired six months after the death
of a king; a renewal would continue writs of assistance long past the end of the war and throughout the reign of the new king. Besides, the end of the war was already clearly on the horizon.

The threat to liberty and property was evidently serious, and sixty-three Boston merchants banded together to oppose renewal of general writs. The merchants retained as their lawyers Oxenbridge Thacher and James Otis, Jr., who was in this capacity to assume the leadership of the new Popular Party, or “Smugglers Party,” in the colony. It was Otis who, according to the charge of the Tories, “first broke down the barriers of government to let in the Hydra of rebellion.” To take up the cause, Otis resigned a lucrative post as the king’s advocate general of the Boston Vice Admiralty Court, where he had been engaged in prosecuting such merchants. In hearings before the Massachusetts Superior Court in February 1761, Otis soared beyond narrow legalisms to base his opposition on unconstitutionality, and on the right of the courts to supersede an unconstitutional act of Parliament; and beyond even that to base his opposition to general writs on the law of man’s nature. Otis based his ultimate argument on the great early-seventeenth-century liberal Chief Justice Coke’s declaration—even then falling into disuse under the pressure of Tory statism—that “when an act of Parliament is against common right and reason... the common law will control it and adjudge such act to be void.” As Otis declared: “An act against the Constitution is void; an act against natural equity is void; and if an act of Parliament should be made... it would be void.”

Although the majority of the judges of the superior court agreed with Otis and stood ready to prohibit general writs, Chief Justice Thomas Hutchinson managed to persuade the court to uphold the writs and to continue them in force. The Massachusetts legislature passed a law in February 1762 prohibiting colonial courts from issuing general writs, but Governor Francis Bernard vetoed the bill.

Despite this veto, the furor over writs of assistance died down for a few years, since they were not used again until 1766. However, the agitation catapulted Otis into the leadership of the Popular Party. Massachusetts now split into two camps: the “Court” or Prerogative Party headed by Thomas Hutchinson and the Tory Governor Bernard, and the liberals headed by James Otis, Jr. and Samuel Adams. Hutchinson, a wealthy Boston merchant, was lieutenant governor, president of the Council, and chief justice, and gathered power into the hands of himself and his friends. He dominated the executive, legislative, and judicial functions in Massachusetts and used them to erect a formidable political machine and to control the province. Shortly after his speech against general writs, Otis was sent by Boston to the House and became head of the liberal party. Otis was motivated partly by revenge; the Prerogative Party had passed over his father, James Sr., Speaker of the House, for preferment to the chief-justice post in favor of the nonlawyer Hutchinson.

Samuel Adams was Otis’s righthand man in whipping up agitation among the people. Adams’ father, Samuel (“Deacon”) Adams, had himself been a wealthy Boston merchant and brewer, and a leader of the popular liberals. Now the younger Adams, an impoverished Boston officeholder, showed himself to be a consummate radical-liberal agitator. Adams obtained an M.A. from Harvard in 1743, and while there he read deeply such liberal or republican thinkers as John Locke, James Harrington, and Samuel Pufendorf. His M.A. address declared it lawful to resist superior magistrates to preserve the commonwealth.

Adams employed as his major political arm the recently founded newspaper, the
Boston Gazette,
as well as several eager political clubs of Boston: the Boston Caucus Club, which packed town offices; the Merchants Club; the Monday Night Club; and the Boston Masonic Society. The clubs met either in the garret of one of their members or in a Boston tavern. Taverns, the centers of meeting and discussion, were critical in Massachusetts politics in that era, and the tavernkeeper was a power in local politics. Sam Adams’ Boston Caucus Club, for example, met regularly at the Green Dragon Tavern. At the other end of the cultural spectrum, Otis also mobilized allies, not the least being the “Black Regiment” of Congregational ministers, who lent spiritual force to the new ideologies. Particularly ardent in this movement was the Reverend Dr. Samuel Cooper, the pastor of Samuel Adams.

Although the furor over writs of assistance had temporarily died down by 1763, the comprehensive Grenville program for enforcing and strengthening the mercantilist restrictions was soon put into effect.

One important step was the sudden enforcement of the White Pine Act. The restrictive White Pine Act had scarcely been enforced by Benning Wentworth, surveyor of the King’s Woods and governor of New Hampshire, for over twenty years. Suddenly, in 1763, Wentworth seized over two thousand white pine logs in western Massachusetts, and charged in admiralty court that the trees were legally reserved to the Crown. The nearly impossible task of the owners was to
prove
that the logs had come from trees growing within township boundaries in New Hampshire, for all other logs were legally reserved for royal use. Hundreds of white pine logs were also seized in Connecticut. Ironically, very few of the pine logs thus confiscated were suitable for use by the Royal Navy, and the great majority soon would have rotted away if they had not been cut for timber. Wentworth’s zeal was spurred by the new general enforcement program, and also by a desire to cripple the timber operations of Wentworth’s new Connecticut rival in the trade, Jared Ingersoll.

Enforcement of the White Pine Act quickly reactivated the ardent hostility of New England colonists to Crown policies. Wentworth’s deputies were threatened with beatings and assassination by the people of Massachusetts, and the local justices of the peace refused to aid or protect the deputies in enforcing the law, despite the orders of their governor.

Of all the mercantilist measures that had not been enforced before 1763, perhaps the most important was the Molasses Act of 1733. This act had provided for a prohibitive duty of sixpence a gallon (amounting to 100 percent) on the import of foreign molasses, in order to grant inefficiently produced British West Indies sugar a monopoly of the American market. The molasses trade was vital to the North, which could sell its staples in the West Indies in exchange for molasses. The molasses could be used either as a sweetener or to produce rum, which could be then sold at home or exported. The illegal molasses trade was largely with the French West Indies (Guadeloupe, Martinique, San Domingo) and the Dutch West Indies (Surinam, St. Eustatius). Of all the illegal commerce, the molasses trade was the most benevolently “indulged” by the customs officials. Domestic vessels were openly permitted to import foreign molasses on payment of a negligible duty, most of which was pocketed personally by the officials, as well as fresh fruit and wine directly from southern Europe. The duty charged in this way usually amounted to less than a half penny per gallon. This open indulgence put the molasses trade on a footing far different from that of most imports from Europe or the East Indies, which had to be smuggled secretly.