Crucible of War

by Fred Anderson

  Given such losses of political capital, there was no way for governors like Francis Fauquier and Francis Bernard—men ambitious for the empire and earnest to manage colonial politics in Britain’s best interest— to maintain the level of control they had achieved between 1758 and 1762. The reemergence of old obduracies, the reappearance of factionalism, the intensification of dissent as opposition groups maneuvered for public support and contended for scarce patronage: these could neither be stopped, nor long delayed.

  And yet the meanings of the renewed conflicts and the appearance of new political configurations were obvious to no one. Like their masters in London, the governors did not understand that their influence was ebbing in the postwar colonies because in some realms it persisted, because the recent trend had been toward tighter integration between colonies and metropolis, and because the political leaders in their assemblies reacted uncertainly to the introduction of the imperial reforms. Indeed the ambiguous character of the colonies’ responses to Grenville’s program prevented imperial officials from understanding, for what would turn out to be a dangerously long time, what was really going on in America.

  CHAPTER 63

  An Ambiguous Response to Imperial Initiatives

  1764

  MERCHANTS AND OTHER well-informed colonists knew, at least from late 1763, that reforms in the empire’s trade system were at hand. The arrival in America of dozens of previously absentee customs collectors and the accompanying flurry of orders directing the strict enforcement of the existing regulations had been a worrisome harbinger of change. “The publication of orders for the strict execution” of the customs laws, the governor of Massachusetts observed, “caused a greater alarm in this country than the taking of Fort William Henry did in 1757.” The concern was at least as great elsewhere—indeed everywhere that merchants who had built careers within the casual framework of the old system began seeing cargoes subjected to minute scrutiny and ships seized for infractions of rules they barely understood. The mercantile community was already awash with anxiety when reports of Grenville’s Budget Day speech arrived in May 1764 and gave colonists their first systematic sense of the character and scope of the reform program.1

  Boston’s merchants reacted first, convening their Society for Encouraging Trade and Commerce to consider what response to make, and then introducing their concerns at the spring town meeting, on May 24. Their voice spoke plainly in the instructions that the meeting issued to Boston’s delegates to the General Court: “As you represent a town which lives by its trade, we expect in a very particular manner that you make it the object of your attention to support our commerce in all its just rights, to vindicate it from all unreasonable impositions and promote its prosperity. Our trade 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 representatives were to use their “utmost endeavours” to see that the assembly would make all necessary representations to Parliament and elicit all possible cooperation from the other colonial legislatures.

  But the meeting’s resolutions also made it clear that the representatives had more to protect than Boston’s economy. Massachusetts’s constitutional privileges, its inhabitants’ very rights, were at stake. “What still heightens our apprehensions,” the instructions continued, Those more impassioned sentences articulated the concerns of the country party, quiescent since it had failed to prevent Chief Justice Thomas Hutchinson from issuing writs of assistance in 1761. But more specifically, the voice that spoke was that of Samuel Adams.2 is that those unexpected proceedings may be preparatory to new taxations upon us; for if our trade may be taxed, why not our lands? Why not the produce of our lands and everything we possess or make use of? This we apprehend annihilates our charter right to govern and tax ourselves. It strikes at our British privileges 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 ever 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?

  At age forty-two Adams had not achieved the status that a Harvard education, a tidy inheritance, and a venerable Bay Colony name ought to have conferred. But this failed brewer, small-time political activist, and minor officeholder (currently in the middle of a term as a notably ineffectual tax collector) lacked ambition to amass either wealth or power. Unlike more practical, secular, and worldly men, he believed that politics ought to promote social cohesion and civic virtue—views that tended to align him with the highly moralistic stance of the country party. From the time of the writs of assistance controversy he, like James Otis and other members of the opposition, had come to see in Thomas Hutchinson all the qualities inimical to virtuous politics. As lieutenant governor, chief justice of the superior court, judge of probate for Suffolk County, and member of the council, Hutchinson was the province’s leading plural officeholder, its ultimate political insider. Thus no one (least of all Hutchinson) would have been surprised when Adams as the town meeting’s chosen penman devoted only half of the instructions to warning against Parliament’s dangerous reforms. The other half denounced the corrupt practice of pluralism and instructed the representatives to seek legislation denying a salary to any judge who held more than one post, and prohibiting any member of the upper or lower house of the legislature from holding executive offices.3

  The town meeting’s denunciation of both imperial reform and the pluralist practices of Thomas Hutchinson and his political allies signaled a revival of the country party’s campaign to gain control of the assembly. In the early summer it seemed as if this effort might bear fruit. Hutchinson had to leave Boston before the end of the legislative session to open the eastern circuit of the superior court, giving Boston’s representatives— including his sworn enemy, James Otis Jr.—the opening they needed to act on their instructions. When, late in the session, the legislators named one committee to correspond with other assemblies and a second to rebuke the Massachusetts agent, Israel Mauduit, for failing to protest Parliament’s measures, Otis secured himself places on both. When the committees sent out their appeals against the American Duties Act and the proposed Stamp Act, their reasoning echoed the arguments he had advanced in a recent pamphlet, The Rights of the British Colonies Asserted and Proved. Once again Otis was the country party’s man of the hour. Even though he condemned the imperial reforms in terms obscure enough to daunt even determined readers, his pamphlet enjoyed immediate success and helped arouse public opposition to Grenville’s measures.

