The strife between the assemblies and the governors, royal and proprietary, was one of the chief incidents of the colonial system, which prepared the temper of the people for resistance. Encroachments of the prerogative were more and more resented. The growing sensitiveness in Massachusetts is disclosed in 1761 by the bitter contest over an alleged misappropriation of the colony's share of forfeitures under the molasses act.
The superior court decided against the colony, thus increasing the "animosity which existed between the contending parties in the province." It is significant that Otis, counsel for the colony, animadverted on the court of admiralty, where the abuse arose, "as not congenial with the spirit of the English constitution."
An event still more enlightening as to the state of popular feeling took place in 1762. Without legislative authority, the governor had fitted out a sloop for the protection of the fishing boats on the coast of Nova Scotia at a cost of some L400. An acrimonious wrangle ensued between him and the assembly, which saw in this act an invasion of its jealously guarded right of granting all supplies. An incidental result of the contest was a pamphlet from Otis containing a bold and eloquent plea for civil liberty and democratic equality.
While party antagonisms were thus being stirred in Massachusetts, more serious resistance was provoked elsewhere by assertion of the royal prerogative. One of the most dearly prized safeguards of liberty won at the revolution of 1688 was the independence of the courts. In England, after the Act of Settlement, the judges held office during good behavior. They could not be punished for conscientious performance of duty by summary dismissal at the king's pleasure. Thus far the provincial judiciary had in fact enjoyed the same security of tenure, but now, a year after the accession of George III, the colonies were to be denied the guaranties of the Bill of Rights and again subjected to the arbitrary prerogative which had cost James II his throne.
In October 1761, after the death of James de Lancey, chief justice of New York, Benjamin Pratt, a Boston lawyer, was appointed to the office "during the king's pleasure." The province was at once aroused. Some of the puisne judges at first absolutely refused to serve unless their commissions were renewed during good behavior. The assembly declined to provide salaries "except on the express condition" that independent commissions should be issued. Lieutenant-Governor Colden — who at the king's command had made the appointment — at first seemed to favor the tenure of the judges during good behavior, provided their salaries were also made perpetual; yet in January, 1762, he wrote to the board of trade strongly favoring the unconstitutional policy; but on his arrival Monckton, the new governor, censured it before the council. Pratt himself, after his selection for the vacant place on the bench, wrote that "as the parliament at the revolution thought it the necessary right of Englishmen to have the judges safe from being turned out by the crown, the people of New York claim the right of Englishmen in this respect."
Finally, on the recommendation of the board of trade, the chief justice's salary was provided from the royal quit-rents. "Such a salary," suggested Pratt, "could not fail to render the office of great service to his majesty, in securing the dependence of the colony on the crown, and its commerce to Great Britain." Pratt died in 1763. He was a worthy man, with a high place at the bar, but he held views which might well have fitted him to serve an arbitrary prince. "The people," said he, "ought to be ignorant; and our free schools are the bane of society; they make the lowest of the people infinitely conceited." By advice of the board of trade, the course taken in New York was adopted as a general policy. "On the ninth of December, 1761, the instruction went forth through Egremont, to all colonial governors, to grant no judicial commissions but during pleasure." The next year, Hardy, the governor of New Jersey, was summarily dismissed from his office for disobeying this command. It may not have been the royal purpose to make the courts dependent, but worthy motives cannot rightly be pleaded in justification of an unconstitutional policy.
After the reign of Anne, no act of Parliament was ever vetoed by the crown. Any attempt to do so would have been resented as an invasion of constitutional liberty. In the provinces, however, this branch of the prerogative was steadily maintained; and nowhere did its exercise cause more discontent than in Virginia. By royal grant, the governor and assembly enjoyed the right of enacting statutes, if not repugnant to the laws of the realm. Within three months after passage, all bills were to be submitted to the king for approval or disallowance. The veto, through the Privy Council, was freely exercised and gave rise to complaints. For instance, ten acts adopted in the revision of 1748 were "repealed" by proclamation on October 31, 1751, although the fact was not communicated to the assembly until April 1752. Under royal instructions to the governor, a measure once vetoed could not be re-enacted without "express leave" of the king.
