Knollenberg Bernhard. Growth of the American Revolution: 1766-1775
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into one Concession to the People lays the Foundation of...Preten-
sions before unthought of....”¹⁷
As might be expected, Barrington passed on Gage’s letters, or the
more important passages from them, to members of the Cabinet and to
the King.
In , Barrington wrote Gage that he had shown his recent letter
as to the advisability of keeping the colonies as weak as possible, to Sec-
retary of State Lord Hillsborough, who would “not fail to remember the
very material things contain’d in it.”¹⁸ In he informed Gage that the
King “sees most of your private letters to me.”¹⁹ In September, , Bar-
rington wrote Gage that, in view of the “weight and importance” of a
recent letter from Gage opposing establishment of a new colony on the
Ohio because it was good policy “to keep the Settlers within reach of the
Sea-Coast as long as we can, and to cramp their Trade as far as it can
be done prudentially,” he had shown extracts from it to Lord North,
Lord Dartmouth, and the President of the Council, Lord Gower.²⁰
Gage’s views were strongly reinforced by Governor Francis Bernard
of Massachusetts, related by marriage to Barrington,²¹ in letters to him
and other government officials in England, urging changes in the form
of government of the colony.
Exasperated by the refusal of the Massachusetts Council and House
to reelect to the Council a number of persons whom he wished re-
elected²² and by the Council’s failure to support him in several other
matters,²³ Bernard wrote various British officials urging appointment
of the Council by the King.²⁴ He also partially supported Gage’s view
that the commissions of magistrates in Massachusetts be revoked,²⁵
and made the additional suggestion that grand juries in Massachusetts
be chosen by the county sheriffs (who were appointees of the Governor),
instead of by the existing mode of popular election.²⁶
Perhaps even more influential were the letters of Lieutenant Gover-
nor (later Governor) Thomas Hutchinson to members of Parliament
and government officials in England. Coming from a native of Massa-
chusetts who had repeatedly been chosen to elective offices there before
appointment to Crown office,²⁷ Hutchinson’s letters would naturally be
thought less subject to possible bias against the people of the province
than those of outsiders.
Soon after passage of the Declaratory Act of , Hutchinson wrote
Richard Jackson, member of Parliament and a secretary to George
Grenville, “A bare declaration that we are subject, though in an act of
Parliament, does not, in fact, make us so....Something further is there-
fore necessary in order to secure their [the colonists’] obedience. Is it
not very necessary they should explicitly acknowledge a general sub-
jection? Every person in publick office, every member of the legislature
especially, in every colony, should understand this subjection....I wish
to see known established principles, one general rule of subjection, once
acknowledged, any attempts in opposition to them will be more easily
resisted and crushed.”²⁸
In letter after letter to correspondents in England, Hutchinson in-
sisted that the very nature of government required a supreme authority,
that the British Parliament had this authority throughout the British
Empire, which the colonies in general and Massachusetts in particular
must be compelled to recognize.
Writing John Pownall, Under Secretary of State, in April, ,
concerning the colonial non-importation agreement (described in Chap-
ter ), Hutchinson declared that the colonists would never “return to a
state of order until they are compelled to it and kept in awe by a power
superior to them.”
