JUDICIAL DISSENSION IN THE PREREVOLUTIONARY PERIODrepo.komazawa-u.ac.jp/opac/repository/all/29975/rgs006-13.pdf · －398 － D. Morgan Pierce year. Annual expenditure sank to £14

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JUDICIAL DISSENSION IN THE PREREVOLUTIONARY PERIOD

D. Morgan Pierce

TABLE OF CONTENTS

COLONIAL TAX SOURCING ...................................................................................397WAR DEBT ....................................................................................................................401POSTWAR COLONIAL INFLATION ......................................................................405ECONOMIC CONTRACTION ..................................................................................407CUSTOMS .....................................................................................................................412ADMIRALTY COURT .................................................................................................418JUDICIAL TENURE ....................................................................................................421THE OMNIBUS RECEPTION ACT .........................................................................425REBELLION .................................................................................................................430DECLARATION OF RIGHTS ....................................................................................434BIBLIOGRAPHY .........................................................................................................443

COLONIAL TAX SOURCING

If William Pitt had not implemented two revolutionary strategies, England would have

lost the Seven Years War; he transferred the focus of the war to colonial territory, and he

fi nanced it with defi cit spending. By 1762 Pitt’s war policy had doubled the national debt

to £140 million more than what it had been in 1752. In 1757 the national expenditure

had been £16 million per year; in 1762 national spending had risen to £24 million per

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year. Annual expenditure sank to £14 million per year in 1763 due to the return to peace,

but the existing taxation came short half a million pounds.1 The English tax rate was the

highest in the world; it was impossible to meet payment on national debt by raising taxes

higher than they already were.2

Because Britain made it illegal for British colonials to borrow from European

countries, while England borrowed to the maximum, the colonies, though in recession,

were not in deep debt, as Britain was. In the colonies, in place of debt, the war produced

inflation. Britain was even in debt to the colonies, inasmuch as Britain (sc. Pitt) had

promised the colonies reimbursement for some of the military expense: from 1757 to

1767 Britain had reimbursed £800,000 to the colonies for the expenses of the Seven

Years War.3 Following the war (1770) England had to raise £5 million annually in

taxation merely to pay interest on the debt, without amortization.4 Following victory,

if England had kept the colonial territories without deriving independent revenue from

them, the cost of the colonies would have caused British national bankruptcy. Upon

concluding the peace treaty with France in 1763 Britain had a national debt of £135

m; victory aggravated the fi nancial crisis in that the acquisition of Canada and the Ohio

Valley necessitated new military expenses.5 The post war need to station troops in

the new colonial frontier prevented the termination of war from providing tax relief.6

1 English leadership recognized that it was exigent to derive more revenue from the colonies, because their internal taxation could not be stretched enough to avert bankruptcy: It was necessary “to submit to the bankruptcy of their country, or lay fresh taxes in cold blood.” Cf. R. C. Simmons, The American Colonies: From Settlement to Independence, Longman, 1976, p. 293.2 Cf. Edwin J. Perkins, The Economy of Colonial America, Columbia University Press, 1980, p. 129.3 Cf. Edwin J. Perkins, The Economy of Colonial America, Columbia University Press, 1980, p. 131.4 Cf. C. W. Wright, Economic History of the United States, McGraw-Hill, 1949, p. 135.5 Cf. Edwin J. Perkins, The Economy of Colonial America, Columbia University Press, 1980, p. 129.6 Cf. Kevin Phillips, The Cousins’ Wars: Religion, Politics, and the Triumph of Anglo-America, Basic Books, 1999, p. 84.

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Britain’s Royal Proclamation of 1763 prohibited the colonists from moving west of the

Appalachians; although complicated with other motives, the motive for its precipitancy

was to forestall further expense that would have ensued from Indian wars.

Pitt had increased the deficit despite strident opposition; if the government did not

manage to overcome the immediate fi nancial crisis the independent Parliament members

of two sectors would abandon their tenuous allegiance; government would fall. The

present land tax, driven by war cost, had ascended to 4s/£.7 The land tax weighed only

on the aristocracy and gentry; thus it divided the aristocracy against the mercantile class,

which remained unaffected by land tax. Internal hostility within the House of Commons

oriented the government to replace the colonial mercantile regulations, so favorable to

English companies, with direct taxation. The Navigation Laws derived English national

wealth indirectly, through taxation on the profits of the British companies which the

Navigation Laws promoted; by replacing the mercantile system with direct taxation of

the colonies, the English mercantile class would suffer a setback, and the revenue of the

colonies would go directly to government. The urgency was to diminish the English land

tax by supplementing it with colonial taxation. Previously to the French and Indian War,

taxation of colonies was confi ned to regulation of trade, but subsequently all taxation was

dedicated to raising a British revenue.8

Following the peace treaty England contrived for the American territorial expenses to

be entirely self-fi nanced by the American colonies.9 Leaving the collection of revenue to

the indirect mercantilist system would have delayed the fi nancial relief too long to resolve

the urgent political confrontation. To save its incumbency, the government determined

to move as much burden as possible to a new arrangement of colonial taxation. The

7 Cf. R. C. Simmons, The American Colonies: From Settlement to Independence, Longman, 1976, p. 294.8 Cf. Smith, Howard R.; Economic History of the United States, The Ronald Press Company, 1955, p. 56.9 Cf. Gunderson, Gerald; A New Economic History of America, McGraw-Hill Book Company, 1976, p. 83.

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minimal criterion for the basic value of colonial possession would consist not only in the

colony’s capacity to pay for its own maintenance but also to contribute revenue to the

total imperial wealth. This had not been unconditionally true; it had always been unclear

in the early colonial era whether the continental Atlantic colonies produced as much as

they cost, but they were nonetheless important for preempting or displacing colonial

expansion of rival nations. It was obscure whether the English monopoly on colonial

trade achieved a minimal fi nancial return, but under the conditions following the Seven

Years War it had become plausible that the colonies would produce more wealth for

England than they had heretofore produced under monopoly legislation.

England presumed that the colonies should provide tax revenue for the English

war debt and the continuing defense and administration of the colonial territories.

The colonists might have been quite amenable to this but for two objections. First, the

colonials had been prohibited from settlement in the new territory; they were being made

to pay for something which they were not allowed to have. If the British tax revenue

had been collected as a form of rent on the new territory, for instance as a quitrent, or as

revenue from land purchase, the colonies would have cooperated. But Britain wanted

to separate collection of the needed tax revenue from any pretense the colonists might

uphold as a right to settle the new territories. Second, the colonists abhorred a standing

army for the same reason as the British did: fear of tyranny. If the colonists had been

encouraged to defend the territory with a colonial militia, cooperation would have been

possible. Instead, England insisted on installation of its own standing army, and used

the cost of the army as justifi cation for colonial taxation. In the event, the British army

was quite useless for defending the frontier, as the colonists had insistently predicted it

would be (Indians don’t march in formation), and in quick order the British army was

withdrawn from the territories to stations in the colonies, where they would be quite

useful for colonial repression.

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WAR DEBT

Very peculiarly, in the period following 1660 tobacco planters never fell into debt,

even though agricultural crops were immature, sporadic and remote from their market.

Yet, around 1740, when the tobacco market should have matured and become stable,

there developed a great debt in the southern colonies that increased constantly until the

Revolutionary War.10 The curiosity lodges in why the southern plantations stayed out of

debt when their economy was new and unstable, but got deeply in debt when the same

economy reached plenitude. Tobacco prices increased as the time of the Revolutionary

War approached; nevertheless, debt accelerated most quickly in exactly the same years.

Why?

In an enclosed economy the currency automatically adjusts itself in the direction

of market integration: price uniformity and wage uniformity. But this was exactly an

advantage which the colonies did not enjoy. Wages were far higher in the colonies than in

Britain, since earliest colonization; prices of imported goods were generally two to three

times higher than in England. Superfi cially, infl ation was due to disproportion between

what southern colonies bought from Britain and what they sold; the southern plantations

bought more than they could afford.11 The English merchants had happily coined the idea

that the colonists were profl igate. Strong demand for British goods induced escalation

of prices; the merchants’ anxiety over the stability of colonial money escalated prices.

British merchants had improvised a scheme by which southern colonists could buy on

credit, by mortgaging the revenue from their future crops. This arrangement, however,

buckled against merchant interests; the merchants now had to worry whether the currency

in which they would be paid would have the same value as when they extended the

10 Cf. Dorfman, Joseph; The Economic Mind in American Civilization: 1606-1865, Volume One, George G. Harrap & Co. Ltd., 1947, p. 143.11 Evans, Emory G.; Planter Indebtedness and the Coming of the Revolution in Virginia, The William and Mary Quarterly, third series, 19, 1962, p. 514.

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credit.

The scarcity of specie constituted fundamental pressure towards infl ation of colonial

currency. Scarcity should normally cause defl ation; infl ation was more a consequence of

the reaction to scarcity; currency was produced in paper, but there was no correspondent

security for the paper. Colonies debased the currency by making new issues to satisfy

debts; England prohibited new paper issues and other inflationary tactics to keep the

colonial currency at the same value as it had been when the debts were contracted. In

1755 The Virginia assembly, at the prompting of the Board of Trade, legislated that the

courts should continually alter the legal rate of currency exchange to the actual rate of

exchange so as to prevent payment of debts with infl ated currency; this would reassure

those British merchants that they would be repaid in full despite currency inflation

within the credit period. However, during the Seven Years War, Virginia, on the behest

of Parliament, had to issue £440,000 of paper currency to facilitate British demands for

military support. The Virginia enactment aimed to protect British creditors by offi cially

recognizing the devaluation of colonial currency vis-à-vis pounds sterling, but the

preponderant motive of England’s permission of the Virginia paper money issue had been

to foist on Virginia the payment of British war expenses from 1755 to 1763. The two

intentions were incongruous. The enactment started an infl ationary trend, according to

plan, which capacitated the Virginia fi nance of the war in the short term but aggravated

infl ation in the long term. The British merchants were frightened that, despite the 1755

legislation, Virginia might repay the merchants what was nominally owed, but in a

currency much cheaper than the currency in which credit had been extended. The British

merchants then demanded of Parliament that the colonists pay their debts, not at nominal

value, but at an exchange rate dictated by the merchants, or demanded the right of

merchants to refuse payment in colonial currency.12

The English merchants conveniently imputed inflation to excessive issues of paper

12 Evans, Emory G.; Planter Indebtedness and the Coming of the Revolution in Virginia, The William and Mary Quarterly, third series, 19, 1962, p. 514.

