Conceived in Liberty (168 page)

One reason for the lax naval enforcement, ironically enough, was the forced closing of the admiralty courts for lack of stamps. Only the Halifax court was now open. With these courts closed, the naval officers were reluctant to detain ships for any length of time.

The civil courts were not opened so quickly, but then the need was not nearly as pressing as in the case of the ports. We have seen the positive advantage of the closed admiralty courts as well as the informal substitutes for domestic legal transactions. Moreover, as long as the civil courts remained closed, English merchants could not collect on the substantial sum of debts owed them by Americans. This blockage could only lead British merchants to put pressure on Parliament to repeal the Stamp Act. George Washington, Richard Henry Lee, and other Virginia tobacco planters, generally in heavy debt to English merchants, saw the importance of this method of creating pressure. As a result, the pressure to reopen the courts was far less than that to reopen the ports.

Pressure for reopening the courts came mainly from the Sons of Liberty and other radicals who wanted the opening to symbolize judicial repudiation of the Stamp Act. Thus, as soon as the ports were opened in Massachusetts, the Sons of Liberty went to work on the courts. The Massachusetts Council was openly warned:

Open your Courts and let Justice prevail

Open your Offices and let not Trade fail

For if these men in power will not act

We’ll get some that will, in actual Fact.

This popular pressure was succeeded by arguments by leading lawyers of Boston. Young John Adams argued before the Council that the Stamp Act was “utterly void,” for it violated colonial “rights as men and our privileges as Englishmen.” When Parliament errs, declared Adams boldly, it need not be obeyed, and it had no right to impose taxes on the colonies. James Otis, Jr. this time backed the Adams’ view. The Council worriedly passed the buck to the judges of the colony, attempting to wash its hands of the entire problem.

The Massachusetts Superior Court was not scheduled to convene until March, but two lower courts in Suffolk County, containing Boston, were supposed to meet in January. The Probate Court of Suffolk County was being held up by Thomas Hutchinson, judge of the court; Hutchinson was soon told that his only viable alternatives were “to do business without stamps, to
quit the country, to resign [the] office, or——.” Keeping the stampless court closed, it was made clear, was not a healthy path for Hutchinson to choose. Faced with this threat, Hutchinson consented to have his more pliable brother, Foster, replace him as judge of the probate court, which promptly opened its doors, followed by the inferior court of the county.

Having secured the opening of their own county courts by mid-January, the Boston radicals put pressure on the Massachusetts Assembly to open the other courts in the province. The House passed a resolution to open all the courts of justice by the overwhelming vote of 81 to 5, but again the Mephistophelian Thomas Hutchinson blocked its passage in the Council. The radical
Boston Gazette,
spearheaded by Otis, denounced Hutchinson bitterly, but the Council, not wanting to take any positive stand, also blocked the proposal of Governor Bernard to arrest Otis for his seditious essay. Finally, the Council again passed the buck to the judges of the colony, who in turn passed it over to the lawyers to decide. Faced with such responsibility, the lawyers, including Otis, began to stall. After a token hearing of one case in the crucial superior court during March, the court adjourned without taking action, to await passively the now rumored imminent repeal of the Stamp Act.

Virginia displayed the same vacillation and hesitancy in opening its courts. Edmund Pendleton, a judge in Caroline County, and one of Virginia’s most respected lawyers, urged keeping the courts open on the same hard-hitting grounds as the Boston libertarians. Justice Littleton Eyre of the Northampton County Court took the same stand. But other judges were far less courageous, and they dithered along without taking the decisive step. The Virginia lawyers, tough in talk and in theory, also balked at taking the public step of reopening the courts. As a result, the courts of Virginia, as in Massachusetts, largely remained closed, with the exception of Accomack County. In Accomack, on the eastern shore, the courts defiantly reopened, but few other lower courts joined in.

