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Chapter 18:
The Acts of Trade provoke Revolution.—the remodelling of the colonial governments
1761-1762.
Lord Barrington, who was but an echo of the
opinions of the king, approved the resignation of
Pitt, as ‘important’ and ‘fortunate;’ Dodington, now raised to the peerage as the ostentatious and childless lord Melcombe, ‘wished
Bute joy of being delivered of a most impracticable colleague, his Majesty of a most imperious servant, and the country of a most dangerous minister.’
But
Bute at the moment had misgivings; for he saw that his own ‘situation was become more perilous.’
The
Earl of
Egremont,
Pitt's successor, was a son of the illustrious
Windham, of a Tory family, himself both weak and passionate, and of infirm health;
George Grenville, the husband of his sister, renounced well-founded aspirations to the speaker's chair for a sinecure, and, remaining in the ministry, still agreed ‘to do his best’ in the
House; while
Bedford became
Lord Privy Seal.
Peace was an immediate object of the king; and as the letters of
Bristol, the
English minister at
Madrid,
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promised friendly relations with
Spain, the king
directed, that, through Fuentes, the
Spanish ambassador at
London, the French court should be invited to renew its last propositions.
‘It is only with a second
Pitt,’ said
Choiseul, ‘that I should dare to treat on such offers.
War is the only part to be chosen.
Firmness and patience will not build ships for us; but they will give us a triumph over our enemies.’
As the weeks rolled on, and the
Spanish treasure ships arrived,
Spain used bolder language, and before the year was over, a rupture with that power was unavoidable.
Yet peace was still sought with perseverance; for it was the abiding purpose of the young sovereign to assert and maintain the royal authority in
Great Britain, in
Ireland, and in
America.
‘I was bred and will die a monarchy man,’ said Melcombe, who was to
Bute what
Bute was to George the Third; ‘men of the city are not to demand reasons of measures; they must and they easily may be taught better manners.’
‘He is the best and most amiable master that ever lived since the days of
Titus,’ said
Barrington of the king, to whom he devoted himself entirely; having no political connection with any man, joining those who declared that it was for the king alone to consider whom he should raise to his council, or whom he should exclude for ever from his closet: God had adorned him with the prerogative, and left to his servants the glory of obedience.
‘Cost what it may,’ wrote Halifax, the
Lord Lieutenant, from
Ireland, ‘my good royal master's authority shall never suffer in my hands;’ and the measures for reducing the colonies also to obedience were in like manner vigorously prosecuted.
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America knew that the Board of Trade had pro-
posed to annul colonial charters, to reduce all the colonies to royal governments, and to gain a revenue by lowering and collecting the duties prescribed by the
Sugar Act of 1733.
She knew, that, if the
British legislature should tax her people, it would increase the fees and salaries of the crown officers in the plantations, and the pensions and sinecure places held by favorites in
England.
The legislature of Massachusetts still acknowledged that ‘their own resolve could not alter an act of parliament,’ and that every proceeding of theirs which was in conflict with a British statute was for that reason void.
And yet the justice of the restrictions on trade was denied, and their authority questioned; and when the officers of the customs asked for ‘writs of assistance’ to enforce them, the colony regarded its liberties in peril.
This is the opening scene of American resistance.
1 It began in
New England, and made its first battle-ground in a court-room.
A lawyer of
Boston, with a tongue of flame and the inspiration of a seer, stepped forward to demonstrate that all arbitrary authority was unconstitutional and against the law.
In February, 1761,
Hutchinson, the new
chief justice, and his four associates, sat in the crowded councilchamber of the old
Town-House in
Boston, to hear arguments on the question, whether the persons employed in enforcing the Acts of Trade should have power to invoke generally the assistance of all the executive officers of the colony.
A statute of Charles the Second, argued
Jeremiah Gridley for the crown, allows writs of assistance to
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be issued by the English Court of Exchequer; a colo-
nial law devolves the power of that court on the Colonial Superior Court; and a statute of William the Third extends to the revenue officers in
America like powers, and a right to ‘like assistance,’ as in
England.
To refuse the writ is, then, to deny that ‘the parliament of Great Britain is the sovereign legislator of the
British empire.’
