In his address to the general court, on January 6, 1773, Hutchinson entered into an elaborate defence of the legislative supremacy of Parliament; alleged that the province was in a "disturbed and disordered state;" and as the cause thereof condemned the recent resolves of the towns as denying "the supreme authority of parliament," and tending "to alienate the affections of the people from their sovereign." "I know of no line," he declared, "that can be drawn between the supreme authority of parliament and the total independence of the colonies."
His challenge was promptly accepted, and each house presented a strong argument in defense of the American theory. The assembly urged that if there be no line between the "supreme authority of parliament and total independence of the colonies," then they must be "totally independent"; for it could not "have been the intention of the parties in the compact, that we should be reduced to a state of vassalage." But to draw the line of distinction 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."
A few months after this controversy had thus elicited the formidable suggestion of continental union, Hutchinson had to face a storm that completely wrecked his influence in the province. One day in December 1772, Franklin, who was now agent for Massachusetts, was assured by a gentleman that all the grievances complained of took their rise, not from the British government, but were projected, proposed, or solicited by "some of the most respectable among the Americans themselves, as necessary measures for the welfare of that country." Franklin was incredulous; but a few days later, in proof of his statement, the gentleman placed in his hands a number of letters which Hutchinson, Oliver, and other crown officers, all except Charles Paxton native Americans, had written to Thomas Whately, formerly a member of Parliament and secretary to the treasury under George Grenville, but at the time of the correspondence (1768-1769), a private person having no official connection with the government. Franklin gained permission to send these letters to Massachusetts, to be inspected by a few of the leading men, under a pledge that they should neither be copied nor printed. The pledge was disregarded by the recipients, and, after being privately circulated for several months, the letters were published under the pretext that Hutchinson by implication had given his consent.
The fiercest indignation of the patriotic party was excited. Hutchinson was put in a hard position. He was able and upright, a thorough loyalist, and had openly opposed the course taken by the revolutionary leaders. But though honestly meant, and very moderate in tone, the letters contained some statements that he did not intend should be made public. He had not directly attacked the Charter of Massachusetts, nor recommended the use of military force, but he had declared that "there must be an abridgment of what are called English liberties"; for he doubted "whether it is possible to project a system of government in which a colony, three thousand miles distant from the parent state, shall enjoy all the liberty of the parent state." This passage raised a storm of criticism. Oliver had gone much further than Hutchinson, suggesting that a colonial aristocracy might be formed from the council, and hinting that some of the "original incendiaries" might be summarily dealt with; while Paxton, one of the commissioners of customs, made a plain demand for "two or three regiments." Under the circumstances, it was inevitable that the writers should be denounced as traitors to their country.
To render a just judgment in this delicate "case of conscience" is by no means easy. Franklin had taken advantage of stolen private correspondence. He might urge as a palliative, but merely as a palliative, that, so far as the British government was concerned, the sanctity of the mails was a "transparent fiction." Franklin's own letters had been tampered with. The records of the times contain ample proof that the sacredness of confidential correspondence was constantly ignored by public officials. "The confidential clerks of the Postmaster-General were sometimes engaged twelve hours on a stretch in rifling private letters. The King, to judge by the endorsements in his own hand, — which marked the hour and minute when he received each packet of intercepted documents, and the hour and minute when he returned it to the Office, — must have passed a great deal of his time in reading them." On the other hand, it might plausibly be contended that the letters of Hutchinson and Oliver were quasi-public papers. They were shown to Grenville and other statesmen and may have had some influence in fostering a sentiment hostile to the colonies. Franklin and the Massachusetts leaders might well excuse the violation of the sanctity of private correspondence in the case of those whom they believed to be public enemies. "The writers, too," says Franklin, "had taken the same liberty with the letters of others," transmitting to England "those of Rosne and Auchmuty in Confirmation of their own calumnies against the Americans."
