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A Constitutional History of the United States
Chapter VII - An Obdurate Parliament and Obstinate Colonies, 1769-1773.
by McLaughlin, Andrew C.


THE GREAT CONTROVERSY BETWEEN GOVERNOR AND LEGISLATURE IN MASSACHUSETTS

We cannot watch the gathering clouds of trouble in the empire without seeing the essence of the difficulty. The problem of managing an empire in which were colonists possessed of political skill and the spirit of freedom was too big for the brain and temper of British politicians. It is easy enough to heap blame on wrong-headed ministers and an obstinate king, but the reality to be grasped is that the social and political order of Britain still tolerated a government of that particular mental density, unsuited to the job which an empire of freedom presented. "Magnanimity in politics," said Burke, "is not seldom the truest wisdom; and a great empire and little minds go ill together." The classes ruling in society and the state had a firm grasp on the government, and to those classes the essential principles of America were obnoxious. But withal, two things need to be remembered: as we have already pointed out, the problem was inherently difficult; and Britain, if she had nothing else to be proud of, could well indulge in self-glorification, had she so minded, at the sight of colonists, the fruit of her own loins, who were so capable in politics and in reality so free — and that freedom was the product of her own liberality. Decades had to pass before Britain was in condition to yield in her own insular structure to the ever-growing forces of popular government. The tone of public life, the very principles, and practices of the kingdom, though even then there were symptoms of disquietude, lay beneath parliamentary and ministerial arrogance. We must be content here with a few facts, briefly related, which will help in bringing to light the nature of the American position.

One source of trouble was the British army. Justify as you may the need or the advisability of its presence in America, the fact remains that a regiment or two of soldiers in an American town were not considered agreeable companions. The Quartering Act, which was passed about the time of the Stamp Act, aroused special opposition in New York where the legislature was calmly ordered to provide housing and to make provision for the support of the troops. The situation, when General Gage settled down in the province with his soldiery, was next to intolerable. The legislature refused to comply fully with the demands made upon it (1766), and saw fit to debate the question; but that would never do, and the next year, along with Townshend's revenue acts, came an act of Parliament suspending the functions of the legislature until it carried out the terms of the Quartering Act. Even before the news of the measure reached the colony, the legislature yielded, "saving its face by not itemizing the 'salt, vinegar, beer or cyder' which were in dispute." [1] But cider and beer were not the whole of the matter; the measure of repression had done incalculable harm. It was the natural result of an attitude toward a social problem; the way to secure obedience is not by conciliation, not by consideration and affection, but by punishment and above all by steady adherence to a policy, lest yielding diminish dignity. And this fear and belief that America was taking advantage of indulgence took possession of many Britons who were not natively imbued with the qualities of recalcitrant Toryism. But the Americans, in their turn, were led to inquire whether their legislatures were, within their customary fields, independent bodies or only agencies of a government across the sea which could order them to make appropriations as it saw fit.

Then Hillsborough, indignant at the Massachusetts Circular Letter, sent out to the other twelve colonies a letter of his own.[2] He would have none of these efforts to create "unwarrantable combinations" and "unjustifiable opposition to the constitutional authority of Parliament"; and the Massachusetts legislature was ordered to rescind its "rash and hasty proceeding." [3] When the House of Representatives, by a vote of 92 to 17, refused to rescind, the legislature was dissolved; and the next General Court when chosen contained not 17 but 10 supporters of the prerogative.[4] Other legislatures hastened in loyal addresses to announce their adherence to the principles of Massachusetts. Hillsborough's conduct only strengthened American opposition, brought the doctrines of the Circular Letter into clearer light, and helped to unify opinion. Thus, thanks to these unseemly quarrels with the colonial legislatures, the detached question of the right of Parliament to levy taxes had risen, or degenerated, into the question whether legislatures could even pass resolutions expressing in calm and uninflammatory fashion their opinion of the constitution of the empire.[5] "If the votes of the House", said the Massachusetts assembly, "are to be controlled by the direction of a minister, we have left us but a vain semblance of liberty." [6]

