ONE
“A Glow of Patriotic Fire”
On April 25, 1806, three British men-of-war, Leander, Cambrian and Driver, were patrolling the entrance to New York harbor. All day, the sixty-gun frigate Leander had stopped every American ship, first lobbing a cannonball across its bow, the signal to heave to, be boarded and be searched for deserters from the Royal Navy and contraband from Britain’s enemy, France. Toward evening, the Delaware coastal schooner Richard, hauling produce to market, was only a quarter mile offshore. Two eighteen-pound cannonballs suddenly erupted from Leander, one cutting across Richard’s bow, the other arcing overhead. Immediately Richard hove to, waiting for the British boarding party. But then a third projectile, skipping along the surface, crashed through the schooner’s taff rail, driving a large splinter through the neck of the helmsman John Pierce, decapitating him.
Pierce’s brother somehow managed to steer the schooner to the city docks in lower Manhattan. As he carried his brother’s headless body through the streets, an angry crowd gathered. They had watched helplessly as British boarding parties, in an illegal peacetime blockade, seized American vessels before sailing them off to Halifax to be condemned by a British Admiralty court and auctioned off, the proceeds divided among Leander’s captain and crew. A crowd of volunteers commandeered two British pilot vessels anchored at the wharf, overtook three British supply boats and forced them back to port, unloading their cargoes into carts for distribution among the city’s poorhouses.
In front of the Tontine Coffee House, New York’s incipient stock exchange, Pierce’s corpse remained on display during days of rioting. Britain’s consul-general hid in his house as a mob hurled stones through his windows. At Hardy’s waterfront tavern, merchants blamed President Thomas Jefferson for failing to resist years of British interference with America’s commerce. Like many Americans, they also blamed Jefferson for refusing to maintain a proper navy to protect America’s burgeoning maritime trade. Irate citizens also organized a city militia.1 The city’s Common Council ordered Pierce’s burial at public expense and, as American ships in the harbor flew their flags at half mast, as a body led thousands to the interment to honor the seaman whose death had brought to a head years of fruitless protests against Britain’s attempts to stifle American trade.
When an express rider reached Washington City with Mayor DeWitt Clinton’s dispatches, Jefferson ordered the Leander and her sister ships to “immediately & without any delay depart from the harbours & waters of the U.S.” Even though the United States had won the Revolutionary War a generation earlier, Jefferson could do nothing now beyond issuing an empty decree that all British ships must leave American waters. After a hastily summoned New York grand jury indicted Leander’s captain, Henry Whitby for murder, Jefferson decreed that if Whitby were ever found again in American territory, he was to be arrested and returned to New York to face the charge. If British ships ignored Jefferson’s executive order and continued to come into American waters, Americans were forbidden to pilot them into ports, sell them provisions or provide them with fresh water or “supplies of any kind.” Jefferson called the stationing of British warships off Sandy Hook “an atrocious violation of our territorial rights.”2
Jefferson must have known it was impossible to enforce his executive order. He had drastically downsized the navy, ordering its half dozen frigates into dry dock and replacing them with what naval officers called a “mosquito navy” of shallow-draft, poorly armed gunboats useful only close to shore.
Like fellow veterans of the Tripoli Wars, Navy commodore William Bainbridge fumed at this latest affront. “How long must we bear these violations of our National honor, property, and loss of our fellow Citizens,” he wrote to Captain Edward Preble. “O Lord! Grant us a more honorable Peace or a sanguinary war!”3
All along the Atlantic seaboard, as news spread of the latest British provocation, newspaper editors trumpeted calls for war. DeWitt Clinton later wrote, “I well remember the sensation excited by the murder of Pierce. It was a glow of patriotic fire that pervaded the whole community … from Georgia to Maine it was felt like an electrical shock.”4
The Leander incident and the firestorm of anti-British resentment it ignited followed a quarter century of flare-ups in the struggle for the United States’ economic independence from Britain and its survival as a sovereign nation. What neither Jefferson nor any other of America’s founding generation could divine was that, even after the British imperial crisis that began with protests over illegal searches and seizures in Boston in 1761 and led to American military victory in 1783, what is commonly called the American Revolution constituted only the first phase of a far more protracted ordeal to achieve true independence. The Treaty of Paris of 1783 only halted the overt conflict of the Revolutionary War and granted political autonomy, but it did not guarantee American economic independence and agency. For fully three more contentious decades that led to another war—the War of 1812—Britain continued to deny the United States’ sovereignty.