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money rather than to Britain’s defi cit spending in the ongoing war; rather, Britain had

made the colonies pay for the war, on a commitment to reimburse the colonies. In fi nal

effect, colonies paid the immediate expenses, which resulted in subsequent infl ation when

it turned out that no capital was backing the paper notes. The merchants’ explanation

was very welcome to British government since it exonerated their defi cit spending from

responsibility for colonial infl ation. The merchants’ demand for control of the exchange

rate had been defended on the ground that recourse to paper money had been the cause of

colonial infl ation; this was not true, but it was in the interest of British merchants that this

explanation gain credence in Parliament. Parliament obliged the mercantile complaint by

prohibiting colonials from paying any British debt in colonial currency. The subsequent

war debt continued to inflate colonial currency. Although English debts could not be

paid in colonial currency, its rapid depreciation instigated the English merchants next to

call for the abolition of colonial currency, still fearing that repayment of debt would be

made at less than the real value of the debt. Following the protest that continual currency

depreciation impaired full payment of British debts, Parliament’s ensuing currency acts

prohibited the colonies from making any issues of paper money whatever.13

Debt was not an abstract concern; failure to pay English debt led to business and land

foreclosures; merely to retain the capital essential to continue an enterprise by which

to pay debt, colonists had to forestall insolvency in the face of the immediate debt

obligations.14 During the Seven Years War England had transacted such an enormous

quantity of goods on credit that the colonial economy became highly sensitive to credit

cycles in England. If English merchants faced peremptory domestic or foreign national

credit obligations, they were prone to call in accumulated credit they had extended to the

colonists. English business contractions in 1762 and 1772 compelled British creditors

13 Evans, Emory G.; Planter Indebtedness and the Coming of the Revolution in Virginia, The Wil-liam and Mary Quarterly, third series, 19, 1962, p. 514.14 The colonies regularly engaged in piracy, smuggling, and illegal trading to acquire the specie they needed for English debt, but which they had no unprohibited means of acquiring. Cf. Louis M. Hacker; The Triumph of American Capitalism, Columbia University Press, 1947, p. 155.

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to recall their colonial assets to maintain their solvency in England; sudden calls for

payment precipitated bankruptcy among the colonial merchants.15 The Currency Act of

1752 had established that land, slaves, and other property were liable to confiscation

for overdue debt obligations to English creditors. Since most land and slaves were

heavily mortgaged, the amount of equity in property subject to confi scation was small;

a creditor would have to conclude confi scation on an extremely short margin of debt if

the confi scation was to recoup his credit.16 Confi scation took place almost immediately

after a call on a debt. The prohibition of paper currency had intended to protect English

creditors from payment with infl ated money, which, although nominally the same value

as the debt, was worth much less in real value. The precipitate time limits within which

confi scation could salvage debt induced a great deal of poor judgment. The confi scated

plantation deprived the former owner of any means whatever to pay the debt even in the

future, and the confi scated plantation could neither be easily auctioned to recoup the cash

value of the bad debt, nor could it be productively farmed.

The colonies did not have specie to pay their debts, and their currency was infl ated.

Parliament attributed inflation in the colonial currencies to fraud; the colonists had

allegedly inflated their currencies to elude credit obligations they had to British

merchants.17 Colonists replied that the founding colonies had not been financed at

government, but private, expense; they averred that the colonial debt and paper infl ation

were the direct result of their participation in the Seven Years War, a war with essentially

European motives that the English had deliberately dislocated from Europe to North

15 Cf. Gary B. Nash, The Urban Crucible: Social Change, Political Consciousness, and the Origins of the American Revolution, Harvard University Press, 1979, p. 317.16 Cf. Faulkner Harold Underwood; American Economic History, Harper & Brothers Publishers, 1949, p. 118.17 After the previous measures of the Board of Trade failed to arrest inflation and over-issue, Parliament passed the 1764 Currency Act; it prohibited the use of paper currency as legal tender under any conditions, in any colony. Its purpose was to protect the real value of English debt by making pounds sterling the only possible medium for repayment of debt. Cf. Louis M. Hacker; The Triumph of American Capitalism, Columbia University Press, 1947, p. 155

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American territory.18

POSTWAR COLONIAL INFLATION

The Seven Years War was a prosperous period for the northern Atlantic colonies.

British government preferred British over colonial companies, but the colonials were

needed by the British companies to acquire the supplies for their war provisions contracts.

The transactions of war material necessitated paper money, however.19

During the Seven Years War, Parliament prohibited the colonies from exporting

agricultural produce.20 Because the colonies could not sell food along their more remote

trade routes, the excess of food bottled up in colonial territory forced the colonials to

sell food to the British army at lower than market prices. Although this had the desired

effect of fi nancing the army cheaply, it also had the undesirable side effect of inducing

the farmers and merchants to sell food to the French, thus facilitating longer French

endurance in the war. Britain subsequently one-sidedly castigated the colonies for this

disloyalty, which motivated the punitive British legislation on the colonies after the war,

but the British never acknowledged that their own laws had stimulated this side effect.

British resentment was perhaps the motivational force that ultimately caused colonial

infl ation.

It was not issue of paper money in the 1750s and 1760s that inflated colonial

currency, but the British-colonial trade imbalance. But why should there have been a

trade imbalance? Why did the tobacco production fail to be equal in value to colonial

importation of British goods? Common sense might prompt one to suppose that tobacco

received the payment that it was worth; the world market dictates what the value of a

product can be, so the only conclusion could be that the colonists bought more goods than

18 Cf. Newell, Margaret Ellen; From Dependency to Independence, Cornell University Press, 1998, p. 276.19 Cf. Shy, John; The American Colonies in War and Revolution, 1748-1783, p. 306.20 Pencak, William; Warfare And Political Change In Mid-Eighteenth Century Massachusetts, The Journal Of Imperial And Commonwealth History, 8, 1980, p. 63.

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they produced. However, the southern colonies had developed a tobacco monoculture

because no alternative production could be as remunerative. How could a highly intensive

monoculture of the region’s most profi table product fail to produce suffi cient revenue for

the region’s basic needs? Land was overabundant, cheap labor was in full supply, and the

colonies produced only that than which nothing could be more profi table. One must also

take into account that this criticism of colonial prodigality, assuming it was true, could

apply only to a tiny portion of the colonial population, namely the plantation owners;

could a couple dozen fi rst families buy enough carriages to bring an otherwise fair trade

utterly out of balance? The slave labor which dominated southern plantation accrued less

cost than any other form of labor. It is unintuitive to suppose that an economic region

produced something in the most efficient manner, which was unique and in demand

throughout Europe, and yet not be able to conduct an acceptable living without recourse

to long term debt. But the plantations and slave ownership were in large part already

mortgaged to the British merchants, in exchange for credit against colonial debt.

The colonies were forbidden to sell their products directly to European countries; all

production was sold only to England, whence most of the colonial produce was sold

on the continent. The English transfer did not merely facilitate an English import tax;

more crucially, it meant that tobacco was sold at world market prices, but the fi nal profi t

went entirely to the English merchants. The artifi ciality of the English transfer enabled

England to deprive the colonies of the benefi t of world market prices; colonists were paid

prices dictated by the English, and if colonial tobacco was not sold to England it was sold

to no one. This was the same subterfuge that the English had implemented in India.21 At

a time when Indian peasants were laboring and producing more intensively than ever

21 This is not quite true. In the case of colonial tobacco, the product was fi rst landed and taxed in England. British merchants then shipped and sold it in continental Europe. The merchants took a commission for shipment and sale of the tobacco. Colonials could not sell their tobacco in Europe, but the profi ts of the English commission were given to the colonials. Often the taxes and commissions consumed total profi ts, so that the colonial planters ended up in debt as a result of having sold their tobacco.

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before, they were more impoverished than ever before. The Indian peasant received an

infi nitesimal recompense for his product, which was sold in England at tens of times of

the cost of its production, and the profi ts came only to the English agents. The idea of the

Commonwealth had been that all members of the British Empire would mutually benefi t

by their exclusive trade relations, but in practice the archetype was India.

The Atlantic colonies would naturally favor paper money emissions because of the

prospect that they could pay off their British debts in currency that was worth less than

at the time credit was taken. Five sixths of colonial debt, in total about £5 million, had

been contracted in the tobacco colonies; this explains why the non-puritanical southern

colonies, as at no time before or after, suddenly became so cooperative with the deep

traditional hostility of puritan New England against Britain. Of course the British

merchants did not fail to notice that the colonists would have liked to settle their debts

in depreciated currency. The English credit had been given with very heavy prophylactic

interest rates to defend against this possibility. The English creditors ceased to extend

credit from about 1763, when colonial money vanished in consequence of the end of the

Seven Years War.22

ECONOMIC CONTRACTION

The Currency Laws apparently protected the English merchants, but monetary

constraint simultaneously generated intolerable problems for the colonial economy.

Benjamin Franklin had originally proposed that the institution of a land bank might

be used to solve the colonial money shortage. The recession could not have been

surmounted, absurdly, by giving everybody more money, but money shortage had a more

realistic connotation; when a medium of exchange is not in suffi cient circulation, business

transactions fail to take place, which otherwise would have; because there is no money

to transact business, the velocity of exchange decreases. The scarcity of money had not

22 Cf. Louis M. Hacker; The Triumph of American Capitalism, Columbia University Press, 1947, p. 132.

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taken place, as the English would present it, from exorbitant luxury purchase of English

imports. Neither had the British trade advantage caused the colonial money scarcity. It

was the reverse of this thought; the British trade circuit had become unprofi table to the

colonies because of the colonial money scarcity. Colonial labor had come to be paid in

tokens rather than in legal tender, of which there was none. Payment in tokens contracted

the liberty of consumption; only certain shops, but not others, would accept payment

in tokens. Since wages in tokens could be discharged only in a form of barter, colonials

tended to buy more imported goods than they would have preferred. Saving was

impossible because saving in tokens was insecure. The internal barter in tokens in turn

raised the price of labor, which raised the price of colonial products. The increased prices

of colonial products in turn killed their vendibility in export markets.23

It was hoped that a private land bank would provide enough liquidity by which the

colonies could retrieve a favorable trade balance. When South Carolina issued bills of

legal tender, they did not achieve the desired effect of solving monetary depreciation. The

value of public legal tender bills depended on the merchants and government offi cials

who dealt in them.24 Such an organization did not take profi t from monetary circulation,

and were unimpassioned in maintaining the value of the money against the forces of

depreciation; infl ation continued. Observing the results in South Carolina, the colonies

strongly preferred to establish a currency through a private rather than a municipal land

bank, since a private bank, dependent on profi t, would be careful to prevent depreciation

between the times of lending and receiving money.