Still, despite all this unnecessary and dangerous disputation, it is conceivable that Britain might have succeeded; for the revenue acts were being enforced, though not without difficulty and occasional lawlessness. But Parliament was impatient; it is the nature of fatuous high-handedness to be impatient. In an address to the throne in 1768 appeared an ominous proposal. Passed by the Lords, the address went to the Commons (1769) where there was a debate which was declared to be "very fine indeed", and the address was finally passed. It suggested the advisability of procuring full information "touching all treasons, or misprision of treason," and the appointment of a special commission for "enquiring of, hearing, and determining, the said offences within this realm, pursuant to ... the statute of the 35th year of the reign of king Henry the eighth...." A most astounding proposal — to try the "traitors" of Massachusetts in Britain! The threat aroused opposition in America. In a series of resolutions, the House of Burgesses in Virginia asserted once again that the sole right to impose taxes on Virginians was vested in that house, and that trials for treason ought to be held within the colony; sending suspected persons across the sea for trial would rob them of the "inestimable privilege of being tried by a jury from the vicinage...." [7]

The next step taken by Parliament was the repeal of duties levied by the Townshend Acts, except a duty on tea (1770). Lord North, who had just come to the head of the ministry, where he remained for years the obedient servant of the king, advocated repeal. The acts were "preposterous"; [8] he would gladly take steps to soothe the angry Americans, but lenience did not seem to encourage a spirit of obedience; it led to further insult of "our authority". The tax on tea must be retained. "The properest time to exert our right of taxation, is, when the right is refused." But there were British soldiers in America. Boston did not like them; their presence awakened unpleasant reflections. On the very day that North advocated the repeal of the Townshend duties, occurred the Boston "massacre"; and the next day came the stern demand of the citizens that the soldiers be removed to the castle in the harbor. The spirit of rebellion was waxing strong in the Puritan town.

In 1769, as the legislature refused to carry on business at Boston in the presence of troops, it was adjourned to meet at Cambridge. Governor Bernard soon departed for England, and Lieutenant-Governor Hutchinson, who shortly thereafter was given the full title, was left to meet the waves of discontent. When he summoned the legislature to Cambridge, the storm broke — not the storm of riot, but the more trying deluge of argument.[9] Samuel Adams was on hand to inquire by what authority the Governor acted. Both the council and the house objected, though on somewhat differing grounds, and contested at length the Governor's position; for he simply declared that as an officer of the Crown he could do no other; he must obey instructions. Did instructions, then, coming from a ministry three thousand miles away give full justification for the Governor's doing everything that a minister might desire? If so, what was the value of a charter and wherein lay the authority of the legislature?

The discussion [10] lasted for months and the months lengthened into years, ending only in 1772, when the legislature was allowed to meet again at Boston. And so, because of a needless order from an incompetent ministry, Massachusetts was taught to consider over and over again the nature of her institutions and her property in her principles of self-government. Hutchinson declared that the people who had previously disowned the power of Parliament now allowed little or no share of government to the king. But this indictment appears to have been false or at least extravagant in both counts; certainly, whatever may have been openly said by the irresponsible or covertly by the more radical leaders, it can hardly be declared that the colonists had come to these ultimate positions. They had not definitely reached the point of announcing in any formal and tangible way that Parliament had no power. Hutchinson himself was to bring them nearly, if not quite, to that declaration. And the time had not yet come when they were prepared to say that the king had degenerated into a tyrant. They were, however, easily to be persuaded; but, while it may to us appear in theory to be a short step from denying the binding effect of instructions to the denial of royal power, the distance in reality was considerable. If the colonists were not prepared to renounce allegiance, petty interference and nagging were likely to arouse the spirit of real rebellion almost as quickly as would acts of cruelty and tyranny.[11]

The year 1772 is for some reasons deserving of special notice; it cannot be passed over without comment. This is true especially because of the activity of Sam Adams, who, whether he was purposely working for complete independence or not, was certainly intent upon keeping alive the spirit of resistance to measures endangering his conception of American liberty.[12] Many times he used the arguments of which he was fond; he referred to Montesquieu, and Vattel, and Locke. Of chief interest was his work for the establishment of committees of correspondence in the towns of Massachusetts, a means of arousing a common action and sentiment and a common fear of peril. The document adopted by the town of Boston (November 20, 1772), seemingly the work of Adams, giving "the Rights of the Colonists and of this Province in particular, as Men, as Christians and as Subjects", is an able one, sprinkled with plentiful quotations from the philosophers and asserting the right to freedom to be inalienable. All this is of consequence to us because it brings out so clearly, once more, those fundamental notions which were widely held as the basis of free government — individual right to freedom and property and the necessity of limited rather than unlimited government.

