Chapter 18:
The Acts of Trade Provoke Revolution,
1761-1762
THE legislature of Massachusetts still acknowledged that "their own resolve could not alter an act of parliament," and that every proceeding of theirs which was in conflict with a British statute was for that reason void. And yet the justice and the authority of the restrictions on trade was denied; and, when the officers of the customs made a petition for "writs of assistance " to enforce them, the colony regarded its liberties in peril. This is the opening scene of American resistance. It began in New England, and made its first battle-ground in a court-room. A lawyer of Boston, with a tongue of flame and the inspiration of a seer, stepped forward to demonstrate that all arbitrary authority was unconstitutional and against the law.
In February 1761, Hutchinson, the new chief justice, and his four associates, sat in the crowded council-chamber of the old town-house in Boston to hear arguments on the question whether the persons employed in enforcing the acts of trade should have power to demand generally the assistance of all the executive officers of the colony.
A statute of Charles II., argued Jeremiah Gridley for the crown, allows writs of assistance to be issued by the English court of exchequer; a colonial law devolves the power of that court on the colonial superior court; and a statute of William III. extends to the revenue officers in America like powers, and a right to "like assistance," as in England. To refuse the writ is, then, to deny that "the parliament of Great Britain is the sovereign legislator of the British empire."
Oxenbridge Thacher, who first rose in reply, showed, mildly and with learning, that the rule of the English courts was in this case not applicable to America.
But James Otis, a native of Barnstable, whose irritable nature was rocked by the impulses of fitful passions, disdaining fees or rewards, stood lip amid the crowd as the champion of the colonies. "I am determined," such were his words, "to sacrifice estate, case, health, applause, and even life, to the sacred calls of my country," "in opposition to a kind of power of which the exercise cost one king of England his head and another his throne." He pointed out that writs of assistance were "universal, being directed to all officers and subjects" throughout the colony, and compelling the whole government and people to render aid in enforcing the revenue laws for the plantations; that they were perpetual, no method existing by which they could be returned or accounted for; that they gave even to the menial servants employed in the customs, on bare suspicion, without oath, without inquiry, perhaps from malice or revenge, authority to violate the sanctity of a man’s own house, of which the laws should be the battlements. "These writs" he described "as the worst instrument of arbitrary power, the most destructive of the fundamental principles of law." And he entreated attention to an argument which rested on universal "principles founded in truth." Tracing the lineage of freedom to its origin, he opposed the claims of the British officers by the authority of "reason;" that they were at war with "the constitution," he proved by appeals to the charter of Massachusetts and its English liberties. The precedent cited against him belonged to the reign of Charles II., and was but evidence of the subserviency of some "ignorant clerk of the exchequer;" but, even if there were precedents, "all precedents," he insisted, "are under control of the principles of law." Nor could an express statute sanction the enforcement of acts of trade by general writs of assistance. "No act of parliament," such were his words, which initiated a revolution, "can establish such a writ; even though made in the very language of the petition, it would be a nullity. An act of parliament against the constitution is void." The majority of the judges were awe-struck, and, on the question before them, believed him in the right. Hutchinson cowered before "the great incendiary" of New England. The crowded audience seemed ready to take up arms against the arbitrary enforcement of the restrictive system; especially the youngest barrister in the colony, the choleric Joha Adams, a stubborn and honest lover of his country, extensively learned and a bold thinker, listened in rapt admiration; and from that time could never read "any section of the acts of trade without a curse." The people of the town of Boston, a provincial seaport of merchants and ship-builders, with scarcely fifteen thousand inhabitants, became alive with political excitement. It seemed as if the words spoken on that day were powerful enough to break the paper chains that left to America no free highway on the seas but to England, and to open for the New World all the paths of the oceans.
The old members of the superior court, after hearing the arguments of Thacher and Otis, inclined to their side. But Hutchinson, who never grew weary of recalling to the British ministry this claim to favor, prevailed with his brethren to continue the cause till the next term, and in the mean time wrote to England. The answer came; and the subservient court, surrendering their own opinions to ministerial authority and disregarding law, granted writs of assistance whenever the officers of the revenue applied for them.
