USA > Massachusetts > History of Massachusetts, for two hundred years: from the year 1620 to 1820 > Part 16
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severe ; and as he thought they were a reflection on the king, he wished them to be erased. After some debate, the house complied with the request, and a grant was made to meet the expenses which had been ordered by the executive. James Otis was then a member of the house, and the chief supporter of the remonstrance.
Governor Bernard, in his first speech to the general court,- and such was the doctrine afterwards advanced and asserted by him through his whole administration, and by his successor, -- spoke of the powers and privileges of the province, as grants and favors from the crown ; while the house of representatives always spoke of their rights, contended for the full extent of their authority recognised by the charter, and pleaded even for greater powers, an absolute right to levy taxes, and to legislate for themselves, since they were not represented in the British parliament. Governor Bernard was a zealous advocate for the royal prerogative; believing himself bound by the instructions of the king and his ministers, as well as by the provisions of the charter ; and he urged the claims of arbitrary power as far as prudence would permit. In this course, he was supported by the lieutenant governor, and some others, while the house and most of the council appealed to the great principles of the revo- lution of 1688, as their guide, and opposed constitutional rights to the mere will of the ministry, and other royal agents.
Govenor Bernard, and his political friends, were also in favor of the policy for raising a revenue in the province from imposts, in the hope, as was supposed, of receiving, from the system, lucrative offices and large salaries. But to the people and their immediate representatives, this system was extremely ob- noxious, as it was a great tax on trade and navigation, and gave occasion for petty tyranny and oppression in various ways. Spies and informers were often employed, and the officers of the customs retained large sums as fees, so that very little of the amount paid found its way into the public chest.
The collector of the customs had been negligent of paying over or accounting for the sums received by him, for some time, and the general court directed the treasurer of the province to insti- tute a suit against him. The governor, probably by request of the collector, proposed that the king's attorney should be employed to prosecute the suit; but the house of assembly insisted that the treasurer was the proper person to undertake it, in behalf of the province, to whom the money received by the collector was to be paid. The sums particularly referred to, arose from forfeitures, one third of which, by act of parlia- ment, accrued to the province. The object of the house was,
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to have the suit brought in the courts of the province; but the collector was desirous of having it decided in the court of ad- miralty, in which case he might expect more favor. The gov- ernor might have been induced to consent to the course urged by the house, as the chief justice of the superior court was known to have no prejudices against the officers of the cus- toms, nor any objections to be governed by acts of parliament. By advice of the council, the governor yielded to their wishes ; but rarely, on any future occasion, did he give up his own opin- ions or plans to gratify the assembly.
The case was decided against the collector, in the lower court, though he offered a plea in abatement, as to the jurisdic- tion of the court. On an appeal before the superior court, the lieutenant governor being chief justice, the plea was admitted, and the judgment of the lower court was set aside. It ap- peared that the collector's accounts had been settled, accord- ing to the forms of law, at least, in the admiralty court, which, according to act of parliament, had the jurisdiction of the case ; and the judges decided that they had no control over that court.
This decision served to increase party feeling, and to mark more distinctly the difference of political opinion between the supporters of the crown and its agents, and the friends of colonial authorities and rights. Mr Otis was counsel for the treasurer, with whom the merchants of Boston united in this case, as they had petitioned the court to institute such a suit ; and Mr. Hutchinson, was not only one of the superior court, which decided against the treasurer, but, as a member of the council, had opposed the measure when pending in the gen- eral court. The latter lost, while the former received, the approbation of the people, by these proceedings. The chief justice, in his charge to the jury, cautioned them "against deciding according to the popular feelings." And in this in- deed, he might have acted most uprightly ; but there were those who more than intimated, that he was seeking for favor from the British ministry, who had all the best offices in their gift. Nor was he or the governor backward in charging im- proper motives on the opposition. It was their interest to do so : and their representations to the ministry in England were, that the complaints and discontents in Massachusetts spring froin the disappointment of Mr. Otis and a few others. About this period, Mr. Hutchinson made this memorable declaration : " that the opposition to the authority of parliament began in Boston ; and was moved and conducted by James Otis, both in that town and in the general assembly !"
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James Otis.