Indeed, a grave responsibility was assumed if Hutchinson and the other American office-holders under the crown, even in small part, had suggested the disastrous policy of the British government. This was Franklin's principal alleged reason for sending the letters. In transmitting them he wrote, "For my own part, I cannot but acknowledge, that my resentment against this country, for its arbitrary measures in governing us, conducted by the late minister, has, since my conviction by these papers that those measures were projected, advised, and called for by men of character among ourselves, and whose advice must therefore be attended with all the weight that was proper to mislead, and which could therefore scarce fail of misleading; my own resentment, I say, has by this means been exceedingly abated. I think they must have the same effect with you." Franklin's conduct appears to be justified by his sense of public duty. Nevertheless, the use made of the letters in Massachusetts had a result precisely the opposite of that which he anticipated. Instead of creating a better feeling towards the mother country, the spirit of bitterness and resistance was greatly intensified. The incident undoubtedly hastened the coming of the Revolution.
In England, it was not known by whom the letters were sent to America, and to this day the name of the person who gave them to Franklin has not been disclosed. William Whately, brother and executor of Thomas, and a certain John Temple, who had had access to the papers, were publicly accused; and in December 1773, a duel between them grew out of the charge. To prevent further mischief — for Whately was wounded — Franklin wrote to the Public Advertiser, declaring that he alone was the "person who obtained and transmitted to Boston the letters in question," whose "tendency was to incense the mother country against her colonies, and, by the steps recommended, to widen the breach."
The court party was in high spirits. The assembly of Massachusetts had petitioned for the removal of Hutchinson and Oliver. January 29, 1774, the petition was heard before the committee of the privy council for plantation affairs. Wedderburn, the solicitor-general, appeared for Hutchinson and Oliver; but the real purpose of the meeting was to convict Franklin. The courtiers were there in full force. They had been "invited, as to an entertainment, and there never was such an appearance of privy councilors on any occasion, not less than thirty-five, besides an immense crowd of other auditors." Encouraged by their admiring applause, Wedderburn proceeded, in his most brilliant and virulent manner, to indict Franklin as a thief.
"Having hitherto aspired after fame by his writings, he will henceforth esteem it a libel to be called a man of letters — homo trium liter arum." The committee pronounced the petition of the Massachusetts assembly "false, groundless, and scandalous, and calculated only for the seditious purpose of keeping up a spirit of clamor and discontent in the province," and held that Franklin's silence proved the charge true that he had "surreptitiously obtained the letters." Franklin was at once dismissed from his office of deputy postmaster-general; and, perceiving that he could no longer be useful, he resigned his agency for Massachusetts. In the spring of 1775, he went home and did not return to Europe until he came as the representative of an independent nation.
In Massachusetts, Samuel Adams was urging the call of a general congress, and through the Boston committee of correspondence, he was zealously stirring up hostility to the ministerial policy. He was perhaps the first American to foresee independence. Apparently he now earnestly desired it; and at this moment an act of violence speedily led to its realization, for the Boston Tea Party and its immediate results were followed by a continental congress and the appeal to arms.
The king and his ministers had committed a serious blunder in retaining the tax on tea in order to assert the parliamentary right; for the colonies determined to resist the tax in order to deny that right. Indirectly the same revenue might have been derived from America by levying in England a duty of threepence a pound; in other words, by reducing by that amount the drawback allowed the East India Company. Indeed, Hutchinson believed that if all the duties laid by Townshend in 1767 "had been paid upon exportation from England, and applied to the purpose proposed, there would not have been any opposition made to the act. It would have been a favor to the colonies. The saving upon tea would have been more than the whole paid upon the other articles. The consumer in America would have paid the duty, just as much as if it had been charged upon importation."
The Townshend Revenue Act laid an import duty of threepence a pound on tea shipped to America. By the supplementary statute of the same year, on such shipments was allowed a drawback of the whole import duty paid in England, amounting at the time to about twenty-four percent, of the gross price; but on the express condition that the East India Company, in whose interest the arrangement was made, should make good any loss of revenue by reason of such drawback. As a result, in 1769 tea was actually sold in Boston at ninepence a pound less than before the acts. Moreover, an earlier statute allowed the tea to be exported to America without paying any of the inland duties still charged in England, amounting to twenty-five percent, of the gross price. Therefore, according to Hutchinson, the accuracy of whose statement is sustained by recent research, tea "was cheaper than it had ever been sold by the illicit traders; and the poor people in America drank the same tea in quality, at three shillings the pound, which the people in England drank at six shillings."