But Otis was borne onward by a spirit which mastered him, and increased in vigor as the storm rose. Gifted with a sensitive and most sympathetic nature, his soul was agitated in the popular tempest as the gold leaf in the electrometer flutters at the approach of the thunder-cloud. He led the van of American patriots; yet impassioned rather than cautious, disinterested and incapable of cold calculation, now foaming with rage, now desponding, he was often like one who, in his eagerness to rush into battle, forgets his shield. Though indulging in vehement personal criminations, he was wholly free from rancor; and, when the fit of passion passed away, was mild and easy to be entreated. His impulses were always for liberty, and full of confidence; yet his understanding, in moments of depression, would shrink back from his own inspirations. In the presence of an excited audience, he caught and increased the contagion, and rushed onward with fervid and impetuous eloquence; but, away from the crowd, he could be soothed into a yieldin inconsistency. Thus he toiled and suffered, an uncertain leader of a party, yet thrilling and informing the multitude; not steadfast in conduct, yet by flashes of sagacity lighting the people along their perilous way; the man of the American protest, not destined to enjoy his country’s triumph.
The subserviency of Hutchinson increased the public discontent. Men lost confidence in the integrity of their highest judicial tribunal; for innovations under pretence of law were confirmed by judgments incompatible with English liberties. The admiralty court, hateful because instituted by a British parliament to punish infringements of the acts of trade in America without the intervention of a jury, had, in distributing the proceeds of forfeitures, violated the statutes which it was appointed to enforce. Otis endeavored to compel a restitution of the third of forfeitures, which by the revenue laws belonged to the king for the use of the province, but had been misappropriated. "The injury done the province" was admitted by the chief justice, who yet screened the fraud by inconsistently asserting a want of jurisdiction to redress it. The court of admiralty, in which the wrong originated, had always been deemed grievous, because unconstitutional; its authority seemed now established by judges devoted to the prerogative.
Unable to arrest the progress of illiberal doctrines in the courts, the people of Boston, in May 1761, with unbounded and very general enthusiasm, elected Otis one of their representatives to the assembly. "Out of this," said Ruggles to the royalist Chandler, of Worcester, "a faction will arise that will shake this province to its foundation."
Virginia resisted the British commercial system from abhorrence of the slave-trade. The legislature of Virginia had repeatedly shown a disposition to obstruct the commerce; a deeply seated public opinion began more and more to avow the evils and the injustice of slavery; and, in 1761, it was proposed to suppress the importation of Africans by a prohibitory duty. Among those who took part in the long and violent debate was Richard Henry Lee, the representative of Westmoreland. Descended from one of the oldest families in Virginia, he had been educated in England; his first recorded speech was slavery, in behalf of human freedom. In the continued importation of slaves, he foreboded danger to the political and moral interests of the Old Dominion; an increase of the free Anglo-Saxons, he argued, would foster arts and varied agriculture, while a race doomed to abject bondage was of necessity an enemy to social happiness. He painted from ancient history the horrors of servile insurrections. He deprecated the barbarous atrocity of the trade with Africa, and its violation of the equal rights of men created like ourselves in the image of God. "Christianity," thus be spoke in conclusion, "by introducing into Europe the truest principles of universal benevolence and brotherly love, happily abolished civil slavery. Let us who profess the same religion practice its precepts, and, by agreeing to this duty, pay a proper regard to our true interests and to the dictates of justice and humanity." The tax for which Lee raised his voice was carried through the assembly of Virginia; but from England a negative followed every colonial act tending to diminish the slave-trade.
South Carolina, appalled by the great increase of its black population, endeavored by its own laws to restrain importations of slaves, and in like manner came into collision with the same British policy. But a war with the Cherokees weaned its citizens still more from Great Britain.
"I am for war," said Saloue, the young warrior of Estatoe, at a great council of his nation. "The spirits of our murdered brothers still call on us to avenge them; he that will not take up this hatchet and follow me is no better than a woman;" and hostilities were renewed. To reduce the mountaineers, General Amherst, early in 1761, sent about thirteen hundred regulars, under Lieutenant-Colonel James Grant, the same who, in 1758, had been shamefully beaten near Pittsburg. The province added as many more of its own citizens, under the command of Henry Middleton, who counted among his officers Henry Laurens, William Moultrie, and Francis Marion.
The Cherokees were in want of ammunition, and could not resist the invasion. The English, who endured hardships and losses in reaching and crossing the mountains, sojourned for thirty days west of the Alleghanies. They became masters of every foe in the middle settlement, and in the outside towns which lay on another branch of the Tennessee; and drove thousands of their inhabitants to wander among the mountains.