The 1764 Currency Act, forbidding all colonies from issuing or payment in paper

currency for either private for public debts, responded to the English merchant’s call

to protect pound sterling debts, particularly in connection with the Virginia tobacco

23 Cf. Dorfman, Joseph; The Economic Mind in American Civilization: 1606-1865, Volume One, George G. Harrap & Co. Ltd., 1947, p. 143.24 Cf. Dorfman, Joseph; The Economic Mind in American Civilization: 1606-1865, Volume One, George G. Harrap & Co. Ltd., 1947, p. 148.

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trade.25 The Act supervened upon a time when the colonies were hurt by severe business

contraction pursuant to the cessation of the war. The colonial bankruptcy rate doubled;

just as the British creditors had invoked the legislation particularly with the tobacco

planters in mind, the effect of the remedial legislation was to induce the greatest incidence

of bankruptcy, ever, in the southern colonies. Colonists who could not meet their debt

obligations were thrown into debtor’s prison; the Currency Act inflamed distrust of

England.26 Finally, in 1773, Parliament revised the law and permitted the colonies to

declare their currency issues legal tender in all public payments. The ban on paper money

settlements of private debts remained in force.27

England placed more restraints on colonial manufacture, and more colonial products

were enumerated. Beyond the Hat Act and Iron Act, several newly issue laws prohibited

tools for various manufactures, and which prohibited the emigration of skilled artisans

to the colonies.28 In 1774, in the same year as the Quebec Act, Parliament issued laws

prohibiting exportation from England any tools required for the manufacture of cotton,

woolen, linen, or silk cloth.29 These laws were intended to stifle the possibility that

the colonies might compete against Britain products on the world market, or that the

colonies might cease to buy dry goods of English manufacture. The laws were strongly

reminiscent of the trade restrictions England had imposed on Ireland to cripple Ireland’s

competitive economic growth. Sixteen of Boston’s major merchants prepared to leave

Boston because of the tax burden;30 imperial taxation had reduced profits to the point

25 Cf. Channing, A History of the United States, Volume III, The American Revolution, 1761-1789, p. 37.26 Cf. Gary B. Nash, The Urban Crucible: Social Change, Political Consciousness, and the Origins of the American Revolution, Harvard University Press, 1979, p. 318.27 Cf. Edwin J. Perkins, The Economy of Colonial America, Columbia University Press, 1980, p. 115.28 Cf. Channing, A History of the United States, Volume III, The American Revolution, 1761-1789, p. 141.29 Cf. Channing, A History of the United States, Volume III, The American Revolution, 1761-1789, p. 141.

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at which it would be irrational to persist in business activity. Government revenue can

increase from taxation only up to the limit at which profi tability still makes effort and risk

worthwhile; England had very recently become extremely familiar with this limit in its

domestic economy, but it perhaps did not seem as important in connection with a colonial

economy. Although domestic English taxation thereupon contained itself within the limits

of rationality, perhaps it was not irrational to overtax a region whose business prosperity

was deplored. Expiration of colonial manufacturing would create more domestic

employment within England.

In effect the Revenue Act intentionally rendered colonial economy incapable of its

inherent trend towards independence. Both the Revenue Act of 1764 and the Stamp

Act of 1765 required that duties and taxes be paid in specie, while at the same time

any recourse by which the colonies could acquire specie was made illegal. Virginia

had closed its courts from lack of stamps; any court action without the proper stamps

was invalid. This was to have social evolutionary implications. British merchants, thus

unable to collect colonial debts, pressured British government to lift the Stamp Act so

that they could collect.31 The results for the colonists were so splendid that they closed

the courts again in 1774, hoping that the English merchants would pressure Parliament

to repeal the Intolerable Acts. Success in any peaceful protest movement depends vitally

on its ability to enlist the sympathy of third parties; the solidarity of the victims is never

enough to effect reform. In the crisis of the Stamp Act the protest had been able to engage

the sympathy of the English merchants, who were losing business. In 1774 the English

merchants were indifferent to the protest, because they were temporarily enjoying

business prosperity from European trade; since no other third party was aroused, the

1774 gambit failed.

30 Pencak, William; Warfare And Political Change In Mid-Eighteenth Century Massachusetts, The Journal Of Imperial And Commonwealth History, 8, 1980, p. 63.31 Evans, Emory G.; Planter Indebtedness and the Coming of the Revolution in Virginia, The William and Mary Quarterly, third series, 19, 1962, p. 527.

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Deprived of specie and forbidden to substitute specie with paper money, the colonies

had no means of economic transaction. Enumeration eventually comprised virtually all

colonial products. By prohibiting foreign exportation, enumeration effectively narrowed

the market for colonial goods; when colonial produce was prevented from reaching its

natural market, an artifi cial excess of the product accumulated in the market in which

it was allowed, and surplus induced price depreciation. Enumeration, having forced

colonial capital from manufacture into raw materials, forced colonies to desist from

production or manufacture of what was intrinsically more profi table, to concentration on

what was intrinsically less profi table.

In addition to prohibition of colonial paper money issues, the Revenue Act imposed a

high duty on French sugar. The same Act prohibited importation of French rum, without

which it would be impossible for the colonies to continue their triangular trade. In 1764

French and other foreign products were effectively barred from the colonial market by

a new prohibitive tax at the colonial port. High duties were imposed on wine, fruits, and

oil imported into the colonies directly from Spain, Portugal, and the Azores; the same

products were allowed into the colonies at low customs duties if those products were

instead purchased from English fi rms.32 In 1765 Parliament rescinded the drawbacks,

i.e. remissions of customs duty on foreign goods in transit to the colonies; this made all

goods imported into the colonies more expensive, while maintaining the illegality of

importing the same goods from where they were cheaper. In 1766 Parliament legislated

that all non-enumerated goods that had been shipped to European destinations north of

Cape Finisterre now be unloaded in England for transshipment; this subjected colonial

exports to a new import tax and transferred the last leg of the shipment business to

English merchants.

32 Bounties were awarded for production of hemp and fl ax. High customs duties were placed on importation of indigo. Lumber was enumerated. Pig iron, bar iron, hides, skins, potash, and pearl ash were enumerated. Cf. Louis M. Hacker; The Triumph of American Capitalism, Columbia University Press, 1947, p. 162.

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The restriction of agricultural surplus from remote markets compressed the prices of

colonial agriculture at the same time as British taxation raised its costs of supply. The

Currency Act prevented colonial debtors from obtaining relief from land bank loans;

instead it compelled high colonial taxation in order to make immediate payment for the

redemption of ₤750,000 in paper money issued for the sake of British war debts. The

resulting currency contraction both increased the buying power of the currency and made

currency scarce, so that debtors who had borrowed when currency was relatively infl ated

paid back what was nominally the same amount, but which was much more difficult

to obtain, and much higher in purchasing power. Farmers who lost their farms from

foreclosure were unable to obtain new farms. Interestingly, Townshend had considered

a pan-colonial land-bank, following the initiative of Benjamin Franklin, with the idea of

using the interest revenues as a substitute for the revenue forfeited by repeal of the 1765

Stamp Act.33 He abandoned this idea; it is plausible that he rejected the idea because

it would have benefi ted the colonies, at a time when his main interest was to debilitate

them. The Land Ordinance of 1774 forbade settlement in the acquired territories, with

the consequence that great colonial landlords benefited from the inflated prices of the

reserved old land in their possession, while ordinary farmers were displaced. The British

quitrents and the compulsory tax for the Anglican Church further alienated the colonists.34

CUSTOMS

By the fortune of benign neglect, during the Walpole Era, the colonies had been

immune to what was perceived as rampant corruption in the mother country; whether

or not the ground was specifi cally religious, the English colonists had migrated to the

colonies because of some complaint or another about English society. As the English

33 Cf. Edwin J. Perkins, The Economy of Colonial America, Columbia University Press, 1980, p. 135.34 Cf. Curtis P. Nettles, The Roots of American Civilization, George Allen & Unwin LTD, 1963, p. 622.

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aristocracy had never settled in the colonies, England was quite slow in perceiving how

the colonies might service British social corruption. When following the Seven Years

War England attempted to seek colonial emolument by taxation, she began to send hordes

of customs offi cials and other royal agents to the colonies; it was feared that England

might now supplant democratic procedures with autocracy; the threat was amplifi ed by

the perception that the power holders were the same group of people whom the colonists

regarded as corrupt.35

To understand the customs dispute it would be beneficial to take a momentary

consideration of contemporary events in India. The English agents in India were

employees of the Company, not of the British government; they had at fi rst no territorial,

administrative agency except within four trading posts. When the British-Indian wars

brought most of India within British control, it was these same traders, not British civil

servants, who took over the total administration and tax collection of India.36

The same Company offi cials built up enormous fortunes from Indian administration,

unsupervised by British government, and with the revenue bought a large enough

presence in parliamentary seats to dictate the government’s lenient oversight of the Indian

business. Like the American customs officials and royal agents, these people were in

the status of poor cousins; the rule of primogeniture created multitudes of second sons

who, since they would not inherit the family wealth, were doomed either not to live in

the aristocratic class for which they had been educated, or to live as dependents on their

older brothers. Company employment in India gave such individuals the only chance

they would ever have to build an independent fortune and live in the aristocratic circle on

the basis of their own wealth.37 British government, whose personnel was also composed

of aristocrats, was not inclined to frustrate this solitary chance of their sibling to save

35 Cf. Edmund S. Morgan, The Challenge of the American Revolution, W.W. Norton & Company, 1976, p. 79.36 The Charter of the Company contained no instructions from the British government for governance of India; no parliamentary statutes regulated the Company’s administration of India. Cf. Basil Williams, F.B.A., The Whig Supremacy 1714-1760, Oxford, 1962, p. 331.

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themselves.

The British agents were royally appointed, but the British placed in these posts were

the same as those employed by the East India Company, and they were equally desperate

to make full use of their one and only opportunity to accumulate a fortune commensurate

with their birth. The American colonies were not as propitious for the extortion of private

fortunes. The extortions of the customs service per se were a minor part of the affl iction.

