Novanglus Essays/No. 5
We are at length arrived at the paper on which I made a few strictures some weeks ago; these I shall not repeat, but proceed to consider the other part of it.
We are told: “It is a universal truth, that he that would excite a rebellion, is at heart as great a tyrant as ever wielded the iron rod of oppression.” Be it so. We are not exciting a rebellion. Opposition, nay, open, avowed resistance by arms, against usurpation and lawless violence, is not rebellion by the law of God or the land. Resistance to lawful authority makes rebellion. Hampden, Russell, Sidney, Somers, Holt, Tillotson, Burnet, Hoadly, &c. were no tyrants nor rebels, although some of them were in arms, and the others undoubtedly excited resistance against the tories. Do not beg the question, Mr. Massachusettensis, and then give yourself airs of triumph. Remember the frank Veteran acknowledges, that “the word rebel is a convertible term.”
This writer next attempts to trace the spirit of opposition through the general court and the courts of common law. “It was the policy of the whigs, to have their questions upon high matters determined by yea and nay votes, which were published in the gazettes.” And ought not great questions to be so determined? In many other assemblies, New York particularly, they always are. What better can be devised to discover the true sense of the people? It is extremely provoking to courtiers, that they cannot vote as the cabinet direct them, against their consciences, the known sense of their constituents, and the obvious good of the community, without being detected. Generally, perhaps universally, no unpopular measure in a free government, particularly the English, ought ever to pass. Why have the people a share in the legislature, but to prevent such measures from passing, I mean such as are disapproved by the people at large? But did not these yea and nay votes expose the whigs, as well as tories, to the impartial judgment of the public? If the votes of the former were given for measures injurious to the community, had not the latter an equal opportunity of improving them to the disadvantage of their adversaries in the next election? Besides, were not those few persons in the house, who generally voted for unpopular measures, near the governor, in possession of his confidence? Had they not the absolute disposal in their towns and counties of the favor of government? Were not all the judges, justices, sheriffs, coroners, and military officers in their towns made upon their recommendation? Did not this give them a prodigious weight and influence? Had the whigs any such advantage? And does not the influence of these yea and nay votes, consequently, prove to a demonstration the unanimity of the people against the measures of the court?
As to what is said of “severe strictures, illiberal invectives, abuse, and scurrility, upon the dissentients,” there was quite as much of all these published against the leading whigs. In truth, the strictures, &c. against the tories were generally nothing more than hints at the particular place or office, which was known to be the temptation to vote against the country. That “the dissentient was in danger of losing his bread and involving his family in ruin,” is equally injurious. Not an instance can be produced of a member losing his bread or injuring his business by voting for unpopular measures. On the contrary, such voters never failed to obtain some lucrative employment, title, or honorary office, as a reward from the court.
If “one set of members in committee had always prepared the resolves,” &c., which they did not, what would this prove, but that this set was thought by the house the fittest for the purpose? Can it ever be otherwise? Will any popular assembly choose its worst members for the best services? Will an assembly of patriots choose courtiers to prepare votes against the court? No resolves against the claims of parliament or administration, or the measures of the governor, (excepting those against the Stamp Act, and perhaps the answers to Governor Hutchinson’s speeches upon the supremacy of parliament,) ever passed through the house without meeting an obstacle. The governor had, to the last hour of the house’s existence, always some seekers and expectants in the house, who never failed to oppose, and offer the best arguments they could, and were always patiently heard. That “the lips of the dissentients were sealed up;” that “they sat in silence, and beheld with regret measures they dared not oppose,” are groundless suggestions, and gross reflections upon the honor and courage of those members. The debates of this house were public, and every man who has attended the gallery, knows there never was more freedom of debate in any assembly.
Massachusettensis, in the next place, conducts us to the agent, and tells us “there cannot be a provincial agent without an appointment by the three branches of the assembly. The whigs soon found that they could not have such services rendered them from a provincial agent as would answer their purposes.”