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The excitement produced by this dispute and the decision in relation to it was soon followed by a stronger expression of the popular feeling, growing out of the attempts of the custom- house officers to exercise authority most arbitrary and oppress- ive. They applied for writs of assistance, to enable them to search for goods, at any time and in any store or dwelling- house, they might choose. They suspected, they said, that goods, on which the duties had not been paid, were sometimes secreted in dwelling-houses and other private places, and they wanted legal authority to enter any buildings, ad libitum : the attorney for the crown pleaded the practice of the English court of exchequer to prove the legality of such writs ; and stated also that the superior court in the province had the same authority, as to the law for collecting the customs on trade. The' objections made by Mr. Otis, the attorney for the merchants of Boston, who opposed the granting of such pow- ers, as their dwelling-houses would be liable to search at all times and by any petty officer or agent of the collector, were that all general warrants were considered improper and op- pressive by the courts in England, and that a process to break or to enter a house or store, must designate a particular build- ing, and be issued only on the oath of the complainant ; that they were justly odious to the people even in England, as they led to great oppression on the subjects, and legalized acts of tyranny and injustice in the officers ; and that although the court of exchequer in that country had great authority in this respect, it would also punish the abuse of authority in the offi- cers, (who were in fact the officers of the court) ; and it was therefore, at their peril they made searches without good cause : But that here the court had no authority to punish the col- lector or his agents, for the most wanton and oppressive acts in the business of their office, as they were amenable only to the court of admiralty : That if the writs prayed for were granted, the collector, and any person he might choose to em- ploy for the purpose, (for such was the extent of liis authority under such process,) might enter any building, without partic- ularizing it, and at any time, merely on suspicion ; and thus there would be no restraint on the passions, party feelings or personal enmities of the collector and his political friends, from acts the most odious and most oppressive. Another objection was that such writs were not made returnable, and the court here therefore would have no control over them or the mal- practice of those who executed them, after they were issued ; and thus a door would be open, he said, to all kinds of oppress- ion and tyranny, without limits and without remedy. He in-
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sisted that such a measure was pregnant with infinite mischief, and clearly contrary to the spirit of the British constitution. "I have fully considered the subject," he added, " and I solemnly declare that I will to my dying day oppose, with all the pow- ers God has given me, all such instruments of slavery on the one hand, and villany on the other, as this writ of assistance is." *
The superior court, to which application was made for such writs, gave their opinion for issuing them ; } and Mr. Otis, for his patriotism and zeal, on the occasion, was charged by the governor, the chief justice, and their political friends, as being actuated by a spirit of selfishness, and revenge ; but with the opposers of arbitrary power, and the great body of the people, he found favor and admiration.
Such was the influence and importance of this transaction, that it has been sometimes considered the first decided measure, which led to and hastened on the revolution, which took place thirteen years after. It certainly served to show the arbitrary views or the subserviency of some of the individuals high in power in the province, who held their offices under the crown, and the disposition of those who executed the laws of trade and the customs, to the most odious and oppressive acts ; while it afforded an occasion for the display of the principles and feelings in support of civil liberty, by which the people were then animated. The same feelings and principles had, in- deed, long warmed and guided the people of Massachusetts ; and it was only necessary to call them forth, that arbitrary measures should be adopted or attempted to be enforced, which were inconsistent with their rights, and with the measure of self-government, which they had long enjoyed.
There was so much dissatisfaction manifested, and such ex- pressions of complaint and reprobation uttered by the people, touching the opinions of the court and the authority of cus- tom-house officers thus sanctioned, that, at the next meeting
* " I do not recollect that the town of Boston ever chose a lawyer to repre- sent it, under the second charter, till the year 1738, when Mr. Reed was chosen, but left out the next year, and Mr. Pratt in 1758 and 1759. These were men of the first character in their profession. Lawyers have since taken the lead and been much employed in public measures." Hutch. Vol. III .- But Oxenbridge Thacher was a member from Boston, as well as James Otis, as early as 1764.
t Some of the justices had objections to granting writs of assistance, and judgment was postponed. The chief justice was desired to write to Eng- land for information, as to the practice there, in similar cases. He learnt that the court of exchequer did issue writs of a general nature, touching the customs ; and this was afterwards deemed a sufficient authority for grant- ing them in the province.
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of the general court, the governor saw fit to admonish them " to disregard all attempts to disturb the public mind," (as he chose to represent the 'indignant declarations of the friends of liberty ;) " as there was no just cause for a jealousy of tyranny under the reigning monarch, as there had been in the time of the Stuart dynasty." The representatives and council united in an answer to the speech, and said, that they knew no rea- son for his apprehension or admonition, at that time ; that they were not sensible of any party feelings or unjust jealousies, and that, if the people should manifest them, they would endeavor to suppress them ; that they had no suspicion their civil rights were in danger under his administration; but still that it was their duty to see for themselves, in guarding the interests and liberties of their constituents.