Accordingly, the council and burgesses united in an address praying that the repealed bills might be re-enacted. By the "antient constitution and usage" of the colony, they declare, all new statutes, if not repugnant to the laws of Great Britain, "have always been taken and held to be in full force, until your majesty's disallowance thereof is notified here"; but acts once approved by the king "cannot by the legislature here be revised, altered, or amended, without a clause therein to suspend the execution thereof 'til your majesty's pleasure shall be known therein, even tho' our necessities ... be ever so pressing." Therefore, they ask that in such cases the suspending clause may not be enforced, promising " not to enact any laws to take effect immediately that your majesty hath instructed your governor . . . not to pass without a suspending clause." Such enforcement, they say, "will subject us to great hardships and inconveniences, since it is not within the reach of human foresight to form any laws but what may, from experience, be found to want necessary and sometimes speedy amendment." This reasonable petition was denied by the crown.
As elsewhere shown, it was the imperial policy to encourage the slave-trade. American as well as English merchants shared in this lucrative traffic. Attempts to restrain it were frowned upon, and hence many of the acts of the provincial legislatures imposing duties on slaves imported were disallowed by the crown. In New England, domestic importation was restrained chiefly because slavery increased the dependent portion of the community, but the slave carrying trade to the sister colonies was not interfered with. Farther south, such duties were laid for more economic and social reasons, sometimes from dread of slave insurrection.
On both sides of the sea, a moral sentiment against slavery was springing up; but before the Revolution, colonial legislation was very slightly, if at all, influenced by humane motives. After 1761, two acts of the Virginia assembly, raising the duty on imported slaves, were vetoed by the crown. These bills, like several others probably passed between 1723 and the Revolution, were designed both to raise a revenue and to place a check upon the slave-trade, for the law-makers were alarmed by the rate at which negroes were being brought into the country. Their motives were mainly prudential; they objected to the exercise of the prerogative, not primarily because the king was forcing upon them a traffic which they abhorred, but because they believed their welfare was being sacrificed in the interest of British merchants. They demanded a larger share in the control of their own economic and political affairs. The dislike for this branch of the royal prerogative was but an instance of the growing discontent of the colonies with the whole restrictive system of Great Britain.
Two years later (1763), Patrick Henry made his memorable protest against the crown's legislative prerogative in the "parson's cause." Almost from the beginning, tobacco had been the currency of the province. It was legal tender in the payment of private and public debts, including taxes and the stipends of the established clergy. Such a currency must inevitably shrink or expand in value with the fortune of the season. A failure in the tobacco crop "involved the people in general distress; for by law if the salaries of the clergy and the fees of officers were not paid in tobacco by the tenth day of April, the property of delinquents was liable to be distrained, and if not replevied within five days, to be sold at auction." An act of 1748, confirming a law of 1696, fixed the salary of the clergy at sixteen thousand pounds of tobacco a year.
In 1755, a shortage in the tobacco crop threatened to increase the general distress caused by the heavy burden of the war taxes. Therefore, to release the "poor and needy," the assembly passed an act, to remain in force ten months, allowing all tobacco dues at the "option of the payer" to be paid either in kind or in money at the rate of sixteen shillings and eightpence for each hundred pounds of tobacco. Since 1748, this had been the appraised value of inspected tobacco, and it was even "better than the clergy in general" had commonly received. Because the price set was equal to twopence a pound, the law was called the "twopenny act." The act was general in its operation and did not apply merely to the clergy. Yet the latter may have suffered most, for, although they themselves raised tobacco on their glebes, they were mainly dependent for a living upon their salaries; while, as they complain, "others have different ways of gain, and if they lose by the bill one way, they may gain in another."
However, no formal protest followed, though meetings were held; some of the clergy sent memorials to their diocesan, the bishop of London, and Commissary Dawson wrote on their behalf. But the crop was not so bad, and the price did not rise so high as was expected; hence, the majority of the clergy quietly accepted their loss. Among these was James Maury, plaintiff in the "parson's cause." "In my own case," he writes, "who am entitled to upwards of seventeen thousand weight of tobacco per annum, the difference amounts to a considerable sum. However, each individual must expect to share in the misfortunes of the community to which he belongs."
Again in 1758, in mere expectancy of a short crop, a relief act was passed allowing for one year the payment of all tobacco dues in money at the same rate of twopence a pound. As in the former case, there was no clause suspending the operation of the act until sanctioned by the crown. Therefore, the act was represented as a bold defiance of the prerogative. As anticipated, the crop was a partial failure, and the market price of tobacco rose to about three times the statutory rate. It was a hardship to the clergy as well as other creditors that by this law, debts were made payable in paper money, which was worthless outside of the colony, and so could not be used for the purchase of supplies in England, where they might be had cheaper than at home.
