Conceived in Liberty (154 page)

During the Seven Years’ War, attempts were made, especially by Pitt, to suppress trading with the enemy, but the molasses trade also flourished with the islands captured from the French in the later years of the war. In March 1763, Charles Townshend, new president of the Board of Trade, attempted to lower the official molasses duty to twopence a gallon and to enforce it strictly, in order to be able to tax the colonies. We have seen, however, that Parliament
rejected the plan, and the old salutary indulgence for molasses was quickly resumed. The postwar salutary neglect, alas, proved short-lived. In the first place, Parliament decided, in May 1763, to use a good part of the British navy as a powerful instrument of enforcement of the trade laws. As an incentive to the naval officers, the ships and cargoes seized by them for illegal trade were now to be sold by the courts at auction, with the proceeds divided equally between the officers themselves and the Crown. Twenty British warships with over two thousand men were assigned to this task. Absentee colonial customs officers were ordered back to America to assume their posts, and the colonial governors, as well as the commander in chief, were ordered to render all possible assistance.

At first it seemed to the relieved merchants that the molasses trade would still be indulged, and John Temple, the chief customs officer for the northern colonies, gave reassurances to that effect. But the customs commissioners dashed these hopes in November, by threatening all American customs officers with instant dismissal for any laxity in enforcing the law. In response, Temple, at the end of the year, gave notice that customs officials would board all the vessels in the West Indian trade to execute fully the Molasses Act of 1733. Governor Francis Bernard of Massachusetts wrote that this notice caused a greater alarm in America than had the French capture of Fort William Henry six years before. And not only the merchants but the rest of the public began to denounce customs officers for restricting the natural rights and liberties of the people. The term
Tory
now came into common use to designate the advocates of imperial aggrandizement over America. The British West Indies planters, in contrast, were highly gratified, especially since they made sure that
their own
illegal trade with the Spanish West Indies would continue to be “indulged.”

The Molasses Act was scheduled to expire in 1764, and so the Massachusetts merchants took the opportunity to bring pressure against renewal of the law. The merchants and traders of Boston, Salem, Plymouth, and Marblehead petitioned the Massachusetts legislature in December against renewal, and a committee of Boston merchants presented a detailed economic argument against the duty. Particularly concerned were the Massachusetts fishermen, whose low-grade product depended on the West Indies market. The Massachusetts legislature backed up the motion against renewal, and stressed that a lower duty strictly enforced would introduce the dangerous principle of parliamentary taxation of the colonies’ trade. (The previous laws were deemed
trade restrictions
rather than revenue measures, as Townshend’s proposal would be.)

Connecticut merchants, led by Gurdon Saltonstall and Jared Ingersoll, filed a petition against enforcement or renewal of the Molasses Act, and the March session of the legislature sent a protest to England. A committee of Philadelphia merchants asked the same of the Pennsylvania legislature, but the agitation came too late to have any effect.

Many merchants helped organize the opposition by writing to associates or correspondents in the colonies. The most fully developed example was a letter of January 1764 written by a committee of Boston merchants to merchants in Rhode Island and Connecticut, rousing them to the cause. The merchants called on their fellows to “unite our endeavors” and to “defeat the iniquitous schemes” of the West India interest—“these overgrown West Indians.” The letter inspired the merchants and traders of Newport and Providence to call for and obtain a special session of the Rhode Island legislature for January. The legislature decided to send to England a remonstrance, which constituted the first official American protest against renewal of the Molasses Act. The remonstrance pointed out that Rhode Island did a flourishing trade in molasses, importing almost as much as Massachusetts. For its supplies it was dependent on the non-British West Indies. Rhode Island had over thirty distilleries processing the molasses into rum, much of which was traded to West Africa for slaves, who in turn were sold to the British West Indies and the southern colonies.

In January 1764, New York merchants, inspired by a letter from Nicholas Brown of Providence, chose a committee that issued a proclamation against enforcement of the molasses duty; the committee pointed to the wide West Indian market for New York agricultural staples, and to the manufacture from molasses of beer and rum, the latter vital to the Indian trade. The merchants’ protest was later approved by the New York legislature and sent to England. During February, New York and Philadelphia merchants were also in correspondence about joining New England’s protests, and a committee of Philadelphia merchants petitioned the Pennsylvania Assembly to oppose the renewal.

