Military history

CHAPTER 68

The Assemblies Vacillate

SUMMER 1765

THE NEWS THAT Parliament had passed a colonial Stamp Act arrived in America about mid-April, while Lieutenant Fraser was paddling up to Fort de Chartres and the king was telling Grenville that he wanted a regent to be ready to take over in the event of his death. Like Fraser’s arrival and the king’s request, both of which inaugurated weeks of confusion that only later resolved themselves into dramatic outcomes, the news of the Stamp Act opened a prolonged period of uncertainty. Although most provincial assemblies were sitting in spring sessions when word of the Stamp Act arrived, their members’ responses spanned a range that extended no farther than the distance separating ambivalence from apathy. While the newspapers carried accounts of the act and dissected its implications during May and June, the halls of province houses rang with speeches on the necessity of maintaining public roads and protecting livestock from predators. Even in places where one might have expected to hear orators call for the defense of Englishmen’s rights or the duty of resisting tyrants, all that echoed was a sort of embarrassed silence.

The assemblies of Rhode Island, Connecticut, New York, Pennsylvania, Massachusetts, and Virginia had previously petitioned against a colonial Stamp Act, but in all six provinces the news of the law’s passage triggered only hesitation. Legislators in Rhode Island, Connecticut, and New York refrained from taking any action at all. In Pennsylvania, where the antiproprietary party was busy making up the ground it had lost in the last election, the agitation for royal government continued to absorb all political energies. Taking their cues from Franklin’s letters, the party’s leaders—John Hughes in the assembly and Joseph Galloway in the enforced leisure that followed his electoral defeat—did their best to promote compliance with the act. Hughes happily accepted the news of his appointment as stamp-master for the province, convinced that the proprietary party would mount no significant challenge in the legislature. The proprietary men were, after all, creatures of the governor, and the governor’s job was to enforce the laws; Hughes’s stamp distributorship would give him a certain amount of patronage, in the form of nominations to subordinate offices, that he could use to support his party’s interest. Galloway contemplated writing newspaper articles to explain to a skeptical public, in the calm way Franklin might have done, “the reasonableness of our being Taxed.” Neither Hughes nor Galloway liked the Stamp Act, but their need to ensure Pennsylvania’s compliance swept away all qualms. The welfare of their party and its campaign for royal government demanded nothing less than perfect loyalty to the Crown. Similarly local considerations muted the response of Massachusetts politicians to the Stamp Act; but there the reluctance to criticize Parliament welled up from other sources.1

Boston’s town meeting, the pit bull of Bay Colony politics, met on May 13 to instruct its delegation in the legislature to coordinate opposition to the act by making common cause with other colonies’ assemblies. This directive reiterated the previous year’s instructions, which had resulted in James Otis seizing the leadership of the assembly’s committee of correspondence and using it to disseminate his views on colonial rights. Only Thomas Hutchinson’s deft maneuvering had prevented the country party from retaining the initiative then. This time, however, the court party did not need to intervene to keep the opposition from orchestrating a vigorous protest against British policy, or to hobble the assembly’s efforts to promote intercolonial cooperation. The country party reeled blindly through the spring legislative session not because Thomas Hutchinson had dealt it a heavy blow, but because James Otis had.

Following the publication of his Rights of the Colonies Asserted and Proved in 1764, Otis had entered a pamphlet debate with a Rhode Island royalist named Martin Howard Jr. Howard, a Newport lawyer, had helped organize a small group, the Newport Junto, dedicated to overturning the colony’s charter in favor of royal government. When Governor Stephen Hopkins, a friend and legal client of Otis, published a pamphlet called The Rights of the Colonies Examined that echoed many of Otis’s arguments, Howard responded with a pamphlet entitled A Letter from a Gentleman at Halifax to His Friend in Rhode-Island, ridiculing both Hopkins’s and Otis’s positions. Otis shot back with two pamphlets, intended both to refute Howard and to clarify his earlier positions, which he believed had been misunderstood. His essays, however, clarified nothing so much as his limitations as a controversialist. Chaotic, obscure, and violently abusive, the pamphlets seemed to contradict, not amplify, the arguments Otis had advanced in his first essay. In fewer than seventy pages of prose he sowed enough confusion to disable his political allies from protesting the Stamp Act.

In The Rights of the Colonies Asserted and Proved, Otis had not denied Parliament’s sovereign power to tax the colonies, or indeed to do anything it chose; he only maintained that insofar as Parliament’s right to rule rested on natural law, it could not exercise its power “wantonly” without calling its own legitimacy into question. In A Vindication of the British Colonies, against the Aspersions of the Halifax Gentleman, he reaffirmed this expansive definition of Parliament’s powers but neglected to restate his insistence that Parliament must act with the self-restraint born of respect for natural law. A Vindication thus damaged his credibility, but his next pamphlet, published just a week before the May election, annihilated it.