In 1773, thanks to threats that persons accused of offenses committed in America should be sent beyond the sea for trial, another important step was taken, this time by Virginia. That colony recommended the formation of intercolonial committees of correspondence, and thus on a continental scale prepared the system which made opposition effective. The union of the colonies which later became a union of states rested thus at first on community of ideas fostered, though not begotten, by committees — extra-legal, if not illegal, bodies — which could present forcibly the spirit of discontent. Important in our history as opposition is, of importance also is the development of the mechanism and the practices which secured a degree of political unity or co÷peration.[13]

In this same year (1773) Governor Hutchinson entered upon a perilous undertaking. Clothed with wisdom of the law and of history, he dared to argue with the Massachusetts legislature, to measure swords in reality with Sam Adams, who in some measure was coached by John Adams, an able and learned lawyer. The Governor dared to bring forcibly to the attention of an eager populace the essential nature of the controversy between Great Britain and the colonies. He was vigorous, talented, and determined, but we still wonder at his folly. A number of impressive state papers[14] lie before us to-day, the weapons and the products of the dispute. The Governor's speeches are perhaps the best single presentation of Britain's case, the ablest arguments for parliamentary authority. Hutchinson believed he could conquer by argument. He believed he could convince by reasoning; but where did his reasoning lead? To the conclusion that the colonists had no rights, no institutions, no security, if Parliament wished to take them away; all were held by the insecure tenure of parliamentary grace. Once more the theory of parliamentary omnipotence must be acknowledged. No self-respecting people, accustomed to manage their own affairs, could accept such conclusions.

The council's second answer to the Governor is a memorable document; it is cogent and compelling. What possibilities had Hutchinson's cleverness conjured up! The councilors insisted on freedom from parliamentary taxation, but they were not to be drawn by the Governor's forensics to a denial of all authority. "What is usually denominated the supreme authority of a nation, must nevertheless be limited in its acts to the objects that are properly or constitutionally cognizable by it." Thus, they seem to say, in any constitutionally-organized nation there are legal duties and legal limitations. There is, in the nature and practices of government, no impossibility of recognizing those duties and those obligations. This is not quite the old argument from natural rights and the existence of a constitution that must be fixed; the council saw the possibility of distributed authority in an organized empire. The council plainly grasped the principle which in its reasonings had so far been only reached after, not seized. It referred to Hutchinson's statement that, "although ... there must be one supreme authority ... , this constitution will admit of subordinate powers, with legislative and executive authority, greater or less, according to local and other circumstances." "This is very true," the council replied, "and implies that the legislative and executive authority granted to the subordinate powers, should extend and operate, as far as the grant allows; and that, if it does not exceed the limits prescribed to it, and no forfeiture be incurred, the supreme power has no rightful authority to take away or diminish it, or to substitute its own acts, in cases wherein the acts of the subordinate power can, according to its constitution, operate. To suppose the contrary, is to suppose, that it has no property in the privileges granted to it; for, if it holds them at the will of the supreme power, ... it can have no property in them.... But, as in fact, the two powers are not incompatible, and do subsist together, each restraining its acts to their constitutional objects, can we not from hence, see how the supreme power may supervise, regulate, and make general laws for the kingdom, without interfering with the privileges of the subordinate powers within it? And also, see how it may extend its care and protection to its colonies, without injuring their constitutional rights? What has been here said, concerning supreme authority, has no reference to the manner in which it has been, in fact, exercised; but is wholly confined to its general nature."

Here we see a fairly firm grasp of the essentials of federalism. Plainly the central principle — the distribution of powers among governments — was taking definite shape in some colonial minds. Though the Parliament was spoken of as "supreme", we are not justified in supposing that the council meant by that word complete and all-embracing authority. Such authority was the very object attacked. The demand was for the recognition of "property" possessed by the colony — legal security within its legal sphere of government. And if to the reader this argument seems neither conclusive nor altogether clear, the fact remains that distribution of authority in the empire and the recognition of the rights of the colonies as constituent portions of the empire were asserted. If Hutchinson's reasoning and his conclusions were legally sound, he nevertheless thrust them unwisely into the faces of a politically-minded people who had practiced freedom; to dare such a thrust was a negation of cautious statesmanship. If the colonists, convinced by his reasonings, were forced to choose between unlimited submission to Parliament and complete freedom from control, which horn of the dilemma would they choose?

In the course of his argument, Hutchinson laid down a principle which he thought was beyond the reach of all denial: "I know of no line that can be drawn between the supreme authority of Parliament and the total independence of the colonies: it is impossible there should be two independent Legislatures in one and the same state; for, although there may be but one head, the King, yet the two Legislative bodies will make two governments as distinct as the kingdoms of England and Scotland before the union." Thus he handed out a principle of political science or philosophy; but men are not always willing to be governed by the principles of philosophy. Hutchinson, be it noticed, could not conceive of a government that possessed only limited authority; he could not conceive of two independent legislatures, not to say two independent governments, in one and the same state; one must be so distinctly subordinate to the other as to have no legally indefeasible property in its own authority.