The treatment this province has received respecting the agency, since Mr. Hutchinson’s administration commenced, is a flagrant example of injustice. There is no law which requires the province to maintain any agent in England; much less is there any reason which necessarily requires that the three branches should join in the appointment. In ordinary times, indeed, when a harmony prevails among the branches, it is well enough to have an agent constituted by all. But in times when the foundations of the constitution are disputed, and certainly attacked by one branch or the other, to pretend that the house ought to join the governor in the choice, is a palpable absurdity. It is equivalent to saying, that the people shall have no agent at all; that all communication shall be cut off; and that there shall be no channel through which complaints and petitions may be conveyed to the royal ear. Because a governor will not concur in an agent whose sentiments are not like his; nor will an agent of the governor’s appointment be likely to urge accusations against him with any diligence or zeal, if the people have occasion to complain against him.
Every private citizen, much more, every representative body, has an undoubted right to petition the king, to convey such petition by an agent, and to pay him for his service. Mr. Bernard, to do him justice, had so much regard to these principles, as to consent to the payment of the people’s agents while he staid; but Mr. Hutchinson was scarcely seated in the chair, as lieutenant-governor, before we had intelligence from England, that my Lord Hillsborough told Dr. Franklin, he had received a letter from Governor Hutchinson against consenting to the salary of the agent. Such an instruction was accordingly soon sent, and no agent for the board or house has received a farthing for services since that time, though Dr. Franklin and Mr. Bollan have taken much pains, and one of them expended considerable sums of money. There is a meanness in this play that would disgrace a gambler,—-a manifest fear that the truth should be known to the sovereign or the people. Many persons have thought that the province ought to have dismissed all agents from that time, as useless and nugatory; this behavior amounting to a declaration, that we had no chance or hopes of justice from a minister.
But this province, at least as meritorious as any, has been long accustomed to indignities and injustice, and to bear both with unparalleled patience. Others have pursued the same method before and since; but we have never heard that their agents are unpaid. They would scarcely have borne it with so much resignation.
It is great assurance to blame the house for this, which was both their right and duty; but it is a stain in the character of his patron which will not be soon worn out. Indeed this passage seems to have been brought in chiefly for the sake of a stroke or two, addressed to the lowest and meanest of the people; I mean the insinuation, that the two agents doubled the expense, which is as groundless as it is contracted; and that the ostensible agent for the province was only agent for a few individuals that had got the art of wielding the house; and that several hundred sterling a year, for attending levees and writing letters, were worth preserving. We, my friends, know that no members have the art of wielding us or our house, but by concurring in our principles, and assisting us in our designs. Numbers in both houses have turned about, and expected to wield us round with them, but they have been disappointed, and ever will be. Such apostates have never yet failed of our utter contempt, whatever titles, places, or pensions they might obtain.
The agent has never echoed back, or transmitted to America, any sentiments which he did not give in substance to Governor Shirley, twenty years ago; and, therefore, this insinuation is but another slander. The remainder of what is said of the agency is levelled at Dr. Franklin, and is but a dull appendix to Wedderburn’s ribaldry, having all his malice, without any of his wit or spirit. Nero murdered Seneca, that he might pull up virtue by the roots; and the same maxim governs the scribblers and speechifiers on the side of the minister. It is sufficient to discover that any man has abilities and integrity, a love of virtue and liberty, he must be run down at all events. Witness Pitt, Franklin, and too many others.
My design in pursuing this malicious slanderer, concealed as he is under so soft and oily an appearance, through all the doublings of his tedious course, is to vindicate this colony from his base aspersions; that strangers now among us, and the impartial public, may see the wicked arts, which are still employed against us. After the vilest abuse upon the agent of the province, and the house that appointed him, we are brought to his majesty’s council, and are told that the “whigs reminded them of their mortality. If any one opposed the violent measures, he lost his election the next May. Half the whole number, mostly men of the first families, note, and abilities, attached to their native country, wealthy, and independent, were tumbled from their seats in disgrace. Thus the board lost its weight, and the political balance was destroyed.”