  Otis began with the conventional premise that the British constitution had no superior in human history, and that its beneficial, benign character flowed from the allocation of sovereign power to the king in Parliament. Great Britain’s legislature, therefore, had the indisputable right to give law to the colonies. Yet absolute though its sovereignty was, Parliament’s power could not extend to the destruction of the colonists’ rights—either those that belonged to them as Englishmen or the natural rights that were theirs as creatures of God—because no power on earth could contravene the laws of nature. “The Parliament cannot,” Otis wrote, “make 2 and 2, 5: omnipotency cannot do it.” For the House of Commons to pass a law altering the principles of arithmetic would be plainly absurd; for it to abridge the British subject’s right to consent to taxation would be tyrannical. Thus a body that could, if it chose, legitimately put a stop to the entire trade of the colonies, could not justly derive a penny’s worth of revenue from taxes on colonial commerce (as in the American Duties Act) or extract a farthing from the pockets of the colonists directly (as in the proposed stamp tax): not until American M.P.s sat in the House of Commons offering their constituents’ consent. The Rights of the Colonies elaborated the natural-rights arguments Otis had first made in the writs of assistance controversy. As such they strongly ap
pealed to people who revered the British constitution but wanted rational grounds to object to laws passed by a Parliament in which that constitution vested the ultimate state power to take property and life.4

  Popular as they were in Boston and provocative as they were when read in the other legislatures to which the committee of correspondence sent them, however, Otis’s arguments did not create a groundswell of opposition in the General Court. In the first place, they were ideologically inadequate to justify outright resistance. Otis himself admitted that Parliament’s sovereignty could not legally be challenged, for only Parliament had the power to right any wrongs it might do. The colonists could only protest and wait for the constitutional system to correct itself. Second—and in the short term, most significant—the Bay Colony’s country party still lacked the strength to break the grip on power of the governor and the court party.

  When the representatives reconvened for the fall session and considered what formal petitions they might make against the American Duties Act and the proposed stamp tax, Thomas Hutchinson and his supporters were there to take control of the situation. The House of Representatives approved an ambitious country-party address to the king and Parliament that denounced the American Duties Act, the prospective stamp tax, and the erection of a new vice-admiralty court at Halifax as violations of colonial rights; but the Council, under Hutchinson’s guidance, refused to concur. The upper house instead proposed a petition, written in Hutchinson’s own neat hand, directed to the House of Commons: a chaste document that never once mentioned rights but rather argued against the new measures because they would inhibit Massachusetts’s faltering trade.

  The lieutenant governor, who kept his personal views to himself, disliked the idea of parliamentary taxation as much as Otis and Adams did, privately objecting on grounds quite similar to theirs. Yet he was, unlike either of them, a merchant, and he crafted the public petition to appeal to the province’s traders. By avoiding arguments based on rights he hoped both to avoid offending Parliament and to co-opt the influential business interests that, he knew, valued political principles less highly than positive cash flows. The stratagem worked perfectly. As Bernard explained to Lord Halifax when he sent copies of the General Court’s proceedings, all efforts “to inflame the people” by the country party “had no influence on the generality of the representatives; The proposers of Violent remonstrances were soon silenced; & the Business by degrees got into the hands of moderate men & friends to Govt.; & . . . was concluded with the utmost unanimity & good humour. The Council with the Lieut. Gov. at their head acted a most prudent & steady part thro’ the whole.”5

  In Massachusetts, then, the merchants’ howls of alarm at the American Duties Act were absorbed into the pattern of provincial politics as soon as the country party took up the cause of protest. The fusion of protest with conventional politics in turn allowed an adept lieutenant governor to minimize the stridency of the assembly’s petition and preserve harmonious relations with London. In most other colonies, too, the prevailing political alignments and issues helped to create ambiguous responses and limit protests. Only the New York Assembly sent a petition to Parliament denouncing the act as a tax levied without the consent of the colonists and thus a violation of their rights.6 This sole exception to the rule of reticence and moderation also arose from local political conditions, and when examined reveals the character and limits of colonial protest.