Oxenbridge Thacher, who first rose in reply, reasoned mildly, wisely, and with learning, showing that the rule of the
English courts was in this case not applicable to
America.
But
James Otis, a native of
Barnstable, whose irritable nature was rocked by the stormy impulses of his fitful passions, disdaining fees or rewards, stood up amidst the crowd, the champion of the colonies and the prophet of their greatness.
‘I am determined,’ such were his words, ‘to sacrifice estate, ease, health, applause, and even life, to the sacred calls of my country,’ ‘in opposition to a kind of power, the exercise of which cost one king of
England his head and another his throne.’
He pointed out the nature of writs of assistance; that they were ‘universal, being directed to all officers and subjects’ throughout the colony, and compelling the whole government and people to render aid in enforcing the revenue laws for the plantations; that they were perpetual, no method existing by which they could be returned or accounted for; that they gave even to the menial servants employed in the customs, on bare suspicion, without oath, without inquiry, perhaps from malice or revenge, authority to violate the sanctity of a man's own house, in which the laws should be as the impregnable battlements of his castle.
‘These writs,’ he exclaimed,
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‘are the worst instrument of arbitrary power, the
most destructive of English liberty and the fundamental principles of law.’
And he invoked attention to the whole range of an argument which ‘might,’ he acknowledged, ‘appear uncommon in many things,’ and which rested on universal ‘principles, founded in truth.’
Tracing the lineage of freedom to its origin, he opposed the claims of the
British officers by the authority of ‘reason;’ and that they were at war with ‘the constitution’ he proved by appeals to the charter of
Massachusetts and its English liberties.
The precedent cited against him belonged to the reign of Charles the Second, and was but evidence of the subserviency of some ‘ignorant clerk of the exchequer.’
But even if there were precedents, ‘all precedents,’ he insisted, ‘are under the control of the principles of law.’
Nor could the authority of an express statute sanction the enforcement of Acts of Trade by general writs of assistance.
‘No act of parliament,’ such were his memorable words, ‘can establish such a writ; even though made in the very language of the petition, it would be a nullity. . . . An act of parliament against the constitution is void.’
2
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Thus did
Otis lay a foundation for independence.
His
words were as a penetrating fire, kindling the souls of his hearers.
The majority of the judges were awestruck, and believed him in the right.
Hutchinson cowered before him, as ‘the great incendiary’ of
New England.
The crowded audience seemed ready to take up arms against the arbitrary enforcement of the restrictive system; especially the youngest barrister in the colony, the choleric
John Adams, a stubborn and honest lover of his country, extensively learned and a bold thinker, listened in rapt admiration, and caught the inspiration which was to call forth his own
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heroic opposition to British authority.
From that
time he declares that he could never read the Acts of Trade without anger, ‘nor any section of them without a curse.’
3 The people of the town of
Boston, a small provincial seaport of merchants and shipbuild-ers, with scarcely fifteen thousand inhabitants, became alive with political excitement.
It seemed as if the words spoken on that day were a spell powerful enough to break the paper chains that left to
America no free highway on the seas but that to
England, and to open for the New World all the infinite paths of the ocean.
Nay, more!
As reason and the constitution are avowed to be paramount to the power of the British parliament, America becomes conscious of a life of her own. She sees in dim outlines along the future the vision of her own independence, with freedom of commerce and self-imposed laws.
Her understanding is not yet enlightened and convinced, but her sentiments are just.
Not from the intellect,
Out of the heart,
Rises the bright ideal of that dream.
The old members of the Superior Court, after hearing the arguments of
Thacher and
Otis, the ‘friends to liberty,’ inclined to their side.
‘But I,’ said the ambitious
Hutchinson, who never grew weary of recalling to the
British ministry this claim to favor, ‘I prevailed with my brethren to continue the cause till the next term, and in the mean time wrote to
England.’
The answer came; and the subservient court, obeying authority, and disregarding
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law, granted writs of assistance, whenever the officers
of the revenue applied for them.
4
But
Otis was borne onward by a spirit which mastered him, and increased in vigor as the storm rose.