This movement of pressure by merchants in the northern colonies was the first case of intercolonial pressure on England in behalf of colonial rights and liberties. It was, however, totally unsuccessful; in fact, by the time the pressure was fairly under way, the Crown had introduced the American Revenue Act (also called the Sugar Act), in the spring of 1764. The London agents of the northern colonies (including Jasper Mauduit from Massachusetts and Richard Jackson from Pennsylvania and Connecticut) were remarkably quiet, being willing to settle for a duty of twopence and thus to abandon the principle of no English taxation upon the colonies. But the Revenue Act, as introduced in March and passed quickly in April—to take effect at the end of September—imposed the crushing duty of threepence a gallon on foreign molasses, and promised a rigorous enforcement. The Revenue Act passed easily because of Newcastle’s continuing anxiety not to alienate Pitt and thus to keep a united opposition. A few members of Parliament mildly urged reduction of the duty to twopence, but only John Huske, an MP from Malden who had spent his early life in New England, opposed the American Revenue Act
in toto.
Huske, it should be noted, had been newly elected the previous year by the agitation of the radical John Wilkes movement.

An important factor in the abject collapse of British opposition to the new molasses duty was the failure of the London agents of northern colonies to press opposition
in principle
to the molasses duty. They confined their opposition to urging a somewhat lower duty. Particularly grave was the defection of Richard Jackson, who also held the critically influential post of private secretary to Prime Minister Grenville.

Richard Jackson was an old and close friend of Benjamin Franklin, and the two had co-authored an important imperialist pamphlet during the war with France. As an old friend and a member of the Pennsylvania Assembly’s committee of correspondence, Franklin embodied the American position as far as Jackson was concerned. Yet Franklin raised no protest over the Revenue Act or against stationing a standing army in the colonies. Indeed, Franklin went so far as to welcome the “steady protection” and “security” of a British standing army. Franklin also reacted blithely to the plans to tax the colonies. In fact, he even offered a helpful suggestion for a tea tax for raising revenue from America.

Much of the responsibility for Jackson’s attitude and for the easy passage of the new Sugar Act must therefore be laid at the door of Benjamin Franklin. Franklin’s soft attitude toward the Crown and imperialism was certainly not unconnected with his own bureaucratic post as deputy postmaster general of the American colonies, or with his son William’s royal appointment as governor of New Jersey.

In addition to the threepence duty on molasses, the American Revenue Act of 1764 provided for: a continued duty on foreign raw sugar and an increased rate on refined sugar; higher import duties on foreign textiles, coffee and indigo; much higher duties on Madeira and Canary wines; double duties on foreign goods imported from England; prohibition of imports of foreign rum or French wines; and the addition of iron, hides, whale parts, raw silk, and potash and pearl ash to the “enumerated list” imposed by the Navigation Acts. A particularly important provision crippled the intercolonial trade. No goods could be shipped from one American colony to another without a detailed registration with and permission from a royal customs officer. Furthermore, every vessel had to put up an expensive bond on each trip for paying duty on foreign molasses. The requirement of a detailed registration and listing of goods (or “cocket”) imposed particular hardships on small vessels engaged in local trade. Chief Justice William Allen of Pennsylvania wrote in November 1764 of the plight of a typical owner of a small boat on the Delaware River carrying a load of wood for iron from New Jersey to Philadelphia. He now was forced to go forty miles out of his way to the nearest customhouse to make out his manifest, “the charge of which and his travelling makes this burden intolerable.” Before the Revenue Act, small vessels carrying nonenumerated products in the coastal trade had not been forced to gain customs clearance. The cocket requirement also permitted Britain to
begin the enforcement of the restrictive Wool Act of 1699, the Hat Act of 1732, and the Sailcloth Act of 1736, which had been virtual dead letters for many years.

