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.
“I am not yet master [he was free to confess] of the idea these…writers have of the relation between Britain and her colonies. I know not what the Boston people mean by the “subordination” they acknowledge in their Assembly to Parliament, while they deny its power to make laws for them, nor what bounds the Farmer sets to the power he acknowledges in Parliament to “regulate the trade of the colonies,” it being difficult to draw lines between duties for regulation and those for revenue; and, if the Parliament is to be the judge, it seems to me that establishing such a principle of distinction will amount to little. The more I have thought and read on the subject, the more I find myself confirmed in opinion, that no middle ground can be well maintained, I mean not clearly with intelligible arguments. Something might be made of either of the extremes: that Parliament has a power to make ALL LAWS for us, or that it has a power to make NO LAWS for us; and I think the arguments for the latter more numerous and weighty, than those for the former.”
The good Doctor had apparently read and thought a great deal about the matter since the day when Mr. Grenville had called him in to learn if there were good objections to be urged against the Stamp Act.
Practical men were meanwhile willing to allow the argument to take whatever direction the exigencies of the situation might require, being ready to believe that Mr. Dickinson counseled well and that Mr. Franklin counseled well; being nevertheless firmly convinced from past experience that an Englishman’s ability to see reason was never great except when his pocket was touched. Practical men were therefore generally of the opinion that they could best demonstrate their rights by exhibiting their power. This happily, they could do by bringing pressure to bear upon English merchants by taking money out of THEIR pockets–without their consent to be sure but in a manner strictly legal–by means of non-importation agreements voluntarily entered into.
As early as October, 1767, the Boston merchants entered into such an agreement, which was however not very drastic and proved to be of no effect, as it was at first unsupported by the merchants in any other colony. In April, 1768, the merchants of New York, seeing the necessity of concerted action, agreed not to import “any goods [save a very few enumerated articles] which shall be shipped from Great Britain after the first of October next; provided Boston and Philadelphia adopt similar measures by the first of June.” Philadelphia merchants said they were not opposed to the principle of nonimportation, but greatly feared the New York plan would serve to create a monopoly by enabling men of means to lay in a large stock of goods before the agreement went into effect. This was very true; but the objection, if it was an objection, proved not to be an insurmountable one. Before the year was out, in the late summer for the most part, the merchants in all the commercial towns had subscribed to agreements, differing somewhat in detail, of which the substance was that they would neither import from Great Britain any commodities, nor buy or sell any which might inadvertently find their way in, until the duties imposed by the Townshend act should have been repealed.
The merchants’ agreements were, for whatever reason, much better observed in some places than in others. Imports from Great Britain to New York fell during the year 1769 from about 482,000 pounds to about 74,000 pounds. Imports into New England and into Pennsylvania declined a little more than one half; whereas in the southern colonies there was no decline at all, but on the contrary an increase, slight in the case of Maryland and Virginia and rather marked in the Carolinas. In spite of these defections, the experiment was not without effect upon English merchants. English merchants, but little interested in the decline or increase of trade to particular colonies, were chiefly aware that the total exportation to America was nearly a million pounds less in 1769 than in 1768. Understanding little about colonial rights, but knowing only, as in 1766, that their “trade was hurt,” they accordingly applied once more to Parliament for relief. The commerce with America which was “so essential to afford employment and subsistence to the manufactures of these kingdoms, to augment the public revenue, to serve as a nursery for seamen, and to increase our navigation and maritime strength”–this commerce, said the Merchants and Traders of the City of London Trading to America, “is at present in an alarming state of suspension”; and the Merchants and Traders of the City of London therefore humbly prayed Parliament to repeal the duties which were the occasion of their inconveniences.
The petition of the London merchants came before the House on March 5, 1770, that being the day fixed by Lord North for proposing, on behalf of the ministry, certain measures for America. No one, said the first minister, could be more free than himself to recognize the importance of American trade or more disposed to meet the wishes of the London merchants as far as possible. The inconveniences under which that trade now labored were manifest, but he could not think, with the petitioners, that these inconveniences arose from “the nature of the duties” so much as “through the medium of the dissatisfaction of the Americans, and those combinations and associations of which we have heard”–associations and combinations which had been called, in an address to the House, “unwarrantable,” but which he for his part would go so far as to call illegal. These illegal combinations in America were obviously what caused the inconveniences of which the merchants complained. To the pressure of illegal combinations alone Parliament ought never to yield; and ministers wished it clearly understood that, if they were about to propose a repeal of some of the duties, they were not led to take this step from any consideration of the disturbances in the colonies.
On the contrary, the duties which it was now proposed to repeal–the duties on lead, glass, and paper–were to be repealed strictly on the ground that they ought never to have been laid, because duties on British manufactures were contrary to true commercial principles. Last year, when ministers had expressed, in a letter of Lord Hillsborough to the governors, their intention to repeal these duties, some members had been in favor of repealing all the duties and some were still in favor of doing so. As to that, the first minister could only say that he had not formerly been opposed to it and would not now be opposed to it, had the Americans, in response to the Earl of Hillsborough’s letter, exhibited any disposition to cease their illegal disturbances or renounce their combinations. But the fact was that conditions in America had grown steadily worse since the Earl of Hillsborough’s letter, and never had been so bad as now; in view of which fact ministers could not but think it wise to maintain some tax as a matter of principle purely. They would therefore recommend that the tax on tea, no burden certainly on anyone, be continued as a concrete application of the right of Parliament to tax the colonies.