The second phase of the half-century-long struggle combined a domestic ideological crisis over American identity with unrelenting and ever-intensifying attempts by the British to stifle American trade and to starve her former colonies. From 1783 until combat resumed in 1812, the United States’ weak central government and a military enfeebled by Jeffersonian political purges rendered the young nation’s chance of survival dubious.
Ignoring their military failure in the Revolutionary War and the consequent treaty of peace, the British Parliament ratcheted up efforts to eliminate competition, first by re-invoking the colonial-era Navigation Act of 1756, requiring that all goods transported between British possessions or to and from England must be carried on British ships—“English goods in English bottoms.” Banning long-existing trade between New England and its Canadian neighbor, the Navigation Act also barred long-flourishing commercial ties with British Caribbean colonies. Moreover, Britain insisted that its treaty allies, Spain and Portugal, embargo American trade and forbid trade with any of their three colonies. Britain also prohibited vital exports from England to the United States, including sheep, wool and woolens. All the while, in violation of the peace treaty, Britain refused to remove its troops from fortified trading posts around the Great Lakes and along the Canadian-American frontier. Throughout this perilous half century, the underlying cause of contention was America’s right to free trade.
As the Napoleonic Wars spread over Europe in the 1790s, Britain, ignoring America’s status as a sovereign nation, denied the United States’ neutral maritime rights. Flouting the rights of American merchant-ship owners and sailors, as in the case of the Leander, the Royal Navy stopped, searched and seized ships on every ocean.
During the more than two decades of almost constant warfare in Europe that followed the French Revolution, Britain and France formed and realigned alliances. Attempting to blockade each other into submission, the combatants enmeshed the United States in rules aimed at preventing shipments to each other’s enemy. Admiral Nelson’s decisive victory over the French and Spanish fleets at Trafalgar in 1805 had forced Napoleon to abandon his dream of invading the British Isles, but the French emperor retaliated, setting out to destroy the British economy by cutting off its vital import-export trade with the Continent. In turn, Britain deployed its nine-hundred-ship navy, cordoning off Europe with a blockade that severed France from its overseas empire and high-handedly banning neutral nations from trading with French-controlled ports.
The War of 1812 came on by decrees. After Napoleon achieved a brilliant victory at Jena in 1806, he inaugurated his Continental System with the Berlin Decree, a blockade in reverse that closed all European ports to Britain and subjected all goods of British origin to confiscation. After his victory at Friedland in 1807, he extended the system to include Russia and the Baltic states. In January 1807 Britain responded to Napoleon by issuing Orders in Council that expanded its own blockade. The first of fourteen such orders in 1807 allowed the Royal Navy to control the European coastal trade by banning direct neutral trading with the ports of Britain’s enemies. A subsequent order required neutral ships to call at British ports, unload for inspection, pay customs duties of 25 percent and purchase an expensive license before going on to enemy ports. Napoleon retaliated with his Milan Decree, extending to neutrals the embargo on goods destined for the ports of Britain and her allies, Spain and Portugal. He also ordered confiscation of any ship obeying Britain’s Orders in Council.
All through the tempestuous 1790s and into the early nineteenth century, the United States had been dragged ever deeper into the worldwide conflict, not only exacerbating tensions between the United States and Britain but, after Robespierre beheaded Louis XVI and Marie Antoinette, dividing Americans’ sympathies as well. Many southerners sympathized with the French while New Englanders, longtime enemies of the French in Canada, tended to side with their traditional North Atlantic trading partners.
