Knollenberg Bernhard. Growth of the American Revolution: 1766-1775
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Virginia Committee of Correspondence to a similar Committee in Connect-
icut. Pointing out that the Townshend Act conferred on colonial supreme
courts the same, but only the same, authority to issue writs of assistance in the
colonies as the English Court of Exchequer had in England, the Committee as-
serted that the only kind of writ the English Court had authority to issue was
the form of writ prescribed by an act of Chas. II ch. (), which pro-
vided that writs were to be issued only on information under oath furnished
the court by the person requesting the writ as to particular goods to be
searched for, i.e., particular, not general writs.²⁶
Two of the most learned students of the controversy over writs of assistance,
Horace Gray and Joseph R. Frese, have ably maintained the soundness of this
view.²⁷ But I agree with the opinion of Edward Thurlow, De Grey’s successor
as Attorney-General, given in August, , that, since the Act of made no
mention of the Act of , the English Court of Exchequer was given discre-
tion by the later act to issue such writs of assistance as it chose; that it had seen
fit to issue general writs; and that, therefore, under the Townshend Act of ,
the colonial superior and supreme courts were authorized and required to is-
sue similar writs.²⁸
After Thurlow had given his opinion, the American Customs Board made a
final effort to secure general writs throughout the colonies,²⁹ and this time (April,
) it was successful in South Carolina, the native members of whose supreme
court had recently been replaced by judges sent out from Great Britain.³⁰ But
South Carolina stood alone. Elsewhere the courts that had previously declined
to issue general writs, stood by their guns,³¹ and, as Thurlow stated in his opin-
ion, there seemed to be no way to compel them to issue the writs.³²
As might be expected, the attempted use by British customs officers in
Massachusetts of general writs of assistance that the merchants in the colony
considered illegal led to clashes between them and the customs officers mak-
ing or attempting to make searches and seizures under authority of the writs.³³
The earliest of these, at Falmouth, Massachusetts, seems to have been little
noticed, but one at Boston, involving Daniel Malcom (among the merchants
who retained Otis and Thacher to oppose renewal of general writs of assis-
tance in ) created a great stir.
On September , , William Sheaffe, Deputy Collector, and Benjamin
Hallowell, Comptroller of Customs at Boston, armed with a general writ of as-
sistance issued by the Massachusetts Superior Court to Hallowell,³⁴ in daylight
hours and accompanied by a local enforcement officer as required by the Act
of , demanded of Malcom that he let them into a locked inner cellar of his
home to search for alleged contraband stored there.
Malcom refused and, arming himself with a couple of pistols and a cutlass,
swore “if any Man attempted it he would blow his brains out. . . .” This threat,
coupled with threats by members of a large crowd gathered near Malcom’s
house that they would forcibly prevent anyone from entering the house unless
“the Customs House Officers would go before a Justice and make Oath who
their Informer was...,” which, of course, they would not do, deterred them
from breaking into the cellar and getting possession of the contraband, if any,
stored there.³⁵
On submission of a report of the affair to De Grey, he held, consistently
with his opinion in the Connecticut case referred to above, that “no Civil or
Criminal Prosecution can be brought against any of the Parties complained of,
for obstructing the Affairs of the Customs...inasmuch as the Writ of Assis-
tance by Virtue of which they entered the House and Cellar, was not in this
case a legal Authority.”³⁶ But the highly colored report of the clash sent by offi-
cials at Boston to officials in London³⁷ presumably contributed to Boston’s rep-
utation in British ruling circles of being particularly unruly.