On a bill for making gold a tender, at its current value in the province, which was brought into the house of represen- tatives and passed, a dispute was engendered, which was fol- lowed by a warm discussion, and produced or confirmed party feelings of long continuance and of important results. Gold as well as silver had been the current coin for several years, from the introduction of specie for paper in 1753-4 ; but silver only had been a lawful tender in the payment of debts. Silver, in England, had increased in value, or in price, at nearly the rate of four pence on the dollar ; on this account, more silver had been sent out of the province than gold, and the former had become comparatively scarce. For the benefit of the people, it was proposed to make gold a legal tender ; for while it was not so, the debtor would be obliged to obtain silver, at a con- siderable loss, to satisfy his creditor. By the influence chiefly of Mr. Hutchinson, the lieutenant governor, the council refused to concur with the house, and the bill failed. Their objection was, that it was sufficient to have one made a tender ; that the other might be left to take its chance ; and that it might be as profitable to export gold as silver ! Such was the language of the great opposer of the bill ; but the people were not satisfied, and the most considered the objection altogether frivolous .- If Mr Otis, on this occasion, secured the attachment of the peo- ple, the lieutenant governor forfeited it in an equal degree. The bill was calculated for the relief of those who had large debts to discharge, and only lessened somewhat of the profits of the capitalist. The effect produced on political parties, then form- ing, or becoming more distinctly marked, served to show that the minds of the people were prepared to contend, not only for their civil privileges, but for their own interests, if in any
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respects different from the officers and dependants of the king. The friends of the people seized on this conduct of Mr Hutch- inson, to represent him as one indifferent to the welfare of the poor, so he did not himself suffer.
The controversy, which arose in England, between Wilkes and the administration, (1763) excited a lively interest in Massachusetts, and tended to keep alive the feelings already awakened in favor of liberty. It was believed, by the whigs of that period, that Mr Wilkes, who was a member of parlia- ment, was persecuted on account of his political principles, which were highly in favor of liberty. He was arrested by a warrant from the speaker of the house of commons, for an al- leged libel on the house, and confined in the tower. But, on application to a judicial tribunal, was ordered to be discharged. His imprisonment was deemed altogether arbitrary and unjust, by the whigs both in England and America; and the occasion was seized to declaim against the tyranny of the administration, and the jealousy of the people was thereby aroused towards the friends of the British ministry in both countries. One of the principal advocates in Massachusetts, for the measures of administration, observed, " that men took sides in New England on mere abstract points in government, when there was nothing in practice which could give grounds for forming parties :' as if principles were unimportant, and it was sufficient to object to real acts of oppression, or the execution of a despotic system. The motto of the patriots of Massachusetts was, " obsta princi- piis." The spirit of those who supported the measures of ad- ministration may be detected in the justification offered by the individual already quoted, when the officers of the crown, es- pecially those of the customs, were charged with promoting measures restrictive of the rights and liberties of the people, " that they had the law on their side. " *
At this period, the terms, tory and whig were introduced in the colonies, as descriptive of the two great political parties, then forming, and soon after more distinctively known and de- signated. The appellation became very general, as the dis- pute became more warm and frequent, between those who sup- ported the measures of administration, however arbitrary, and those who opposed them and professed to be friends of liberty, however vehement in their opposition, or extravagant in their opinions. The latter epithet was a passport to popular favor,
* Mr. Hutchinson, who was the lieutenant governor, chief justice of the superior court, judge of probate, &c. &c. &c.
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without regard'to other qualities ; and the former rendered one unpopular, though amiable and virtuous in private life. The distinction, certainly, was real and great between these respec- tive classes of politicians ; the one held to principles dangerous to republican freedom, and the other to such as were favorable to the liberties of the people ; and yet party prejudices, as has always been the case, served to represent one class, as pos- sessing none but selfish and malignant feelings, and the other as governed, in all cases, by generous and disinterested motives.
Mr. Hutchinson was of exemplary manners in domestic life, and deemed moral and correct in his intercourse with liis fel- low men. But he was considered ambitious and very covetous of honor and office. And with this ruling passion, he was in- duced to advocate the claims of the crown and the conduct of the British ministry, however oppressive to the people, or con- flicting with the rights granted by the charter. The political principles of Mr Hutchinson, which led him to contend rather for the authority of the government, than for the rights and liberties of the people, and the decisions he had given, as chief justice, which were in favor of the officers of the crown, who were deemed very arbitrary and oppressive in their conduct, served to deprive him of the popular favor, and an influence was exerted in the general court to lessen both his salary and his power. It was proposed to exclude the lieutenant gov- ernor from the council-board, and to prohibit any justice of the superior court from being a member of either branch of the legislature. It was also contended, that he was to act only in case of a vacancy in the chair, and that being an officer ap- pointed by the king, he ought not to be of the board of coun- sellors, who were elected by the representatives. But prece- dent was in favor of the lieutenant governor having a seat at the board. For the year 1762, no extra allowance was made the chief justice, as had been done for many previous years.
