The Founding of the American Republic 8; C. Carson

CLARENCE B. CARSON THE FOUNDING OF THE AMERICAN REPUBLIC 8 British Acts Become Intolerable THE REPEAL of the Stamp Act in early 1766 did not put an end to resistance in America. It did lower the level of the contest be tween Britain and America from its crisis proportions by removing the most conspicuous irritant. But repeal of the Stamp Act only whet ted the appetite of some Ameri cans for much more thoroughgo ing removal -of British imposi tions. As early as April the New York Sons of Liberty were de manding that "Americans should also insist on the removal of all restrictions on trade, the abolition of post offices and admiralty courts, and they should do so 'while the colonies are unanimous.' "1 After all, most of the parliamen tary acts against which the colo nists objected were still on the books, and executive action re mained unaltered. Troops were still stationed in America, and na val ships of war were stationed along the coast. The Sugar Act was still in effect. New York mer chants sent a petition to Parlia ment in 1766 complaining bitterly about the effects of trade restric tions upon their commerce. Re1 Merrill Jensen, The Founding of a Nation (New York: Oxford University Press, 1968), p. 186.

Dr. Carson lives. in Florida. He is a noted lecturer and author, his latest book entitled ThrottlinA the Railroads. 147 148 THE FREEMAN March straints upon imports and exports of sugar were particularly galling, and their· trade was hurt badly by limitations on how wood products could be sold.2 The Quartering Act still placed requirements on the colonies involved which some of them refused to comply with. The Currency Act restricted the issu ance of paper money both upon colonies which had responsibly re..; tired theirs in the past as well as those which had not. And there was the Declaratory Act with its strident claims about the unlimited powers of Parliament. The'Strategy of Resistance The colonists employed a va riety of tactics in their resistance to British impositions during the decade or so after 1763: some le gal, some extralegal, and others illegal. These tactics ranged from resolutions of legislatures, to peti tions to the government in Eng land, to unauthorized conventions and congresses, to boycotts, to demonstrations, all the way to rioting and the intimidation of of ficials by mobs. The use of some of these latter tactics in recent years has been justified on the grounds that they were employed by our venerated forebears - an excuse whose merits would be dependent upon analogous conditions. It may be of some use to examine the con2 Ibid., pp. 207-08.

ditions of the resort to violence by some Americans of that earlier time, both for the light it will shed on their situation as well as what it may tell us about the appropri ateness of this justification for contemporary violence. By such an examination, too, the issues be tween the colonists and the British can be sorted out. What tactics are appropriate is surely dependent on the options .available. To understand what op tions were available to the colo nists, one needs to review the po litical situation. The colonists did not fully con trol their governments. Far from it, in most cases. Usually, the gov ernor was appointed from England (the charter colonies of Connecti cut and Rhode Island were excep tions) , and he quite often received instructions from officials there. No more did the colonists ordi narily choose the members of the governor's council. The assembly was popularly elected, but its ac tions could be severely circum scribed. It met on call from the gov ernor, could have its acts vetoed by him, and was subject to being dismissed or dissolved by the ex ecutive. There were even efforts to control assemblies from England.

For· example, the New York legis lature was suspended for its fail ure to provide supplies for the troops under the Quartering Act.

1972 BRITISH ACTS BECOME INTOLERABLE 149 Therefore, legislatures were great ly hampered when it came to pre venting impositions on the colon ies. No direct action was open to them ordinarily because. of the power of governor and council to negate such action. Nor was there any established m.eans for intercolonial action; none had ever been set up, and the British were not about to allow any to be legally established dur ing the decade under considera tion. At best, only extralegal means were available for concerted action across the lines of colonies. The means for legal action by the colonists were limited then, not, as is the case usually, the means for some minority to express itself, but for the colonies as a people. This distinction is quite germane both for the justifications of revo lution which would be offered in the 1770's and for such justifica tion as there could be for illegal action prior to the revolt.