The colonial self-governments were inexpensive; as the English aristocracy had never

migrated to the American colonies, the common people had not been forced to fi nance

the aristocratic existence as had been the case in England. This is what delayed English

exploitation for a century. English society did create an excess of dispossessed aristocratic

sibling, however, and the East India Company could not absorb all of them. In the pre-

Revolutionary years the alterations of the customs service created wide openings for

placeholders to fl ood into the colonies.38

The system of patronage was not regarded as corrupt by the English; bureaucracies

did not have entrance examinations or prerequisite specialized education, and patronage

provided a sort of familiarity by which to force the aristocracy into conformity with royal

or parliamentary authority. An offi ce holder who had the means to make appointments

could count on the eager compliance of his juniors, because they would lose appointment

if the senior were frustrated. Any senior was in turn the junior of a higher official, so

that the lower senior would order his juniors to carry out whatever the higher official

demanded of him. The chain of seniority ended only with the King, so that, ideally,

the whole English population would be forced to conform to whatever was the King’s

pleasure. The patronage system was however fragmented, inasmuch as certain persons

might be suffi ciently wealthy to maintain a patronage tree independent of the royal tree.

37 The grandfather of William Pitt, Governor Pitt, is the outstanding example of an agent having made a fortune in a questionable manner and then returning to England and planting himself in the House of Commons. Cf. Basil Williams, F.B.A., The Whig Supremacy 1714-1760, Oxford, 1962, p. 331.38 ESM15.

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This was initially possible because political parties were regarded as a form of decay, so

that the effective political parties did not draw up a formal program, instead pretending

not to exist. When British political parties did undeniably harden, any party that was out

of favor would be careful to call its opposition loyal opposition, in the King’s interest,

and promote the illusion that its patronage tree was really a part of the King’s patronage.

The system of patronage was highly successful in that practically every commoner, and

certainly without doubt every enfranchised commoner, was made to have an interest

in patronage; the lowest farmer might occupy a position as a constable, for instance,

and thereby have the tail end of a line of patronage benefi ts. British patronage involved

common people in the welfare of the State in a way that French peasants never were.

English franchise was itself an outgrowth of patronage. Representation in Parliament

was itself a kind of patronage, which the King used to stack the House of Commons.

Although an MP was ostensibly produced by restricted popular election, candidacy was

expensive, ordinary voters were bribed by small payments of alcohol or money, and

either the resident landlord or the King was the effective power for the outcome of any

election, conducted as voting was without secret ballot and fi nanced by petty bribery. It

was ultimately the cost of patronage in election processes that eliminated any possibility

of authentic regional representation, or authentic popular representation. The control of

employment by patronage was detrimental inasmuch as it precluded both popular choice

and selection by professional criteria.39

In England patronage could never have been abolished because of its thorough

permeation of society, but, foolishly, England never paid attention to make patronage

take deep root in the colonies. Probably this was due to England’s evasion of the colonial

costs, which they wanted to have paid by the colonies themselves; if England had

39 The Governor of Massachussetts, Francis Bernard, remarked that a government minister would never deprive himself of the power he had through patronage, despite the social advantages in its abolition. Cf. Channing, A History of the United States, Volume III, The American Revolution, 1761-1789, p.81.

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instituted an English civil service in the colonies, the Crown would have felt obliged to

pay a colonial civil list, before revenue for the payment could be extracted by taxation

of the colonies. Since the colonies were in the jurisdiction of the King, not Parliament, a

colonial civil list could not have been paid directly from British taxation. A colonial civil

list would have had to be paid from the King through the Privy Council, and the revenue

for this would have had to be paid from the annual allowance vouchsafed to the King

from Parliament. This allowance was global; Parliament did not calculate the total sum

from particulars, and the King was left to expend this sum as he saw fi t. Since Parliament

would not be moved to consider the additional expense of a colonial civil list, Parliament

would not incline to expand the allowance on the plea that the King’s allowance now

included a colonial civil list. In effect, the King would lose whatever was paid to the

colonies for the civil list; a colonial civil list would directly diminish the total royal

revenue without compensation. The need for a colonial civil list was forever discretely

overlooked.

In consequence of this neglect the governors and other royal agents could never

exert enough power to control the colonial assemblies. Leaders of the assemblies did

not depend on the governor for their positions or salaries. Because government office

from patronage was not at the prerogative of the governor, the colonials could flout

the governor’s demands with impunity. It was very largely because the culture of

patronage had not been implanted in the colonies that the English completely failed to

understand colonial recalcitrance. Patronage had made obsequiousness so universal in

England that the English could no longer understand how they would behave if they

were not obsequious. The totality of voting Englishmen, even beyond that of non-voting

commoners, had some sort of government offi ce, what though it may have been royal rat-

catcher. Although this form of social organization of the commoners was very different

from that in France, before one goes into rapture over English democracy one should

consider how effectively this scheme kept the common people in conformity with the

royal will. Patronage did not exist to motivate colonial behavior; whereas the English

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interpreted colonial behavior to be uncivilized, they did not understand that dependence

on patronage was the only reason why the English behaved deferentially.

The colonials on their part were proud of the simplicity of their governments; the

British civil service in the colonies would naturally tend towards the destruction of

colonial government by colonials, first because colonial governments would find

themselves in opposition to the activities of the civil service, and secondly because

direct British government of the colonies would open up more place-holdings for the

dispossessed sibling. There was an obstacle on the side of England, however. The

colonies were the property of the King, not Parliament, and all appointments would pass

through the Privy Council, not parliamentary committees. Exactly as with patronage

in India, Parliament feared that the opportunities of patronage in the colonies might

give the King overwhelming power to stack the House of Commons through the

obligations owed to him for colonial appointment; this could upturn the ascendancy

of Parliament and return the King to a new position of absolutism. Of course the King

could not manipulate the election of Parliamentary members in the colonies, as he could

in the English boroughs; however, the aristocratic families of those whom the King

appointed to colonial administration would be obligated to him. This consideration was

probably a major factor for why so many of the leading Whig parliamentarians, Burke,

Pitt, Richmond, etc. supported colonial resistance to the recent hostile parliamentary

legislation against the colonies.40

The East India Company paid such agents a nominal pittance, but allowed them to act

in private trading; it was reasoned that it was better to allow private trading than to spend

a sizable capital on salaries for their employment. Agents for the British government

in the colonies did not have the same opportunity for private trading, but they did have

opportunity in the customs regulations, and were doubtlessly looking forward to a time

when they would administer colonial tax collection; it was when the British agents in

40 Cf. Samuel Eliot Morison, The Oxford History of the American People, Volume One, Meridian Books, 1994, p. 268.

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D. Morgan Pierce

India administered faxation that they became emormoosly wealthy. The British agents in

India, not having had any education for the offi ces they exercised, became so immoderate

that the home government was fi nally unable to disregard the abuse of the Indians; the

Company, and afterwards British government, intervened to rectify the corruption, but

neither had reputable success.

ADMIRALTY COURT

Benjamin Franklin had been sent to England originally to lobby for the replacement

of the proprietary Pennsylvania government with direct royal government; his own

constituency in Pennsylvania had a positive impression of British government. It was not

inconsistent, therefore, when Franklin proposed a British civil service for the colonies,

and recommended the English Stamp Tax for the colonies as a way to fi nance it; Franklin

did not start his English career with any suspicion or resentment of England.

Franklin was unaware of the pan-colonial alarm that his fellow Bostonian, Samuel

Adams, would successfully instigate over this British intrusion; it is highly probable

that without Samuel Adams’ agitation, the colonies might have sleepily accepted the

stamp tax. The Declaratory Act which followed the repeal of the Stamp Act, 1766, was

a revision of the 1494 Poyning’s Law, which had unconditionally subordinated the Irish

Parliament to that of Britain: to wit, no statute passed by the Irish Parliament for Ireland

was valid until after it received approval of British Parliament. A revision of Poyning’s

Law was legislated for Ireland in 1720, and this revision was now to be applicable to

the Atlantic colonies.41 The colonists were not as alarmed at the Declaratory Act as they

ought to have been, because they knew that since its passage under George I for Ireland in

1720, Parliament had never attempted to tax Ireland.42 The paper money in Pennsylvania,

41 Cf. Bartlett, Thomas; ‘This famous island set in a Virginian sea’: Ireland in the British Empire, 1690-1801, p. 262.42 Morgan, Edmund S.; Colonial Ideas of Parliamentary Power, 1764-1766, The William and Mary Quarterly, third series, 5, 1948, p. 329.

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which had proved its success since 1620, was to be abolished. The unnegotiated taxes,

the Admiralty Courts, and the predatory customs ships were horrifying the colonies at the

same time as Franklin was promoting royal government of the colonies.43

The Act of 1696 authorized the use of Admiralty Court to supplant colonial courts;

the British colonial agents had turned the customs service into racketeering. The Gaspee,

notorious for its illegitimate seizures, was operated by the customs service; the Boston

Massacre was an incident associated with the customs service, at the location of its

headquarters.44 The customs offi cers combed the ocean for colonial ships and arrested

them on infractions of the Navigation Acts, but these arrests were largely contrived.

Colonial ships were required to carry documentation, and were now required to buy

expensive bonds in the case that smuggling seemed possible. A colonial ship could

be impounded for nothing more than clerical errors in the documentation, even when

enumerated goods were not smuggled. Offenses were to be tried at the vice-admiralty

court in Halifax, Nova Scotia, a location far removed from local support that the shipper

might otherwise receive from his colony.45 Military ships and personnel were authorized

to help customs agents in the seizure of ships. The customs agent who made the arrest

received one third of the total value of the ship and its contents. An Admiralty Court

judge was English, not colonial, and there was no jury; he received one third of the total

value of the ship and its contents. The Admiralty judge received no salary from British

government; his remuneration was from the fee for the court session and the 1/3 share in

the spoils of the ship.46 The judge’s decision could not be appealed.

If, quite improbably, a court decision went in favor of the defendant, he could not sue

the customs agent for the damages arising from false arrest, and the defendant had to

43 Cf. Gary B. Nash, The Urban Crucible: Social Change, Political Consciousness, and the Origins of the American Revolution, Harvard University Press, 1979, p. 285.44 Morgan, Edmund S.; The Puritan Ethic and the American Revolution, The William and Mary Quarterly, third series, 24, 1967, p. 15.45 CF. R. C. Simmons, The American Colonies: From Settlement to Independence, Longman, 1976, p. 297.

