Conceived in Liberty (155 page)

In Massachusetts, the former customs collector for Boston, Benjamin Barons, cashiered for accepting payment for not enforcing the navigation laws, led the merchants during 1761 in an all-out legal attack on the admiralty courts. The merchants took successful action in the common-law courts to hold customs officers liable for damages to property, and to recover money for the sale of confiscated property.

Thus, by 1763, the enforcement procedures of the trade acts were pleasantly lax, inefficient, and hobbled—not the least of the causes being the partiality of the admiralty judges for the merchants’ problems. Hence the imposition of the super admiralty court at Halifax.

A third vital change in enforcement procedures was effected in the admiralty courts: the amazing provision that the onus of proof would henceforth lie on the accused rather than on the officer who seized his property.

Thus, only a little more than a year after the end of the war with France, a comprehensive network of expanding and strengthening enforcement of the trade acts was imposed upon the colonies: the end of salutary neglect; revenue from molasses duties; new commodities on the enumerated lists; use of the British navy in force to apprehend smugglers and violators; use of general writs of assistance by customs officers in Massachusetts; a thoroughgoing expansion of jurisdiction of the vice admiralty courts, and the establishment of an overall colonial admiralty court in remote Halifax; the granting of one-half of the loot from the seizure of the goods of the accused to the arresting naval officers; placing the burden of proof on the defendant rather than on the arresting officer, and removing the latter’s common-law liability for damages for false arrest; and the coerced registration of bills of lading (“cockets”), hampering small vessels in the coastal trade.

Most of the enforcement provisions of the Revenue Act had been proposed by the commissioners of customs, and had been specifically drawn up by John Tyton, their solicitor, and Robert Yeates, chief clerk in the Treasury. The only opposition within the royal bureaucracy was expressed by William Wood, secretary to the commissioners. Wood, an elderly holdover from the Newcastle era, was clearly out of step with the new dispensation of aggressive Tory imperialism.

The news of the new Revenue Act reached America in early May 1764 and provoked a storm of protest in the northern and other colonies, especially in trade-conscious Boston. A Boston town meeting on May 15 quickly appointed a committee to draw up Boston’s instructions to its four representatives in the Massachusetts House. The committee’s instructions, approved rapidly at the next meeting, were drawn up by the great popular leader of the Massachusetts liberals, Sam Adams. Adams threw down the gauntlet on constitutional and libertarian principles as well as on the pragmatic consequences of the crippling restrictions. He boldly denied
any
right of Parliament to tax the colonies. Adams warned: “For if our trade may be taxed why not our lands? [an appeal to the farmers of Massachusetts]. 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 privileges....” Adams also called for uniting the efforts of protest of the other American colonies.

The Massachusetts legislature promptly organized two committees, each dominated by their Boston members. One committee, headed by James Otis, instructed Massachusetts’ London agent to urge repeal of the American Revenue Act, and wavered between a principled denial of the right of Parliament to tax the colonies, and a call for reduction in the molasses tax to a penny a gallon. The Massachusetts House sent this protest along with an essay by the great leader of the Boston liberals, the lawyer James Otis, Jr. The essay, “The State of the Rights of the Colonies,” implied an immunity of the colonies from parliamentary taxation, and grounded its argument not only on the Magna Carta but also on common law and on “The laws of Nature and of
Nations, the Voice of Universal Reason, and of God.” The other House committee sent a circular letter at the end of June to the other colonies, urging a united colonial protest.