Beyond cataclysmic battles on land and sea, a new and devastating form of economic warfare emerged. Invoking an evolving international doctrine of neutral maritime rights, America’s seagoing merchants defied the new British restrictions, absorbing the bulk of the French Caribbean carrying trade as they developed the world’s second largest merchant fleet. The American carrying trade increased fivefold between 1792 and 1807 as the United States became the world’s largest neutral maritime power, helped along by the many seamen who deserted the Royal Navy, exchanging brutal, lifelong discipline for more lenient, limited tours of service on U.S. ships.
After the Royal Navy had resorted to blockading—an act of war according to international law—it stopped and searched some 400 American vessels, scouring them for British deserters, to maintain full complements aboard its blockading ships. By 1807, of the 55,000 American sailors involved in overseas trade, fully 40 percent had been born in England and Ireland. Britain refused to acknowledge the revolutionary American doctrine of naturalization. In all, the British impressed 9,991 American sailors between 1796 and 1812, by any measure the majority of them native-born Americans. The British assigned these men to convoy duty in the Indian Ocean, in effect imprisoning them, as they endured indefinite sentences under harsh naval discipline far from any chance of seeing their homes and families again.
In what Winston Churchill aptly called an “unofficial trade war,” the Leander incident was part of an escalating British campaign to snuff out commercial competition from England’s upstart former colonies.5
Finally, as more Americans demanded that their government confront British policies, the American David declared war on the British Goliath in June 1812. From the foremasts of American frigates, banners proclaiming “Free Trade and Sailors’ Rights” fluttered.
Amid the public clamor for war, onetime pacifist president Thomas Jefferson tried to explain America’s determination, despite the overwhelming might of its former overlords, to persist in the lopsided hostilities. When she learned in July 1812 of America’s declaration of war, Paris saloniste and diplomat Madame Germaine de Staël, Jefferson’s old friend, wrote to the now former president protesting the United States’ attack on Britain, which she deemed the “sole barrier” against the attempts of Napoleon to impose a “universal monarchy.”6 Jefferson secretly wrote back: “My dear Madam; the object of England is the permanent dominion of the ocean, and the monopoly of the trade of the world.” Americans, he declared, refusing to revert to the status of Britain’s colonial dependents, would continue to fight until the British stopped presuming that they still had the right to dictate where and with whom and what they could trade.7
TWO
“Salutary Neglect”
The half-century-long struggle for American independence from Britain commenced almost immediately after a stunning series of British victories in the last French and Indian War, which itself had brought an end to a century and a half of chronic struggle for domination of North America. In London, all through the annus mirabilis of 1759, chiming church bells and booming Tower cannon proclaimed the arrival of every dispatch of a global British victory. Peace with the French promised peace with the Indians, removing the threat of attack from the entire 2,000-mile backcountry of the British-American colonies. With the French vanquished, settlers could surge across the Appalachians from overcrowded coastal colonies into the Ohio Valley and beyond to stake out land. Merchant-investors could now subdivide the forested, fur-rich empire, and trade with the Indians would be exceedingly lucrative.
For Britain’s ruling class, the prospect was equally alluring. Long-anticipated rewards of a century of oppressive land taxes and humiliating loans would be incalculable. Breathlessly, Horace Walpole dashed off excited letters: “Victories come so tumbling over one another from distant parts of the globe that it looks like the handiwork of a London romance writer,” he wrote to an intimate. To another, “The Romans were 300 years conquering the world.… We subdued [it] in three campaigns.”1
To Britain’s American colonists, money flowed. Convoys of ships crammed with luxury goods overflowed waterfront wharves, selling as fast as they could be unloaded. In New England alone sixteen shipyards employing a thousand artisans turned hardwood forests into craft to carry wares to the quarter million inhabitants from present-day Portland, Maine, north up to the St. John River to Quebec Province and west over the Berkshires to Lake Champlain.