A Balance of Powers Now the elected legislatures had gained considerable power during the colonial period, as was shown in an earlier chapter. That power derived mainly from their author ity to originate taxes and appro priations. Governors even depend ed upon the elected legislature for their salaries in most colonies, and all actions requiring moneys awaited legislative action. Gov ernors and other crown officials were dependent upon or subject to the local populace in other ways as well. The force that had ordinarily been at their disposal before the period· under discussion had to be exercised by militia and other lo cal persons. Crown officials had to act through courts whose judges might be appointed by governors but whose most basic decisions were made by juries; and they could, themselves, be brought be fore the courts for mistreating colonists. In short, a precarious balance of powers had grown up over the years in most colonies. Colonial legislatures were counterbalanced by governors and councils, and the governor's power was limited by the necessity of his relying upon elected legislatures. Action depend ed upon a considerable measure of cooperation among the branch es of government. If they would not act together, many kinds of action could not be taken.

Massive resentment was aroused in the 1760's, then, when Parlia ment moved to alter these arrange ments: by taxing colonists, by making appropriations, by· sending standing armies, by setting up ad miralty courts without juries, and so on. The thrust of parliamentary action was to eviscerate the inde pendence of elected legislatures.

150 THE FREEMAN March The Quartering Act points this up, for the act required that colonies appropria te supplies for troops within the colony. If a legislature had to act in this fashion, it was hardly independent of Parliament. If Parliament could tax the colo nists, it could appropriate moneys to free officials within the colonies from dependence on the legisla tures. The fear of this was no phantom, for Parliament wasmov ing in this direction on governor's salaries. Of course, taxation by Parliament raised another basic issue. The Connecticut legislature put the matter in this fashion in 1765: That, in the opinion of this House, an act for raising money by duties or taxes differs from other acts of legislation, in that it is always con sidered as a free gift of the people made by their legal and elected rep,resentatives; and that we cannot conceive that the people of Great Britain, or their representatives, have right to dispose of our prop erty.3 In fact, Parliament was moving to unbalance the powers within colonies and make the colonies sub ject to itself. The colonists raised the question from the outset whether Parliament had the au3 Quoted in Edmund S. Morgan, "Co lonial Ideas of Parliamentary Power,: The Reinterpretation of the American Revolution, Jack P. Greene, ed. (New York: Harper and Row, 1968), p.166.

thority to do this. This question, in turn, led to an even more basic one: What was the extent of par liamentary authority over Amer ica? This was a question for which no definitive answers had ever been given. As Richard Bland of Virginia said in 1766: "It is in vain to search into the civil con stitution of England for directions in fixing the proper connection be tween the colonies and the mother kingdom .... The planting colonies from Britain is but of recent date, and nothing relative to such plan tation can be collected from the ancient laws of the kingdom .... " He argued that "As then we can receive no light from the laws of the kingdom, or from ancient his tory to direct us in our enquiry, we must have recourse to the law of nature, and those rights of man kind which flow from it."4 Others sought to base the argument, how ever, on charter rights. Colonial spokesmen generally maintained that Parliament could proper ly regulate relations among the parts of the empire and with other nations. They accepted the sovereignty of the British govern ment over them and did not ques tion - during the early years that Parliament played a role in changes in the actions of the sov4 Jack P. Greene, ed., Colonies to Na tion (New York: McGraw-Hill, 1967), pp. 88-89.

1972 BRITISH ACTS BECOME INTOLERABLE 151 ereign. Beyond these general func tions, Parliament should not go. The position of Parliament re garding its powers over the colo nies was set forth in the Declara tory Act: it could legislate for the colonies in all matters whatsoever. Who was right? The answer to that question depends on what is right. The majority in both houses of Parliament never proposed to consider the question. They did not doubt that they had the authority to take what actions they would (Where were the limits upon them?), and they did not appear to .doubt that when called upon they would have the necessary power to enforce their acts. It was not a matter of what was right (a minority in Parliament disagreed about this), it was only a matter of what was expedient. The colonial opposition, from the beginning, did tackle the ques tion from the angle of what was right. They believed that Parlia ment, by right, was limited in what it could do. They believed that the original charters, the British constitution, and, in the final analysis, the laws of nature, set bounds to the authority of Parliament. The colonists should be adjudged to have been right, then. Since Parliament chose to act on the grounds of expediency, it is only fair that they should be judged, in part, on those grounds.