A few weeks later, James Otis published an expanded version of his thesis titled
The Rights of the British Colonies Asserted and Proved,
stressing citations to John Locke, as well as to the international law-theorists Hugo Grotius, Samuel Pufendorf, and Emerich de Vattel. Again Otis’s arguments were partially self-contradictory; at some points he stressed the constitutional right “to be free from all taxes but what [an English subject] consents to in person, or by his representative,” as well as the invalidity of acts contrary to natural law; at other points he upheld the absolute power of Parliament to legislate for the general good of the empire. But in the pamphlet Otis stressed that government derived its powers from the people. Should a government violate rather than protect the natural rights of the people to their life, liberty, and property, Otis emphasized, then it could be overthrown by the people. Otis also condemned the abrogation of trial by jury, admiralty courts, restrictions on colonial trade, the discriminatory treatment of colonial troops during the war, and Negro slavery. Later in the summer, another Boston representative, the lawyer Oxenbridge Thacher, published a similar pamphlet,
Sentiments of a British American.
Thacher protested the various enforcement provisions in the Revenue Act, and again denounced the violations of the basic English right of taxation only by consent of one’s representatives.

In the fall, the Massachusetts House held a special session called at the behest of Otis, Thacher, and the other Boston delegates. It approved and addressed to England a claim of exemption from any parliamentary taxes for revenue, on the essentially British right of no taxation without representation. The conservative Council, however, declined to approve, and a compromise address confined the protest to pragmatic grounds, implying that Parliament
did
have the right to impose “external” taxes on the colonies, and only denying its right to levy direct “internal” taxation. This was a grave retreat from principle, since all previous English “taxation” of trade had been designed for regulation rather than for revenue.
*

The way was now, unfortunately, open to unlimited taxation of American trade. The person responsible for weakening the Massachusetts stand was Thomas Hutchinson, lieutenant governor, chief justice, councillor, and head of the “Court Party” oligarchy in Massachusetts. Hutchinson understood the issue clearly enough, but he imposed a distinction between internal and external taxation that he knew to be unsound, for fear of jeopardizing his position as royal favorite in Massachusetts. In addition, the pernicious influence of
Richard Jackson helped to sabotage Massachusetts’ stand on principle. It was Jackson, in fact, who propounded the spurious distinction between internal and external taxation. Jackson was undoubtedly motivated in his advice to the colonists by his powerful post as secretary to the British prime minister.

Despite the crucial role played by Otis and especially by Adams in triggering colonial protest at the Sugar Act, the radical liberal party in Massachusetts suffered troubles by early 1765. For one thing, Boston, the center of radical liberalism in the province, was grievously underrepresented in the Massachusetts Assembly. The House was represented by the
number
of towns rather than by population, and as a result the disproportion against populous Boston grew ever greater as the colony expanded and more towns arose in western Massachusetts. In this period, Boston had only four representatives out of 120 in the House. Moreover, rural Massachusetts had not been really aroused against British tyranny. In fact, western Massachusetts was then dominated by such leading Tories as Colonel John Murray of Rutland, the largest landowner in Worcester County, and by Colonel Timothy Ruggles of Hardwick, another leader of the Court Party.

*
Indeed, in 1764, before the Revenue Act came into force, gross annual revenue from all the trade acts on the colonies amounted to less than two thousand pounds a year, while the cost of collecting it totaled over seven thousand pounds.

As the Revenue Act was being passed, Colonel Eliphalet Dyer of Windham, a member of the Connecticut Council, attacked the revenue bill for supporting a standing army, and called on the colonies to unite in protest. If they failed to do so, they may “bid farewell to freedom and liberty, burn their charters, and make the best of thralldom and slavery. For if we can have our interests and estates taken away, and disposed of without our consent... and by those whose interests as well as inclination it may be to shift the burden off from themselves under pretense of protecting and defending America,” then England can insist on America’s paying the expenses of any wars, past or present.

Connecticut’s legislature of May-June 1764 appointed a protest committee that included Governor Thomas Fitch. The committee’s address to England, approved by the legislature in October, strongly protested the molasses tax, but again it retreated from principle to the artificial distinction between internal and external taxation. Once again Connecticut’s perfidious London agent, Richard Jackson, was instrumental in ensuring a suitably weak stand in the colonies.