Amid the jubilation, at 7:30 on the morning of October 25, 1760, seventy-seven-year-old King George II dropped dead, leaving to his grandson, George III, the world’s largest modern empire. At Kew House, the unmarried Prince of Wales still lived with his mother, Princess Augusta, and his siblings. At twenty-two, he became the youngest monarch since Elizabeth I.
By nightfall, the tall, thin prince arrived at St. James Palace to confer with his grandfather’s chief ministers. There, he received the obeisance of two archrivals: accipitrine William Pitt, the Great Commoner, a spellbinding orator who, as prime minister, had amalgamated British gold with Frederick the Great’s Prussian steel; and the stoop-shouldered, obsequious Duke of Newcastle, master of forging Parliamentary majorities with royal bribes and government contracts.
In the customary year of interregnum before the new king’s crowning, as courtiers jockeyed for tickets to the coronation, newspapers in America reverently reported the royal funeral:
The Royal Body, carried by 12 Yeomen, was covered by a large Pall of purple Velvet and lined with purple silk, with a fine Holland Sheet, adorned with ten large Escutcheons of the Imperial Arms, Painted on Satin, under a Canopy of purple Velvet.2
Finding itself with a far-flung empire, the British Parliament plunged into a thorough review of its taxes in America. A glimpse at the national debt would have horrified any new minister and made him desperate for new revenues. According to the exchequer, it stood at a staggering £137 million, carrying annual interest of £5 million while the cost of administering the empire—including newly conquered territories—had ballooned to £8 million annually. Facing these immense war debts, the Ministry concluded that American colonists had profited most from war and should now begin to pay their fair share of the bills.
For nearly a century, since Parliament first passed a series of Acts of Navigation and Trade in 1663, British attempts at regulating colonial North America’s maritime commerce had collided with the colonists’ notion of their right to trade freely. The Acts, ratified at a time when global Dutch trade threatened to engulf British overseas commerce, mandated that any colonist-owned cargo must touch a port of England before being sold, no matter its destination. The first Act stated explicitly that no goods from Asia, Africa or America could be brought into England, Ireland or the colonies except in English ships crewed by a majority of Englishmen.
American colonists had found the thrust of the Act unequivocally threatening: they must buy all manufactured goods from or through Britain and were not free to establish their own manufacturing plants. In addition, in order to protect England’s growers, the Mother Country would buy only a fraction of America’s harvests. To further defend the profits of British merchants, Americans could export to Britain and to Britain alone certain “enumerated” commodities—and then only in British ships to British ports. But the Acts, fathered by Charles II at a time when England scarcely had a merchant fleet and its colonies none, remained little more than words on paper for nearly a century; British enforcement was haphazard at best and prohibitively costly.
A clever and careful status quo had existed almost since the settling of the first British colonies in North America in the early seventeenth century. Colonies in the West Indies depended on mainland North American colonies for imports such as horses, fish and flour, livestock and lumber, barrel staves and naval store—even the ships that brought them. In exchange, islanders provided mainland colonies with unlimited sugar and molasses to make rum. Yet the West Indies could not produce enough of these two basic commodities to keep pace with mainland colonial growth. British officials turned a blind eye as North America offset the shortfall by trading with the islands of rival Spanish, French and Dutch empires.
In peacetime, goods flowed freely between the West Indies and American mainland ports. The British home government remained content to make ample profits from manufactured goods—furniture, glass, fine clothing, wines, carriages—exported to the colonies by English factors. Despite creating a trade balance favorable to the British, Americans preferred British manufactured goods that were cheaper and better made than similar products of Europe. Cadwalader Colden, lieutenant governor of New York, observed that colonial merchants’ profits seldom resided in that province for six months before being remitted to Britain and exchanged for luxury goods.
