USA > Massachusetts > Commonwealth history of Massachusetts, colony, province and state, volume 2 > Part 42
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was the allocation of the proper quotas of men and money among the different colonies; and Shirley suggests that this be done by Parliament and carried into execution in the colonies "without further consulting them upon any point whatever." To give to the Grand Council the powers designed, including making peace and war, commissioning officers, raising troops, and erecting forts, "would be a great strain upon the preroga- tive of the Crown and contrary to the English Constitution." While it is true that the proposed president-general would be appointed by His Majesty, yet his power, since he could only veto laws after they had been passed by the council, "is only a Negative one, stripped of every branch of the prerogative. . . It may controll the other half of the constitution from doing mischief by any act of theirs, But it can't prevent mischiefs arising from their inactivity, neglect, or obstinacy." That Governor Shirley was definitely opposed to the idea of colonial liberty and thoroughly in favor of strengthening the power of the home government over the colonies is summed up in his statement : "The prerogative is so much relaxed in the Albany Plan, that it doth not appear well calculated to strengthen the dependency of the Colonies upon the Crown; which seems a very important article in the consideration of this affair."
FRANKLIN'S IDEAS ON UNION
In the meanwhile the Lords of Trade in London submitted to the King, August 9, 1754, a plan of union of their own. This proposed a commander-in-chief for all the military opera- tions in America, to be appointed by the home government. A council was to be set up to consist of one commissioner from each colony, to be appointed by the two houses of the legisla- ture with the approval of the governor. The only function to be performed by this council, however, was the determination of the quota of expense to be borne by each colony.
Shirley's doubts led to his request for the opinion of Benja- min Franklin, then on an extended visit to Boston. In reply, Dec. 4, 1754, Franklin set forth principles of English liberty not very different from the platform upon which the American Revolution was subsequently fought.
"In matters of General Concern to the People, it is of use
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FRANKLIN'S IDEAS ON UNION
to consider as well what they will be apt to think and say, as what they ought to think." He protests the loyalty of the colonists to "the present Constitution and the reigning family"; and insists upon their willingness to grant supplies for the de- fense of the country. Indeed, he suggests that they may be better judges of what is needed than would a Parliament "at so great a Distance." In contrast to the colonists who have their "Estates, Lives and Liberties" at stake, the governors often come over to make their private fortunes. They might well desire, therefore, to keep up the forces and the taxes after the necessity ceased, which would be possible if they were re- ceiving grants directly from Parliament. It is very significant that ten years before the Stamp Act controversy Franklin wrote : "It is suppos'd an undoubted Right of Englishmen not to be taxed but by their own Consent given thro their Repre- sentatives." The colonies had no representatives in Parlia- ment. To tax them by Parliament, refusing them a representa- tive body in America, would be to cast suspicion upon their loyalty. It would be treating them as conquered people and not as "true British subjects."
Franklin goes on to argue the very delicate question of con- trol of American trade. The colonies already indirectly pay great sums into England. As consumers of British goods, they enhance the value of British property, thus making it possible for it to pay higher taxes. In addition there are the costs upon the colonies imposed by the trade laws, all of which goes into the pockets of England. "This Kind of Secondary Taxes, however, we do not complain of, tho' we have no Share in the Laying or Disposing of them; but to pay immediate heavy Taxes, in the Laying, Appropriation or Disposition of which, we have no Part, ... must seem hard measure to Eng- lishmen." In extending the dominion they should not lose their status as Englishmen. Franklin went on to prophesy that the governors and councils would probably become "sus- pected and odious." "Animosities and dangerous Feuds will arise between the Governors and the Governed, and every thing go into Confusion."
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PLAN OF UNION SHELVED (1755)
Military questions rather than political became the center of attention. As appears in the chapter on the French Wars from 1753 to 1763, Massachusetts was concerned with the defense of Maine and the conduct of the Crown Point expedi- tion in 1755. To direct the latter a commission of the House of Representatives was sent to Albany. Governor Shirley was away during most of the year; and in the summer was by the home government made commander-in-chief of all the British forces. In Boston Lieutenant Governor Phips was acting governor.