Rhode Island, with its large interest in trade, took a similar but a more bitter stance toward the molasses tax. In July the legislature chose a committee to confer with other colonies on protesting the tax. The committee included the merchant Nicholas Brown and was headed by Governor Stephen Hopkins. Hopkins, a prominent storekeeper and popular politician, had founded the
Providence Gazette,
and as early as January had written an “Essay on the Trade of the Northern Colonies,” urging united colonial action for repeal of
the old Molasses Act. The Hopkins committee, however, took no action until instructed by the legislature in September to confer with neighboring colonies. The committee then wrote to other colonies, significantly suggesting an intercolonial conference to launch a united protest. In October the legislature also appointed a committee to frame a protest, and sent it to England the following month along with a draft of Governor Hopkins’ pamphlet
The Rights of the Colonies Examined.
The address and the Hopkins pamphlet strongly protested the trade restrictions and enforcement provisions of the Revenue Act, but explicitly denied only the right of Parliament to levy
internal
taxes. However, both Hopkins and the Assembly went beyond other colonies by denying the right of Parliament to legislate for the colonies except for the general good of the whole empire. The Hopkins pamphlet was popular in America and was soon reprinted in every colony; the radical
Massachusetts Gazette
hailed it as a pamphlet that “breathes a true spirit of liberty.”

The following February, however, the Hopkins essay was attacked in a pamphlet by Martin Howard, Jr., a leading Rhode Island Tory, who invoked the “transcendent” sovereignty of Parliament. Under pressure, Hopkins retreated from his denial of the right of Parliament to pass laws governing America, and also hinted that colonial representation in Parliament after the manner of Scotland would remove colonial grievances.

Not only was Hopkins pressed into retreat; so too was James Otis of Massachusetts. In March 1765, Otis, in
A Vindication of the British Colonies,
attempting to defend Hopkins, wound up retreating to a repudiation of his own pamphlet of a few months earlier. Otis’s virtual surrender to Howard was soon completed in another pamphlet,
Brief Remarks.
But in the same pamphlet, Otis lashed out in bitter and hard-hitting denunciation of Howard and his small but powerful clique of Tories, known as the Newport Junto. Otis attacked the Junto as that “little, dirty, drinking, drabbing, contaminated knot of thieves, beggars, and transports, or the worthy descendants of such... made up of Turks, Jews, and other Infidels, with a few renegade Christians and Catholics....”

The formation of the Newport Junto in late 1764 was undoubtedly one of the reasons for Governor Hopkins’ precipitate retreat from liberal principle. The Junto had had the gall to petition England for revocation of Rhode Island’s precious liberal and self-governing charter. Leader of the Tory Junto was Martin Howard, Jr., an Anglican lawyer, the son of a Newport town councillor, and a delegate to the abortive Albany Congress of 1754. Samuel Hall, printer of the
Newport Mercury,
one of the two newspapers in the colony, supported the Junto and made his paper a spokesman for Junto views. Other leading members were Dr. Thomas Moffat of Edinburgh; George Rome, an agent and debt collector for an English mercantile firm; probably Augustus Johnston, attorney general of Rhode Island; and the king’s officers
in the colony, especially John Robinson and his roommate, Lieutenant Benjamin Wickham. The Junto called for strict Crown control over fractious and democratic Rhode Island and for suppression of the abusive protests against English measures.

The citizens of Rhode Island were understandably incensed at the Junto and at Howard’s pamphlet against Hopkins. Freedom of speech and press was hardly purely upheld in eighteenth-century America, and Deputy Governor Joseph Wanton, Jr. urged the Assembly to move against the Tory pamphlet and its printer. Fortunately, the Assembly voted down the zealots. The superior court, under Governor Hopkins’ control, did call up and intimidate the printer Samuel Hall for a while, but did nothing further. Hall’s
Mercury,
in reply, thundered that liberty of the press and freedom itself were in grave danger.

Rhode Island and Connecticut were uniquely fortunate; both had democratically elected executives and therefore were free of an appointed oligarchy of royal officials, their friends, and their favorites. In Rhode Island, the Newport Junto had nuisance value but not political power. Instead, Rhode Island was torn between two political factions, both of which were relatively liberal and opposed to British exactions. One faction was led by Stephen Hopkins of Providence and the other by Samuel Ward of Westerly, in south Rhode Island.