These laissez-faire practices, making up an unofficial British colonial policy of “salutary neglect,” lasted until the 1730s. Then the British government, pressured by West Indian plantation owners who sat in Parliament, demanded a monopoly on the rich sugar trade. Asserting Parliament’s right to regulate colonial trade, they forced through the Molasses Act of 1733. Provisional for five years, it was renewed over and over again. This new duty was steep—six pence to the gallon—too much for mainland merchants, who simply began to evade the duty, quickly devising systematic practices that circumvented it. What had been, a day before Parliament passed the Act, acceptable commercial practice had overnight become illegal. Previously legitimate merchants, if they did not abandon their businesses or face ruinous duties, now, in the eyes of the British, became smugglers.
Mainland merchants quickly learned that sugar and molasses could either be brought from French or Spanish ports directly to the mainland or brought by cynical British West Indian merchants, and illicit cargoes landed clandestinely along thousands of miles of American seacoast at a profit—or in port at a deep loss at the customhouse.
Thomas Hancock, father of Declaration of Independence signer John Hancock, sent instructions to his ships’ captains in the Netherlands with cargoes bound for Boston to unload in Cape Cod. Evading customs duties, they shipped the goods overland to market in Boston. In New York, Governor Charles Hardy reported in 1757 that ships from Holland “stop at Sandy Hook [New Jersey] and smuggle their Cargoes to New York, and carry their Vessels up empty.” When he tried to break up this trade, merchants quickly altered their route, “sending their Vessels to Connecticut”—and then smuggled their contraband into New York duty free.3
Captains landed partial cargoes surreptitiously at one destination, then, presenting false papers (secured by bribing Caribbean customs officials), they paid duties on the stated cargo in port to customs officers. Even without false papers, thinly stretched mainland customs collectors—there were never more than fifty at any time before 1760 for all of British America—could be bribed to overlook part of the shipment.
Great family fortunes—the Browns’ of Rhode Island, the Hancocks’ of Boston, the Trumbulls’ of Connecticut, the Whartons’ of Philadelphia—burgeoned in this perfectly corrupt system. Every Connecticut and Rhode Island shipper who dealt with the Spanish and French in the Caribbean in the molasses trade between 1733 and 1765 was a smuggler, at least according to Colonial Office records in London. Nothing was credited for these two colonies in an “account of all the duties collected under the Molasses Act,” even while “of all northern provinces their industries were most dependent on the French sugar islands.”4
As historian Arthur Meier Schlesinger put it,
If any serious attempt had been made to enforce the statute, the prosperity of the commercial provinces would have been laid prostrate. It was the West Indian trade, more than anything else, which had enabled them to utilize their fisheries, forests and fertile soil, to build up their towns and cities, to supply cargoes for their merchant marine, and to liquidate their indebtedness to British merchants and manufacturers.5
Molasses, a staple of New England life, grew steadily in demand for cooking, home-brewing beer and, most important, making rum. By 1770 fully 143 distilleries in Rhode Island and Massachusetts produced 5 million gallons of rum a year. While many New Englanders preferred rum—sailors refused to work without their daily allowance—much of it went to Indians in exchange for furs. Much more fueled the Triangular Trade: barrels of rum from New England bought slaves on Africa’s west coast. Shipped to the tobacco plantations of the southern mainland colonies and to the sugar plantations of the West Indies, slaves labored for life on plantations that earned their masters credits to purchase manufactured goods in England.
Tiny Newport, Rhode Island, earned a reputation as one of the greatest violators of British trade restrictions. Boasting twenty-two of the colony’s thirty distilleries, Newport’s merchants drew special recognition from British admiral John Montagu as “a set of lawless piratical people … whose sole business is that of smuggling and defrauding the King of his duties.” While only a “trickle of revenue” reached the Crown to repay thirty-one years of effort to wring duties from New England merchants, merchant profits purchased an array of luxurious consumer goods from Britain: coffee and chocolates, tea, wine and brandy, silks and satins.