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retrieve his ship at his own expense. Even if the defendant was found innocent, he could

not retrieve his ship until he had paid all court expenses. The defendant had to prove his

innocence; the prosecutor did not have to prove the defendant’s guilt. The customs agents

were at no risk for claims against unlawful seizure because they were merely required

to show “probable cause.” Reward for seizure was very great: the King, one third (the

judge); the governor, one third, and one third to the prosecutor (the Customs Service). If

seizures were made on the high seas, the King received one half and the prosecutor one

half.47

It was still permissible to use colonial court, but the prosecutor, not the defendant,

had the right to choose between colonial or admiralty court. Admiralty Court was

not authorized to try the same offenses in the case of an English ship owner; for an

English defendant only trial by jury under Common Law was permissible. This point

invigorated the colonial suspicion that England did not intend to treat colonials with

the full rights of an Englishman. Impressment was infl icted on Boston more than other

colonies, simply because Boston was the main commercial port; gangs of British sailors

regularly kidnapped for ship service any adult male found in the street, without any

regard to the victim’s status. For decades, starting from the 1740s, the Boston Town

meetings constantly formulated protests against impressment.48 Throughout the 1740s,

but especially in 1745 and 1747, Boston suffered major riots against impressment;

although the Massachusetts Assembly vehemently denounced impressments directly to

46 The Admiralty judges were “strongly tempted to receive all Business that comes before them, however improper for their Cognizance.” David S. Lovejoy ‘Rights Imply Equality: The Case Against Admiralty Jurisdiction in America, 1762 to 1776” The William and Mary Quarterly, Third Series, 16 (1959), p. 463.47 Cf. Channing, A History of the United States, Volume III, The American Revolution, 1761-1789, p. 43.48 Jesse Lemisch, “Jack Tar in the Streets: Merchant Seamen in the Politics of Revolutionary America” The William and Mary Quarterly, third series, 25 (1968), p. 387.49 Jesse Lemisch, “Jack Tar in the Streets: Merchant Seamen in the Politics of Revolutionary America” The William and Mary Quarterly, third series, 25 (1968), p.387.

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Parliament, repeatedly, Parliament ignored the objections.49 In one incident the British

ships kidnapped 800 men from New York, one-quarter of New York’s then male adult

working population.50 Parliament made no reply to these protests; impressment was not

unconstitutional. The article of the Magna Carta, “nullus homo capiatur,” made specifi c

exception in the case of ship crews.51 The colonial lawyers attempted to render the

Admiralty Courts rather ineffectual by their insistent challenges to the legitimacy of such

cases.52 The emotional force in colonial resistance was the global, pervasive resentment

for being treated as inferior to native British.53

JUDICIAL TENURE

Especially subsequently to intensifi cation of the customs regulations, over which the

colonists, unconsulted, were not delighted, colonial judges tended overwhelmingly to

exonerate colonial merchants brought into court.54 The colonial courts provided jury

trials, carrying the civil rights that had been instituted in England since King John;

the colonial jury sympathized with the colonial defendant against Navigation Act

transgressions to which the colonists had not subscribed in the first place. Inflexible

colonial insistence centered on the right of an English (colonial) subject to a jury trial

in a criminal case. But colonial prosecutions were in the eyes of England abortive to

50 Jesse Lemisch, “Jack Tar in the Streets: Merchant Seamen in the Politics of Revolutionary America” The William and Mary Quarterly, third series, 25 (1968), p. 383.51 Benjamin Franklin regarded impressments as evidence of the intrinsic social injustice of England’s manufacturing economy, and Thomas Paine interpreted impressments as an evil characteristic of monarchy. Cf. Jesse Lemisch, “Jack Tar in the Streets: Merchant Seamen in the Politics of Revolutionary America” The William and Mary Quarterly, third series, 25 (1968), p. 394.52 CF. R. C. Simmons, The American Colonies: From Settlement to Independence, Longman, 1976, p. 166.53 David S. Lovejoy ‘Rights Imply Equality: The Case Against Admiralty Jurisdiction in America, 1763 to 1776,” The William and Mary Quarterly, third series, 16 (1959), p. 460.54 Cf. Curtis P. Nettles, The Roots of American Civilization, George Allen & Unwin LTD, 1963, p. 375.

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her overall intentions; neither the judge nor the jury in a colony was likely to change

behavior in the interest of England. If the colonists were abusing the basic rights of an

Englishman in this instance, the only alternatives were either to give up on enforcement

of the Navigation Acts, or to deny that colonists, qua English subjects, were entitled to

the basic rights of an Englishman.

The circumstance that those who had irresistible power were also depraved

recommended that the only propitious countermeasure would be duplicity. Until 1697

colonial infractions of the Navigation Acts were tried in colonial courts. Colonial

courts consistently decided in favor of colonial over royal preferences, and in so doing

buttressed the ascendancy of the colonial legislative assembly over decisions relayed

from London to the colonial royal agent. In 1696 the “Act for Preventing Frauds, and

Regulating Abuses in the Plantation Trade” was enacted by Parliament to enforce the

“Acts of Trade,” i.e. the Navigation Acts, on the colonies; the Act was passed shortly

after the Glorious Revolution, at the same time as England had been expanding liberties

in England. This Act was introduced in retaliation for the overwhelming tendentious

exoneration of colonial defendants for violation of the Navigation Acts. One might

venture that this response was unwise. One of the features of a judicial system and an

election system is a capacity to signal when popular outrage is immoveable. If opposition

to a law is not factional, but virtually the judgment of a whole population, a government

has no feasible alternative but to defer. The fact that the colonial court system, as a

whole, opposed the given British law was suffi cient indication that British government

had no alternative but to revise its law fundamentally to something in which the colonial

population would be glad to cooperate. That Parliament instead chose to ignore colonial

protest, and enforce a law rejected by the entirety of a population, was obtuse.

If the colonial judiciary were to be transformed into an agency acting in behalf of

Britain, the Crown would have a conclusive device to nullify legislation issuing from the

colonial legislatures. The Crown therefore reacted to judicial intractability by converting

judicial tenure from the basis of good behavior to the King’s pleasure. If a judge held

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tenure on the basis of good behavior, he could not be arbitrarily dismissed; such a judge

could make judgments aversive to the Crown without risking his tenure. If the judge’s

tenure depended on the King’s pleasure, he could be dismissed at any time on the

authority of the King, who would not be obligated to justify his decision. In this case

a judge’s decisions would be unlikely to deviate far from the evident will of the King.

Appointment of a judge at the King’s pleasure had been abolished in England at the time

of the Glorious Revolution, because the Stuart dynasty constantly used it as a means

of aggrandizing monarchical at the expense of parliamentary power. Judicial tenure on

good behavior was instituted in the colonies and England. Tenure on good behavior was

tenaciously maintained in England, because in effect it immunized Parliament from royal

tyranny; it was essential for the ascendancy of Parliament over the King. But tenure on

good behavior did not serve any advantage to Parliament in the colonies. Parliament,

finding that a device of its own creation had been turned against its own interests,

abolished this protection in the colonial judiciary.

The colonists, as English subjects, claimed protection by English law. In England a

judge could not be deposed unless he were convicted of a crime, but a colonial judge

could be arbitrarily dismissed at the King’s pleasure. In England the verdict of a jury

could not be overturned, but in the colonies, a judge could reject a jury’s verdict and

order the jury to reverse the judgment under threat of punishment of the jurists for their

false verdict. This discrepancy became prominent when Cadwallader Colden, governor of

New York, attempted to reverse a case in the interest of the Crown, against a jury verdict,

by countermanding a writ of error.55 Starting from the 1730s colonies attempted to

introduce land banks, but Britain issued circular letters to forbid the colonial assemblies

from passing land bank bills. Likewise, when several colonies issued laws to forbid the

importation of British convicts and African slaves, Britain nullified such acts as were

passed by the colonial assemblies.56 In New York the royally appointed governor and

55 Johnson, Herbert Alan; English Statutes In Colonial New York, New York History, 58, 1977, p. 279.

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direct imperial instructions were interfering in New York’s course of justice.

The simplest response was to argue that any liberties provided for English subjects

in England were ipso facto valid for British subjects in the colonies. New York engaged

this tactic to argue that invocation of the Crown could not invalidate a jury verdict in the

colonies because royal intervention could not invalidate a jury verdict in an English court.

This immunity had been conclusively won in England a century earlier; colonial lawyers

appealed to the precedents achieved in native British courts.57 The colonists were herein

basing their appeal chiefl y on Coke, who a century earlier had managed to contract royal

prerogative on the argument, at that time a novel one, that a constitutional law limited

both the acts of parliament and of the king; all individuals, not even excepting the King,

were subject to the law.58

Tenure on good behavior preserved the autonomy of colonial governments from royal

precedence. All of the colonies refused judicial tenure at the King’s pleasure. Britain

overcame the resistance of each colony by invalidating the legislation of each colony until

each colony submitted to judicial tenure at the King’s pleasure. North Carolina dispensed

with courts for several years rather than to submit to judicial tenure at the King’s

pleasure.59 The Coercive Acts of 1774 gave Virginia a wonderful excuse for closing

its courts. As a result all Virginians got a reprieve from payment of the English debt,

which they were unable to pay; without courts, no one could be compelled to pay a debt.

56 Cf. Louis M. Hacker; The Triumph of American Capitalism, Columbia University Press, 1947, p. 142.57 Johnson, Herbert Alan; English Statutes In Colonial New York, New York History, 58, 1977, p. 279.58 Milton M. Klein, “New York Lawyers and the Coming of the American Revolution”’ New York History, 55 (1974), p. 397.59 North Carolina alone adamantly refused to accept judicial tenure at the king’s pleasure, and in consequence could not hold court proceedings for several years. Eventually North Carolina had to capitulate, without consenting in principle; the coercive imposition of dependent tenure alienated all of the collies from England. Cf. Samuel Eliot Morison, The Oxford History of the American People, Volume One, Meridian Books, 1994, p. 244.

－ 425－


The remaining colonies did submit to England’s imperious policy, but resented English

treatment. Since the Stuart dynasty, judges were guaranteed tenure by good behavior so

that they could retain impartiality despite the pressure of monarchy. England’s insistence

that colonial judges be vulnerable to the King’s pleasure reinforced the perception that

colonists were derogated in liberties otherwise attaching to an English subject.60

THE OMNIBUS RECEPTION ACT

In England and the colonies confusion spread concerning the constitutional relation of

the colonies to Britain: whether residents of the colonies had the same rights as British

subjects by appeal to the British constitution. Apposite to this dispute, throughout the 18th

century New York was paradoxically trying to make English Law formally valid in the

colony as a means of protecting its autonomy from England. The colonies were striving

for a different form of integration from that envisioned by England. Instead of being

integrated as dependencies, which would have a special subordinate law, the colonies

wanted integration as equal units with the provinces in England; the matter of common

law was to asseverate that the colonies should have equal status with the original English

provinces.