They extended their frontier seventy miles toward the west; and the chiefs were compelled to repair to Charleston, and there, with the royal governor and council, to covenant the peace and friendship which was to last as long as the light of morning should dawn on their villages, or fountains gush from their hillsides. Then all returned to dwell once more in their ancient homes. Around them, nature, with the tranquillity of exhaustless power, renewed her beauty; but for the men of that region the gladdening confidence of their independence in their mountain fastnesses was gone.
In these expeditions to the valley of the Tennessee, Gadsden and Middleton, Moultrie and Marion, were trained to arms. At Pittsburg, the Virginians, as all agreed, had saved Grant from utter ruin; the Carolinians believed his return from their western country was due to provincial courage. The Scottish colonel concealed the wound of his self-love by superciliousness. Resenting his arrogance with scorn, Middleton challenged him, and they met. The challenge was generally censured, for Grant had come to defend the province; but the long-cherished affection of South Carolina for England began to be mingled with disgust and anger.
New York was aroused to opposition, because within six weeks of the resignation of Pitt the independency of the judiciary was struck at throughout all America. On the death of the chief justice of New York, his successor, one Pratt, a Boston lawyer, was appointed at the king’s pleasure, and not during good behavior, as had been done "before the late king’s death." The assembly held the new tenure of judicial power to be inconsistent with American liberty; Monckton, coming in glory from Quebec to enter on the government of New York, before seeking fresh dangers in the West Indies, censured it in the presence of the council; even Colden advised against it. 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 Englishmen 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." But, in November, the board of trade reported to the king against the tenure of good behavior, as "a Pernicious proposition," "subversive of all true policy," "and tending to lessen the just dependence of the colonies upon the government of the mother country." The representation found favor with the king; and, as the first-fruits of the new system, on the ninth of December 1761, the instruction went forth, through Egremont, to all colonial governors, to grant no judicial commissions but during pleasure.
To make the tenure of the judicial office the king’s will was to turn the bench of judges into instruments of the prerogative, and to subject the administration of justice throughout all America to an arbitrary and irresponsible power. The assembly of New York rose up against the encroachment, deeming it a deliberate step toward despotic authority; the standing instruction they resolved should be changed, or they would grant no salary whatever to the judges. "If I cannot be supported with a competent salary," wrote Pratt, in January 1762," the office must be abandoned, and his majesty’s prerogative must suffer." "Why," asked Colden, "should the chief justices of Nova Scotia and Georgia have certain and fixed salaries from the crown, and a chief justice of so considerable a province as this be left to beg his bread of the people?" And he reported to the board of trade the source of opposition in New York, saying: "For some years past three popular lawyers, educated in Connecticut, who have strongly imbibed the independent principles of that country, caluminate the administration in every exercise of the prerogative, and get the applause of the mob by propagating the doctrine that all authority is derived from the people." These "three popular lawyers" were William Livingston, John Morin Scott, and one who afterward turned aside from the career of patriotism, the historian William Smith.
"You adore the Oliverian times," said Bernard to Mayhew, at Boston. "I adore Him alone who is before all times," answered Mayhew; and at the same time avowed his zeal for the principles of "the glorious revolution" of 1688, especially for "the freedom of speech and of writing." The old Puritan strife about prelacy was renewed. Mayhew marshalled public opinion against bishops, while Massachusetts, under the guidance of Otis, dismissed the Episcopalian Bollan, its honest agent, and, intending to select a dissenter who should be able to employ for the protection of its liberties the political influence of the nonconformists in England, it intrusted its affairs to Jasper Mauduit, who, though a dissenter, was connected through his brother, Israel Mauduit, with Jenkinson and Bute, with Mansfield and the king.
The great subject of discontent was the enforcement of the acts of trade by the court of admiralty, where a royalist judge determined questions of property without a jury, on information furnished by crown officers, and derived his own emoluments exclusively from his portion of the forfeitures which he himself had full power to declare. The governor, too, was sure to lean to the side of large seizures; for he by law enjoyed a third of all the fines imposed on goods that were condemned. The legislature, angry that Hutchinson, as chief justice, in defiance of the plain principles of law, should lend himself to the schemes of the crown officers, began to notice how many offices he had accumulated in his hands. Otis, with the authority of Montesquieu, pointed out the mischief of uniting in the same person executive, legislative, and judicial powers; but four or five years passed away before the distinction was much heeded, and in the mean time the judges were punished by a reduction of their salaries. The general writs of assistance, which were clearly illegal, would have been prohibited by a provincial enactment but for the negative of the governor.
The people were impatient of the restrictions on their trade, and began to talk of procuring themselves justice.