Defying the fundamental principle of British mercantile law—“English goods in English bottoms”—New England ship owners imported from Dutch Caribbean islands an even broader array of goods. William Bollan, Massachusetts’ agent at Court, reported to the British Board of Trade and Plantations in London that the Dutch were furnishing British Americans with “Reels of Yarn or spun Hemp, paper, Gunpowder, Iron, Goods of various sorts used for Men’s and Women’s Clothing.” Bollan worried that widespread scoffing at British trade restrictions “have already begun to destroy the Vital parts of the British commerce.” He urged London officials to “do everything in our power towards cutting off this Trade So very pernicious to the British Nation”:
The persons concerned in this Trade are many, Some of them of the greatest Fortunes in this Country, and who have made great Gains by it, and having all felt the Sweets of it, they begin to Espouse and Justify it. Some openly some Covertly, and having perswaded [sic] themselves that their Trade ought not to be bound by the Laws of Great Britain, they labour, and not without success to poison the Minds of all the Inhabitants of the Province.…”6
By mid-century, New York’s share of the West Indies trade surpassed Boston’s and Philadelphia’s, and rivaled its profits from the fur trade. Merchants shipped provisions to the British West Indies in exchange for sugar and molasses, which they then shipped to Britain and traded for credits in manufactured goods sent to New York, yielding three profits from each transaction. Most of New York’s exports went to British Barbados, where trading firms shipped a portion to French and Spanish islands. New York’s exports to Britain included tobacco, whale oil and beaver pelts; to the West Indies, flour, bread, peas, pork and the occasional horse. Much of New Yorkers’ profits went on to Britain with long lists of purchases.
Despite Britain’s growing list of trade restrictions, the port flourished, the number of ships owned by New Yorkers quadrupling from 99 ships in 1747 to 447 by 1762; the number of merchant seamen multiplied fivefold. Efforts to collect duties lagged: for every ship seized by customs officials, an estimated dozen avoided detection and the inconvenience of customs.7
From the colonists’ point of view, circumventing increasingly stringent British regulations became an economic necessity on which depended the welfare not only of ship-owners, their crews and the constellation of onshore maritime enterprises but also of farmers, merchants and virtually anyone else doing business in colonial America. The outbreak of the climactic Seven Years’ War between Britain and France in 1756 divided the loyalties of American merchants. Some profited from both sides, a practice that the British considered treason. Becoming enriched from contracts, subsidies and bounties to supply provisions to British and colonial troops, many Americans armed their ships to act as privateers—a deputized form of piracy—and harried French supply lines and sold captured ships and cargoes at auction for handsome profits. Others took advantage of wartime shortages on the mainland to trade with the French and their Spanish allies in the Caribbean.
New York City, headquarters of the British Army and nexus of its supply lines, became the leading privateering port. Its financiers included the mayor, provincial Supreme Court justices and high-ranking American officers. Sir Peter Warren, leader of colonial forces in the siege of Louisburg, owned a three-hundred-acre farm covering much of today’s Greenwich Village. He sent his privateer, the Launceston, to sea and captured fifteen French ships. Between 1754 and 1763, New York City’s fleet of 128 privateers harvested 80 French ships valued at £1 million.