Writing long after the War of the Revolution had closed Franklin said: "If the Albany plan of union had been adopted and made effective, the subsequent separation of the colonies from the Mother Country might not so soon have happened . . . For the Colonies, if so united, would have really been . .. suffi- cient to their own Defence, and being trusted with it ... an Army from Britain, for that purpose would have been un- necessary; the Pretences for framing the Stamp Act would then not have existed, nor the other Projects ... which were the causes of the Breach and attended with such terrible Ex- pense of Blood and Treasure."
While it is always unsafe to attempt to write history as it might have been, certain it is that in the controversy over union in the year 1754 the constitutional question of the status of the colonies within the empire was faced, discussed and several plans were actually drawn up, yet the whole question was left unsettled. It was to arise ten years later, when the time came to pay the debts of the war, and twenty years later when the imperial relationship was determined in its own pecul- iar way on the battlefields of the Revolution.
THE BROAD ARROW QUESTION (1691-1775)
One of the most irritating sources of friction between Massachusetts and the mother country arose out of the con- flict occasioned by the British policy with regard to big trees. The Broad Arrow, made by three strokes of an ax, was used
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THE BROAD ARROW QUESTION
to indicate trees reserved for His Majesty's navy. Depending mostly on the Baltic for masts, England early saw the ad- vantage of control over this important naval material. Colo- nists, however, wanted all the lumber for their own use or for export. Since the white pines, the trees most suitable for masts, were abundant only from New Hampshire to Nova Scotia, the Maine section of Massachusetts was in the thick of the controversy.
The Provincial Charter of Massachusetts of 1691 gave the king a claim on all trees twenty-four inches in diameter or more, except on private property granted before the charter. Parliament in 1729 passed an act which remained the law until the Revolution. Official surveyors-general were appointed to survey the forests, marking trees two feet or more in diam- eter and ferreting out violations of the law. Though few in number, they were numerous enough to irritate the colonials.
Although the forests were limitless, only a few of the trees were of the necessary size, and only those near a river could be readily got to the coast. Such trees were precious for lum- ber, and were much desired by the colonists. It was, therefore, hardly within human nature for a colonial pioneer to withstand the temptation to cut a big tree without waiting for the Broad Arrow. The courts were far away; and one's' fellow colonials could be depended upon to assist the defendant in any legal proceedings.
From 1743 until the Revolution the post of Surveyor-Gen- eral was always in the famous Wentworth family of New Hampshire, a family whose wealth was largely in lumber. Nev- ertheless, the Wentworths advocated compensation of perhaps ten times the value of the tree as lumber. As late as 1771 John Wentworth proposed that this should be done "not as a matter of right, but as a Gratuity for the Timber being found well preserved upon their Land." It is the opinion of modern writers that the Broad Arrow policy offered "one of the earliest and most continuous outlets of colonial hostility to English dominion ... an instance of chronic irritation and defiance ... as continuous as even the constitutional or com- mercial opposition" and as such constituting one of the causes of the Revolutionary War.
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ENGLISH WRITS OF ASSISTANCE (TO 1761)
The writs of assistance episode has been discussed in this volume as a part of the growth of a judicial system in Massa- chusetts. It has even a livelier interest as a part of a great constitutional conflict involving imperial control over the Brit- ish Colonies. By their tenor these writs gave permission to the holder to search any house for smuggled goods. The writs were good indefinitely, the only time limitation upon them being six months after the demise of any king. More- over no return as to any action taken under them had to be made at any time to the court from which they were issued. In all these respects they were quite different from the ordi- nary search warrant issued to give permission to search a par- ticular house, granted only on presentation of evidence satis- factory to the judge, and indicating probable presence of goods.
Writs of assistance were legalized by Parliament in Eng- land in the reign of Charles II but the practice was much older than that. In Massachusetts the earliest instance of which we have definite information is in 1755, when one was issued to Paxton, the Surveyor of the Port. In the next few years several were granted to various local collectors throughout the province, as at Salem, Falmouth, Newbury, and Boston. The practice does not seem to have excited much interest at first.