When Hutchinson boldly threw down the gauntlet, the house eagerly took it up and, after discussing the general question of the powers of Parliament over the province, reached the critical point to which the Governor's speech had forced it. "Your Excellency tells us, 'you know of no line that can be drawn between the supreme authority of Parliament and the total independence of the colonies.' If there be no such line, the consequence is, either that the colonies are the vassals of the Parliament, or that they are totally independent. As it cannot be supposed to have been the intention of the parties in the compact, that we should be reduced to a state of vassalage, the conclusion is, that it was their sense, that we were thus independent. 'It is impossible,' your Excellency says, 'that there should be two independent Legislatures in one and the same state.' May we not then further conclude, that it was their sense, that the colonies were, by their charters, made distinct states from the mother country? ... there is more reason to dread the consequences of absolute uncontroled power, whether of a nation or a monarch, than those of a total independence.

... If your Excellency expects to have the line of distinction between the supreme authority of Parliament, and the total independence of the colonies drawn by us, we would say it would be an arduous undertaking, and of very great importance to all the other colonies; and therefore, could we conceive of such a line, we should be unwilling to propose it, without their consent in Congress."

The house appears to admit the possibility of a line of distinction between complete parliamentary power and the total absence of it, but the net result was a denial of any authority at all. Cleverly also the hint was given that the colonies acting together might be able to work out a scheme which would distinguish between powers and save some remnant of parliamentary jurisdiction; and what could be more ominous in the eyes of Westminster than a continental congress? The assertions made by the men of England in their discussions over the Stamp Act repeal, the declarations continually made that the denial of one power necessarily involved the denial of all, had now brought their legitimate and inevitable fruit. The direct and inescapable crisis was induced under provocation from a cocksure Governor who believed that he could do more than English pamphleteers, parliamentary orators, and loyalist newspaper writers had been able to accomplish; he thought that by sheer weight of metal he could sink the tiny shallop of provincial assumption and could overwhelm the great incendiary, its commander. Logic may have been on his side and references to precedent may not have been unavailing; but more than logic and theory were needed. And on their side, the cohorts of Sam Adams had the historical fact, even though here and there is was weakened by precedent, that the Massachusetts legislature did exist, had existed, had legislated, and had acted as a competent legislative body.

One or two other facts require brief statement. Hutchinson endeavored with some success to show that the Massachusetts legislature, in times gone by, had acquiesced in parliamentary legislation. But this, if it be in all respects true, could not, the house replied, destroy colonial rights, for the "fundamentals of the constitution" were stipulated in the charter, and they could not be altered by the legislature. Reference was made to the old favorite doctrine and to the favorite sentiment which was gathered from Vattel: for the authority of the legislature — the house maintained — " 'does not extend so far as the fundamentals of the constitution. They ought to consider the fundamental laws as sacred, if the nation has not in very express terms, given them the power to change them. For the constitution of the state ought to be fixed; and since that was first established by the nation, which afterwards trusted certain persons with the Legislative power, the fundamental laws are excepted from their commission.' " Thus once again appeared the doctrine of fundamental law and an unchanging constitution.[15]


[1] C. H. Van Tyne, The Causes of the War of Independence, p. 278.

[2] George Bancroft, History of the United States (last revision), III, p. 284. For Hillsborough's letter as addressed to Rhode Island, see John Almon, Prior Documents, p. 220.

[3] Hillsborough to Governor Bernard, April 22, 1768, in Ibid., pp. 203-204.

[4] Edward Channing, A History of the United States, III, p. 99.

[5] Consider, for example, the sentiments of South Carolina. Was an assembly a mere gathering of schoolboys, if such sentiments were to be held as impertinent or unlawful? See D. D. Wallace, The Life of Henry Laurens, p. 155.

[6] Massachusetts State Papers, p. 150.

[7] See the Constitution of the United States, amendment VI.

[8] "Preposterous", it seems, chiefly because they were injurious to British commerce.

[9] The methods and the words of the Massachusetts leaders may appear to the reader, as he reads over the documents, exceedingly trying, and he certainly cannot wonder at the irritation or dismay of the Crown's representatives. But irritation and dismay on the one side and continuing, skillful, persistent opposition to authority on the other are for us as students of constitutional history not the center of the matter. Take as just one example the answer of the house to a statement by Bernard when removing the General Court to Cambridge. He lamented the "waste of time and treasure to no purpose." The house replied, "No time can better be employed, than in the preservation of the rights derived from the British constitution, and insisting upon points, which, though your Excellency may consider them as non essential, we esteem its best bulwarks. No treasure can be better expended, than in securing that true old English liberty, which gives a relish to every other enjoyment." We should notice they were defending English liberty, defending the principles of the English constitution. Massachusetts State Papers, pp. 172-173.