A few days later, he wrote Secretary of State Lord Hillsborough on the
same subject. “It will,” he said, “be happy for the colonies if Parliament
shall have gone into such measures as his Majesty has been pleased to rec-
ommend for suppressing the Confederacies [i.e., the non-importation
agreements] against the authority of Parliament. Until this is done I see
no prospect of the recovery of any degree of vigour in the Government
of this Province....The longer we go on in this way without check
from the Supreme Authority the farther the Infection spreads.”²⁹
Learning that Parliament had not taken the action expected by him
to punish the signers of the non-importation agreements, Hutchinson
wrote Pownall in July, , “Parliament’s rising without any notice of
us is discouraging to the Servants of the Crown but...if in the next Ses-
sion they make thorough work it will be a happy delay.” And, when the
next session of Parliament opened, Hutchinson wrote Hillsborough, “A
firm persuasion that Parliament is determined, at all events, to maintain
its supreme authority is all we want; few or none are now so weak [fool-
ish] as to question their power to do it....An act to enable the King to
alter the bounds of the Province [of Massachusetts]...,the Charter
notwithstanding, by making...Main and country East of it a distinct
and separate Province...might be kept as a rod over us, and a secu-
rity for our good behaviour until the King’s pleasure should be deter-
mined; or if it should be executed immediately...would be a striking
instance of the power and authority of Parliament.”³⁰
A few months later Hutchinson suggested to Pownall that Parlia-
ment pass an act making it “High Treason” to write or print that “an
Act of Parliament is of no validity, in any case whatsoever....”³¹
Hutchinson also buttressed the recommendations of Gage and Ber-
nard for an act of Parliament to change the form of government of
Massachusetts. He suggested legislation to abolish or restrict town
meetings in Boston,³² to correct the alleged “great abuse in the choice
of juries, more especially grand juries,” in Massachusetts by having ju-
ries appointed as they were in England,³³ and to change the method of
selecting the Massachusetts Council. His initial suggestion concerning
the Council was for passage of an act of Parliament (similar to the
New York Suspending Act of , described in Chapter ) invalidating
all current acts of the Massachusetts Legislature until the Legislature
elected a full panel of Council members approved by the Governor. But
in January, , Hutchinson swung over to support of the recommen-
dation of Gage and Bernard for appointment of the members of the
Council by the Crown.³⁴
Thus, when the destruction of the East India Company’s tea at Bos-
ton aroused the North Ministry to action, it had before it a mass of tes-
timony from leading Crown officials in the colonies recommending
drastic changes in the government of Massachusetts.
Furthermore, at this critical time, a petition from the Massachusetts
House of Representatives to the Crown for the removal of Hutchinson
from office gave his lawyer an opportunity to present to a meeting of the
Privy Council attended by many leading members of Parliament a re-
view of the alleged iniquities of Massachusetts over the past ten years,
buttressing the recommendations of Gage, Bernard, and Hutchinson
for reorganization of the government of Massachusetts.
THE MASSACHUSETTS PETITION
OF 1773 AND ITS CONSEQUENCES
T
, and proceedings on, the petition of the
Massachusetts House of Representatives, referred to in Chapter
, were as follows:
In December, , Benjamin Franklin, London Agent for the Mas-
sachusetts House,¹* wrote its Speaker, Thomas Cushing, “There has
lately fallen into my Hands part of a Correspondence, I have reason to
believe laid the Foundation of most if not all our present grievances...
[and] I send you enclosed the original letters, to obviate every Pretence
of Unfairness in Copying, Interpolation, or Omission....
“As to the writers, I can easily as well as charitably conceive it pos-
sible that a Man educated in Prepossessions of the unbounded Author-
ity of Parliament, etc. may think unjustifiable every Opposition even to
its unconstitutional Exercize....But when I find...[men] bartering
away the Liberties of their native Country for Posts, and negotiating
for Salaries and Pensions extorted by the People, and, conscious of the
Odium these might be attended with, calling for Troops to protect and
secure the Enjoyment of them...I cannot but...deem them mere
Time servers, seeking their own private Emolument thro’ Any Quan-
tity of Public Mischief....”²
* Bernard Bailyn, The Ordeal of Thomas Hutchinson (Cambridge, Mass.: Harvard University Press,
), ch. . [B.W.S.]
The letters, dated May, , to October, , were addressed to,
or came into the hands of, Thomas Whately, formerly Secretary to
the Treasury during the administration of George Grenville and one of
Grenville’s leading followers in the House of Commons.³ The most im-
portant were from Governor Thomas Hutchinson, his brother-in-law
Lieutenant-Governor Andrew Oliver (Lieutenant-Governor and Secre-
tary of Massachusetts, respectively, at the time the letters were written),
and Charles Paxton, Boston-born member of the American Customs
Board. How Franklin obtained these letters has never been disclosed.⁴
Hutchinson’s letters did not include any of those quoted in Chapter
; these more damaging letters did not come to light until .⁵ But
those from Hutchinson in the batch sent by Franklin to Cushing de-
scribe leaders of the Boston town meetings as “Ignorant,” members
of the Massachusetts Convention of , discussed in Chapter , as
“ridiculous,” and several members of the Provincial Council as of “low
cunning.” The letters further suggest that Parliament show “marks of
resentment...upon the province in general or particular persons” for
the opposition in Massachusetts to recent acts of Parliament, and that
all who would not renounce the non-importation agreements of be
subjected “to penalties adequate to the offence.”