The story in most of the other colonies was much the same. In colony after colony the lawyers approved the high libertarian principle of keeping open in disregard of an invalid stamp tax, but timorously continued to delay putting their high ideals into practice. The judges likewise continued to stall until the thrilling news of repeal of the Stamp Act reached the colonies in early April, and took them all off the spot. This was conspicuously the case, for example, in Pennsylvania, New Jersey, and New York. In New Jersey and Pennsylvania, however, a few lower courts managed to remain open. In New York, an attempt by judges of the court of common pleas to reopen was harshly crushed by a threat of Governor Henry Moore to fire any judges who dared to open without stamps. The courts of South Carolina also dithered throughout the period, but by March justices of the Charleston Court of Common Pleas attempted to reopen. They were responding to pressures by merchants, traders, and their associated Sons of Liberty in Charleston, and backed by the
South Carolina Assembly. However, the judges were blocked in this effort by the court clerk Dougal Campbell and by Governor Bull.

Among the colonies, then, only four—New Hampshire, Maryland, Delaware, and Rhode Island—opened all of their courts before the repeal came through. Meeting in early February, the New Hampshire Superior Court overruled the obstructionism of its clerk, and the victory was promptly hailed by the Portsmouth Sons of Liberty. Some of Maryland’s lower courts opened as early as November, but the superior court did not open until forced to do so in early April by repeated demands at a mass meeting at Annapolis of the Sons of Liberty from all over the colony. The courts of Delaware were opened in February under severe pressure from its grand jury, which refused to perform its task of making criminal indictments (which were not subject to the stamp tax) until the civil courts agreed to reopen.

Little Rhode Island was unique among the colonies. There all the courts remained open without interruption. In this colony, the backbones of the judges were fortified by the Assembly’s pledge to indemnify all officials who ignored the Stamp Act, and all the courts continued happily to function. In one case before the superior court, the hated ex—stamp master Augustus Johnston refused to prosecute in his capacity as king’s attorney. The court expressed its contempt for British rule by replacing Johnston as attorney general with Silas Downer, secretary of the Providence Sons of Liberty.

While most of the colonial civil courts, especially the superior courts, remained closed during the Stamp Act era, it is clear that legal and judicial shilly-shallying could not have continued forever. Mounting popular pressure undoubtedly would soon have forced a general reopening of the courts had not repeal intervened. However, it is likely, from their attitude, that the judges would have proceeded timorously on the practical ground that stamps were unavailable rather than have taken a stand on constitutional principle.

The Stamp Act was, in effect nullified throughout the period of its
official
enforcement in the colonies. It was nullified by the official bodies of the colonies, but even more so by the direct action of the people in forcing the stamp masters to resign, in carrying on business and trade as usual in defiance of the Stamp Act, and in forcing the royal customs officials to allow ports to remain open to ships without stamps. Corollary to this process of revolutionary mass nullification of the Stamp Act was a highly significant phenomenon that increasingly occurred in the colonies: a withering away of the authority of all organs of government, and a virtual shift to a condition of quasi-anarchism.

The revolutionary situation rendered the royal executive impotent and the colonial assemblies ineffective. The judges did not usually meet, and when they did it was at the behest rather of the radical organizations of the people than of the legally constituted authority. In short, effective rule of the colonies passed from the organs of government to voluntary organizations: to the Sons of Liberty and their popular allies. Such a shift of rule and of majority obedience from state organs to voluntary organizations is certainly a hallmark of a situation of near anarchism. The conditions differed, however, from those of the earlier anarchism in late-seventeenth-century Pennsylvania in two ways: one,
local
governments in this case remained in existence; two, the anarchism was not, as before, totally pacifist and devoid of all institutions of
defensive
force against criminal invasions of person or property.