Gifted with a delicately sensitive and most sympathetic nature, his soul was agitated in the popular tempest as certainly as the gold leaf in the electrometer flutters at the passing by of the thundercloud.
He led the van of American patriots.
Yet impassioned rather than cautious, disinterested and incapable of cold calculation, now foaming with rage, now desponding without hope, he was often like one who, as he rushes into battle, forgets his shield.
Excitable and indulging in vehement personal criminations, he yet had not a drop of rancor in his breast, and, when the fit of passion had passed away, was mild and easy to be entreated.
His impulses were always for liberty, and full of confidence; yet his understanding, in moments of depression, would often shrink back from his own inspirations.
He never met an excited audience, but his mind caught and increased the contagion, and rushed onward with fervid and impetuous eloquence; but when quieted by retirement, and away from the crowd, he could be soothed into a yielding inconsistency.
Thus he toiled and suffered, an uncertain leader of a party, yet thrilling and informing the multitude; not steadfast in conduct, yet by flashes of sagacity lighting the people along their perilous way; the man of the
American protest, not destined to enjoy his country's triumph.
He that will study closely the remarkable union
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in
Otis of legal learning with speculative opinion,
of principles of natural justice the most abstract and the most radical, with a deeply-fixed respect for the rights of property and obedience to the law, will become familiar with a cast of mind still common in
New England.
The subserviency of
Hutchinson increased the public discontent.
Men lost confidence in the integrity of their highest judicial tribunal.
Innovations under pretence of law were confirmed by judgments incompatible with English liberties.
The Admiralty Court, hateful because instituted by a British parliament to punish infringements of the Acts of Trade in
America without the intervention of a jury, had in distributing the proceeds of forfeitures, violated the very statutes which it was appointed to enforce.
Otis endeavored to compel a restitution of the third of forfeitures, which by the revenue laws belonged to the king for the use of the province, but had been misappropriated for the benefit of officers and informers.
5 ‘The injury done the province’ was admitted by the
chief justice, who yet had no jurisdiction to redress it. The Court of Admiralty, in which the wrong originated, had always been deemed grievous, because unconstitutional; its authority seemed now established by judges devoted to the prerogative.
Unable to arrest the progress of illiberal doctrines in the courts, the people of
Boston, in May, 1761, with unbounded and very general enthusiasm, elected
Otis one of their representatives to the Assembly.
‘Out of this,’ said
Ruggles to the royalist
Chandler of
Worcester, ‘a faction will arise that will shake
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this province to its foundation.’
Bernard became
alarmed, and concealing his determined purpose of effecting a change in the charter of the colony, he entreated the new legislature to lay aside ‘divisions and distinctions.’
‘Let me recommend to you,’ said he, ‘to give no attention to declamations tending to promote a suspicion of the civil rights of the people being in danger.
Such harangues might well suit in the reigns of Charles and James, but in the times of the Georges they are groundless and unjust.’
Thus he spoke, regardless of truth; for he knew well the settled policy of the Board of Trade, and was secretly the most eager instrument in executing their designs; ever restless to stimulate them to encroachments that should destroy the charter and efface the boundaries of the province.
Massachusetts invalidated the
British commercial system, which
Virginia resisted from abhorrence of the slave-trade.
Never before had
England pursued the traffic in negroes with such eager avarice.
The remonstrances of philanthropy and of the colonies were unheeded, and categorical instructions from the Board of Trade kept every American port open as markets for men. The legislature of Virginia had repeatedly showed a disposition to obstruct the commerce; a deeply-seated public opinion began more and more to avow the evils and the injustice of slavery itself; and in 1761, it was proposed to suppress the importation of Africans by a prohibitory duty.
Among those who took part in the long and violent debate was
Richard Henry Lee, the representative of
Westmoreland.
Descended from one of the oldest families in
Virginia, he had been educated in
England, and had
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returned to his native land familiar with the spirit of
Grotius and
Cudworth, of
Locke and
Montesquieu; his first recorded speech was against negro slavery, in behalf of human freedom.
In the continued importation of slaves, he foreboded danger to the political and moral interests of the Old Dominion; an increase of the free Anglo-Saxons, he argued, would foster arts and varied agriculture, while a race doomed to abject bondage was of necessity an enemy to social happiness.