Historian Peter Andreas details one wartime practice condemned by British officialdom: the sale of “flags of truce” by royal governors to ship captains. Sometimes blank and other times carrying fictitious names, these papers facilitated sale of illicit cargoes to the enemy in the French West Indies. Intended to allow prisoner exchanges, the sale of false flags became a lucrative source of income, especially for Rhode Islanders. In 1758 Francis Fauquier, royal governor of Virginia, reported how the scheme worked:
The Rhode Island Men knowing there were 60 french prisoners at Boston, sent four Ships from Providence to Boston at their own Expence, and put fifteen on board each ship by which they skreen’d four cargoes of provisions … to [French] Port au Prince.8
Rhode Island’s wealthiest merchants, the Browns, repeatedly bankrolled “flag of truce” missions, usually successfully. But the Royal Navy captured several of their vessels. Admiralty courts condemned them for engaging in “wicked, illegal unwarrantable, clandestine and prohibited trade.” When the Browns’ Speedwell made its seventh and final voyage, it carried only one French prisoner of war as a screen provided by a “flag of truce” issued by Governor Stephen Hopkins.9
So widespread did the practice of using false papers of all kinds become that by 1760, as the war wound down, reports of merchants’ and government officials’ questionable patriotism began to reach the highest levels in Britain. James Hamilton, lieutenant governor of Pennsylvania, wrote in exasperation to Prime Minister Pitt that his predecessor, William Denny, had sold blank flags of truce virtually at wholesale. Few French prisoners came Denny’s way—barely enough, Hamilton reported, that they could have been transported in “one or at most two small ships.” For each pass, Denny or his agents pocketed “three to four hundred”:
Having once relished the sweets of this traffick, he became more undisguised … open’d a shop at lower prices to all Customers … [including those] of the neighboring provinces [New Jersey and Maryland], to which they came and purchased freely.…”
Hamilton concluded that the “very great part of the principal merchants of this city [Philadelphia]” had traded illegally with French Caribbean islands. Passing along similar reports from other provincial governors, the Board of Trade and Plantations in London reported to its parent Privy Council that, indeed, all the American mainland colonies had traded with the French enemy.10
In a circular letter to provincial governors, a frustrated Pitt denounced the practice “by which the Enemy is, to the greatest Reproach & Detriment of Government, supplied with Provisions … they are principally, if not alone, enabled to sustain, and protract, this long and expensive War.”
Pitt ordered the captains of Royal Navy ships in North American waters to raid French and Dutch islands in the West Indies acting as way stations between the North American merchants and the French enemy. But the cost of the combined customs service and Royal Navy crackdown, an estimated £8,000 annually, far exceeded the resultant revenues, up from a meager £259 in 1755 to £1,189 in 1761. The employment of the king’s ships as customs collectors had added little to the revenues of the past thirty years. In all, the Navigation Acts had produced only £35,000 in thirty years; the Molasses Act, £21,000 in thirty-five years.11
* * *
IN OCTOBER 1761, three weeks after the coronation of George III, Pitt resigned. Lord Bute, the king’s boyhood tutor and the queen mother’s choice, replaced him as first minister. Bute was fairly typical of the inept aristocratic amateurs who ruled the sprawling realm. Only 125 nobles comprised the oligarchy: of these, only twenty-five revolved through the doors of committee meetings of the Privy Council. One after another began to tinker with the trade laws as they tried to make sense of administrating the vast new First British Empire, each plunging into a thorough investigation of the country’s policies toward America after nearly a century of winking at trade laws.
The British perceived Americans to be far wealthier than the overburdened taxpayers of the Mother Country. Officers returning from America spun yarns of opulence and decadence, of the wives of rich Boston merchants living in three-story mansions of brick and stone, wearing silks and laces as they promenaded on the mall. In the South, they reported, plantation owners, led by liveried outriders, rode in carriages pulled by six matched horses with coats-of-arms on the doors. In the shade on languid summer days, so the stories went, black slaves poured fine imported Madeira and served up delicacies—chilled grapes, soft-shelled crabs—to their masters.
Not all of these stories were far-fetched. In Portsmouth, New Hampshire, Governor Benning Wentworth, made rich by selling timber to the Royal Navy and selling off large swaths of frontier land, lived in a fifty-four-room waterfront mansion. In Norwich, Connecticut, two London-trained physicians, the Lathrop brothers, parlayed their apothecary shop—the only one between Boston and New York City—into a lucrative government contract for medical supplies for all British forces in New England and Canada. At home, their apothecary deliveries arrived in a long, low yellow carriage pulled by four horses, with their apprentice, young Benedict Arnold, at the reins. In Philadelphia, some eighty-nine citizens were wealthy enough to drive around their small city in carriages.