The business of the company did not prosper as well as expected. During the first four years the sales nearly doubled, but to make up for the loss of revenue the company was obliged to pay over £115,000. A further concession was therefore sought; and in 1772, on exportation to America, a rebate of three-fifths of the import duty was granted; while the company was no longer required to make up the loss of revenue. But the non-importation agreements now stood in the way: the colonists would not drink the taxed tea at any price. In 1773 "about seventeen million pounds of tea lay unsold in the warehouses" of the company. It had to face impending bankruptcy, and the government must lose its annual payment of £400,000.
Again Parliament came to the company's aid. The whole of the import duty was now remitted on exportation to America. At the same time, by obtaining a license from the treasury, the company was permitted to send the tea directly from its warehouses to its own agents or consignees in America. The middleman's profit would thus be saved. For hitherto it had been necessary to ship the tea to England and to sell it at public auction to the merchants, who then exported it to the colonies. Under the new concession, the company could have afforded to sell the tea, not merely at ninepence a pound less than in England, but at a small "fraction of the price" obtained there.
However, against the advice of Trecothick for the company, the tax of threepence a pound was still exacted; and this effort to force the tea on the colonists was largely due to the king. It is "to no purpose making objections," said Lord North, "for the king would have it so. The king meant to try the question with America." He seems to have fancied that the Americans would take the bait and forget the principle. If so he was soon undeceived. The company selected its agents, among whom were the two sons of Hutchinson, and in the autumn of 1773 sent a number of ships laden with tea to Boston, New York, Philadelphia, and Charleston. The people were determined to prevent the landing of the tea, and, by persuasion or menace, to cause the agents to resign their commissions. In Charleston, a cargo of two hundred and fifty-seven chests arrived on December 2. The agents resigned; and after the twentieth day, the duty being unpaid, the tea was seized by the collector and stored in vaults under the exchange. A meeting of the inhabitants of Philadelphia resolved that the duty on tea was illegal and that every person who "countenanced the unloading, vending, or receiving the tea, was an enemy to his country." In both Philadelphia and New York the consignees were induced to resign, and the tea was sent back to London.
More serious events were taking place in Boston, where, under the authority of the town meeting, organized resistance was guided by Samuel Adams and the Boston Committee of Correspondence, with which the committees of four or five neighboring places sometimes sat in Faneuil Hall as a sort of representative senate. An immense mass meeting of the inhabitants of six towns, held in the Old South Church, resolved that "at all events" the tea should be sent back without payment of duty. When the sheriff of Suffolk read the governor's proclamation warning the people "unlawfully assembled, forthwith to disperse, and to surcease all further unlawful proceedings, at their utmost peril," he was greeted with insults and derision. The agents refused to resign their commissions and took shelter in the castle. Neither clearance papers from the collector nor a pass from the governor could be obtained by the owners to allow them to carry their cargoes back to the Thames. A popular guard was placed over the tea ships to prevent the tea from being landed; and the meetings of various towns in the province promised aid to Boston, even at the hazard of life and property.
Finally, on the evening of December 16, 1773, the last day before the tea, for non-payment of duty, might be legally seized by the collector and stored at the castle — a party of fifty or sixty men dressed as Mohawk Indians and directed by Adams, boarded the three tea ships at Griffin's wharf, broke open the three hundred and forty-two chests of tea, and cast their contents into the bay. Clearly, the people were in a dangerous temper; for this lawless destruction of private property was suffered to take place unhindered by the provincial council or the town authorities, and the offenders were never in any way called to account. This riot in Boston was due mainly to the somber fanaticism that sometimes clouded the judgment of Samuel Adams, and the incident cannot justly be looked upon as an honor to his memory.