It turned out not to have been an expedient course, for by it the American empire, except for Canada, was lost. Since Parlia ment did not choose to stand on right, the colonist's position as to right can be accepted without dif ficulty, because it was not con tested. 5 In any case, Parliament and the colonies were on a collision course each time they acted fro~ their opposite premises. Parliament might, and did, find it expedient to back down on particular issues, though not on the general princi ple. The colonists, on the other hand, since they did not suppose themselves to be acting from ex pediency, did not back down. Once Parliament no longer found it ex pedient to back down, the die was cast. The Townshend Acts Parliament plunged ahead with new legislation aimed at the colo nies in 1767. The leader in formu lating this legislation was Charles Townshend, and it became known 5 This does not mean that colonists were right in everything they did in op position to British action, nor that others at some later time would be justi fied in imitating their every action, even if they found themselves in analogous conditions. The rightness of a cause does does not absolve people from moral and just behavior. That a cause is just is reason for working for its triumph, not for the engaging in wrongful acts.

152 THE FREEMAN March as the Townshend Acts. For a while after the repeal of the Stamp Act, things began to look better for the colonies. William Pitt formed a cabinet, and he had been quite outspoken on the side of the colonies during the debates over the Stamp Act. In fact, Pitt was far and away the most popu lar Englishman in America at this time, though truth to tell he had little competition. But Pitt was made the Earl of Chatham, moved into the House of Lords, and was debilitated by illness. The legisla tive leadership passed to Charles Townshend, chancellor of the ex chequer, in 1767. Taxes and Intervention The act which has drawn the most attention was the one levy ing import duties on glass, lead, painter's colors, paper, and tea. During the debates over the stamp tax the distinction between inter nal and external was talked about considerably. Some got the impres sion that Americans accepted ex ternal taxes, but not internal ones.

Operating from this premise, Townshend argued that Ameri cans should accept these new du ties, since they were levied on im ports and would be considered external taxes. The act indicated that it was for the purpose of raising a revenue, that such mon eys as were raised would go first to defray costs of governing in America, that what was left would go to the British treasury, and that the. duties must be paid in silver. It also authorized the use of writs of assistance to be used in searching for goods on which duties had not been. paid and specifically empowered "his Maj esty's customs to enter and go into any house, warehouse, shop, cellar, or other place, in the British colo nies or plantations in America, to search for and seize prohibited or uncustomed goods" with writs which courts in America were di rected to issue. Another act, passed at the same time, was the American Board of Customs Act. This established a board of customs for America, to be composed of five commissioners, and to be located at Boston. A little later in the year, an act was passed suspending the New York legislature for not providing troop supplies. In a similar vein, an act in September of 1767 curtailed the power of colonial elected legis latures. Finally, an act passed in July of 1768 extended and spelled out the jurisdictions of vice-ad miralty courts in the colonies and increased the number of courts in America from one to four.

Resistance to the Townshend duties, as to the other British ac tions, was preceded or accom panied by theoretical formulations, 1972 BRITISH ACTS BECOME INTOLERABLE 153 formulations which held that Brit ish action was in violation of im memorial rights. These theoretical formulations frequently appeared first as' a series of anonymous let ters in newspapers and then as pamphlets, though the order might be reversed. America had quite a number of men ready to enter the lists with such writings at criti cal junctures. James Otis, Samuel Adams, Daniel Dulany, and Rich ard Bland provided some of the early grist for the mills of opposi tion. John'Dickinson's "Letters" The man who came forward to do duty against the Townshend Acts was John Dickinson, a Mary lander born, who was sometimes from Pennsylvania but most regu larly from Delaware. He belongs in tha t select circle of men en titled to. be called Founding Fath ers. From 1767 to 1775 he was the theoretician of colonia.l resistance.

Though he opposed declaring in dependence, he headed the commit tee which produced the Articles of Confederation. He served in the army for a time during the War for Independence and was a dele gate to the constitutional. conven tion from Delaware, though leader ship in such matters was now in other hands. Dickinson's position on the Townshend duties was published as a series of letters published 'weekly in the Pennsylvania Chronicle and Universal Adver tiser beginning November 30, 1767. These collected letters were called Letters from a Farmer in Pennsylvania. New England news papers began publishing them in December, and before it was over all colonial neswpapers except four published them. They were pub lished as a pamphlet in 1768, went through seven American editions, one in Dublin, two in London, and 3. French translation. 6 A historian sums up their impact in this way: "Immediately, everyone took Dick inson's argument into account: Americans in assemblies, town meetings, and mass meetings adopted resolutions of thanks; British ministers wrung their hands; all the British press com mented, and a portion of it ap plauded; Irish malcontents read avidly; even the dilettantes of Paris salons discussed the Penn sylvania farmer."7 For one thing, the tone of the Letters was right .. Dickinson not only claimed a formal loyalty to the king and the empire but actually cast. his argument in terms of the well being of the empire. Though the natural law philosophy. under6 See Jensen, op. cit., pp.241-42.