Operating on the assumption that much of this wealth derived from illicit trade, as soon as a British victory in Canada became assured, customs agents in Boston descended on the city’s waterfront. Expecting to find and confiscate contraband goods from trade with the French, they armed themselves with unrestricted writs of assistance—general search warrants—authorizing them to enter and search warehouses and ships. No large-scale seizures had taken place by the time George II died: the writs automatically expired at a monarch’s death.
But in the autumn of 1760, customs agents seized a Dutch ship carrying an illicit cargo worth £10,000. Massachusetts merchants cried foul: in England, search warrants could only be issued by the chancellor of the exchequer. How, then, could a mere local surveyor of the customs be allowed to single out Massachusetts merchants when every tide in Rhode Island brought in rich untaxed cargoes? Moreover, Boston merchants knew that it was accepted practice for customs collectors to profit handsomely from the sale of any goods they confiscated: one-third went to the royal treasury, one-third to the colony’s treasury and the remainder to the customs collector. So hated were the informants triggering the searches that the customs collectors didn’t even have to identify them, even to the Admiralty, only the amount arranged, and from that came the Crown’s share.
When sixty-three shipping merchants objecting to the seizure of the Dutch vessel protested to provincial Chief Justice Jonathan Sewall, he called a hearing for February 1761. On legal grounds, the case hinged on whether the Massachusetts Supreme Court possessed the same powers of search and seizure as the Court of the Exchequer in Britain. In a packed courtroom in Boston in February 1761, before Royal Governor Francis Bernard and five judges of the Superior Court, colonial merchants on rows of benches facing the Crown lawyers took the first step toward confrontation between empire and colonist. Lawyer James Otis considered unrestricted general warrants as unconstitutional, basing his contention on seventeenth-century English philosopher John Locke’s Second Treatise on Government’s principle of an Englishman’s right to keep his home secure against search and seizure. Defending English subjects’ right not to be taxed without their consent, Otis launched into a fiery five-hour attack. “This writ is against the fundamental principles of English law,” he began. Not since the Star Chamber proceedings of the Stuarts had general warrants been exercised. A British officer could only break and enter in case of a felony, and then only with a special warrant:
All legal precedents are under control of the fundamental principles of English law. If an act of Parliament should be passed a law in the very words of this petition for writs of assistance, it would be void. An act against the constitution is void. An act against natural equity is void.12
Three dozen Boston merchants listening intently to Otis knew that, while colonists had always believed they held rights assured by “the laws of God and Nature,” no one had ever objected to Parliament’s authority to make laws regulating trade. But Boston’s merchants objected to any excise tax—an internal tax raising revenue for the government’s use without a vote by the colonists’ representatives. External taxes based on external legislation passed by Parliament had long been accepted. The Woolen Act of 1699 outlawed transporting any woolens by water: as soon as anyone transported wool over a stream, it became contraband. Thus, no colonial woolen trade could develop. The Hat Act of 1732 barred exportation of American-made hats; the Iron Act of 1750 forbade slitting mills, plating forges and steel furnaces. Americans couldn’t even fashion a nail: pigs of raw iron had to be shipped to Britain and manufactured for export to the colonies.
Leaving the courtroom that evening, young lawyer John Adams understood that Otis had just appealed to beliefs he had learned in childhood: his right to liberty as inalienable as his right to life. Otis, asserting the rights of British subjects, had defied Parliament to abridge if not abrogate those rights. At the end of the hearing, Massachusetts’ provincial governor bucked the case up to the Board of Trade in London for a decision, certain that it would, as everyone knew, take years. It was, indeed, fully six years before the attorney general and solicitor general of England upheld Otis, declaring that writs of assistance were invalid in America. Such writs could only be issued by the Court of the Exchequer. Meanwhile, searches and seizures and fines went on, ruining more Boston merchants. But on that day of Otis’s challenge, many Bostonians became ready for the first time to defy the distant Parliament. More than half a century and a revolution later, Adams wrote, “Here this day, in the old Council Chamber, the child Independence was born.”13
Copyright © 2017 by Willard Sterne Randall
