The Eve of the Revolution; A Chronicle of the Breach with England

by Carl L. Becker

The Boston Massacre was not as serious as the Massacre of Saint Bartholomew or the Sicilian Vespers; but it served to raise passion to a white heat in the little provincial town. On the next day there was assembled, under the skillful leadership of Samuel Adams, a great town meeting which demanded in no uncertain terms the removal of the troops from Boston. Under the circumstances, six hundred British soldiers would have fared badly in Boston; and in order to prevent further bloodshed, acting Governor Hutchinson finally gave the order. Within a fortnight, the two small regiments retired to Castle William. Seven months later Captain Preston and other soldiers implicated in the riot were tried before a Boston jury. Ably defended by John Adams and Josiah Quincy, they were all acquitted on the evidence, except two who were convicted and lightly punished for manslaughter.

As it happened, the Boston Massacre occurred on the 5th of March, 1770, which was the very day that Lord North rose in the House of Commons to propose the partial repeal of the Townshend duties. This outcome was not unconnected with events that had occurred in America during the eighteen months since the landing of the troops in Boston in September, 1768. In 1768, John Adams could not have foretold the Boston Massacre, or have foreseen that he would himself incur popular displeasure for having defended the soldiers. But he could, even at that early date, divine the motives of the British government in sending the troops to Boston. To his mind, “the very appearance of the troops in Boston was a strong proof … that the determination of Great Britain to subjugate us was too deep and inveterate to be altered.” All the measures of ministry seemed indeed to confirm that view. Mr. Townshend’s condescension in accepting the colonial distinction between internal and external taxes was clearly only a subtle maneuver designed to conceal an attack upon liberty far more dangerous than the former attempts of Mr. Grenville. After all, Mr. Townshend was probably right in thinking the distinction of no importance, the main point being whether, as Lord Chatham had said, the Parliament could by any kind of taxes “take money out of their pockets without their consent.”

Duties on glass and tea certainly would take money out of their pockets without their consent, and therefore it must be true that taxes could be rightly laid only by colonial assemblies, in which alone Americans could be represented. But of what value was it to preserve the abstract right of taxation by colonial assemblies if meanwhile the assemblies themselves might, by act of Parliament, be abolished? And had not the New York Assembly been suspended by act of Parliament? And were not the new duties to be used to pay governors and judges, thus by subtle indirection undermining the very basis of legislative independence? And now, in the year 1768, the Massachusetts Assembly, having sent a circular letter to the other colonies requesting concerted action in defense of their liberties, was directed by Lord Hillsborough, speaking in his Majesty’s name, “to rescind the resolution which gave birth to the circular letter from the Speaker, and to declare their disapprobation of, and dissent to, that rash and hasty proceeding.” Clearly, it was no mere question of taxation but the larger question of legislative independence that now confronted Americans.

A more skillful dialectic was required to defend American rights against the Townshend duties than against the Stamp Act. It was a somewhat stubborn fact that Parliament had for more than a hundred years passed laws effectively regulating colonial trade, and for regulating trade had imposed duties, some of which had brought into the Exchequer a certain revenue. Americans, wishing to be thought logical as well as loyal, could not well say at this late date that Parliament had no right to lay duties in regulation of trade. Must they then submit to the Townshend duties? Or was it possible to draw a line, making a distinction, rather more subtle than the old one between internal and external taxes, between duties for regulation and duties for revenue? This latter feat was undertaken by Mr. John Dickinson of Pennsylvania, anonymously, under the guise of a simple but intelligent and virtuous farmer whose arcadian existence had confirmed in him an instinctive love of liberty and had supplied him with the leisure to meditate at large upon human welfare and the excellent British Constitution.