1 Forrest McDonald, intro., Empire and Nation (Englewood Cliffs: Prentice Hall, 1962), p. xiii.

154 THE FREEMAN March lay much of what he wrote, he did not· emphasize natural laws and natural rights so as to distinguish them in a divisive manner from the rights of Britons under the Constitution, as some writers had rushed to do prematurely. His ap peal was to tradition, precedent, prudence, self-interest, the desire of liberty, and continuity with the past. And though he bade Ameri cans to resist the Townshend du ties, he proposed that they do so in an orderly fashion. First, they should send petitions; if these did not get results, turn to something like a boycott of goods; only when all peaceful means had failed, should other approaches be con sidered. But he pled with Ameri cans not to give in to a spirit. of riotousness. "The cause of liberty is a cause of too much dignity to be sullied by turbulence and tu mult. It ought to be maintained in a manner suitable to her nature.

Those who engage in it, should breathe a sedate, yet fervent spirit, animating them to actions of prudence, justice, modesty, bravery, humanity and magna nimity."8 The Argument Against Taxes The great appeal of his work stemmed, of course, from the fact that he shredded the argument for the Townshend duties, showed it 8 Ibid., p. 17. to be grounded in sophistry - no better than the case for the Stamp Act, only more subtle - and found the duties violative of the rights of British subjects and potentially confiscatory. As for these duties being acceptable because they were external taxes, he thought the case hardly worth considering. The objection to taxation by Par liament did not hinge upon the distinction between internal and external; it was to taxation as such. Americans accepted, he pointed out, as they had accepted, duties that were for the purpose of regulating trade, but not those levied for the raising of revenue.

·The latter were clearly taxes, and they involved the taking of prop erty without the consent of the owners. True, incidental revenues might arise from the regulation of trade, but they were a conse quence, not the cause of it. No such case could be made for the Townshend duties; they were laid on items which must be obtained from England. Certainly, it was not the aim of the British to in hibit trade in them nor to re strain it. In fact, it was simply a tax, for the colonists were not permitted to obtain the goods else where, and might, if the British chose, be prohibited from manu facturing them. There was ample precedent for this. Property was no longer· secure, 1972 BRITISH ACTS BECOME INTOLERABLE 155 Dickinson said, if the principle of parlia.mentary taxation of the col onies be· once accepted. "If the parliament have a right to lay a duty of Four Shillings and Eight pence on a hundred weight of glass, or a. ream of paper, they have a right to lay a duty of any other sum on either .... If they have any right to tax us - then, whether our own money shall con tinue in our own pockets or not, depends no longer on us, but on them. 'There is nothing which' we 'can call our own; or, to use the words of Mr. Locke - WHAT PROP ERTY HAVE' WE 'IN THAT, WHICH ANOTHER MAY, BY RIGHT, TAKE, WHEN HE PLEASES, TO HIMSELF?'''9 Massachusetts' Circular Letter Colonial elected legislatures be gan to act in 1768. Massachusetts took the lead in February by drawing up a Circular Letter which it sent around to the other colonies. This letter was subse quently endorsed by New Hamp shire, Virginia, Maryland, Connec ticut, Rhode Island, Georgia, and South Carolina, sometimes by as semblies~ and, if they were not sitting, by the Speaker. 10 The British reply came from the Earl of Hillsborough in April; it was 9 Ibid., pp. 43-44.