The next to the last of Hutchinson’s letters declared that “if no mea-
sures still have been taken to secure this dependence [of the colonies on
Great Britain] or nothing more than some declaratory acts or resolves,
it is all over with us. The friends of government will be utterly disheart-
ened, and the friends of anarchy will be afraid of nothing, be it ever so
extravagant....”⁶ There must, he said, be an “abridgement of what are
called English liberties,” and he added, “I doubt whether it is possible
to project a system of government in which a colony , miles distant
from the present state shall enjoy all the liberties of the parent state. I
am certain I have never yet seen the projection.”⁷
The most damaging passages of Oliver’s letters were those in a let-
ter to Whately dated May , , written “in confidence of my name
not being used on the occasion,” urging the very measure that had most
disturbed the colonists
—passage of an act of Parliament for raising a co-
lonial revenue and applying the revenue to pay the salaries of Crown-
appointed officials in the colonies. Oliver also suggested a plan for de-
feating any colonial non-importation agreements that might be entered
into to secure repeal of such an act.
“As the trade is now managed,” Oliver wrote, “the dealer here sends
to the merchant in England for his goods;⁸ upon these goods the English
merchant puts a profit of , or more probably per cent when he
sends them to his employer in America. The merchant is so jealous of
foregoing this profit that an American trader cannot well purchase the
goods he wants of the manufacturer; for should the merchant know that
the manufacturer had supplied an American, he would take off no more
of his [the manufacturer’s] wares.
“The merchants...know the goods which the American market
demands and may therefore safely take them off from the manufacturer
though they [the merchants] should have no orders for shipping them
this year or perhaps the next; and I dare say it would be no longer be-
fore the Americans would clamor for a supply, for it is vain to think they
can supply themselves. The merchant might then put an advanced
price upon his goods, and possibly be able to make his own terms, or if
it should be thought the goods would not bear an advanced price to in-
demnify him, it might be worth while for the government to agree with
the merchants beforehand to allow them a premium equivalent to the
advance of their stock, and then the game would be over.”⁹
Most damaging of all was a letter from Paxton to Whately of
June , , stating, “Unless we have immediately two or three regi-
ments, ’tis the opinion of all the friends to Government that Boston will
be in open rebellion.”¹⁰
In his letter to Cushing, Franklin said he had engaged that the let-
ters were not to be printed nor generally shown.¹¹ But in spite of this re-
striction, copies of them were laid before the Massachusetts House of
Representatives, which, in June, , adopted a Petition to the King
for dismissal of Hutchinson and Oliver.
These men, the Petition declared, had sought “to excite the resent-
ment of the British Administration against this province, to defeat the
endeavours of our agents and friends to serve us by a fair representation
of our state of facts, to prevent our humble and repeated petitions from
reaching the ear of your Majesty. . . .” Having thus “rendered them-
selves justly obnoxious to your loving subjects and entirely lost their
confidence...,” they should be removed and replaced by persons in
whom the people of the province could confide.¹²
On June , Cushing wrote Franklin enclosing the Petition for pre-
sentation to the King, together with attested copies of the letters on
which the Petition was based, and a resolution of the House for the Pe-
tition.¹³ Cushing instructed Franklin to employ “Arthur Lee our coun-
sel on this occasion and any other counsel you may think proper,”¹⁴ thus
indicating that the House supposed the King would order a hearing on
the Petition.
On August , Franklin wrote Cushing that he had sent the Petition
to Secretary of State Lord Dartmouth at his country seat in Stafford-
shire,¹⁵ and, on or before December , Dartmouth delivered the Peti-
tion to the King.
The latter directed that it be laid before the Privy Council,¹⁶ and
Dartmouth promptly notified Franklin that the King would probably
refer the consideration of it to “a committee of council.”¹⁷ The com-
mittee to which Dartmouth referred was the Privy Council’s important
Committee for Plantation Affairs whose recommendations to the King
in Council were invariably adopted.¹⁸
On January , Franklin was notified that the hearing was to be held
on the eleventh at the Cockpit,¹⁹ but on his request for postponement,
it was put off until January .²⁰ Arthur Lee was ineligible to represent
the House at the hearing because he had not yet been admitted to the
English bar.²¹ But Franklin promptly retained an experienced solicitor,
Thomas Life, who in turn retained two eminent barristers, John Dun-
ning and John Lee, to represent the House at the hearing.²²
Franklin’s plan was to support the Petition at the hearing by show-
ing, passage by passage, how falsely the letters had represented the con-
duct of the people of Massachusetts, and to this end he prepared a brief
for submission to the barristers.²³ But then came a severe blow.