It is impossible for any man acquainted with this subject to read this zealous rant without smiling, until he attends to the wickedness of it, which will provoke his utmost indignation. Let us, however, consider it soberly.
From the date of our charter to the time of the Stamp Act, and indeed since that time, (notwithstanding the misrepresentations of our charter constitution, as too popular and republican,) the council of this province have been generally on the side of the governor and the prerogative. For the truth of this, I appeal to our whole history and experience. The art and power of governors, and especially the negative, have been a stronger motive on the one hand, than the annual election of the two houses on the other. In disputes between the governor and the house, the council have generally adhered to the former, and in many cases have complied with his humor, when scarcely any council by mandamus, upon this continent, would have done it.
But in the time of the Stamp Act, it was found productive of many mischiefs and dangers, to have officers of the crown, who were dependent on the ministry, and judges of the superior court, whose offices were thought incompatible with a voice in the legislature, members of council.
In May, 1765, Lieutenant-Governor Hutchinson, Secretary Oliver, and Mr. Belcher, officers of the crown, the judges of the superior court, and some other gentlemen, who held commissions under the governor, were members of council. Mr. Hutchinson was chief justice, and a judge of probate for the first county, as well as lieutenant-governor, and a counsellor; too many offices for the greatest and best man in the world to hold, too much business for any man to do; besides, that these offices were frequently clashing and interfering with each other. Two other justices of the superior court were counsellors, and nearly and closely connected with him by family alliances. One other justice was judge of admiralty during pleasure. Such a jumble of offices never got together before in any English government. It was found, in short, that the famous triumvirate, Bernard, Hutchinson, and Oliver, the evermemorable, secret, confidential letter-writers, whom I call the junto, had, by degrees, and before the people were aware of it, erected a tyranny in the province. Bernard had all the executive, and a negative on the legislative; Hutchinson and Oliver, by their popular arts and secret intrigues, had elevated to the board such a collection of crown-officers and their own relations, as to have too much influence there; and they had three of a family on the superior bench, which is the supreme tribunal in all causes, civil and criminal, vested with all the powers of the king’s bench, common pleas, and exchequer, which gave them power over every act of this court. This junto, therefore, had the legislative and executive in their control, and more natural influence over the judicial than is ever to be trusted to any set of men in the world. The public, accordingly, found all these springs and wheels in the constitution set in motion to promote submission to the Stamp Act, and to discountenance resistance to it; and they thought they had a violent presumption, that they would forever be employed to encourage a compliance with all ministerial measures and parliamentary claims, of whatever character they might be.
The designs of the junto, however, were concealed as carefully as possible. Most persons were jealous; few were certain. When the assembly met, in May, 1766, after the Stamp Act was repealed, the whigs flattered themselves with hopes of peace and liberty for the future. Mr. Otis, whose abilities and integrity, whose great exertions, and most exemplary sacrifices of his private interest to the public service, had entitled him to all the promotion which the people could bestow, was chosen speaker of the house. Bernard negatived the choice. It can scarcely be conceived by a stranger what an alarm this manoeuvre gave to the public. It was thought equivalent to a declaration that, although the people had been so successful as to obtain a repeal of the Stamp Act, yet they must not hope to be quiet long; for parliament, by the Declaratory Act, had asserted its supreme authority, and new taxations and regulations should be made, if the junto could obtain them; and every man who should dare to oppose such projects, let his powers or virtues, his family or fortune, be what they would, should be surely cut off from all hopes of advancement. The electors thought it high time to be upon their guard. All the foregoing reasons and motives prevailed with the electors; and the crown officers and justices of the supreme court were left out of council in the new choice. Those who were elected in their places were all negatived by Bernard, which was considered as a fresh proof, that the junto still persevered in their designs of obtaining a revenue to divide among themselves.
The gentlemen elected anew were of equal fortune and integrity, at least, and not much inferior in abilities, to those left out; and indeed, in point of fortune, family, note, or abilities, the councils which have been chosen from that time to this, taken on an average, have been very little inferior, if any, to those chosen before. Let Massachusettensis descend, if he will, to every particular gentleman by name through the whole period, and I will make out my assertion.