In Brief Remarks on the Defence of the Halifax Libel on the British-American-Colonies, Otis chose to emphasize the duty of the colonists, as loyal subjects, to obey Parliament’s enactments. Since Parliament embodied the supreme authority in the British state, true Britons could do no more than inquire into the members’ reasonings and intentions: they could not rightfully resist. Otis went so far as to compliment Thomas Whately—the Treasury officer responsible for drafting most of the Stamp Act—for his exposition of the doctrine of “virtual representation,” which dismissed the colonists’ complaint that they could not be taxed by a House of Commons to which they elected no members. Whately’s pamphlet, The Regulations Lately Made Concerning the Colonies and the Taxes Imposed upon Them, Considered (London, 1765), had tried to make a virtue of the irregular character of representation in the House of Commons by arguing that each member, once elected, represented the whole body politic and was thus freed from serving the narrow interests of any locality. Because legislative representation in the colonies tended to be much more regular—more reflective of the distribution of population and property and thus “actual”—most colonists instinctively dismissed such arguments as sophistry. When Otis endorsed them, writing that “the colonists are virtually, constitutionally, in law and in equity, to be considered as represented in the honorable House of Commons,” he seemed to surrender the Englishman’s fundamental right to be taxed only by consent.2

In Otis’s own view he had merely elaborated what was implicit in The Rights of the Colonies Asserted and Proved. Practically everyone else, lost in the maze of his reasoning, concluded that he had recanted all. Governor Bernard reported to the Board of Trade that “the author of the Rights of the Colonies now repents in Sackcloth and ashes for the hand he had in that book. . . . In a pamphlett lately published he has [begged pardon] in humblest Manner of the Ministry and of the Parliament for the liberties he took with them.” Otis’s Boston constituents demanded that he explain himself before they reelected him, by the narrowest of margins, to the General Court. Thereafter, however, he created further bewilderment by trying to explain himself in speeches and newspaper articles.3

Toward the end of the session, recalling the town’s instruction to promote cooperation between the various colonial assemblies, Otis suggested that Massachusetts sponsor an intercolonial conference to discuss the Stamp Act. No one knew exactly what to make of that idea, but no one could find anything illegal about it; and in the end even the governor approved. Thus it was, on June 8, just before adjourning one of the most confused sessions in its history, that the House of Representatives voted to send a circular letter to invite the other colonial legislatures to send delegates to attend a congress at New York in October—a gathering “to consider of a general and united, dutiful, loyal and humble Representation of their Condition to His Majesty and the Parliament; and to implore Relief.” Massachusetts’s own delegation would reflect the extreme tentativeness of the General Court. Two of the delegates, Timothy Ruggles and Oliver Partridge, were members of the governor’s council and had served as high-ranking provincial officers in the recent war; they were among the most conservative men in the colony. The third was James Otis. Not for nothing did Governor Bernard feel able to assure the Board of Trade that the Bay Colony’s delegation would “never consent to any undutiful or improper application to the Government of Great Britain.”4

Virginia’s House of Burgesses would also hesitate before it took action, and then would act in a fundamentally ambiguous way. Down to the very end of May, no burgess said anything at all about the Stamp Act. Two-thirds of them, anticipating an uneventful end to the session, had already gone back to their plantations on May 20 when a new man, elected to replace a Louisa County representative who had retired, took his place on a back bench. The House’s most junior member, Patrick Henry, was new to politics but not to public life. After six weeks of legal education and five years of practice, he had become one of the most successful attorneys in the province, a spellbinding advocate who flourished his reputation for oratory and his opposition to privilege like a sword.

Still a few days shy of his twenty-ninth birthday, Henry was shy of nothing else. New members ordinarily said nothing for a session or two, quietly deferring to their elders, and finally making a maiden speech on an issue carefully chosen for its lack of significance. Henry would have none of such becoming modesty and immediately took the floor to attack a bill, backed by the leadership of the House and the single most influential man in Virginia politics, John Robinson—a venerable figure who combined in his person the offices of secretary of the colony, treasurer, and speaker of the House. The bill that Robinson and his fellow grandees backed would have authorized the province to borrow £250,000 in London, secured by a tax that would run until 1795. Its ostensible purpose was to permit Virginia to retire its outstanding currency; but one provision quietly permitted indebted and cash-starved planters to borrow sterling from the public treasury, mortgaging their lands as security. Henry ridiculed the measure for its obvious self-interestedness, shocking the senior members of the House and contributing to its defeat.5 Henry’s next speech, however, would shock more than the few burgesses who lingered through the last, sweltering days of the session.