On the return of peace, the British ministry became particu- larly attentive to the state of the American provinces, and manifested a desire to learn their resources and population Whether it was intended to alter their charters and maintain a different form of government, or whether it was apprehended that the people were aiming at independence, and that it would be necessary to have a military force to prevent it, did not appear. It was more probable that a plan was proposed to raise a revenue in the colonies, which were represented to be fully able to yield it, towards the support of the parent govern- ment, and the payment of its immense debt ; and that from the
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known opposition to such a measure, it would be necessary to have a military power to enforce it. This was justly deemed a difficult measure ; for it was well known in England, that the colonies contended for the sole right of laying taxes and raising a revenue; and that they had long insisted, that they needed all which the people could well pay, for their own debts, and the ordinary expenses of their several governments.
As a part of this system, probably, (it was so considered in Massachusetts, however,) an order was sent to Governor Ber- nard, to have an exact census taken in the province. A law of the general court was necessary to carry such an order into effect, requiring the several towns to make returns of the number of their inhabitants. Great opposition was made to the passage of such a law. Some feared ulterior views had dictated the plan, unfavorable to the authority and interests of the province ; and some were weak enougli to object to it, as indicating a distrust in providence. The subject was postponed for several sessions of the general court, but at last a vote was obtained in favor of the measure by a small majority.
The policy of the British ministry for taxing the people in the colonies, for the support of the parent government, began to be manifested at this time, (1763) with less disguise than for- merly. Still, it was a question, how it could be effected with the least offence to the American people. It was soon perceived, that it could be accomplished only by way of duties on trade ; for, to direct and internal taxes the people would never submit. Even the first mode would be attended with difficulty in the collection. There would be frequent infractions or evasions of the law ; and nothing but a military force would ensure success to the system .* The ministry in England were ready enough to adopt the plan ; but there was reason to believe that individ- uals in Massachusetts and the other provinces favored it, in the hope of obtaining office in the custom-houses, or large salaries from the revenue in other public stations.
During the year 1763, so full of interest relating to subjects of a merely political nature, a controversy arose of a religious character, which called into exercise the talents of a distin- guished clergyman of Massachusetts, and which serves to illus- trate the views and feelings of the people of that period. The society in England for propagating the gospel in foreign parts, which was composed of episcopalians, had nearly thirty mis-
* It was, in fact, proposed to keep up an army of 10,000 men in the col- onics, at this period.
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sionaries located in different parts of New England ; and most, if not all of them, were in towns where the gospel was faith- fully preached by the congregational or other dissenting minis- ters of good education. This was a gross misapplication of their funds, unless they took the exclusive ground, that the people in New England, who had not episcopal teachers, were without preachers of the gospel. Many feared, that it was intended to introduce episcopacy into the colonies, as had been more than once proposed before, and that it might be made the established religion, as in England. Several of these missionaries were placed in the vicinity of Boston, and one at Cambridge, where the people enjoyed the preaching of the gospel in all its fulness and truth. Such an injudicious and narrow spirit called for reprehension. Rev. Dr. Mayhew undertook to show the perversion of the designs, and the misapplication of the funds of the society, if its real object was to spread the knowledge of the gospel. His writings on the subject, were equally powerful and severe ; and having the popular sentiment in their favor, extended and increased his literary fame. The ability dis- played by Dr. Mayhew could not be resisted, and the society soon changed the direction of their efforts ; but the fears of the people in New England were not removed, as to the designs of the English hierarchy. Such also was the connexion between the established church in England and the monarchy, that this movement, on the part of episcopacy, led to the apprehension that the parent government meditated designs incompatible with civil liberty.
During the years 1762 and 1763, there were no measures proposed, except those relating to the currency and the custom- house, already noticed, which brought into discussion the ques- tion of the supremacy of parliament and of the authority of the provincial legislature. Several subjects, indeed, were brought forward, bearing, in some degree, upon this important ques- tion ; and the liouse never failed to assert their right to be consulted in raising or appropriating money, in all measures at all affecting the legislative authority which they had long claimed. The governor called for several hundred men to man the forts in the eastern parts of the province, and in Nova Scotia, and also to march to the lakes and westward ; but, in some cases, they declined raising any of the men he required ; and in others, ordered only a small portion which were called for. And when he advised that the forts on the frontiers should be repaired, they replied that the state of the public treasury was such, they had not the means to do it. When the governor
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referred to express instructions from the ministry for the requi- sitions he made, they replied, that they must judge of the ne- cessity of the case, and the ability of the people. They gave repeated directions to their agent in England, to attend to the rights of the province, in the bills before parliament, which related to the colonies, especially as to regulations of trade, and the duties imposed, for raising a revenue in the colonies for the benefit of the parent government, when the province was greatly in debt, and needed all its resources to support its credit, and to discharge the current expenses ; and above all, as to the plan then suggested of keeping up an army in the colonies, when the war in America had ceased. In some cases, the house instructed the agent, without consulting the council, or asking them to join, as they were jealous of the leading mem- bers of that board, and feared they would not speak to the agent with sufficient decision and explicitness.
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