There was now no lack of resistance by the clergy. A war of pamphlets ensued. A convention was held, and an agent was sent to England to present their case before the Board of Trade. In a letter to that body Sherlock, bishop of London, denounced the act as "the work of men conscious to themselves that they were doing wrong"; as an "act of supremacy...inconsistent with the dignity of the crown," and manifestly tending "to draw the people of the plantations from their allegiance to the king when they find that they have a higher power to protect them." In reply to a pamphlet by Bland, it was asserted that the only "dearth and scarcity" existing that year in Virginia was "confined to one or two counties on the James River, and that entirely by their own fault." For "the cause of the short crop was want of plants," and the ground might have been planted "in corn or peace, which always turned to good account." Though the crop was short in some places, it was on the whole "the best crop ever made in Virginia," being worth "near one third more " in cash value than any former crop.
The act, it was further alleged, was passed in the interest of the rich, not in that of the poor. The "rich planters were the gainers by it," for they paid "the clergy and others to whom they were indebted at one-third of the price at which they sold their tobacco." This evidence — although ex parte — according to an American critic, reveals the famous option law of 1758, "in all its fresh and unadorned rascality." There is little ground for so harsh a judgment. The motives of the assembly appear to have been just, although in its effect, the act may have dealt unfairly with the clergy. The traveller Burnaby, who chanced just then to be in Virginia, while criticising the assembly's action, sharply censures the violent conduct of the clergy. "If, instead of flying out in invectives against the legislature; of accusing the governor of having given up the cause of religion by passing the bill; when, in fact, had he rejected it, he would never have been able to have got any supplies during the course of the war, though ever so much wanted; if, instead of charging the commissary with want of zeal for having exhorted them to moderate measures, they had followed the prudent councils of that excellent man, and had acted with more temper and moderation, they might, I am persuaded, in a very short time, have obtained any redress they could reasonably have desired. The people in general were extremely well affected towards the clergy."
By advice of the board of trade the complaints of the clergy were brought before the Privy Council, where Lord Hardwicke, in particular, "delivered it as his sentiment that there was no occasion to dispute about the authority by which the act was passed, for that no court in the judicature whatever could look upon it to be law by reason of its manifest injustice alone" On August 10, 1759, the act was vetoed by the king in council, and through special instructions the governor was ordered to publish the fact by proclamation. Fauquier himself was reprimanded for not rejecting the bill, and he was threatened with recall.
Rev. John Camm, agent of the clergy in London, at once directed his attorney to bring action in the general court of Virginia for the recovery of his salary against the vestry of his parish of York Hampton, if they "should stand out" after learning the king's decision. "The parish refused to stand suit till they had obtained a promise that the expense would be borne out of the public funds. Accordingly, an order of the house of burgesses was afterwards made that the expense of appeal where the clergy were concerned should be borne by the publick," thus bringing the clergy into direct collision with the assembly. In 1764, by a vote of five to four, the general court decided against the plaintiff on the ground that the act was valid until disallowed by the king. Camm then appealed to the Privy Council, and pending the decision, the "court refused to hear any other similar case." The appeal was heard in 1767, but on the alleged ground of informality, it was dismissed, the council seemingly being tired of the whole matter.
Without waiting for the issue of Camm's suit, some of the clergy had already brought action in the county courts. In the case of Rev. Thomas Warrington, of Charles parish, York County, "a jury of his parishioners found for him considerable damages, allowing on their oaths that there was about twice as much justly due to him as the act had granted. But the point of law was given against him," the court refusing to enter judgment in his favor. Next came the suit of Rev. Alexander White, of St. David's parish in King William. In this instance "the court refused to meddle in the matter and insisted on leaving" both law and fact "to the jury, who delivered their verdict" for the defendant.
The suit which caused most interest was that of Rev. James Maury, rector of Fredericksville parish, Louisa, a man of high character. On November 5, 1763, the county court of Hanover, where the action was brought, adjudged the act of 1758, "to be no law"; so it was ordered that at the next term "a jury, on a writ of inquiry, should determine whether the plaintiff was entitled to damages, and if so, how much." The clergy, looking on this as a test case, were naturally elated; for the point of law being settled, the final issue seemed foreassured. John Lewis, "who had defended the popular side, retired from the cause as virtually decided." In their extremity, the defendants called in Patrick Henry, a young lawyer, whose success at the Hanover bar is clearly attested by the fact that during the three and a half years since he was licensed to practice, he had charged fees in one thousand one hundred and eighty-five suits, besides attending to a proportionate amount of "office" business.