There were not wanting other indications of an impending crisis, which only the highest wisdom could avert. "The inhabitants, in many parts of the province," says Hutchinson, "were learning the use of firearms, but not under the officers of the regiment to which they belonged. They were forming themselves into companies for military exercise, under officers of their own choosing; hinting the occasion there might soon be for employing their arms in defense of their liberties." Throughout the country the exultation over the course taken by Boston was very ominous: party organization was rapidly developed; the assemblies which had not yet responded to the Virginia call now appointed intercolonial committees of correspondence; and local committees, hitherto confined to Massachusetts, began to be formed in other provinces. Meantime, in February 1774, the Massachusetts House, by a vote of 92 out of 100 members, had impeached Chief Justice Oliver of a high crime and misdemeanor for accepting his salary from the crown. On March 30, before the impeachment was tried, Hutchinson prorogued the general court, and a few days later dissolved it. He was not destined to meet it again, for after he was superseded by Gage he left for England (June 1), and never thereafter saw his native land.
Parliament had to face a serious crisis when it met, on March 7, 1774. The ministers placed before the two houses messages from the king, urging their consideration of American affairs. Wise policy seemed to require that one of three courses should be taken: the colonies might be conciliated by the withdrawal of the obnoxious measures, or the laws should be firmly but justly enforced, or they might be allowed peacefully to separate. Josiah Tucker, dean of Gloucester, anticipating in part the thought of Turgot regarding the destiny of colonies, advised a peaceful separation. He was no friend of the Americans, but he believed that the empire would be stronger and its economic interests better served if they suffered quietly to set up for themselves. Burke and Chatham would not hear of a dissolution of the empire. "If I could once persuade myself," said Chatham, that the Americans "entertain the most distant intention of throwing off the legislative supremacy and great constitutional superintending power and control of the British legislature, I should myself be the very first person ...to enforce that power by every exertion this country is capable of making." But Chatham, like Burke, would have saved the union by conciliation.
On the other hand, the king was bent on making an example of Massachusetts. He was utterly unable to see that there was imminent danger of continental resistance. General Gage, recently returned from America, assured him that "four regiments stationed in Boston would prevent any disturbance." "They will be lions while we are lambs," he said; "but if we take the resolute part they will prove very meek." Moreover, in England, a feeling of anger was aroused by the recent acts of violence in America. Therefore, an irreparable blunder was committed. Instead of adopting one of the three courses that Wisdom pointed out, the ministry proposed invalid statutes as a punishment for the unlawful conduct of the colonists.
Five measures, known in England as the "repressive" and in America as the "intolerable" acts, were speedily carried through Parliament. The first of these closed the port of Boston to commerce from the first day of the following June until such time as the king by proclamation or order of council shall see fit to open it. This he may do when satisfied that "peace and obedience to the laws" have been restored and the tea paid for; and the governor shall have certified that the revenue officers have been indemnified for what they suffered in the accompanying "riots and insurrections." Even coasting vessels carrying food and fuel "for the necessary use and sustenance of the inhabitants of the said town of Boston" were forbidden to deliver their cargoes without a pass, "after having been duly searched" by the custom-house officers "at Marblehead, in the port of Salem." The English ships of war were required to maintain the blockade.
Another statute, known as the "regulating act," remodeled the constitution of Massachusetts. The practical annulment of a royal charter by the legislature was an anomaly in English jurisprudence. By this act, the members of the council, or upper house, hitherto annually chosen by the general assembly, were to be appointed, as in the royal provinces, by the king under his sign manual, and to hold office during his pleasure. After July 1 the attorney-general, inferior judges, justices of the peace, sheriffs, and all other court officers were to be appointed and removed by the governor. Even the consent of the council was not required except for the removal of a sheriff. In the same way, the chief justice and superior judges were to be nominated, but these were to hold office during the king's pleasure and to be removed only at his command. This drastic law did not stop there. Henceforth, except for elections, no town meeting might be called without the governor's written consent; and in no case might a town meeting transact any business not expressed in the governor's leave. Furthermore, grand and petty jurors, hitherto elected by the people in the various towns, henceforth were to be "summoned and returned by the sheriffs of the respective counties." Thus at one stroke the free institutions which had flourished for nearly a century and a half were abrogated and a centralized system put in their place. The members of the assembly might still be chosen by the people, and this was almost the only democratic feature of the constitution left untouched.