Another provision of the American Revenue Act proved extremely irritating to the colonists. Despite the incentive of acquiring a share of the loot, naval officers had been reluctant to confiscate the goods of alleged smugglers, being deterred by a healthy fear of the common-law rule of personal liability for damages to any owner found innocent of the charge. Personal liability for arresting officers was a superb way of making governmental officials extremely careful about invading someone else’s property. Now the Revenue Act virtually removed this deterrent and opened a broad channel for injustice, by limiting the owner’s damage claims to twopence if the officer could prove “probable cause” for the unjust seizure. And if the trial judge did not certify probable cause, even a minority of the customs board could now reimburse the naval officer for paying damages.

Critical to the British campaign of strict enforcement of the trade laws was the aggrandizement of the vice admiralty courts. The Act of 1696 had established vice admiralty courts for the colonies. These courts possessed jurisdiction over violations of the trade laws. The judges were appointed by the royal governors, and were able to decide cases themselves, without granting the accused the benefit of trial by jury. In the common-law courts where trial was by jury, the juries generally acquitted smugglers and violators of the trade laws as a matter of principle. Before the Revenue Act of 1764, however, the vice admiralty courts were not intolerably oppressive for the colonists. For one thing, the Crown decided that the admiralty courts did not have jurisdiction over enumerated products or importations of goods from Europe. This was firmly established by the Privy Council in 1743 in the
Archibald Kennedy
case. It was there decided that only the navigation laws prohibiting foreign ships came under admiralty jurisdiction. Secondly, of course, the policy of salutary neglect gave the courts little work in any case.

The American Revenue Act changed all this. First, the law made crystal dear that the admiralty courts had jurisdiction over all trade and revenue law violations. Second, the new law authorized the creation of a new admiralty court specifically covering all colonial trade violations. Before 1764, each court was limited in jurisdiction to its own colony. At the urging of Admiral Lord Colville, commander of the British North American fleet, a new overall admiralty court was set up in the fall of 1764 in the raw little military-run town of Halifax, Nova Scotia. Halifax was the headquarters of the North American fleet, but remote from the center of American commerce. Dr. William Spry, husband of a niece of William Pitt, was appointed judge of the court. The Englishman Spry ominously contrasted to the other vice admiralty judges, who were all American colonials. Lord Colville had frankly written that admiralty court judges in the major colonies might be influenced by the pressure of
jobs or of their neighbors; but this pressure would be avoided by conducting trials in far-off Halifax.

Admiral Colville’s warnings were not simply hypothetical; they were based on the solid experience of existing vice admiralty courts, which indeed were under the influence of the merchants and the pervasive smuggling trade. During the French and Indian War, the three judges who successively served in the Charleston Vice Admiralty Court were unmistakably in league with the merchants of the town. Charleston had arisen during the war as a center for trade with the French West Indies, to which it was nearer than any other American port. Not surprisingly, the vice admiralty court judge in Charleston after 1761 was Councillor Egerton Leigh, formerly a lawyer for many of the merchants in the illegal trade and a close friend of the leading merchants of the town. Leigh was usually able to find a way to rule for the accused merchant.

In Philadelphia Judge Edward Shippen ruled in favor of the illegal “flags-of-truce” method of trading with the enemy. In New York City the vice admiralty judge before his death in 1762 was Lewis Morris, Jr., who was notoriously partial to the harassed merchants, often waiving jurisdiction of their cases. In fact, the New York customs officers were moved to complain of Morris’s partiality to their superiors in England; to these zealots, Morris was little better than the colonial juries of the common-law courts. In 1762, Morris was succeeded by his son Richard, formerly a lawyer for accused merchants and a deputy admiralty judge in New Jersey.

Rhode Island was a great and flourishing center of illegal trade, helped by its self-governing charter, by which the governor and all other officials—except the appointed royal customs officers and admiralty judges—were democratically elected. When the war with France began, the Rhode Island merchants decided that they could control the vice admiralty court better if the colony had an admiralty court of its own, rather than a mere branch of Massachusetts courts. The Rhode Islanders not only quickly obtained their own court, but even persuaded the king to appoint their own choice as admiralty judge: the Providence planter Colonel John Andrews. When Andrews forgot his true role and shifted toward the Crown, the whole Rhode Island political structure put pressure on Andrews and brought him into line. In fact, the independent and individualist Rhode Island merchants publicly proclaimed the advantages of trading with the enemy, and quoted the Magna Carta against enforcing the trade acts.