10 See Lawrence H. Gipson, The Com ing of the American Revolution (New York: Harper Torchbooks, 1962), pp. 185-87. sent as a. circular letter to the governors of all the colonies. He had already written to Governor Bernard of Massachusetts that at the next session of the House of Representatives he "must 're quire' " them "to rescind the Circular Letter and declare" their "'disapprobation of and dissent to that rash and hasty proceed ing.'''l1 To the other governors, he declared that his expectation was that their assemblies would not participate in this new effort to arouse resentment to British rule. "But if notwithstanding these expectations and your most earnest endeavors, there should appear in the Assembly of your Province a disposition to receive or give any Countenance 'to this Seditious Paper [the Massachu setts Circular Letter], it will be your duty to prevent any proceed ing upon it, by an immediate Prorogation or Dissolution .... "12 In June, Hillsborough ordered troops to Boston.

Non-Importation Agreement It was obvious from these and other instances - the harassment of shippers by customs agents, the increasing of military forces in the colonies, the rej ection of petitions - that petitions and res olutions alone would not produce 11 Jensen, Ope cit., p~ 253. 12 Greene, Colonies to Nation, p. 143. , 156 THE FREEMAN March a change in British policy. The colonists, then, moved toward at tempting to hit Britain where it would hurt - in trade. Boston took the lead in adopting a non-im portation agreement in August of 1768. What they proposed to do, among other things, was to cease almost all imports from Britain. The movement to do this spread through the colonies, though it was rough going. Understandably, importers and shippers were not overly enthusiastic about this, especially those for whom this was a major source of income. More over, it needed to be a concerted effort throughout the colonies. If it were not, ports which· remained open could put the efforts of the others to nought. Colonists did succeed in closing down the major port cities in America to most British imports in the course of 1769. The best weapon against ports which did not cooperate was to cut off commercial relations with them. ~ This usually brought them into line.

Though non-importation was far from absolute, it did succeed. Imports from Great Britain into the colonies fell from £2,157,218 in 1768 to £ 1,336,122 in 1769.13 Some ports did much better than this average. For example, Phil13 Richard B. Morris, ed., Encyclopedia of American History (New York: Har per, 1953), p. 78. adelphia's imports from Britain dropped from £432,000 in 1768 to £ 200,000 in 1769 to £ 135,000 in 1770.14 More importantly, since the object of non-importation was not simply to reduce imports from Britain, the British began to back down once again in the face of determined colonial opposition. In 1769, Parliament moderated its position on the Quartering Act to allow colonies to supply troops on their own initiative. Reduced Tensions under Lord North More success for the colonies was to follow with the coming of a new ministry. Lord North be came, in effect, Prime Minister in early 1770, a position which he was to hold until 1782. During these years he served George III as best he could, doing his will during a time when a man of lesser loyalty and fortitude would have sought a less demanding job.

Re served his king first by acting to reduce tensions in America. In April, the Townshend duties were repealed, except for the tax on tea. Some concessions were also made in the application of the Currency Act. I t was not long before the non importation agreements began to be abandoned. There was consider able sentiment for continuing them - after all, the tax on tea 14 Jensen, op. cit., p. 357.

1972 BRITISH ACTS .BECOME INTOLERABLE 157 had not been repealed, nor had other sources of tension been re moved - but many of the mer chants had had ~nough of such self-denial. By various maneuvers, they opened up the ports to Brit ish goods once again. This course was the more attractive generally because the hasty efforts at in creasing domestie manufactures to replace British imports had produced few tangibl~ results. Calm Before Storm The colonies were comparatively calm during 1771. Although there had been clashes between British troops and colonists at New York and Boston (the latter leading to the "Boston Massacre") in 1770, these did not expand into any general conflict. Such as remained of the British threat to the colo nies was difficult to dramatize; there can hardly be said to be a trend toward oppression if the op pressive measures are being re duced. At any rate, no major fig ure ventured forth to attempt any dramatization. Even though tea continued to be taxed, the amount of tea imported into the colonies from England increased from the low point for the past several years of 110,000 pounds in 1770 to 362,000 pounds in 1771.15 15 See Donald B. Cole, Handbook of American History (New York: Harcourt, Brace and World, 1968), p. 51.