On its face, the third act was designed to secure a fair trial for crown officers or magistrates accused of murder or other capital offenses. When the governor was satisfied that "an indifferent trial cannot be had within the said province," he might send persons indicted for such crimes (with the witnesses), if committed while engaged in suppressing riots or enforcing the revenue laws, to some other colony or to Great Britain to be tried.
These three statutes constituted the coercive system. To aid in their enforcement, a fourth act legalized the quartering of troops upon the inhabitants. With it as a fifth "intolerable" law is usually classed the so-called "Quebec Act." By this statute, a civil government was provided for the domain ceded by France in 1763. The province of Quebec, or Canada, was extended so as to embrace the vast region of the future Northwest Territory. In effect, the Roman Catholic religion, that of the great majority of the inhabitants, was established. The English criminal law, with trial by jury, was sanctioned; but in all civil suits the old French law, without jury trial, was retained. A highly centralized system of administration — in spirit not unlike that of the French regime — was set up. Except for local purposes, the power of taxation was reserved by Parliament. All other legislative authority subject to the royal veto was vested in a council appointed by the crown.
The Quebec Act was regarded at the time as one of the most serious grievances of the colonies. It was denounced as a sop to the Canadian people, intended to detach them from the common American cause, and as an object lesson in despotic government such as would satisfy the rulers of Great Britain. The Declaration of Independence characterized it as an act "for abolishing the free system of English Laws in a neighboring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these colonies."
Considering the measures which preceded and accompanied this statute, it is, indeed, not surprising that the people looked upon the Quebec act with suspicion; that they believed it concealed some sinister or vindictive motive of the ministry. Yet, as a matter of fact, its purpose was entirely misunderstood. Of all the grievances of the times this one was the least substantial. Careful research has clearly demonstrated that the Quebec act was the result of a policy that had slowly evolved without regard to the troubles in the other colonies. It expressed the honest efforts of British statesmen to solve the difficult problem of governing the dominion taken from France in 1763. In the first place, none of the colonies, least of all Virginia, had a good claim to the western lands included within the boundary of the new province. So far from being designed to abolish "the free system of English laws" in Canada, we now know that the English law had never there been regularly put in force, as evidently intended that it should be by the royal proclamation of 1763. Moreover, as early as 1768 the ministry had become convinced that it would be wise to continue the French civil law in that province. An investigation by the crown lawyers was then ordered, and eventually, upon their reports, the Quebec Act was based.
The facts are much the same regarding the withholding of representative institutions in Canada. There was no design to establish an arbitrary government there or to attack the liberties of the other colonies. Already in 1765, the question of granting an assembly was being earnestly considered. In 1772, Solicitor-General Wedderburn reported that the establishment of such an assembly was inexpedient because of the "peculiar difficulties presented by the religion of the great mass of the inhabitants." The debates on the Quebec Act clearly disclose the real motives for withholding representation. It was felt (1) that "it would be unjust to exclude the French Roman Catholic majority, and (2) that it would be unsafe to admit it. Attorney-General Thurlow asserted without contradiction that no one had claimed that it was at present fit to give an assembly to Canada, and Fox admitted that he would not explicitly state that such a step was then expedient."
Regarding the motive for extending the boundaries of Quebec to the Ohio and Mississippi, the Declaration of Independence seems equally at fault. According to Coffin, this step was taken, "not through invidious designs against the other colonies, but mainly, if not entirely, from considerations connected solely with the Indians and the fur trade....It can clearly be established that the steadily increasing anarchical character of the conditions in these regions had by 1774 convinced the authorities that they should be annexed to someone civil government," and almost of necessity, the province selected was Canada. Furthermore, the same writer has shown that the Canadians were by no means highly gratified by the provisions of the Quebec Act continuing the old French civil law and virtually establishing the Roman church. On the contrary, partly through ignorance of its real purpose, it tended to alienate them from the British government. They dreaded a restoration of oppressive feudal burdens and compulsory tithes; for the abuses of the old regime had extended even to the New World. In fact, the act, however well meant, proved ill-timed and disastrous. It increased the discontent of the English colonists, and it created a race-antagonism in Canada which was destined to bear evil fruit in after days.