No evidence has been found of any later attempted use of general writs of
assistance in Massachusetts. But after the arrival from England in of
judges sent from England to sit on the South Carolina Supreme Court, general
writs were issued by that court,³⁸ and the power given to “officers of the cus-
toms...to break open and enter houses without the authority of any civil
magistrate founded on legal information” is among the grievances recited in
the First Continental Congress’ Address to the King in .³⁹
PROJECT FOR ANGLICAN
BISHOPS IN THE COLONIES
I , an unsuccessful movement to settle one or more Church of England
bishops in America had aroused much opposition in the colonies.¹
It was argued by those in favor of the project that because, under canon
law, only a bishop had authority to confirm members and ordain candidates
for the ministry of the Church of England, at least one bishop should be set-
tled in America to enable colonial Anglicans to be confirmed and colonial can-
didates for ordination to be ordained without making a long, expensive, and
hazardous trip abroad.²
The calm acceptance in the United States of bishops of the American
Protestant Episcopal Church after the Revolution³ indicates that there prob-
ably would have been no great opposition to the settlement of Church of En-
gland bishops in the colonies if the colonists had been convinced that confir-
mation and ordination were all that those favoring the project had in mind. But
many colonists feared that once bishops were established in the colonies, they
would seek and obtain the temporal powers of English bishops, such as juris-
diction over the probate of estates and some form of taxation to support them.⁴
The position of those opposing the project was stated in a letter of Decem-
ber , , from Josiah Willard, Secretary of Massachusetts, a Congrega-
tionalist, to the Acting Governor, Spencer Phipps, an Anglican. “The univer-
sal dissatisfaction to that Scheme among Persons of our Communion,” wrote
Willard, “is...[from] expecting that if once Bishops should be settled in
America it would be judged for some Reason or other necessary to extend
their Jurisdiction equally to what that Order of Men are possessed of in Great
Britain.”⁵ Since confirmation and ordination could have been handled by oc-
casional visits to the colonies from one of the more than forty bishops of the
established church in England, Ireland, and the Isle of Man, and yet none ever
came,⁶ there was some justification for the fear that a colonial bishop having
more than ecclesiastical powers was contemplated.
After passage of the American Act of and the Stamp Act, there was a
more acute fear that Parliament might saddle the colonists with taxes for the
support of bishops established in the colonies.⁷ Various suggestions were made
for their support by the Crown,⁸ but I have found no evidence that any of these
was acceptable to the British government.
The movement for colonial bishops was revived in , when Thomas
Secker,⁹ who as Bishop of Oxford had been a leader in the earlier movement
for colonial bishops, became Archbishop of Canterbury and President of the
Society for the Propagation of the Gospel in Foreign Parts, hereinafter referred
to as “the Society.”
Learning of Secker’s elevation of these offices, a convention of eleven An-
glican clergymen of New York and New Jersey, meeting in New York City, ad-
dressed a letter to him, dated June , , stating, “As we are well assured
that nothing would give You Greater satisfaction than to see us under the im-
mediate Inspection of a Bishop, we heartily pray that this may be one of the
Blessings of Your Grace’s Archepiscopate.”¹⁰ The letter was signed by all the
members of the convention, headed by the Reverend Samuel Johnson, Presi-
dent of King’s College (now Columbia University).¹¹
Secker replied on September to Johnson outlining plans for mission
work in the colonies, and continuing,
“All these things will contribute, directly or indirectly, to facilitate what we
must ever pray and labor for, till we obtain it, the establishment of bishops of
our church in America. This I have long had at heart; and not only said but
written a great deal in favor of it....Nor, unsuccessful as the attempts have
been, shall I ever abandon the scheme as long as I live, but pushing it openly
at present would certainly prove both fruitless and detrimental. They alone are
judges of opportunities who know the dispositions of persons and parties;
which cannot always be explained to others.”¹²
During the next few years, Secker and Johnson corresponded concerning
various affairs of the Anglican Church in the colonies, including particularly
the project for colonial bishops.¹³
Secker wrote in May, , “Lord Willoughby of Parham, the only English
Dissenting Peer, and Dr. Chandler [the Reverend Samuel Chandler, one of the
most distinguished non-Anglican ministers in England] have declared, after
our scheme was fully laid before them, that they saw no objection against it.