He painted from ancient history the horrors of servile insurrections.
He deprecated the barbarous atrocity of the trade with
Africa, and its violation of the equal rights of men created like ourselves in the image of God. ‘Christianity,’ thus he spoke in conclusion, ‘by introducing into
Europe the truest principles of universal benevolence and brotherly love, happily abolished civil slavery.
Let us who profess the same religion practise its precepts, and, by agreeing to this duty, pay a proper regard to our true interests and to the dictates of justice and humanity.’
6 The tax for which
Lee raised his voice was carried through the Assembly of Virginia by a majority of one; but from
England a negative followed with certainty every colonial act tending to diminish the slave-trade.
South Carolina, also, appalled by the great increase of its black population, endeavored by its own laws to restrain importations of slaves, and in like manner came into collision with the same British policy.
But the war with the Cherokees weaned its citizens still more from
Great Britain.
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‘I am for war,’ said Saloue, the young warrior of
Estatoe, at a great council of his nation.
‘The spirits of our murdered brothers still call on us to avenge them; he that will not take up this hatchet and follow me is no better than a woman.’
To reduce the native mountaineers of
Carolina,
General Amherst, early in 1761, sent a regiment and two companies of light infantry, under
Lieutenant-Colonel James Grant, the same who, in 1758, had been shamefully beaten near
Pittsburg.
The province added to the regular forces a regiment of its own, under the command of
Henry Middleton, who counted among his
officers Henry Laurens,
William Moultrie,
7 and
Francis Marion.
At Fort Prince George, Attakulla-kulla met the expedition, entreating delay for a conference.
But on the seventh day of June, the army, which was formed of about thirteen hundred regulars, and as many more of the men of
Carolina, pursued their march, followed by about seven hundred pack-horses, and more than four hundred cattle.
A party of Chickasaws and Catawbas attended as allies.
On the eighth, they marched through the dreaded defiles of War-Woman's Creek,
8 by a rocky and very narrow path between the overhanging mountain of granite and a deep precipice which had the rushing rivulet at its base.
Yet they came upon no trace of the enemy, till, on the next day, they saw by the way-side, crayoned in
vermilion on a blazed forest-tree, a war-party of
Cherokee braves, with a white man as a captive.
On the morning of the tenth, at about half past 8, as the
English army, having suffered from
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forced marches and rainy weather, were walking
through thick woods on the bank of the Cowhowee, or, as we call it, the Little Tennessee, about two miles from the battle-ground of
Montgomery, at a place where the path runs along the foot of a mountain on the right, and near the river on the left, the Cherokees were discovered hovering over the right flank, while others fired from beyond the river.
Quintine Kennedy, with a corps of ninety Indians and thirty Carolina woodsmen, began the attack.
The unseen enemy were driven from their ambush near the river, but again rallied, mingling the noise of musketry with shouts and yells.
After three hours exposure to an irregular fire, the troops, following the river, emerged from the defile into an open savanna.
Meantime the
Indian whoop was heard as it passed from the front to the encumbered rear of the long-extended line, where the
Cherokee fire seemed heaviest; but
Middleton sent opportune relief, which secured the baggage.
Happily for
Grant, the Cherokees were in great need of ammunition.
Of the white men, ten were killed and forty badly wounded; to save the dead from the scalping-knife, the river was their place of burial.
Not till midnight did the army reach its place of encampment at Etchowe.
For thirty days the whites sojourned west of
the Alleghanies.
They walked through every town in the middle settlement; and the
Outside Towns, which lay on another branch of the
Tennessee The lovely hamlets, fifteen in number, were pillaged, burned, and utterly destroyed.
That year the Cherokees had opened new fields for maize, not in the vales only, but on the sides and summits of the hills, where the fugitives from the lower settlements were to make
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their bread.
But all the plantations, teeming with
prodigious quantities of corn, were laid waste; and four thousand of the red people were driven to wander among the mountains.
The English army, till its return in July to Fort Prince George, suffered from heat, thirst, watchings, and fatigue of all sorts; in bad weather they had no shelter but boughs and bowers; for twenty days they were on short allowance; their feet were torn by briers and mangled by the rocks; but they extended the
English frontier seventy miles towards the west; and they compelled the Cherokees to covenant peace, at
Charleston, with the royal governor and council.