LEGAL ARGUMENTS FOR THE WRITS (1761)
The death of King George II in 1760 brought the entire question to the front within a few months; since by law all the writs would have to come up for renewal. Sixty-three merchants of Boston petitioned the court for a hearing. Thomas Hutchinson had recently been appointed chief justice and thus became the leading spirit of the court. Two argu- ments were heard, one on February 24 and the other on November 18, 1761. For the customs officers appeared Jere- miah Gridley, the crown attorney. For the merchants, Oxen- bridge Thacher was chief counsel and James Otis, Jr., his associate. He is best known to history through his connection with this episode.
Gridley's argument for the legality of the writs was based
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WRITS OF ASSISTANCE
on specific acts of Parliament. For instance a statute of 14 Charles II authorized such writs to issue from the Court of Exchequer in England. A later Statute of 7 and 8 William III required that the same aid be given customs officers in the plantations as was due by law in England. Thacher, among other arguments, brought out the claim that the Massachusetts court did not correspond to the Court of Excheq- uer in England, and therefore the statutes did not apply. He also made much of the fact that in England the writs were returnable and hence always under control, a provision not regarded in Massachusetts.
ARGUMENT OF OTIS (1761)
James Otis, Jr., a graduate of Harvard, came from the Cape Cod region. His father was a fairly prominent politician, being a member of the House of Representatives. A story circulated, but has never been substantiated, that Governor Shirley had promised to Otis, Sr., the next vacancy in the court; but none occurred until after Governor Shirley's recall, and then the new Governor, Bernard, appointed Hutchinson. Some people thought this the motive which induced James Otis, Jr., to resign a lucrative position in the Crown Attorney's office in order to argue for the Boston merchants. All of the authorities agree that Otis was emotional, sometimes eccen- tric, and perhaps already afflicted with touches of that insanity which later was to destroy his usefulness. At this time, how- ever, this young lawyer was eminently qualified to arouse the enthusiasm of his townsfolk.
Abandoning argument based on the statutes and their applic- ability, Otis in his speech went right to what he asserted were the fundamental principles of the British Constitution. John Adams, another young Boston lawyer was present, and taking his jerky notes of the argument furnished the only thing approaching a verbatim account. Its brief text is as follows :
"The Writ of Asst. is against the fundamental principles of law. The privilege of house. A man who is quiet is as secure in his house as a prince in his castle. For flagrant crimes and in cases of great public necessity the privilege may be encroached on. For felonies an officer may break
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upon process and oath, i.e. by a special warrant to search such an house sworn to be suspected and good grounds of suspicion appearing .- All precedents and this among the rest are under the control of the principles of law .- As to Acts of Parliament an act against the Constitution is void; an act against natural equity is void; and if an act of Parliament should be made in the very words of this petition it would be void. The executive courts must pass such acts into disuse."
"Executive courts" in Otis' mind were judicial courts, in contradiction to the "General Court," a legislative body. In another chapter of this volume will be found a description of this famous argument as part of the jurisprudence of the Commonwealth. Differences of opinion among historians still exist as to the legal and political value of these arguments. The weight of opinion seems to be that writs of assistance were legal only on the theory that under the British Consti- tution any act of Parliament is legal.
DOCTRINE OF ULTRA VIRES (1761)
The most exhaustive treatment of the subject still remains that of Horace Gray, afterwards chief justice of the Common- wealth and later justice of the Supreme Court of the United States. This contribution occupies 145 pages of the Appendix to the Reports of the Supreme Court of Judicature of the Province from 1761 to 1772. It was taken down by Josiah Quincy, Jr., and edited and published by his great-grandson, Samuel M. Quincy, in 1865.
Otis relied on the doctrine of ultra vires; as Gray says, "Otis . .. denied that (Parliament) was the final arbiter of the justice and constitutionality of its own acts, and ... contended that the validity of statutes must be judged by the Courts of Justice : and thus foreshadowed the principle of American Constitutional Law, that it is the duty of the judiciary to declare unconstitutional statutes void."