The Duke of Bedford, Lord President [of the Privy Council], hath given a calm
and favorable hearing to it....Indeed, I see not how Protestant Bishops can
be decently refused us, as in all probability a Popish one will be allowed, by
connivance at least, in Canada....The Archbishop of York is very active in
our business [business of the Society]....But these, and particularly what re-
lates to Bishops, must be managed in a quiet, private manner.”¹⁴
When a year passed without further word, a convention of New York and
New Jersey clergy, headed by the Reverend Myles Cooper, who had succeeded
Johnson as President of King’s College, undertook to spur Anglican leaders in
England.¹⁵ In October, , a committee chosen for this purpose adopted an
address to be presented by Secker to the King asking that “one or more Bish-
ops may be speedily sent us.” The Archbishop of York, the Bishop of London,
and the Secretary of the Society were to be solicited to support the request.¹⁶
As we have seen, Secker had given assurance of the Archbishop of York’s
interest in the project. As to the Society, since it helped support a large number
of Anglican missionaries in the colonies,¹⁷ its members could be expected to
support a movement designed to strengthen the Church of England’s position
there. The Bishop of London, formerly under a commission from the King,¹⁸
now informally by custom, supervised all Anglican churches and ministers in
the colonies,¹⁹ so that he, too, could be expected to take a particular interest.
Those pleading for colonial bishops were very shortly fortified by the ship-
wreck and death of two young men returning to the colonies from ordination
in England.²⁰ Johnson immediately (May , ) wrote Secker of the tragedy,
pleading for colonial bishops to relieve colonial candidates for the Anglican
ministry from the danger of a trip to England for ordination.
“I have the great mortification and grief,” he wrote, “to inform your Grace
that...two hopeful young gentlemen who were ordained last had the misfor-
tune to be lost on their arrival on the coast....Those two make up ten valu-
able lives that have now been lost for want of ordaining power²¹ here...in
little more than years....
“If such a thing as sending us one or two bishops can at all be done for
us,...now that all America are over-flowing with joy for the repeal of the
Stamp Act, would be the happiest juncture for it that could be, for I believe
they would rather have bishops were sent than that Act enforced.”²²
The Archbishop replied,
“Earnest and continued endeavors [for colonial bishops] have been used
with our successive ministers [of state], but without obtaining more than
promises to consider and confer about the matter; which promises have never
been fulfilled. The king hath expressed himself repeatedly in favor of the
scheme and hath proposed that if objections are imagined to lie against other
places, a Protestant bishop should be sent to Quebec, where there is a popish
one, and where there are few Dissenters to take offence....²³ Of late indeed it
hath not been prudent to do anything unless at Quebec. And therefore the ad-
dress from the clergy of Connecticut...and that from the clergy of New York
and New Jersey, which arrived in January, have not been presented to the King.
But he hath been acquainted with the purport of them, and directed them to
be postponed to a fitter time.”²⁴
The King’s idea of sending an Anglican bishop to Quebec apparently had
little appeal to Johnson. In replying to the Archbishop, he proposed that in-
stead of sending a bishop to Canada, three bishops be “provided for in Amer-
ica,...one should be for all the Islands, one at Virginia, for all the southern
provinces, and one I think would be best placed at Albany, where there are few
Dissenters and where he would be best situated to take what care is needful at
Canada, and to ordain and govern the affairs of the Church in the provinces
of New England, New York and Pennsylvania.”²⁵
The Reverend Thomas Bradbury Chandler of New Jersey was even cooler
to the King’s idea. “As to Canada,” he wrote Johnson, “I must confess I had
rather see no bishop come to America than to see him smuggled into and con-
cealed in that country.”²⁶
Convinced by the Archbishop’s letter that there was little hope of securing
a Church of England bishop or bishops for the colonies, except possibly in
Quebec, without widespread appeals from America, Johnson wrote in April,
, to the Reverend John Camm, rector of York-Hampton parish, Virginia,
“The kind manner in which you speak of me in your letter to my friend
Mr. Holt,²⁷ in answer to his inquiry, at my desire, about the disposition of the
Virginians towards episcopacy, emboldens me to take the liberty of writing to
you on that important subject....