[10] The same kind of discussion had arisen in 1728 when Governor Burnet called the legislature to meet at Salem. He gave as one reason the fact that the inhabitants of Boston had in town-meeting declared against "Setling a Salary". Such "forwardness" set an example to the towns in the country and was "better adapted to the Republick of Holland than to a British Constitution." The house contested the right of the Governor to remove the legislature, but, though protesting, did its work. Journals of the House of Representatives of Massachusetts 1727-1729, p. 362 ff. Italics of the original omitted. The discussions furnish an interesting illustration of the irritation caused by the superior tone of the Governor, and an illustration also of the determination of the colonists to maintain their rights and to guard their purses. The principles of the Revolution did not suddenly flock upon the scene in bright and unknown colors in 1765.

[11] Evidence of the fact that the colonial leaders were not at this time (1770-1771) bent upon total disruption of the empire is seen in the fact that in 1773 even the Massachusetts house hurled its arguments not against the king but against the Parliament, and the papers that came from the pens of leaders in 1774 were intended to establish the legal position of the colonies as dominions of the king. Jefferson, it is true, in his "Summary View" (1774), spoke to King George in no humble tones and found fault with His Majesty's conduct, but the time had not yet come to declare that the monarch had at no time legal authority over the colonies. Indeed, the time did not come at all, for the final charge (1776) was to the effect that the king had abused his authority and acted illegally by giving his consent to acts of "pretended legislation", and he had thus degenerated into a tyrant.

[12] It is often stated that Adams was set upon independence much earlier than 1772, but his own published writings do not give proof of that assertion. Perhaps he was so determined, but if so, he kept it well out of sight, if we can properly judge from the written word. If he was so determined, his apparent reticence is evidence of the essential loyalty of those to whom he appealed. To show that his reasoning led or would lead to independence, because there was no halting place, is not enough. To reason so would be to attribute to him the very line of reasoning he emphatically denounced. "This is Chronus's 'method of reasoning', to prove that because it is necessary that the parliament should enact laws for the regulation of trade, about which there has as yet been no dispute that I know of, ... Therefore, the parliament hath a right to make laws imposing duties or taxes...." Samuel Adams, Writings (H. A. Cushing, ed.), II, p. 314. Italics of the original omitted.

[13] See Van Tyne, op. cit., p. 427 ff.; J. M. Leake, The Virginia Committee System and the American Revolution.

[14] They are to be found in J. K. Hosmer, The Life of Thomas Hutchinson, p. 249 ff. and in Massachusetts State Papers, p. 336 ff.

[15] The reader will remember that in the memorial appended to Otis's Rights of the British Colonies Asserted and Proved, this passage from Vattel was referred to, and that the house, in the Circular Letter and in other letters of 1768, had made repeated use of this sentiment. My reason for calling attention to it here is that I am desirous of making very plain that this doctrine of fundamental law superior to all governmental authority had taken hold of the Revolutionary mind. It was, however, by no means a new or unfamiliar belief.

In the preceding pages attention has been given to the developing conception of federalism; but the treatment is incomplete. The author presented the subject and considerable evidence in a paper already referred to — "The Background of American Federalism", Am. Pol. Sci. Rev., XII, pp. 215-240. The evidence there given (though again there was no attempt to present everything) appears to be enough to bring out the fact that the principle of federalism was at stake, at least so far as it embodied the idea of the distribution of authority; and it appears plain (1) that the forms and practices of the old empire were a distinct foreshadowing of the American constitutional system of federalism; (2) that the colonists almost to the last were content with what they had been accustomed to under the old imperial system which had never been formulated or diagrammed. "Every advantage that could arise from commerce they have offered us without reserve; and their language to us has been — 'Restrict us, as much as you please, in acquiring property by regulating our trade for your advantage; but claim not the disposal of that property after it has been acquired. — Be satisfied with the authority you exercised over us before the present reign.' " Richard Price, Additional Observations on the Nature and Value of Civil Liberty, and the War With America (London, 1777), p. 76. Notice also the position of the Pennsylvania convention of 1774. See American Archives (Peter Force, ed), fourth series, I, cols. 561-562. These are illustrations of what I believe to be the main fact.

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