In so far as they were designed to bring pressure to bear upon the mother country, the merchants’ agreements were clearly not without a measure of success, having helped perhaps to bring Parliament to the point of repealing the duties on lead, glass, and paper, as well as to bring ministers to the point of keeping the duty on tea. Americans generally were doubtless well pleased with this effect; but not all Americans were able to regard the experiment in non-importation with unqualified approval in other respects. Non-importation, by diminishing the quantity and increasing the price of commodities, involved a certain amount of personal sacrifice. This sacrifice, however, fell chiefly on the consumers, the non-importation not being under certain circumstances altogether without advantage to merchants who faithfully observed their pledges as well as to those who observed them only occasionally. So long as their warehouses, well stocked in advance, contained anything that could be sold at a higher price than formerly, non-importation was no bad thing even for those merchants who observed the agreement. For those who did not observe the agreement, as well as for those who engaged in the smuggling trade from Holland, it was no bad thing at any time, and it promised to become an increasingly excellent thing in exact proportion to the exhaustion of the fair trader’s stock and the consequent advance in prices. As time passed, therefore, the fair trader became aware that the, non-importation experiment, practically considered, was open to certain objections; whereas the unfair trader was more in favor of the experiment the longer it endured, being every day more convinced that the non-importation agreement ought to be continued and strictly adhered to as essential to the maintenance of American liberties.
The practical defects of non-importation were likely to be understood, by those who could ever understand them, in proportion to the decay of business; and in the spring of 1770 they were nowhere better understood than in New York, where the decay of business was most marked. This decrease was greatest in New York, so the merchants maintained, because that city had been most faithful in observing the agreement, importation having there fallen from 482,000 pounds to 74,000 pounds during the year. It is possible, however, that the decay of business in New York was due in part and perhaps primarily to the retirement, in November, 1768, of the last issues of the old Bills of Credit, according to the terms of the Paper Currency Act passed by Parliament during Mr. Grenville’s administration. As a result of this retirement of all the paper money in the province, money of any sort was exceedingly scarce during the years 1769 and 1770. Lyon dollars were rarely seen; and the quantity of Spanish silver brought into the colony through the trade with the foreign islands, formerly considerable but now greatly diminished by, they, stricter enforcement of the Townshend Trade Acts, was hardly sufficient for local exchange alone, to say nothing of settling heavy balances in London, although, fortunately perhaps, there were in the year 1769 no heavy London balances to be settled on account of the faithful observance of the non-importation agreement by the merchants. The lack of money was therefore doubtless a chief cause of the great decay of business in New York; and some there were who maintained that the faithful observance of the non-importation agreement by the merchants was due to the decay of trade rather than the decay of trade being due to the faithful observance of the non-importation agreement.
Whatever the true explanation of this academic point might be, it was an undoubted fact that business was more nearly at a standstill in New York than elsewhere. Accordingly, in the spring of 1770, when money was rarely to be seen and debtors were selling their property at one-half or one-third of its former value in order to discharge obligations long overdue, the fair trading merchants of New York were not disposed to continue an experiment of which, as they said, they had borne the chief burden to the advantage of others and to their own impending ruin. Zealous Sons of Liberty, such as Alexander MacDougall and John Lamb, popular leaders of the “Inhabitants” of the city, were on the other hand determined that the non-importation agreement should be maintained unimpaired. The hard times, they said, were due chiefly to the monopoly prices exacted by the wealthy merchants, who were not ruined at all, who had on the contrary made a good thing out of the non-importation as long as they had anything to sell, and whose patriotism (God save the mark!) had now suddenly grown lukewarm only because they had disposed of all their goods, including “old moth-eaten clothes that had been rotting in the shops for years.”
These aspersions the merchants knew how to ignore. Their determination not to continue the non-importation was nevertheless sufficiently indicated in connection with the annual celebration, in March, of the repeal of the Stamp Act. On this occasion the merchants refused to meet as formerly with the Sons of Liberty, but made provision for a dinner of their own at another place, where all the Friends of Liberty and Trade were invited to be present. Both dinners were well attended, and at both the repeal of the Stamp Act was celebrated with patriotic enthusiasm, the main difference being that whereas the Sons of Liberty drank a toast to Mr. MacDougall and to “a continuance of the non-importation agreement until the revenue acts are repealed,” the Friends of Liberty and Trade ignored Mr. MacDougall and drank to “trade and navigation and a speedy removal of their embarrassments.”
In the determination not to continue the old agreement, the Friends of Liberty and Trade were meanwhile strongly confirmed when it was learned that Britain was willing on her part to make concessions. By the middle of May it was known that the Townshend duties (except the duty on tea) had been repealed; and in June it was learned that Parliament had at last, after many representations from the Assembly, passed a special act permitting New York to issue 120,000 pounds in Bills of Credit receivable at the Treasury. It was thought that concession on the part of Great Britain ought in justice to meet with concession on the part of America. Accordingly, on the ground that other towns, and Boston in particular, were more active “in resolving what they ought to do than in doing what they had resolved,” and on the ground that the present non-importation agreement no longer served “any other purpose than tying the hands of honest men, to let rogues, smugglers, and men of no character plunder their country,” the New York merchants, on July 9, 1770, resolved that for the future they would import from Great Britain all kinds of commodities except such as might be subject to duties imposed by Parliament.
The New York merchants were on every hand loudly denounced for having betrayed the cause of liberty; but before the year was out the old agreement was everywhere set aside. Yet everywhere, as at New York, the merchants bound themselves not to import any British teas. The duty on British teas was slight. Americans might have paid the duty without increasing the price of their much prized luxury; ministers might have collected the same duty in England to the advantage of the Exchequer. That Britain should have insisted on this peppercorn in acknowledgement of her right, that America should have refused it in vindication of her liberty, may be taken as a high tribute from two eminently, practical peoples to the power of abstract ideas.