“Our most excellent Archbishop, who has been much engaged in this great
affair,...has lately informed me that he has not been able to gain the atten-
tion of the ministry to it, though his Majesty is very kindly disposed to favour
and promote it. I am therefore very apprehensive that our solicitations will fail
of gaining the point, unless we could bring it to a general cry, and prevail with
the southern provinces to join us in a zealous application to the government at
home....
“Reverend Sir, I beg leave to intercede with you to influence as far as pos-
sible both the clergy and the laity of your province, and if possible of all your
southern provinces, to join in the cry, when the honor and interest of the
Church and true religion so much lies at stake.”²⁸
Johnson also sought to promote the desired “general cry” by encouraging
Chandler to write and publish a pamphlet in support of the establishment of
an American episcopate.²⁹
This pamphlet, An appeal to the Public in Behalf of the Church of England in Amer-
ica. By Thomas Bradbury Chandler, D.D., Rector of St. John’s Church, in Elizabeth-Town
New-Jersey, and Missionary from the Society for the Propagation of the Gospel, was pub-
lished in New York City in October, .³⁰
Together with a recently published sermon of the Bishop of Llandaff ( John
Ewer) in support of bishops for the colonies,³¹ Chandler’s pamphlet touched
off a paper war of pamphlets and newspaper articles over an American epis-
copate, which continued for several years.³² Chandler was the chief spokesman
for those in favor of the project, the Reverend Charles Chauncy, pastor of the
First Church of Boston (Congregational), and William Livingston, a lawyer
and leading member of the Presbyterian Church in New York City, of those
against.³³ The latter, incensed over the recent successful opposition by Angli-
cans in New York and England to a petition for a charter by the Presbyterian
Church of New York City,³⁴ was particularly bitter in his attacks on the pro-
posed episcopate.
In , supporters of the project sought support for it by the Anglican
clergy of Maryland and Virginia in which the Church of England was the es-
tablished church.
In September , following a visit to Maryland by President Cooper,³⁵ a
convention of nine out of forty-odd members of the Maryland Anglican clergy
adopted a proposed Address from “the Clergy of Maryland of the Commu-
nion of the Church of England” to the King for “the Admission of an Ameri-
can Bishop.” The convention also adopted addresses for an American bishop
to the Archbishop of Canterbury, the Bishop of London, and Lord Baltimore,
Proprietor of Maryland, asking them to support the address to the King.³⁶
In response to the objection of Robert Eden, Governor of the province,
that the whole Anglican clergy of the province ought to be canvassed on so
important a matter,³⁷ a committee of the convention sent a circular letter to
the Anglican clergy of the province reporting the convention’s plan and ask-
ing them to write the Reverend Jonathan Boucher whether they were for or
against it.³⁸
Ten members were reported to have opposed the Address,³⁹ but presum-
ably a majority voted favorably, since English newspapers of the following No-
vember carried word of the presentation of an Address to the King from the
Maryland clergy “asking a Bishop for that province.”⁴⁰
In December, , members of the Anglican clergy in New York, New
Jersey, and Connecticut sent a circular letter to “the principal Clergymen in
Virginia & the two Carolinas” asking their support for the “Plan of our Epis-
copate.”⁴¹
They received a reply from the Reverend James Horrocks, President of the
College of William and Mary and the Bishop of London’s commissary for Vir-
ginia, that he would “use his influence with all his Brethren in Virginia at their
general Meeting this Spring, to transmit Petitions to England for that Pur-
pose,”⁴² and in May, , he published notice of a convention of the Virginia
clergy to be held in Williamsburg, on June , to consider “the Expediency of
an Application to proper Authority for an American Episcopate.”⁴³
The convention voted “that a Committee be appointed to draw up an Ad-