The suit came to trial on December 1, 1763. A large crowd attended, including "more than twenty" of the clergy. On the bench, as presiding magistrate, sat John Henry, the young advocate's father. The sheriff was ordered to summon a "select jury." This he did in a way not wholly to the liking of the plaintiff, who alleges that, excusing all gentlemen, the officer made the selection entirely from "the vulgar herd." It even appears that three or four of the jurors were dissenters of the sort called " New Lights." The case for the plaintiff was soon presented. By the testimony of "the two most considerable purchasers of that county," it was proved that in 1759, tobacco "had currently sold at 505. per hundred." It was, therefore, an easy matter to show the jury how much of the parson's salary was still legally due.
When Mr. Lyons, the plaintiff's counsel, took his seat, Patrick Henry rose and made a speech which is looked upon as a warning of the Revolutionary contest. More than half a century later, William Wirt clothed in vivid fancy the impression made by Henry's eloquence on the minds of surviving hearers. "The jury seemed to have been so completely bewildered that they lost sight not only of the act of 1748, but that of 1758 also; for thoughtless even of the admitted rights of plaintiff, they had scarcely left the bar, when they returned with a verdict of one penny damages."
For the chief points of the argument, we are indebted to a letter written just twelve days after the trial by a man in no wise tempted to rhapsodize in Henry's favor. According to Rev. James Maury, plaintiff in the suit, the speaker "labored to prove 'that the act of 1758 had every characteristic of a good law; that it was a law of general utility, and could not, consistently with what he called the original compact between king and people, stipulating protection on the one hand and obedience on the other be annulled.' Hence, he inferred, 'that a king, by disallowing acts of this salutary nature, from being the father of his people, degenerated into a tyrant, and forfeits all right to his subjects' obedience.' He further urged, 'that the only use of an established church and clergy in society, is to enforce obedience to civil sanctions, and the observance of those which are called duties of imperfect obligation; that when a clergy ceases to answer these ends, the community have no further need of their ministry, and may justly strip them of their appointments; that the clergy of Virginia, in this particular instance of their refusing to acquiesce in the law in question, had been so far from answering that they had most notoriously counter-acted, those great ends of their institution'... Then he perorates to the following purpose, 'that excepting they (the jury) were disposed to rivet the chains of bondage on their own necks, he hoped they would not let slip the opportunity which now offered, of making such an example' of the plaintiff 'as might, hereafter, be a warning to himself and his brethren, not... to dispute the validity of such laws, authenticated by the only authority, which, in his conception, could give force to laws for the government of this colony, the authority of a legal representative of a council, and of a kind and benevolent and patriotic governor.'"
When he came to that part where he referred to the king as degenerating into a tyrant, "the more sober part of the audience were struck with horror, Mr. Lyons called out aloud, and with an honest warmth, to the bench, 'that the gentleman had spoken treason,' and expressed his astonishment 'that their worships could hear it without emotion, or any mark of dissatisfaction.' At the same instant, too, amongst some gentlemen in the crowd behind me, was a confused murmur of Treason, Treason!"
It would be as easy to underrate as to overestimate the significance of this event. Patrick Henry's speech was not wholly a triumph of oratory. Its deeper meaning consists in its being a protest against a dangerous system. The relief acts of 1755 and 1758 were probably void from their inception, and it may be that the clergy were harshly dealt with both by the law and by the court. Yet, under the peculiar circumstances, a royal prerogative which absolutely denied to the colonists the privilege of self-help through legislation, even of temporary force, was fast becoming intolerable. Since they were so far from the seat of power, they might have to wait many months for the king's decision. Moreover, his authority was often confessedly exercised in favor of commercial class privilege regardless of the wishes or needs of the provincials. Henry's protest stirred the hearts of the people because it gave voice to their deepening convictions. In the parson's cause, private right may have been obscured by the gathering shadow of a public wrong. Its issue was a forecast of the fate of the established church in Virginia; a presage of the Revolutionary drama which was even then opening with the announcement of Grenville's policy.