Every impartial person will not only think these reasons a full vindication of the conduct of the two houses, but that it was their indispensable duty to their country, to act the part they did; and the course of time, which has developed the dark intrigues of the junto, before and since, has confirmed the rectitude and necessity of the measure. Had Bernard’s Principles of Polity been published and known at that time, no member of the house, who should have voted for any of the persons then left out, if it was known to his constituents, would ever have obtained another election.
By the next step we rise to the chair. “With the board, the chair fell likewise,” he says. But what a slander is this! Neither fell; both remained in as much vigor as ever. The junto, it is true, and some other gentlemen who were not in their secret, but however, had been misled to concur in their measures, were left out of council. But the board had as much authority as ever. The board of 1766 could not have influenced the people to acknowledge the supreme, uncontrollable authority of parliament, nor could that of 1765 have done it. So that, by the chair and the board’s falling, he means no more, if his meaning has any truth in it, than that the junto fell; the designs of taxing the colonies fell, and the schemes for destroying all the charters on the continent, and for erecting lordships fell. These, it must be acknowledged, fell very low indeed in the esteem of the people, and the two houses.
“The governor,” says our wily writer, “by the charter, could do little or nothing without the council. If he called upon a military officer to raise the militia, he was answered, they were there already,” &c. The council, by the charter, had nothing to do with the militia; the governor alone had all authority over them. The council, therefore, are not to blame for their conduct. If the militia refused obedience to the captain-general, or his subordinate officer, when commanded to assist in carrying into execution the Stamp Act, or in dispersing those who were opposing it, does not this prove the universal sense and resolution of the people not to submit to it? Did not a regular army do more to James II.? If those, over whom the Governor had the most absolute authority and decisive influence, refused obedience, does not this show how deeply rooted in all men’s minds was the abhorrence of that unconstitutional power which was usurping over them? “If he called upon the council for their assistance, they must first inquire into the cause.” An unpardonable crime, no doubt! But is it the duty of a middle branch of legislature to do as the first shall command them implicitly, or to judge for themselves? Is it the duty of a privy council to understand the subject before they give advice, or only to lend their names to any edict, in order to make it less unpopular? It would be a shame to answer such observations as these, if it was not for their wickedness. Our council, all along however, did as much as any council could have done. Was the mandamus council at New York able to do more to influence the people to a submission to the Stamp Act? Was the chair, the board, the septennial house, with the assistance of General Gage and his troops, able to do more in that city, than our branches did in this province? Not one iota. Nor could Bernard, his council, and house, if they had been unanimous, have induced submission. The people would have spurned them all, for they are not to be wheedled out of their liberties by their own representatives, any more than by strangers. “If he wrote to government at home to strengthen his hands, some officious person procured and sent back his letters.” At last, it seems to be acknowledged, that the governor did write for a military force to strengthen government. For what? To enable it to enforce stamp acts, tea acts, and other internal regulations, the authority of which the people were determined never to acknowledge.
But what a pity it was, that these worthy gentlemen could not be allowed, from the dearest affection to their native country, to which they had every possible attachment, to go on in profound confidential secrecy, procuring troops to cut our throats, acts of parliament to drain our purses, destroy our charters and assemblies, getting estates and dignities for themselves and their own families, and all the while most devoutly professing to be friends to our charter, enemies to parliamentary taxation, and to all pensions, without being detected! How happy if they could have annihilated all our charters, and yet have been beloved, nay, deified by the people, as friends and advocates of their charters! What masterly politicians, to have made themselves nobles for life, and yet have been thought very sorry, that the two houses were denied the privilege of choosing the council! How sagacious, to get large pensions for themselves, and yet be thought to mourn that pensions and venality were introduced into the country! How sweet and pleasant, to have been the most popular men in the community, for being staunch and zealous dissenters, true blue Calvinists, and able advocates for public virtue and popular government, after they had introduced an American episcopate, universal corruption among the leading men, and deprived the people of all share in their supreme legislative council! I mention an episcopate, for, although I do not know that Governors Hutchinson and Oliver ever directly solicited for bishops, yet they must have seen, that these would have been one effect, very soon, of establishing the unlimited authority of parliament!