  New York’s war governor, James De Lancey, had built up the court party that bore his family name, and through it exercised reasonably consistent control in the assembly until his death in 1760. With the appointment of the nonresident General Robert Monckton as governor, the effective power of the governorship passed to the lieutenant governor, Cadwallader Colden. Meanwhile an assembly election gave new strength to the country party, the so-called Livingston faction. Colden, a crusty septuagenarian Scot, may have had a friend somewhere in the province, but if so that person did not belong to the assembly. Colden had sustained a four-decade-long career in New York politics by virtue of a Crown appointment as surveyor general and a reputation as a tireless defender of the prerogative. As acting governor he was determined to destroy both the De Lancey and the Livingston Parties as a first step toward rebuilding the depleted power of the prerogative in the province. He started by trying to make judicial appointments “at pleasure” rather than for life, as had been the practice: an effort that alienated the entire New York bar. The lawyers’ enmity grew as Colden, who had been educated as a physician, began intervening in legal procedures. Late in 1764 he was engaged in a particularly intemperate effort to establish himself as supreme judiciary authority in the colony by agreeing to hear an appeal on a lawsuit that the supreme court had decided—and doing it in such a way as to suggest that he intended to destroy the right to jury trial in civil cases. Colden’s position was one that even staunch royalists could not support without seeming to endorse the efforts of an “evil Genius” (or at best a “Petty T[yran]t”) to make himself “superior to the whole Body of the Law.” 7

  Without doing anything to subdue the most factious political system in North America, Cadwallader Colden had found a way to align both Livingston and De Lancey partisans against him and his defense of prerogative power. He had so abraded the nerves and sensibilities of the New York elite that by October 18, 1764, when the assembly petitioned the House of Commons against the American Duties Act and the prospective stamp tax, delegates who agreed on almost nothing else concurred in the most radical statement issued in America. “The People of this Colony,” they wrote, “inspired by the Genius of their Mother Country, nobly disdain the thought of claiming the Exemption [from taxation] as a Privilege.—They found it on a Basis more honourable, solid and stable; they challenge it, and glory in it as their Right.”

  Like Otis in The Rights of the Colonies, the legislators granted that Parliament had “an incontestable Power, to give Laws for the Advancement of her own Commerce,” but denied the legitimacy of involuntary taxation, including the raising of revenue by customs duties. Yet such Otis-like reasonings did not emerge solely from the legislators’ “Regret, that the Laws of Trade in general, change the Current of Justice from the common Law”—where jury trials and procedural protections secured the rights of the accused—to vice-admiralty courts, which “proceed not according the old wholesom Laws of the Land, nor are always filled with Judges of approved Knowledge and Integrity.” Those sentiments were equally the product of Colden’s attacks on common-law procedure, and on the autonomy of the common-law courts. The sudden conjunction of threats that were general and imperial on one hand, with threats that were local and Coldenesque on the other, fueled the representatives’ anxieties to a hyperbolic climax:

  The General Assembly of this Colony have no desire to derogate from the power of the Parliament of Great-Britain; but they cannot avoid deprecating the Loss of such Rights as they have hitherto enjoyed, rights established in the first Dawn of our Constitution, founded upon the most substantial Reasons, confirmed by invariable Usage, conducive to the best Ends; never abused to bad Purposes, and with the Loss of which Liberty, Property, and all the Benefits of Life, tumble into Insecurity and Ruin: Rights, the Deprivation of which, will dispirit the People, abate their Industry, discourage Trade, introduce Discord, Poverty and Slavery; or, by depopulating the Colonies, turn a vast, fertile, prosperous Region, into a dreary Wilderness; impoverish Great-Britain, and shake the Power and Independancy of the most opulent and flourishing Empire in the World.8

  Thus the internal politics of New York made the legislature’s petition as distorted a mirror of that province’s reactions as the deceptively mild petition of Massachusetts was for those in the Bay Colony. Far from being stocked with radicals, New York’s legislature was in fact as conservative as it was factious. Cadwallader Colden, however, did not hesitate to depict his personal enemies as the enemies of the Crown, Parliament, patriotism, and common sense itself. The old man’s remarkable cussedness enabled hi
m both to evoke opposition and to miscast it as the product of a republican spirit. Thomas Hutchinson’s innate caution and deft parliamentary management, on the other hand, led him to smooth the surface of politics in a province where genuine radicalism was boiling up, making it seem as if those who opposed the American Duties Act cared less for principles than full pocketbooks. Ironically, by keeping his own deep reservations about the wisdom and justice of the imperial reforms a secret—something he did almost instinctively—Hutchinson was fast becoming as much a symbol of oppression as Colden, who entertained no personal qualms about the Grenville program.

  Only Massachusetts and New York lodged official remonstrances against the American Duties Act with the British government. That none of the other colonial assemblies were sufficiently agitated to protest might be ascribed to confusion, since the act’s purpose was not only to generate revenue but to regulate commerce within the empire, and the colonies had submitted to commercial regulation for a century. But something more significant than muddled thinking lay behind the colonies’ quiescence. Because the provisions of the American Duties Act mainly affected rum distillers, merchants engaged in the coastwise trade, and consumers of expensive imports like Madeira, Grenville’s reforms were simply of less than universal concern. It was not, in other words, that the colonists had trouble understanding the new duties as taxes: it was only that most Americans did not distill rum, trade in coasting vessels, or buy Madeira by the tun—and remained untroubled by taxes that they themselves would not have to pay.