Legality required this deliberation: if the title and date of a parliamentary statute were

extended to a colony, did the fact that the English court made that law binding imply

that its application in the colonial court was also binding? Or, might the application

of the statute in an English court imply nothing concerning applicability in a colonial

court? The English statute, once operating in the colony, might be interpreted to have its

validity directly by appeal to English court and parliament, or to have validity solely from

colonial acceptance of the statute.61 Since inception as an English colony New York had

60 Cf. Samuel Eliot Morison, The Oxford History of the American People, Volume One, Meridian Books, 1994, p. 244.61 Johnson, Herbert Alan; English Statutes In Colonial New York, New York History, 58, 1977, p. 293.

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D. Morgan Pierce

meticulously established that all parliamentary statutes prior to 1691 were a priori valid

statutes of the colony of New York.62 No other colony had been so adamant in preserving

the purity of its parliamentary legislation.

The peculiar actions of New York might have been a consequence of its original

constitutional status. New York was originally a Dutch colony, and when it was

conquered by England it became a proprietary fi efdom of the Duke of York, the future

James II. At the time of the Omnibus Reception Act the New York General Assembly had

been eager to achieve identity as a province, like the boroughs and counties of England,

rather than identity as a fi efdom, under the jurisdiction of the King alone. By establishing

a perfect identity of colonial with native English law it was hoped that New York would

receive identical treatment from parliament as that received by the English counties.63 The

Atlantic colonies were, legally, feudal estates under the discretion of the King, because

colonies were the property of the King, not of English Parliament; on the other hand the

colonies were legally municipalities under the control of Parliament, because the colonial

charters were incorporations identical with the corporate status of English boroughs,

hence ultimately under the authority of Parliament. This confusion was never clarifi ed,

because its solution was never integral to the struggle of Parliament to ascendancy over

the Crown. Colonial administration was left to the Crown more from indifference than

any partisan interest in the colonies. In consequence the colonial reception of English

law in the colonies remained confused. In all of the colonial charters it was stipulated

that no colonial law could be repugnant to English law, but on the other hand colonies

were delegated to frame their own laws and it was nowhere stated that a statute issued

by Parliament was automatically valid anywhere but in Britain. The New York lawyers

tended to accept English private law as immediately applicable in the colony of New

62 Johnson, Herbert Alan; English Statutes In Colonial New York, New York History, 58, 1977, p. 279.63 Johnson, Herbert Alan; English Statutes In Colonial New York, New York History, 58, 1977, 277-296.

－ 427－


York, and to use English constitutional law to prohibit Parliamentary interference in the

legal and political conventions of New York.64

Conformity to English Law was required in the charters and proprietary grants of

the colonies, but New York attempted to interpret this as the a priori universal validity

of English law in English colonies. The New York General Assembly attempted, by

demonstrating the conformity of provincial law to English law, to base the validity of its

provincial law by appeal to its English ratifi cation. However, the divergent conditions

and histories of colony vis-à-vis home country had accumulated large discrepancies in

both substantive and adjective law. Due to these discontinuities of English and colonial

legal environment colonial statutes had heretofore acquired legitimacy on the basis of

an informality: reception by usage. The serious drawback of reception by usage was

the aforesaid charter stipulation that colonial laws must conform to English law. To wit:

reception by usage was liable to being overridden by English statute, since a statute

based on usage had no formal basis of appeal. The New York lawyers sought to achieve

certainty in New York Law by replacing “usage” with appeal to the English law.

The New York General Assembly issued the Omnibus Reception Act in 1767, which

formalized the immediate application of Parliamentary statute law in New York. The

formal act was based upon the actual practice of New York jurisprudence throughout the

18th century; the common law and all parliamentary statutes issued prior to 1691 had

been automatically applied as the law of New York.65 The Omnibus Reception Act was

invalid until approved by Parliament; superfi cially it might appear that Parliament would

welcome a law which made all parliamentary statutes binding on the colony.

Britain was inclined to assign a subordinate place to the colonies, quite in conformity

with the past but quite unrealistic with regard to the future. The disallowance implied

64 Johnson, Herbert Alan; English Statutes In Colonial New York, New York History, 58, 1977, p. 279.65 Johnson, Herbert Alan; English Statutes In Colonial New York, New York History, 58, 1977, p. 279.

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the insignifi cance of the colonial assemblies. New York had expected its century long

mimetic conformity to English law to obliterate the distinction between subjects of a

colony and subjects of the home country.66 The Omnibus Reception Act was disallowed

on December 9th, 1770, by the Privy Council when it was fi rst submitted for review.67

The Privy Council replied that New York could enact the Parliamentary statutes as New

York law, but final appeal for those laws would be the New York Assembly, without

reference to Parliament or English Common Law. This decision ruined the purpose for

which New York wanted the identity of New York and English law. English constitutional

law could not be used to protect New York law from parliamentary and monarchical

intervention. It had not been uncharmingly articulated, but essentially Parliament hoped

for such a relation between English and colonial law as this: the colonies would make

their own laws, and thereby have no right of appeal to English Common Law or to

parliamentary statute. On the other hand, English Common law and Parliament would

remain superior instances of law, and would have the right to defeat or void any colonial

law that confl icted. But parliamentary law could not be used to restrain possible excesses

of parliamentary law. Against this probable attitude, the New York lawyers had wanted

at least to have the protections against legal tyranny as the native English; this was the

point in acquiring the benefi t of appeal to English Common Law by means of confi rming

recognition of the identity of English and New York law.

Possibly a technical feature motivated the abolition of the Omnibus Reception

Act; the colonies were in the jurisdiction of the King; New York originated as the

personal property of the Duke of York, who subsequently became king. Acceptance of

the Omnibus Reception Act would have undermined the traditional priority of royal

authority. The disallowance weighed on the premise that all colonies were terra Regis,

66 Johnson, Herbert Alan; English Statutes In Colonial New York, New York History, 58, 1977, p. 296.67 Johnson, Herbert Alan; English Statutes In Colonial New York, New York History, 58, 1977, p. 290.

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and therefore separate from the authority of Parliament because they were within the

authority of the King. The King’s Privy Council, therefore the King independently

of Parliament, had invalidated the Omnibus Act; if the English statutes, as such, had

been allowed to be the law for the colonies, then the colonies would have been under

the prerogative of the King-in-Parliament, something quite different from prerogative

of the King taken separately. The disallowance of 1770 thus deprived colonists of

rights guaranteed for subjects resident in Britain, or, succinctly, the colonists could

not turn British law to protect themselves against Britain. Such a position seems to be

inconsistent, inasmuch as Parliament retained the right to override any law alternatively

issued by colonial assembly, on the very same basis of parliamentary law. If the colonies

had succeeded in making their statutes identical with those of England, with recognition,

there would have remained no justifi cation for maintaining colonial law in a separate and

subordinate status.

Following reception of the disallowance, the New York General Assembly proceeded

to enact parliamentary statutes into New York statutes, even though this maneuver would

not procure English constitutional protection of the New York statutes. The disallowance

embodied inconsistencies. The Mutiny Act had been issued during the English Civil War,

more than a century earlier, to enforce material support for Cromwell’s parliamentary

army. Yet the Mutiny Act was imposed on the colonies, principally New York, utterly

out of the context of the English Civil War, to make New York and other colonies

fi nancially support the English armies that had been stationed there, against the wishes

of the colonies, and where no war existed to account for their placement. The Quartering

Act, applied to the colonies in peacetime, was derived and justifi ed from the Mutiny Act,

applied for England for the English Civil War a century earlier. It was illegal to maintain

a standing army in England in peacetime; it appeared that the British standing army was

being kept in the colonies, at colonial expense, to evade the illegality of maintaining the

standing army in England. The New York lawyers accordingly attempted to argue at least

for the Quartering Act to be confi ned within the limits of its forbear, the Mutiny Act, but

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Parliament upheld the obligation of the colonies to fi nance the peacetime support of the

British army anywhere in the colonies.

New York refused to abide by the Mutiny (Quartering) Act; Townshend thereupon

moved Parliament to declare all legislation of the New York Assembly invalid, until New

York implemented the Mutiny Act. The Mutiny Act was enacted in New York on the

ground that an English law was ipso facto applicable for any English colonial territory, in

the same year as the Privy Council denied the applicability of English common law and

statute law for the colonies. In consequence of this disallowance the colonies were denied

the English Bill of Rights and the Habeas Corpus Act of 1679.68

REBELLION

Even long after the outbreak of war the Atlantic colonies had never wanted

independence from Britain; it must be investigated why independence resulted although

in peacetime neither side had wanted this result. A modern concept of citizenship,

according to which the individual had an innate right to choose which nation of which

he would be a citizen, did not yet exist; it was supposed, insofar as the consideration

was conscious at all, that the individual was irrevocably a citizen of the society into

which he happened to have been born. Roughly contemporaneously, Locke had included

in his theory of contract that any individual who emerged from the state of nature was

already contractually obligated to the society in which he found himself.69 Locke had

not provided in his theory of liberty for the individual to exercise a primal choice of his

allegiance, and there was as yet no country in the world whose laws allowed for entry or

exit from citizenship.

On the fourth day following the incineration of the Gaspee the governor of

68 Johnson, Herbert Alan; English Statutes In Colonial New York, New York History, 58, 1977, p. 292.69 Kettner, James H.; The Development Of American Citizenship In The Revolutionary Era: The Idea Of Volitional Allegiance, The American Journal of Legal History, 18 (1974), p. 221.

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Massachusetts announced that his salary would proceed from the customs revenue

rather than from the colonial assembly; thus, the colonists would no longer be able

to pressure the governor by threats of withholding his salary, and the governor would

take a very personal interest in the efficient collection of customs duties. Afterwards

Parliament determined that further royal appointees would be paid from the colonial

customs revenue collected by British agents. This nuance was the original catalyst of

the colonial organizations of “Committees of Correspondence.”70 It will be remembered

that the refusal of the colony of New York to fi nance the British Army stationed there

which induced the disputes over tenure and legislative appeal. Britain did not reply

to New York’s complaint in rational discourse; it replied with violence, to wit: no law

passed by the New York legislature would be valid until New York submitted to the

fi nancial requirements of the British Army stationed there, which New York in the fi rst

placed never requested. The new Quartering Act formalized this demand, and, as usual,

it was formulated in Parliament with no negotiation with New York. The Quartering

Act, imposed without communication, set the path towards violence: would the colony

or the mother country determine the main policy of the colony?71 The British Army had

been bivouacked on Boston Common, in tents, even though a fort in the suburb could

accommodate them, so that the army would be on the spot in the case of civil disturbance.