On May 29, its legislative business finished, the House resolved itself into a committee of the whole to discuss “steps necessary to be taken in consequence” of the Stamp Act. Henry immediately rose and introduced five resolutions, which he had written out, “alone, unadvised, and unassisted, on a blank leaf of an old law book.” The first four recited historical commonplaces with which no burgess disagreed, for they paraphrased similar ones in the previous year’s petitions. Virginia’s founders, Henry began, had “brought with them” English liberties in the seventeenth century; royal charters (secondly) had confirmed those rights; taxation by the consent of elected representatives was (thirdly) central to the survival of all such liberties; and the right of Virginians to lay taxes on themselves had “never been forfeited or yielded up, but hath been constantly recognized by the Kings and People of Great Britain.” The fifth resolution, however, struck another note. “Resolved Therefore that the General Assembly of this Colony have the only and sole exclusive Right and Power to lay Taxes and Impositions upon the Inhabitants of this Colony and that every Attempt to vest such Power in any Person or Persons whatsoever other than the General Assembly aforesaid has a manifest Tendency to destroy British as well as American Freedom.”6

This resolve, which not only denied Parliament’s right to tax Virginia but insisted that the attempt imperiled the liberty of all British subjects, sparked a debate so intense that even the preoccupied lieutenant governor, Francis Fauquier, took note. He had been attending to Indian diplomacy—he was hoping to prevent a war between the Overhill Cherokees and backwoodsmen beyond the Blue Ridge—and was as surprised as anyone in Williamsburg at the “rash heat” of the debates, in which “the Young, hot, and Giddy Members” had “overpowerd” the older, soberer burgesses. “Mr. Henry,” Fauquier reported to the Board of Trade a few days later, “carryed all the young Members with him” and succeeded in passing all five resolutions, albeit by margins of five votes or fewer; the “virulent and inflammatory” final resolve carried “by a single Voice.”7

Yet Fauquier, while momentarily taken aback, was not alarmed. As he explained to the Board, the debate would never have happened “if more . . . Representatives had done their Duty by attending to the end of the Session,” and he had at any rate undone the damage merely by keeping the House in session until May 31. Once Henry left for home on the evening of the thirtieth, nothing could prevent the more conservative members from moving a reconsideration of the resolves. Then it had been a simple matter to have “the 5th which was thought the most offensive . . . struck off.” With the regrettable business thus tidied up, Fauquier dissolved the House. His official report on the session made it clear that he thought the resolutions came to nothing more than grandstanding: a pettifogger’s effort to pump up a political career.8

Not every witness would have agreed. Thomas Jefferson, a twenty-two-year-old student from the College of William and Mary who had listened to the debates from the hallway outside the chamber, would surely have taken exception. He thought he had heard something extraordinary—even though he was not quite sure what it was. As much swept away by the tide of Henry’s oratory as were the hot and giddy burgesses who voted for the resolutions, Jefferson experienced the debate not as an exposition of colonial rights but as a kind of high moral theater. Later he would realize that he could recall little of what Henry had said; only that the debate had been “most bloody” and the speaker of the House furious. Just so: that was how Henry intended it. He had built his career not on abstract reasoning but on his ability to sway juries by appealing to them in the emotional, extemporaneous mode of evangelical preaching. When Henry inveighed against the Stamp Act as an infringement of the rights and liberties of Virginia Englishmen, therefore, he was enacting a moral position, not explicating a set of political principles. 9

Patrick Henry had all the vehemence of Otis but employed it to better effect because he understood his task as persuasion, not exposition. Lacking the technical knowledge that drove Otis to take his stand amid impenetrable thickets of logic, Henry freely cast the debate as a contest between right and wrong. To tax an Englishman without his consent was to deprive him of his rights, to reduce him to slavery. Virginians were Englishmen, and only tyrants would seek to make them slaves. From principles so simple, anyone with common sense—anyone whose judgment had not been corrupted by his lust for power or taking of a placeman’s filthy salary—could draw his own conclusions. If such ideas ceased to resonate in the House of Burgesses once Henry had departed and calmer colleagues repealed his final ringing resolve, they would reverberate long and loud outside the assembly hall. From the time that copies of the Virginia Resolves began to circulate outside Williamsburg, ordinary men would begin to draw conclusions from which sophisticated politicians shrank in fear.

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