It was, however, the calm before the storm, the clouds for which began to gather in 1772. The first of these was the burning of the revenue ship, the Gaspee, by Rhode Islanders in June. The Gaspee had been harassing ship ping coming into Rhode Island for some time; the captain was particularly obnoxious in his treatment of those on ships stopped for searches. The Gaspee ran aground, and while she was in that disabled condition, a party boarded her, drove the crew off and burned the ship. An investi gating committee turned up no useful information but its appoint ment from England stirred resent ment. A little later in the year, the British Exchequer took over the payment of the salaries of the governor and judges in Massachu setts. Here the move that had been long feared: to remove crown of ficials from reliance on the elected legislature. In November, Boston formed a committee of correspon dence which sent statements to other towns in Massachusetts and to all colonial assemblies. Early the next year, the House of Bur gesses in Virginia established a committee of correspondence, and most· other colonies followed suit.

Tea Act 01 May, 1773 What stirred the colonists to open resistance once again, how158 THE FREEMAN March ever, was the Tea Act in May of 1773. The purported intent of this act was to rescue the East India Company. That company was in dire straits, on the verge of bank ruptcy, and sorely in need of a market for its tea. Though im ports had picked up in the Amer ican market, it is generally be lieved that most of the tea con sumed in America came from the Dutch; by buying such tea the the colonists unlawfully evaded the tax on it. The Tea Act was devised to make tea from the East India Company almost irresisti ble. It enabled that company to sell tea directly in America, re lieving it of the necessity of sell ing it first at auction to merchants in England. "By eliminating the middleman . . . the company was able to sell tea in the colonies cheaper than in England," even though it was still taxed in the col onies. "More significantly, its tea now undersold that of the Dutch smugglers."16 A Monopoly, plus Taxes The British were about to suc ceed in doing what John Dickin son indica ted to be the danger.

They were going to establish a monopoly for a taxed item, some thing which could not be compet16 John C. Miller, Origins of the Amer ican Revolution (Boston: Little, Brown and Co., 1943), p. 339. itively produced in America, but was very popular. It is likely that had Parliament contented itself with establishing a monopoly it might have got away with it. But the fact that tea was taxed entan gled the monopoly question with taxation-without-representation. The objections which had been raised before had now a fresh exemplar; but now Americans were to be seduced into compli ance by a lower price. It did not happen. True, the East India. Company caused chests of tea to be loaded on many ships for America, and these put into port at Boston, Philadelphia, New York, and Charleston. The colon ists were ready for them; they would not buy or consume the tea, nor would they allow it to be landed if they could help it. The most dramatic opposition occurred at Boston, where Bostonians dressed as Indians boarded the ships and heaved the chests into the water. Patriots prevented tea from being landed in Philadelphia.

It was landed and transferred to the customs house at Charleston; there it stayed until war came. The Intolerable Ads This time Parliament did not back down when confronted by colonial resistance. The majority determined, instead, on a policy of coercion, a policy backed by four 1972 BRITISH ACTS BECOME INTOLERABLE 159 acts passed between March 31st and June 2nd of 1774. They are known formally as the Coercive Acts. The force was to be con centrated on Boston and Massa chusetts. The Boston Port Act closed the port of Boston to com mercial shipping until such time as the East India Company had been compensated for the tea. The Massachusetts Government Act provided that the governor's coun cil would be appointed by the king, not elected as had been the case, that the governor and king would appoint judges, that juries would be chosen by the sheriff, and that town meetings could not be held without the consent of the gover nor, except for annual election meetings. The Administration of Justice Act was of general effect and provided for the trying of certain officials from the colonies in England, if the governor thought it necessary. The Quar tering Act applied generally to the colonies, also; it authorized the quartering of troops in occupied· dwellings.

The colonists dubbed them the Intolerable Acts. (I Next: The Prelude to Independence. A Policeman's Lot IDEAS ON LIBERTY A GOVERNMENT'S proper function in a free society· is to act as a policeman, not as a regulator over people's actions Ot" choices. The more regulations or restrictions, the more corruption. Why? Because we have reached a time when honest business men must get the right to produce or engage in a business from men who do not produce. A dozen permits are needed by busi nessmen before they can engage in activity which is their right. More often than not, they must grease the palm of every para site issuing these permits or suffer deliberate and disastrous delays. In addition the city has the "right" to take away these permits, in the event some asinine regulation is not complied with. JACK MORANO, A MEMBER OF THE TACTICAL PATROL FORCE OF NEW YORK CITY, FROM A LETTER TO The Wall Street Journal, December 28, 1960.