The standard case cited by Gray is Dr. Bonham's case and Lord Coke's statement in regard to it. "It appeareth in our books, that in many cases the common law will control Acts of Parliament and adjudge them to be utterly void; for where an Act of Parliament is against common right and
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ULTRA VIRES
reason or repugnant or impossible to be performed, the com- mon law will control it and adjudge it to be void." Dr. Bon- ham's case was that of a physician imprisoned by the College of Physicians of London under an act of Parliament which allowed this college to license and if one practised without license to imprison and fine, one-half to go to the king and the other to the College, thus making the College party, prose- cutor, judge, and beneficiary. Coke cited many cases before this as precedent. The principle was jus naturae sunt immuta- bilia and they are leges legum.
In citing Coke, Gray is somewhat weak, in that Coke wrote in the early seventeenth century before the supremacy of Par- liament had been determined by the course of affairs which was to culminate in the Glorious Revolution of 1688. Never- theless it is well known that the idea of ultra vires was a common one in America in the eighteenth century even al- though not universally held. The principle appears in a weak form in the cases of Holmes vs. Walton in New Jersey, Bow- man vs. Middleton in South Carolina, and the argument of Varnum, attorney for the defendant, in Trevett vs. Weeden in Rhode Island-all during the Revolutionary period.
IMPRESSMENT RIOTS (1747-1768)
An especially irritating act of government practised in England in these times was the impressment of seamen. Dis- cipline in the royal navy was extremely severe, and unfortu- nate indeed was the man who found himself seized by a press gang and taken away without warning, to serve in his Majesty's ships. Yet this was a common method of recruitment in Eng- land. As a system, however, it was never legally extended to the colonies, though two instances of its application occurred in Boston, in each case giving rise to serious opposition.
In November, 1747, some men having deserted from a royal fleet in the harbor, the commander, Commodore Knowles, sent a press gang ashore which took away not only seamen but also ship carpenter's apprentices and some ordinary lands- man laborers. This greatly enraged the laboring class and thousands gathered, armed with sticks and clubs. The Gov-
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ernor's house was surrounded, but armed guards were on duty and the crowd finally withdrew.
In the evening, however, they surrounded the Town House on King Street and Court Street-now the old State House- when the General Court was in session. They refused to disperse, even after addresses by the Governor and other prom- inent citizens. The next day the Governor fled to the Castle for safety. In the meantime naval officers had been seized and held as hostages. When the Governor asked Knowles to release the men, he not only refused, but threatened to bombard the town unless his officers were returned.
Affairs remained in this situation for three more days, at the end of which time the more conservative element got control. The militia brought the Governor back to his house and the officers were released. Nevertheless, the laborers won the real victory since the Commodore sent back most of the men whom he had seized.
A different result developed in another case of impressment, which occurred over twenty years later, in June, 1768. At this time the captain of the Romney anchored in the harbor impressed some men, one of whom was rescued. The irrita- tion was increased when, the same day, John Hancock's sloop Liberty was seized and anchored under the guns of the Romney, an incident described and commented upon in another chapter of this book. In the evening, when the cus- toms officers seized the sloop, a crowd gathered, whereupon the customs officers signalled for aid which the Romney sent. The crowd dispersed only when the marines had been com- manded to fire. The customs officers were pelted with stones, the windows of their houses broken into, and a boat belonging to the customs was burned on the common. Further violence did not occur, however, apparently due to the influence of Hancock, Warren, and Samuel Adams. At a town meeting a few days later James Otis was elected moderator. In his speech, while urging the preservation of order he expressed the hope that their grievances would be redressed. "If not, and we are called on to defend our liberties and privileges, I hope and believe we shall, one and all, resist even unto blood. But I pray God Almighty that this may never so happen." A committee was appointed to wait on the Governor, but he
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SUGAR ACT OF 1764
declared that he had no authority over the Romney and there the matter rested for the time.