As in all revolutionary situations, the breakaway of popular allegiance to constituted government implied a breakdown of that government into voluntary
self-governing
actions by each individual. It was indeed voluntary cooperative action among the people without benefit of official sanction—or of compulsory
revenue from taxation—that brought rule to such private organizations as the Sons of Liberty. The philosophical meaning of this process has been brilliantly elucidated by the late-nineteenth-century libertarian constitutional lawyer from Boston, Lysander Spooner. Spooner’s analysis, dealing with the American Revolution, in a sense applied far more aptly to the Stamp Act crisis, in which no new governmental forms intervened to alter the course or the meaning of that crisis. Spooner wrote:

The... Revolution was declared and accomplished by the people, acting separately as individuals, and exercising each his natural rights, and not by their governments in the exercise of their constitutional powers....

Each declared, for himself, that his own will, pleasure, and discretion were the only authorities he had any occasion to consult, in determining whether he would any longer support the government under which he had always lived. And if this action of each individual were valid and rightful when he had so many other individuals to keep him company, it would have been, in the view of natural justice and right, equally valid and rightful, if he had taken the step alone. He had the same natural right to take up arms alone to defend his own property against a single tax-gatherer, that he had to take up arms in company with three million of others, to defend the property of all against an army of tax-gatherers.

Thus, the whole Revolution turned upon, asserted, and, in theory, established, the right of each and every man, at his discretion, to release himself from the support of the government under which he had lived....
*

From this spontaneous repudiation of the authority of the government under which the people lived, emerged voluntary organizations to lead the popular struggle, and throughout the colonies they took the name Sons of Liberty. The Sons directed strategy, led the pressure of the crowd when intimidation became necessary, and prepared also for armed defense should the British government try to enforce its laws with
force majeure.
For, as the governors saw their authority crumble, it became clear that the British government was now faced with a fundamental choice: to abandon enforcement of the stamp tax or to send an army to suppress colonial resistance. Open rebellion against the royal governors was very near, and they realized that they could not rely on the militia, which sided with the popular resistance. Seeing the Sons of Liberty in control of Boston, Governor Bernard was on the point of fleeing Massachusetts. Governor Penn revealed in mid-December that Pennsylvania was “not more than one degree from open rebellion.” And New York’s Governor Colden hardly dared stir outside Fort George. If Colden had refused to turn over the stamps to the crowd, open war would have broken out. The prudent British troops knew that if the Fort had fired on the people, the Sons of Liberty could have assembled an overwhelming force of fifty
thousand men from New York and New Jersey alone. The royal governors, then, kept very quiet about the stamp tax. As Governor William Franklin of New Jersey wrote his father, Benjamin, “For any man to set himself up as an advocate of the Stamp Act in the colonies is a mere piece of quixotism.” The governors were not disposed to being quixotic.

But what of the British? Would they use an army to enforce the tax? It was clear that the scattered army in America, not yet up to authorized strength, would have to be supplemented by a new army sent from England. But English threats of cramming the stamps down American throats made Americans aware that they must be prepared to face such a challenge. Accordingly, the Sons of Liberty held meetings throughout the colonies during the winter of 1765—66 to proclaim the defiance of the citizens.

The meetings of the Sons of Liberty proclaimed views that were far more revolutionary than those of the colonial assemblies. The lead was taken by the Sons of Liberty of Windham at New London, Connecticut. This meeting, “of a large assembly of the respectable populace” of New London on December 10, frankly proclaimed an uncompromisingly revolutionary natural-rights position, namely,

That every form of government rightfully founded, originates from the consent of the people....

That whenever those bounds [on government, set by the people] are exceeded, the people have a right to reassume the exercise of that authority, which by nature they had, before they delegated it to individuals....

That every tax imposed upon English subjects without consent, is against the natural rights and the bounds prescribed by the English constitution.

The meeting concluded that it is the duty of every colonist to oppose execution of these invalid acts, and if necessary “to reassume their natural rights, and the authority the laws of nature and of God have vested them with.” The New London meeting threatened every officer neglecting the peoples’ trust with the peoples’ resentment, and hoped for no ministerial preaching of any doctrine of passive obedience.