dress to the King for an American Episcopate; and that the Committee shall
apply for the hands of the majority of the [Anglican] Clergy of this Colony; in
which, if they succeed, the Bishop of London is to be humbly addressed for his
concurrence, and requested to present their Address to his Majesty....⁴⁴
Four of the twelve ministers attending the convention⁴⁵ voted against the
resolution, and two of the opponents, Samuel Henley and Thomas Gwatkin,
published a protest in the June issue of the Virginia Gazette (Purdie) stating the
grounds of their protest.⁴⁶ Furthermore, the Virginia House of Burgesses at its
next (July, ) session passed a resolution, “Nemine Contradicente,” thank-
ing the four opponents “for the wise and well timed Opposition they made to
the pernicious Project of a few mistaken Clergymen for introducing an Amer-
ican Bishop; a Measure by which much Disturbance, great Anxiety and Ap-
prehension would certainly take Place among his Majesty’s faithful American
Subjects....”⁴⁷
I have found no evidence concerning the outcome of the application, if
made, to the clergy of the colony for their support of the project;⁴⁸ but it was
reported in June, , that Horrocks had presented a Petition to the King for
a colonial bishop.⁴⁹
The petitions from the southern colonies were no more successful than
those from the north; no Anglican bishop was established in the colonies until
after the Revolution, when () Charles Inglis, former assistant minister of
Trinity Church, New York City, was consecrated Bishop of Nova Scotia.⁵⁰
In an Anglican clergyman recently returned from England reported
that Secker had told him “the Ministry were intirely aversed to sending Bish-
ops to America,” for the reason, among others, “that as America seemed on
the point of Rebellion & Independency, the Ministry were determined to re-
tain every hold on America: that by necessitating the American Episcopalians
to have recourse to England for Ordination they would be held in part. This
hold would be lost if a Bishop should be sent, & the whole Hierarchy be erected
complete in America.”⁵¹
But probably the decisive reason was the unwillingness of successive British
Ministries to intensify colonial unrest by approving a measure for which they
had little or no enthusiasm,⁵² and which would assuredly antagonize a large
number of the colonists.⁵³
THE ADMIRALTY COURT AT
HALIFAX AND ITS SUCCESSORS
T referred to in Chapter , having jurisdiction
throughout the colonies, established at Halifax, Nova Scotia, in ,¹ was ini-
tially a court of first instance (trial court) only. But sect. of the Stamp Act of
, Geo. III ch. , gave the court jurisdiction over appeals from all colo-
nial admiralty courts in cases involving penalties inflicted by the Stamp Act or
“by any other act of parliament relating to the trade or revenue of the said col-
onies or plantations....”
The act of Geo. III ch. () repealing the Stamp Act included repeal
of the provision giving appellate jurisdiction of the admiralty court at Halifax,
which again became a court of first instance only.
Colonial fears² that customs officers would compel the owners of seized
property to defend it from condemnation in a court sitting perhaps more than
a thousand miles from the place of seizure and the owner’s home or place of
business proved to be unfounded. So far as is known, the only suit brought in
the new court at Halifax for an alleged offense against a British act of trade or
revenue committed outside Nova Scotia, was brought (successfully) in for
forfeiture of the sloop Polly, seized by customs officers at Dighton, Massachu-
setts, in April, , for non-payment of the three pence per gallon import duty
on foreign colonial molasses levied by the Act of .³ And the basis for re-
moving whatever fear on this score may have remained was laid by the passage
in of the act of Geo. III , authorizing the Crown to replace the single
court at Halifax by several new courts.
Pursuant to this act, the Crown abolished the Halifax court and replaced it
with four district admiralty courts for North America, sitting at Halifax, Bos-
ton, Philadelphia, and Charleston, South Carolina,⁴ each having jurisdiction