‘I am come to you,’ said Attakulla-kulla, ‘as a messenger from the whole nation, to see what can be done for my people in their distress.’
Here he produced the belts of wampum from the several towns, in token of his investment with full authority from all. ‘As to what has happened,’ he added, ‘I believe it has been ordered by our Great Father above.
We are of different color from the white people; but the same Great Spirit made all. As we live in one land, let us love one another as one people.’
And the Cherokees pledged anew to Carolina the friendship, which was to last as long as the light of morning should break above their villages, or the bright fountains gush from their hill-sides.
9 Then they returned to dwell once more in their ancient homes.
Around them nature, with the tranquillity of exhaustless power, renewed her beauty; the forests blossomed as before; the thickets were alive with melody; the rivers bounded exultingly in their course;
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the glades sparkled with the strawberry and the wild
flowers; but for the men of that region the inspiring confidence of independence in their mountain fastnesses was gone.
They knew that they had come into the presence of a race more powerful than their own; and the course of their destiny was irrevocably changed.
In these expeditions to the
valley of the Tennessee,
Gadsden and
Middleton,
Moultrie and
Marion, were trained to arms.
At
Pittsburg, the Virginians, as all agreed, had saved
Grant from utter ruin; the Carolinians believed his return from their western country was due to provincial courage.
The Scottish colonel concealed the wound of his self-love by affecting towards the
Southern colonists that contemptuous superciliousness which had been promoted by
Montgomery, and which had so infused itself into the
British nation, that it even colored the writings of
Adam Smith.
Resenting the arrogance with scorn,
Middleton challenged his superior officer, and they met. The challenge was generally censured; for
Grant had come to defend their frontiers; but all the province took part in the indignant excitement, and its longcherished affection for
England was mingled with disgust and anger.
The discontent of New York sprang from a cause which influenced the calmest minds, and was but strengthened and extended by deliberate reflection.
It was not because the
Episcopal clergy of that colony urged Seeker,
Archbishop of
Canterbury, to promote the abrogation of provincial charters; for the correspondence was concealed.
It was not because they importunately demanded ‘bishops in
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America,’ as was their duty, if they sincerely be-
lieved that renovating truth is transmitted from generation to generation, not through the common mind of the ages, but through a separate order having perpetual succession; for, on this point, the
British ministry was disinclined to act, while the
American people were alarmed at Episcopacy only from its connection with politics.
New York was aroused to opposition, because, as the first fruits of the removal of
Pitt from power, within six weeks of his resignation,
10 the independency of the judiciary was struck at
11 throughout all
America, making revolution inevitable.
On the death of the
chief justice of New York, his successor, one
Pratt, a Boston lawyer, was appointed at the king's pleasure, and not during good behavior, as had been done ‘before the late
king's death.’
The Assembly held the new tenure of judicial power to be inconsistent with American liberty; the generous but dissolute
Monckton, coming in glory from
Quebec to enter on the government of New York, before seeking fresh dangers in the
West Indies, censured it in the presence of the Council;
12 even
Colden advised against it.
13 ‘As the parliament,’ argued
Pratt,
14 himself, after his selection for the vacant place on the bench, and when quite ready to use the power of a judge to promote the political interests of the crown, ‘as the parliament at the Revolution thought it the necessary right of Englishmen to have the judges safe from being turned out by the crown, the people of New York claim the right of
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Englishmen in this respect;’ and he himself was treated
with such indignity for accepting the office on other terms, that it was thought to have shortened his life.
15
But the idea of equality in political rights between
England and the colonies could not be comprehended by the
English officials of that day; and in November, about a month after
Pitt's retirement, the Board of Trade reported to the king against the tenure of good behavior, as ‘a pernicious proposition,’ ‘subversive of all true policy,’ ‘and tending to lessen the just dependence of the colonies upon the government of the mother country.’
16 The representation found favor with George; and, as the first fruits of the new system, on the ninth of December the instruction went forth through
Egremont to all colonial governors, to grant no judicial commissions but during pleasure.