In 1769 Hillsborough acted on his hypothesis that reduction of colonial autonomy

would enable British government to implement its further policies. The Massachusetts

charter of 1691 allowed a colonially elected Council, although the councils of the other

colonies were royally appointed. Massachusetts governor Bernard had identified the

elective council as a factor in Boston’s recalcitrance; Hillsborough proposed revision

to an appointive council. George III rejected the proposal. The charter was a document

70 Cf. Gunderson, Gerald; A New Economic History of America, McGraw-Hill Book Company, 1976, p. 85. 71 Cf. Samuel Eliot Morison, The Oxford History of the American People, Volume One, Meridian Books, 1994, p. 275.

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so basic that it was supposed to be irrevocable; any precedent eventuating from Boston

would be applicable to British boroughs, which had the same type of charter, and the

Boston charter had already been revoked once. To cancel the charter would make a

mockery of the trust people were supposed to invest in them.72 In 1774, however,

Hillsborough’s proposal was carried through. The new Quartering Act made all positions

of judge, marshal, sheriff, justice of the peace, etc. royally appointive; that is to say,

every executive function in the Boston government was seized from poplar election and

entrusted to the King’s pleasure. Similarly, the colonial Board of Customs Commissions

was staffed by British nationals whose incomes derived solely by commissions taken

from the customs revenue collection. Since their payment was no longer from the

colonial assembly and their salary, being a commission, would increase or decrease

depending on how much customs revenue they extracted, they could not be sympathetic

to colonial complaint.73 Town meetings were forbidden, and it was made illegal to form

committees of correspondence.74 The prohibition incited apprehension that in short order

the same Act would be applied to the remaining colonies.

Prior to the Quartering Act Britain had achieved royal appointment of most executive

members in most of the colonies; Connecticut and Rhode Island were given by charter

the power to elect their governors, in 1693 Penn was restored to proprietorship of

Pennsylvania, and in 1715 Maryland was restored to Calvert. The King appointed the

governor for South Carolina starting from 1720, North Carolina 1729, and Georgia

1752, together with councils appointed by the King.75 The new Quartering Act (The

Government and Administration of Justice Act) made the Boston Government Council

72 King George III: “altering charters is at all times an odious measure.” Cf. Conway, Stephen; Britain and the Revolutionary Crisis, 1763-1791, p. 333.73 Cf. Gunderson, Gerald; A New Economic History of America, McGraw-Hill Book Company, 1976, p. 84.74 Cf. Samuel Eliot Morison, The Oxford History of the American People, Volume One, Meridian Books, 1994, p. 276.75 Cf. Johnson, Richard R.; Growth and Mastery: British North America, 1690-1748, p. 295.

－ 433－


appointive by the governor, who was himself royally appointed. The members of the

Council would hold office at the King’s pleasure. Parliament had already received

colonial protest at judicial appointment at the King’s pleasure, but had never brought

about repeal.

This was audacious. Previously, the colonial assembly, which was elected by popular

vote, had elected the members of the Council. Governmental bodies placed on a middle

level allow for communication between the people and government. Elimination of

middle level organizations eliminates the possibility for popular organization, makes

the common people politically irrelevant, and raises the probability that the people will

have no option but violence to communicate their interests. Of course the Crown wanted

merely to make the common people impotent; by transferring colonial positions to royal

appointment the Crown effectively eliminated local levels of communication. Unless

there are dispersed nuclei through which common people can associate, it is impossible

for common people to involve themselves in political movement. The Committees of

Correspondence, now made illegal, established everywhere throughout the colonies,

secured quick communication and enabled people to consolidate in the direction of

the associated cause. In effect the Quartering Act attempted to eliminate colonial

self government, by prohibiting town meetings, committees of correspondence, and

ultimately the New York Assembly.

The Quebec Act was more stunning in the eyes of the colonists than readers over two

hundred years later can imagine. The colonies had staked their revival on the prosperity

foreseen in the western territories. The French Catholics remaining from the Seven Years

War were awarded their own civil government and the free practice of Catholicism,

which to the English colonists featured as an annihilating force; it was a religion that

had been outlawed and afterwards severely repressed in England because of its threat to

political stability, but in Quebec it was made sovereign, by the British, presumably for its

prospects of intimidating the seditious British colonists. True to French, but not British

tradition, Quebec was not allowed to institute a representative legislative assembly; its

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great political decisions would stem directly from London. The Quebec Act of 1774

more than doubled the size of Quebec to extend over all transappalachian territories

which had never been part of Quebec. Years previously the Northwest Ordinance had

forbidden the British colonials from migrating into the transappalachian territories,

and had used the British Army to expel British colonial squatters. The colonials were

forbidden settlement supposedly on the ground that settlement would antagonize the

Indians, but no analogous regulations were imposed on expansion of the newly conquered

Catholic French subjects. Quebec and the other acquired territories were made British,

but were to be permanently sequestered from the old colonial economy. Quebec was to

become a French-British settlement. By this Act western territories that had been claimed

by Virginia, Massachusetts, and Connecticut, which had been previously acknowledged

by Britain, were revoked.76

DECLARATION OF RIGHTS

Although Congress did not intend independence, it could command respect only if

it could make a substantive response to the Coercive Acts. The colonial retaliation for

the Coercive Acts was pacifistic. The first bloodshed at Concord and Lexington was

instigated by the British, following orders from Whitehall, not the colonials; the colonies

did not declare war even after Concord and Lexington. War was declared by the British,

with King George III’s declaration that the colonies were in a state of rebellion. It took

ten years, from the Stamp Act of 1765 until 1775, before the very first small voice

made a sound to the effect that Parliament should have no legislative authority over the

colonies, and even at that point the colonies abjured thoughts of independence.77

For the fi rst two years of the American War, colonists put up resistance only in demand

76 The 1774 Quebec Act included in the new province of Quebec all western territory south to the Ohio river and west to the Misissippi. Cf. Channing, A History of the United States, Volume III, The American Revolution, 1761-1789, p.142.77 Cf. Samuel Eliot Morison, The Oxford History of the American People, Volume One, Meridian Books, 1994, p. 245.

－ 435－


for reform, not for secession; the war was initially fought simply to rectify certain British

arrogations. Congress had asked for restitution of the colonial laws as they were prior

to 1763: nothing more. On October 20th, 1774, Congress had obligated the colonies to

maintain a policy of non-importation and non-exportation, hoping that trade sanctions

would persuade Britain; Congress did not order the colonial militias to enter hostilities

with the British Army. The colonial embargo might have been an extension from the tactic

of the Stamp Act, in which the closure of the colonial courts had been instrumental in

provoking the English merchants to petition Parliament for revocation of the Stamp Act.

The same tactic, closure of the courts and hence of colonial trade, had been implemented

in the events concerning the Currency Act, but with no success; in this instance, it was

again hoped that colonial trade cessation would be a suffi ciently strong economic force to

bring about compromise in Parliament. It was a failure for a second time, but the attempt

emphasizes that the colonials did not want to resort to war. Committees were formed in

every colonial community to police against consumption of British products.78 It was

Britain that had declared that the colonies were in a state of rebellion, i.e. declared war

on the colonies, and carried the war into the reluctant colonies. Congress was declared

an illegal association and Parliament resolutely refused to receive all the tenders of peace

from the colonies. Parliament prohibited all commerce or other intercourse with the

colonies for the duration of the colonial rebellion. No petitions or negotiations for peace

were accepted into Parliament. The arrogance with which the British prosecuted the war

stimulated the warring colonists into thoughts of independence rather than conciliation.79

This Parliamentary Act, prohibiting colonial commerce, worked as a catalyst; the several

colonies, patiently sticking to a reformist policy, on the occasion of this Act changed the

purpose of the war from one of reform to one of independence.

78 Cf. Channing, A History of the United States, Volume III, The American Revolution, 1761-1789, p. 148.79 Cf. Channing, A History of the United States, Volume III, The American Revolution, 1761-1789, p. 188.

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In 1774 Galloway presented before the Continental Congress a plan for an American

Parliament arranged in such a way that the American and British parliaments would

each have a power of veto over the other concerning colonial affairs.80 A construction

was needed that would satisfy both the needs of British Empire and American colonial

autonomy. Persistent complaint of colonial derogation infused such proposals: if there

was to be a British Empire, members of the parts outside of England must have the same

rights as native Englishmen, from which it followed that colonists could not be taxed by

the mother country prior to negotiation with the colonial assemblies.81 Representation

had been an item of fervent dispute for centuries, but still British government took the

prostrate obedience of the common people everywhere for granted. The insubordination

of the colonists was unheard of; it was a fi rst-ever social phenomenon. It was perhaps

adumbrated by the philosophes, who were popularly read in time for both the American

and French revolutions. Features of the democratic ideology of the American rebellion

refl ected some of these Enlightenment ideals.82

One week before the congressional resolution for the trade boycott, on October 14th,

1774, Congress issued the “Declaration of Rights.”83 It reiterated that the residents of the

British Atlantic colonies were entitled to rights based on the laws of nature, the British

constitution, and the articles of the colonial charters; mention of both foundations made

it possible to bypass the controversy between the priority of positive rights or of natural

rights. Both claims had been experimentally aired in the previous twenty years; the

idea of natural rights, originally propounded by Grotius and Pufendorf, was an untested

idea, and, although potentially more powerful than appeal to law and constitution,

80 Cf. Samuel Eliot Morison, The Oxford History of the American People, Volume One, Meridian Books, 1994, p. 278.81 David S. Lovejoy ‘Rights Imply Equality: The Case Against Admiralty Jurisdiction in America, xxx 176z11776” The William and Mary Quarterly, third series, 16 (1959), 460.82 Bernard Bailyn, ‘Political Experience and Enlightenment Ideas in Eighteenth-Century America”, The American Historical Review, 67 (1962), p. 341.83 Cf. Channing, A History of the United States, Volume III, The American Revolution, 1761-1789, p. 147.

－ 437－


was not a formally recognized idea in any European government. The amalgam was a

compromise; some delegates wanted to use the terminology of the nearly contemporary

French philosophes, because their reasoning was more trenchant, but others understood

that English parliamentarians would be unlikely to give recognition to anything other

than traditional English legal precedent, although this reference was too narrow to

comprise the force of the declaration. To wit: rights to life, liberty, and property would

have a more adamant foundation conceived as natural rights, but since English legalists

were disinclined to care about what a few French philosophers had just recently opined,

the argument might be more persuasive if it were more modestly framed to convey that

English subjects, qua English subjects, (1) had such rights, and (2) could not lose such

rights by having migrated to a colony. Historical appeal to charter and constitution,

though narrower, had the advantage of anchorage in positive law.

