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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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D. Morgan Pierce
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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JUDICIAL DISSENSION IN THE PREREVOLUTIONARY PERIOD
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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D. Morgan Pierce
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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JUDICIAL DISSENSION IN THE PREREVOLUTIONARY PERIOD
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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D. Morgan Pierce
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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JUDICIAL DISSENSION IN THE PREREVOLUTIONARY PERIOD
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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D. Morgan Pierce
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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JUDICIAL DISSENSION IN THE PREREVOLUTIONARY PERIOD
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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D. Morgan Pierce
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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JUDICIAL DISSENSION IN THE PREREVOLUTIONARY PERIOD
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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D. Morgan Pierce
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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JUDICIAL DISSENSION IN THE PREREVOLUTIONARY PERIOD
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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D. Morgan Pierce
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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JUDICIAL DISSENSION IN THE PREREVOLUTIONARY PERIOD
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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JUDICIAL DISSENSION IN THE PREREVOLUTIONARY PERIOD
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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JUDICIAL DISSENSION IN THE PREREVOLUTIONARY PERIOD
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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JUDICIAL DISSENSION IN THE PREREVOLUTIONARY PERIOD
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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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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JUDICIAL DISSENSION IN THE PREREVOLUTIONARY PERIOD
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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JUDICIAL DISSENSION IN THE PREREVOLUTIONARY PERIOD
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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JUDICIAL DISSENSION IN THE PREREVOLUTIONARY PERIOD
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.
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JUDICIAL DISSENSION IN THE PREREVOLUTIONARY PERIOD
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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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.
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JUDICIAL DISSENSION IN THE PREREVOLUTIONARY PERIOD
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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JUDICIAL DISSENSION IN THE PREREVOLUTIONARY PERIOD
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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JUDICIAL DISSENSION IN THE PREREVOLUTIONARY PERIOD
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.
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JUDICIAL DISSENSION IN THE PREREVOLUTIONARY PERIOD
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.
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JUDICIAL DISSENSION IN THE PREREVOLUTIONARY PERIOD
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.
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JUDICIAL DISSENSION IN THE PREREVOLUTIONARY PERIOD
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.
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JUDICIAL DISSENSION IN THE PREREVOLUTIONARY PERIOD
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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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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JUDICIAL DISSENSION IN THE PREREVOLUTIONARY PERIOD
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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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.
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JUDICIAL DISSENSION IN THE PREREVOLUTIONARY PERIOD
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Channing, A History of the United States, Volume III, The American Revolution, 1761-
1789.
Conway, Stephen; Britain and the Revolutionary Crisis, 1763-1791.
Dorfman, Joseph; The Economic Mind in American Civilization: 1606-1865, Volume
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Evans, Emory G.; Planter Indebtedness and the Coming of the Revolution in Virginia,
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Hacker, Louis M.; The Triumph of American Capitalism, Columbia University
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Johnson, Herbert Alan; English Statutes in Colonial New York, New York History, 58,
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Johnson, Richard R.; Growth and Mastery: British North America, 1690-1748.
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