To make the, tenure of the judicial office the king's will was to make the bench of judges the instruments of the prerogative, and to subject the administration of justice throughout all
America to the influence of an arbitrary and irresponsible power.
The Assembly of New York rose up against the encroachment, deeming it a deliberate step towards despotic authority; the standing instruction they resolved should be changed, or they, on their part, would grant no salary whatever to the judges.
‘Things are come to a crisis,’ wrote
Pratt, in
January, 1762, guided by his interest, and chiefly intent on securing a good salary.
‘If I cannot be supported with a competent salary, the office must be abandoned, and his Majesty's prerogative must suffer.’
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‘Why,’ asked
Colden, ‘should the
chief justices of
Nova Scotia and
Georgia have certain and fixed salaries from the crown, and a chief justice of so considerable a province as this be left to beg his bread of the people?’
and reporting to the Board of Trade the source of opposition in New York, ‘For some years past,’ said he, ‘three popular lawyers educated in
Connecticut, who have strongly imbibed the independent principles of that country, calumniate the administration in every exercise of the prerogative, and get the applause of the mob by propagating the doctrine, that all authority is derived from the people.’
These ‘three popular lawyers’ were
William Livingston, John Morin Scot,
17 and—alas, that he should afterwards have turned aside from the career of patriotism!—the historian,
William Smith.
The news of the resignation of
Pitt, who was ‘almost idolized’ in
America, heightened the rising jealousy and extended it through the whole continent.
‘We have such an idea of the general corruption,’ said
Ezra Stiles, a dissenting minister in
Rhode Island, ‘we know not how to confide in any person below the crown.’
18 ‘You adore the Oliverian times,’ said
Bernard to
Mayhew, at
Boston.
‘I adore Him alone who is before all times,’ answered
Mayhew, and at the same time avowed his zeal for the principles of ‘the glorious Revolution’ of 1688, especially for ‘the freedom of speech and of writing.’
19 Already he was known among royalists as ‘an enemy to kings.’
The alarm rose every where to an extreme height,
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and every question of authority in church and state
was debated.
The old
Puritan strife with prelacy was renewed; and Presbyterians and Congregationalists were jealous of the favor shown by the royal governors to the established church.
In New York the college was under Episcopal direction; as
New England's Cambridge was in the hands of Dissenters,
Bernard sealed a charter for another seminary in the interior.
A fund of two thousand pounds was subscribed to a society, which the legislature of Massachusetts had authorized, for propagating knowledge among the Indians; but the king interposed his negative, and reserved the red men for the Anglican form of worship.
Mayhew, on the other hand, marshalled public opinion against bishops; while
Massachusetts, under the guidance of
Otis, dismissed the
Episcopalian Bollan, its pedantic but honest agent, and—intending to select a Dissenter who should be able to employ for the protection of their liberties the great political influence of the Nonconformists in England-they intrusted their affairs to
Jasper Mauduit, who, though a Dissenter, was connected through his brother with
Jenkinson and
Bute and the king.
But the great subject of discontent was the enforcement of the Acts of Trade by the Court of Admiralty; the court which was immediately subject to the king, and independent of the province, where a judge determined questions of property without a jury, on information furnished by crown officers, and derived his own emoluments exclusively from his portion of the forfeitures which he himself had the sole power to declare.
The governor, too, was sure to lean to the side of large seizures; for he by law
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enjoyed a full third of all the fines imposed on goods
that were condemned.
The legislature, angry that
Hutchinson, as chief justice, in defiance of the plain principles of law, should lend himself to the schemes of the crown officers, began to perceive how many offices he had selfishly accumulated in his own hands.
Otis, whose mind was deeply imbued with the writings of
Montesquieu, pointed out the mischief of uniting in the same person executive, legislative, and judicial powers; but four or five years passed away before the distinction was much heeded; and in the mean time the judges were punished by a reduction of their salaries.
The general writs of assistance, which were clearly illegal,
20 would have been prohibited by a provincial enactment, but for the negative of the governor.
The commotion, which at first was confined to
Boston, was expected to extend to the other ports.
The people were resolved that their trade should no longer be kept under restrictions; and began to talk of procuring themselves justice.
21 