Locke’s theory of liberty allowed for rebellion against tyranny, but nowhere went so

far as to assert the individual’s free choice of citizenship. In this the colonial argument,

expressed within the duration of the war, was revolutionary; from the interpretation that

citizenship is a form of contract it was inferred that an individual is entitled to decide

national allegiance. Certainly this was not a merely academic nicety for American

colonists of that era, but the idea still did not indicate a popular desire for secession from

Britain.84 Rather, the declaration conveyed a denial that migration from England to the

colonies should constrain any rights a person should have as an English subject. The

document recited the argument that the colonies should be entitled to self government

through a colonial parliament, or several colonial assemblies, because authentic colonial

representation was incompossible with attendance in British Parliament.

Galloway’s proposal was almost the same as the 1754 Albany Plan, proposed by

Benjamin Franklin twenty years earlier; its petition for a pan-colonial federative Council

that should have power to veto any law proposed for the colonies by Parliament made

84 Kettner, James H.; The Development Of American Citizenship In The Revolutionary Era: The Idea Of Volitional Allegiance, The American Journal of Legal History, 18 (1974), p. 212.

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D. Morgan Pierce

this plan slightly more aggressive. Although Britain had tried to unify the colonies

under royal administration for the last decades, Britain would have adamantly refused

a pan-colonial government erected by the colonies; such an entity would have made

it impossible for Britain to enforce future colonial acquiescence. Galloway’s plan was

conciliatory in that it enshrined a formal repudiation of any idea of independence from

Britain. Galloway’s proposal was authentic; he shifted his allegiance to Britain when

Congress adopted a more independent policy. John Adams, James Wilson, and Thomas

Jefferson had each, separately, written proposals for a dominion structure that would have

maintained the colonies as parts of the British Empire; maintaining the British status had

been their priority. These proposals were to the effect that the colonies would remain

British through allegiance to the King and Privy Council, but not by any connection to

Parliament. A slightly more radical position was proposed by William Henry Drayton of

South Carolina. The colonies should have a High Court of Assembly, to be summoned

by the King, but whose members were to be elected from the colonial assemblies.85 This

sort of proposal conveyed that the King would still preside over the foreign relations

of the colonies, maintain authority to declare war and peace for them, and regulate

their international commerce, but Parliament would have no legislative power over the

colonies.86

Congressional deliberation over Galloway’s proposal coincided by chance with

Lexington and Concord; the incident suddenly overwhelmed Congress with the more

belligerent wing of the colonial opposition, led by Samuel Adams. If it had not been for

this coincidence, it is probable that Congress would have endorsed Galloway’s plan,

and have gone all the way to the opportunity of rejection by Parliament; in reality, it was

85 Cf. Channing, A History of the United States, Volume III, The American Revolution, 1761-1789, p. 184.86 Ironically, Britain came to the identical conclusion, but a hundred and fi fty years too late; the commonwealth status of Australia, Canada, etc. was the same as this proposal. Cf. Samuel Eliot Morison, The Oxford History of the American People, Volume One, Meridian Books, 1994, p. 278.

－ 439－


killed in Congress before proceeding so far. Galloway’s conciliatory proposal might have

averted the war of independence; most delegates at that moment were against the idea

of American independence. This pacifi stic attitude was undergirded with a very realistic

conviction; it was unthinkable that the colonies could win a war against Britain.

Galloway was a sincere protagonist; though a leading member of Congress, Galloway

became a loyalist and defected to the British as soon as his proposal was defeated. The

incident of his consequent defection is of enormous importance. Within any entity as

artifi cial as a nation there is a perennial, wall-to-wall squabble. If a nation can organize to

engage in war, or in colonization, or in exploitation of another nation, it is able to achieve

a nominal amount of domestic harmony by focusing the members’ aggression outside,

rather than against each other. But this also works in reverse. If a population is colonized,

defeated in a war, or subjugated, it might unify internally by focusing the members’

unanimous anger on the oppressor, but if the oppressed population is too weak for the

possibility of successful opposition, it will react to oppression by disaggregating into

small groups and squabbling against each other.

At exactly this point Britain was extremely lucky. An oppressor can accelerate

disaggregation in the victim by partially favoring within the oppressed population some

groups rather than others. Britain resolutely refrained from this tactic. After the defeat of

the Galloway proposal, every subsequent congressional petition for peaceful resolution

sent to Britain was rejected without a reading in Parliament, on the ground that Congress

was an illegal organization.

Britain’s forbearance might be criticized as obtuse arrogance; it might also be

interpreted as a remarkable instance of integrity. The several colonial appeals for peace

and compromise during the fi rst few years of war had given Britain a golden opportunity

to reply to the petition with an offer that only half of Congress would accept. Such

a surreptitious tactic might have sufficed to produce so much internal strife within

Congress that the colonials might have been unable to continue the war. The British

forbearance from negotiation seems to have succeeded from the British point of view, but

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D. Morgan Pierce

it was perhaps foolish. When Galloway, a highly respected colonial leader, defected to the

English, there was exactly at that moment an enormous possibility that other reformists

in sympathy would also have withdrawn from Congress. At this point the overwhelming

majority of the members of Congress were, indeed, reformists, not revolutionaries.

Through the entire duration of the Revolutionary War, one third of the colonial population

were patriots, one third were loyalists, and one third were completely indifferent. The

acceptability of independence to the colonials was very closely run. The outcome of the

Revolutionary War did not refl ect the will of the majority of colonists; the consolidation

was precarious. The American Revolution might easily have collapsed, not because of

British military prevalence, but because of internal disunity the colonial leaders.

The British population had been brought to think that it was intolerable for any

British subjects not to be within the jurisdiction of Parliament. Of course this popular

British attitude was the result of an equivocation; assent to government by Parliament

was derived from the premise that Parliament was representative, as it was for England.

But Parliament had never accepted colonial representation in any form, and supposed

that the colonies were of right subordinate entities; submission under Parliament for the

British population meant something quite different from parliamentary submission for

the American colonies.87 The Declaration of Rights ascribed to the lack of representation

a list of colonial abuses: restraint on colonial commerce; exclusion from the northwestern

fur trade; exclusion from land speculation in the new territory; repression of colonial

manufacture industry; inordinate taxation; imposition of the colonial civil list.88

England held to the position that since the House of Commons was a representative

body it was empowered to impose taxes on all parts of Great Britain. There was a sharp

retort; the reason for the limitation to the House of Commons of the power to initiate

87 Cf. Channing, A History of the United States, Volume III, The American Revolution, 1761-1789, p. 37.88 Cf. Curtis P. Nettles, The Roots of American Civilization, George Allen & Unwin LTD, 1963, p. 621.

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taxation was that the House of Commons was the only representative body of Parliament.

Since this House did not comprise colonial representation, it was not empowered to

legislate over colonial taxes according to the principle that authorized taxation of the

native British.89 The Connecticut Assembly in October, 1765, had retorted that only a

colonial assembly could impose taxes on a colony because colonists could not effectively

conduct representation in Parliament.90 One might notice how Benjamin Franklin, with

the best of intentions, so spectacularly mistook the attitude of his constituency at the time

of the Stamp Act; a colonial representative in London, with the best of intentions, would

by that very condition lose awareness of the attitudes of the people he represented. The

declaration concluded with the conciliatory commitment to abide with the authority of

British Parliament and the King for external policy, as international commerce and war.91

Perhaps for the exception of Samuel Adams, even the political leaders of colonial

resistance during the first two years of the American War were against the idea

of independence. His cousin John Adams stood up against independence, and the

Massachusetts Provincial Congress stood in favor of colonial status, even after Lexington

and Concord, battles provoked from the British side.92

Chatham, together with North, had recommended that Parliament once again assert

sovereignty over the colonies and require a pan-colonial congress to affi rm parliamentary

supremacy; receiving acknowledgement, Parliament would then promise not to impose

taxes without the consent of the colonial assemblies. Judges would receive tenure on

good behavior. If a colony arranged taxation in a way that was satisfactory to Parliament,

then Parliament would not directly impose a tax on that colony. However, the trade laws

89 Morgan, Edmund S.; Colonial Ideas of Parliamentary Power, 1764-1766, The William and Mary Quarterly, third series, 5, 1948, p. 326.90 Morgan, Edmund S.; Colonial Ideas of Parliamentary Power, 1764-1766, The William and Mary Quarterly, third series, 5, 1948, p.326.91 Cf. Channing, A History of the United States, Volume III, The American Revolution, 1761-1789, p. 147.92 Cf. Channing, A History of the United States, Volume III, The American Revolution, 1761-1789, p. 162.

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D. Morgan Pierce

and Navigation Acts were maintained, and standing armies would be kept in the colonies

at colonial expense. This proposal was approved by the House of Lords and the House of

Commons, and was expected to confi rm perfect peace and contentment in the colonies.

If anything the gesture simply reminded the colonists of English duplicity. The British

taxation tactic had been for ten years that of boiling a frog. Parliament still dictated how

much tax revenue they would extract from the colonies, and granted colonial autonomy

to collect such taxes only if the colonies rendered whatever sum Britain demanded. The

British peace offer did not repudiate a right to extract revenue from the colonies. The

royal appointments, the trade restrictions, the currency restriction, and the confi nement

to trade exclusively with Britain, were maintained.93 The negotiation was totally

untrustworthy, as the British refused to remove the conditions by which they could coerce

the opposite of what they said.

Even following this incident the colonists steadfastly opposed independence from

Britain; the colonial demand had been restitution of the legal system as it was prior to

1763; no demands for further independence were made. In September 1775 North

Carolina resolved against independence. In November 1775 Pennsylvania, in December

1775 New York, and in January 1776 New Jersey and Maryland declared themselves

against independence. New Hampshire also instructed the congressional representatives

to vote against independence.94

93 Cf. Channing, A History of the United States, Volume III, The American Revolution, 1761-1789, p. 185.94 Cf. Channing, A History of the United States, Volume III, The American Revolution, 1761-1789, p. 187.

－ 443－


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Conway, Stephen; Britain and the Revolutionary Crisis, 1763-1791.

Dorfman, Joseph; The Economic Mind in American Civilization: 1606-1865, Volume

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D. Morgan Pierce

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