The barristers pointed out (quoting a letter from Franklin to Cush-
ing) that “we wanted [lacked] evidence to prove these passages false...
and as to the political reflections of the writers, though these might ap-
pear in the letters and need no other proof, yet they would never be
considered here as offences, but as virtues and merits.” The barristers,
therefore, decided it would be advisable merely “to state as facts the
general discontent of the people, that the governor had lost all credit
with them...,of which the petition was itself full proof,...and then
show that it must in such a situation be necessary for his Majesty’s ser-
vice, as well as the peace of the province to remove them.”²⁴
The hearing before the Committee on January was remarkable
for the number who attended it. “There never was such an appearance
of privy councillors on any occasion,” wrote Franklin, “not less than
thirty-five, besides an immense crowd of other auditors.”²⁵ Edmund
Burke made a similar comment.²⁶
As previously decided, Dunning and John Lee argued that “the mat-
ter rested wholly on their Lordships’ Opinion of the Propriety or im-
propriety of continuing persons in Authority” who had, “(whether on
sufficient or insufficient Grounds) entirely forfeited the confidence of
those Assemblies with whom they were to act, and of that people whom
they were to govern,” and that the “materials on which the prudence of
the Council was to operate...were fully sufficient for that prudential
consideration, however inadequate they might prove for the support of
a criminal charge....”²⁷
Solicitor-General Alexander Wedderburn, who in his private ca-
pacity as barrister represented Hutchinson and Oliver at the hearing,
declined to confine the case to this issue. The Petition charged his cli-
ents with having written misleading statements as to the alleged mis-
conduct of people in Massachusetts; he therefore claimed and was
granted permission to review the conduct of the people of the province
to show that their behavior was in fact as bad as his clients had de-
scribed it to be.²⁸ So far as is known, the barristers for Massachusetts
presented nothing in reply to this.
The text of the part of Wedderburn’s speech denouncing the prov-
ince of Massachusetts is missing;²⁹ but, according to Franklin, Wedder-
burn “went into what he called a history of the province for the last ten
years, and bestowed plenty of abuse upon it.”³⁰
Thus, a Petition designed to vindicate the people of Massachusetts
enabled the Solicitor-General, at this critical time, to present a damn-
ing case against them before many of the most influential members of
Parliament.
Following the hearing, the Committee recommended dismissal of
the Petition as “groundless, vexatious and scandalous, and calculated
only for the seditious purposes of keeping up a spirit of clamor and dis-
content in the said province.”³¹ Soon afterward (February ), the King
in Council, quoting with approval the Committee’s recommendation,
dismissed the Petition.³²
In his argument against granting the Petition, Wedderburn savagely
attacked Franklin, who had sparked the Petition by procuring and send-
ing the Hutchinson and other letters to Cushing. The following day
Franklin was dismissed from his Crown office of Joint Deputy Postmas-
ter in the British colonies on the continent of North America north of
North Carolina.³³
THE MASSACHUSETTS
REGULATING
AND ADMINISTRATION
OF JUSTICE ACTS
O
M , , the Cabinet made its momentous decision (re-
ferred to in Chapter ) to introduce a bill “to alter the Constitu-
tion of the province of Massachusetts Bay.” The Cabinet had consid-
ered such a bill at a meeting on February , but at that time, it had left
open the question of whether the bill should be “put forward in the
present Session or suspended till the next” in order to give the Massa-
chusetts Legislature an opportunity “to shew cause...why such an Al-
teration should not be made.”¹ The decision to press for immediate
passage² was made because, quoting Lord North, it seemed prudent “to
seize this opportunity when all persons of all parties were of the same
mind” to present the bill at the current session of Parliament.³
Pursuant to the Cabinet’s decision, North secured leave from the
House of Commons, on March , to bring a bill “for regulating the
government of the province of Massachusetts Bay in New England,”⁴
and, on April , he introduced the bill.⁵
This bill struck at the very roots of local self-government long en-
joyed in Massachusetts, by providing for changes in choosing mem-
bers of the provincial Council, appointing important provincial officials,
holding town meetings, and selecting juries.
Under the Massachusetts Charter of , the provincial Council
—
the Upper House of Legislature and an advisory council to the royal