SUGAR ACT OF 1764
April 5, 1764, can be set down as a landmark in the develop- ment of the forces which led to the Revolution. On that day Parliament passed a financial bill affecting the colonies, which marked the adoption of a new policy as regards the colonial support of the empire. For by its terms the colonies were to be taxed and by the Parliament at Westminster. Although under the Navigation Acts the policy of Great Brit- ain for over a hundred years included control of colonial trade, the new bill so increased old duties and added new ones, as to justify the statement that it established a novel policy. Indeed the British government clearly intended thereby to assert power to legislate for the colonies in the field of com- merce.
The provisions of the bill were manifold. Wines from Madeira and the Azores, which had always been allowed to be imported to America directly, must hereafter enter only under a very high duty, in comparison to these same goods imported through Great Britain. The duty of six pence per gallon on imported molasses provided by the Act of 1733 was reduced to three pence; but provisions were made for strict enforcement. Additional duties for white sugars were provided for. All proceeds were to go to meet charges in America. A resolution was included that it might be proper to lay certain stamp duties on the colonies, but that project was put over for a year.
Against the new act Massachusetts instructed her agent in London, Mauduit, to protest. Otis was active in arousing public sentiment. Committees of correspondence, which in the years to come were to be one of the most effective methods of organizing the colonies against the mother country, were now established. Public opinion after some delay forced the Governor to summon the House into session. An address to the King was prepared-somewhat moderated, however, be- cause of the opposition in the Council. In instructions to its agent Massachusetts declared that the fishing business would
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be destroyed, though it was worth £164,000 a year and em- ployed vessels worth £100,000, consuming supplies to the value of £22,700. Likewise, it was argued, the lumber export business would be ruined. Five thousand seamen would be thrown out of employment; and how were the merchants to pay for the £150,000 of goods annually imported from England ? By the next year (1765) however, the feeling against the Sugar Act had become merged into the much greater opposition aroused by the Stamp Act.
ENFORCEMENT OF THE SUGAR ACT (1764 - 1765)
The provision of the bill which most concerned Massa- chusetts was that which arranged for the enforcement of the molasses duty. The balance of trade with England was always against the colony; and the only method of discharging debts incurred in Great Britain was that the balance of trade with the French and Spanish West Indies had always been favor- able. This trade consisted of lumber and fish exported in return for molasses which was used on the tables in the place of the sugar of the modern world, and was also the raw mate- rial of rum, an important production for both the home con- sumption and export.
Even before 1764 England had begun to make efforts to enforce the old act of 1733, not so much for revenue purposes, as to stop trading with the enemy. The thrifty New Eng- landers had never been able to see why a little matter of a war should cut off the trade from which their principal profits were produced.
Great Britain adopted a new policy of using the navy for enforcement of the Acts of Trade which proved very distaste- ful to both the navy and the civilians, to the former because of prejudice against police work, and to the latter because of the old established feeling that military power should always be under the control of the civil. The very fact that the navy was used is another example of the failure of English- men to understand the psychology of the colonials.
In Boston, enforcement aroused all the more resentment because it happened that their principal competitors, the mer- chants of Newport and Providence, had an easier time. This
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ENFORCEMENT OF SUGAR ACT
was not due to lenity on the part of the British government, but to the choice of governor in the colony of Rhode Island by the people of the colony with the result that the customs officials there found the entire colonial government ranged against them.
Governor Bernard claimed that Massachusetts opposed the writs of assistance in order to be able to engage in the French West Indies trade as freely as did the charter colonies of Connecticut and Rhode Island where the customs-house of- ficials "did virtually nothing to enforce the law."
On the other hand, the charge of trading in time of war, technically treason, was well grounded. Pitt's invectives against it were bitter. What wonder, when it is remembered the tremendous efforts he was putting forth to win the war as well as his endeavors, for the most part successful, to secure the cooperation of the colonies? The situation showed how lightly the imperial connection sat upon the colonials if it conflicted with their commercial interests.
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