Mr. Dickinson readily granted America to be dependent upon Great Britain, “as much dependent upon Great Britain as one perfectly free people can be on another.” But it appeared axiomatic to the unsophisticated mind of a simple farmer that no people could be free if taxed without its consent, and that Parliament had accordingly no right to lay any taxes upon the colonies; from which it followed that the sole question in respect to duties laid on trade was whether they were intended for revenue or for regulation. Intention in such matters was of primary importance, since all duties were likely to be regulative to some extent. It might be objected that “it will be difficult for any persons but the makers of the laws to determine which of them are made for regulation of trade, and which for raising a revenue.” This was true enough but at present of academic importance only, inasmuch as the makers of the Sugar Act, the Stamp Act, and the Townshend duties had conveniently and very clearly proclaimed their intention to be the raising of a revenue. Yet this question, academic now, might soon become extremely practical. The makers of laws might not always express their intention so explicitly; they might, with intention to raise a revenue, pass acts professing to be for regulation only; and therefore, since “names will not change the nature of things,” Americans ought “firmly to believe … that unless the most watchful attention be exerted, a new servitude may be slipped upon us under the sanction of usual and respectable terms.” In such case the intention should be inferred from the nature of the act; and the Farmer, for his part, sincerely hoped that his countrymen “would never, to their latest existence, want understanding sufficient to discover the intentions of those who rule over them.”

Mr. Dickinson’s Farmer’s Letters were widely read and highly commended. The argument, subtle but clear, deriving the nature of an act from the intention of its makers, and the intention of its makers from the nature of the act, contributed more than any other exposition to convince Americans that they “have the same right that all states have, of judging when their privileges are invaded.”

“As much dependent on Great Britain as one perfectly free people can be on another,” the Farmer said. Englishmen might be excused for desiring a more precise delimitation of parliamentary jurisdiction than could be found in this phrase, as well as for asking what clear legal ground there was for making any delimitation at all. To the first point, Mr. Dickinson said in effect that Parliament had not the right to tax the colonies and that it had not the right to abolish their assemblies through which they alone could tax themselves. The second point Mr. Dickinson did not clearly answer, although it was undoubtedly most fundamental. To this point Mr. Samuel Adams had given much thought; and in letters which he drafted for the Massachusetts Assembly, in the famous circular letter particularly, and in the letter of January 12, 1769, sent to the Assembly’s agent in England, Mr. Dennys De Berdt, Mr. Adams formulated a theory designed to show that the colonies were “subordinate” but not subject to the British Parliament. The delimitation of colonial and parliamentary jurisdictions Mr. Adams achieved by subordinating all legislative authority to an authority higher than any positive law, an authority deriving its sanction from the fixed and universal law of nature. This higher authority, which no legislature could “overleap without destroying its own foundation,” was the British Constitution.

Mr. Adams spoke of the British Constitution with immense confidence, as something singularly definite and well known, the provisions of which were clearly ascertainable; which singular effect doubtless came from the fact that he thought of it, not indeed as something written down on paper and deposited in archives of state, but as a series of propositions which, as they were saying in France, were indelibly “written in the hearts of all men.” The British Constitution, he said, like the constitution of every free state, “is fixed,” having its foundation not in positive law, which would indeed give Parliament an ultimate and therefore a despotic authority, but in “the law of God and nature.” There were in the British Empire many legislatures, all deriving their authority from, and all finding their limitations in, the Constitution. Parliament had certainly a supreme or superintending legislative authority in the Empire, as the colonial assemblies had a “subordinate,” in the sense of a local, legislative authority; but neither the Parliament nor any colonial assembly could “overleap the Constitution without destroying its own foundation.” And therefore, since the Constitution is founded “in the law of God and nature,” and since “it is an essential natural right that a man shall quietly enjoy and have the sole disposal of his property,” the Americans must enjoy this right equally with Englishmen, and Parliament must be bound to respect this right in the colonies as well as in England; from which it followed irresistibly that the consent of the colonies to any taxation must be sought exclusively in their own assemblies, it being manifestly impossible for that consent to be “constitutionally had in Parliament.”

It was commonly thought in America that Mr. Adams, although not a judge, had a singular gift for constitutional interpretation. Far-sighted men could nevertheless believe that a powerful party in England, inspired by inveterate hatred of America and irretrievably bent upon her ruin, would pronounce all his careful distinctions ridiculous and would still reply to every argument by the mere assertion, as a fact behind which one could not go, that Parliament had always had and must therefore still have full power to bind the colonies in all cases whatsoever. If Britain would not budge from this position, Americans would soon be confronted with the alternative of admitting Parliament to have full power or denying it to have any.

With that sharp-set alternative in prospect, it would be well to keep in mind the fact that arguments lost carrying power in proportion to their subtlety; and in the opinion of so good a judge as Benjamin Franklin the reasoning of Mr. Adams and Mr. Dickinson was perhaps not free from this grave disadvantage.