I agree with this writer, that it was not the persons of Bernard, Hutchinson, or Oliver, that made them obnoxious; but their principles and practices. And I will agree that, if Chatham, Camden, and St. Asaph, (I beg pardon for introducing these reverend names into such company, and for making a supposition which is absurd,) had been here, and prosecuted such schemes, they would have met with contempt and execration from this people. But when he says, “that had the intimations in those letters been attended to, we had now been as happy a people as good government could make us,” it is too gross to make us angry. We can do nothing but smile. Have not these intimations been attended to? Have not fleets and armies been sent here whenever they requested? Have not governor’s, lieutenant-governor’s, secretary’s, judge’s, attorney-general’s, and solicitor-general’s salaries been paid out of the revenue, as they solicited? Have not taxes been laid and continued? Have not English liberties been abridged, as Hutchinson desired? Have not “penalties of another kind” been inflicted, as he desired? Has not our charter been destroyed, and the council put into the king’s hands, as Bernard requested? In short, almost all the wild mock pranks of this desperate triumvirate have been attended to and adopted, and we are now as miserable as tyranny can well make us. That Bernard came here with the affections of New Jersey, I never heard nor read but in this writer. His abilities were considerable, or he could not have done such extensive mischief. His true British honesty and punctuality will be acknowledged by none, but such as owe all their importance to flattering him.
That Hutchinson was amiable and exemplary in some respects, and very unamiable and unexemplary in others, is a certain truth; otherwise he never would have retained so much popularity on one hand, nor made so pernicious a use of it, on the other. His behavior, in several important departments, was with ability and integrity, in cases which did not affect his political system; but he bent all his offices to that. Had he continued steadfast to those principles in religion and government, which, in his former life, he professed, and which alone had procured him the confidence of the people and all his importance, he would have lived and died, respected and beloved, and have done honor to his native country. But, by renouncing these principles and that conduct, which had made him and all his ancestors respectable, his character is now considered by all America, and the best part of the three kingdoms, notwithstanding the countenance he receives from the ministry, as a reproach to the province that gave him birth; as that of a man who by all his actions aimed at making himself great at the expense of the liberties of his native country. This gentleman was open to flattery in so remarkable a degree, that any man who would flatter him was sure of his friendship, and every one who would not was sure of his enmity. He was credulous in a ridiculous degree, of every thing that favored his own plans, and equally incredulous of every thing which made against them. His natural abilities, which have been greatly exaggerated by persons whom he had advanced to power, were far from being of the first rate. His industry was prodigious. His knowledge lay chiefly in the laws and politics and history of this province, in which he had a long experience. Yet, with all his advantages, he never was master of the true character of his native country, not even of New England and the Massachusetts Bay. Through the whole troublesome period, since the last war, he manifestly mistook the temper, principles, and opinions of this people. He had resolved upon a system, and never could or would see the impracticability of it.
It is very true, that “all his abilities, virtues, interests, and connections were insufficient.” But for what? To prevail on the people to acquiesce in the mighty claim of parliamentary authority. “The constitution was” not “gone.” The suggestion that it was is a vile slander. It had as much vigor as ever, and even the governor had as much power as ever, excepting in cases which affected that claim. “The spirit,” says this writer, “was truly republican.” It was not so in any one case whatever, any further than the spirit of the British constitution is republican. Even in the grand fundamental dispute, the people arranged themselves under their house of representatives and council, with as much order as ever, and conducted their opposition as much by the constitution as ever. It is true, their constitution was employed against the measures of the junto, which created their enmity to it. However, I have not such a horror of republican spirit, which is a spirit of true virtue and honest independence; I do not mean on the king, but on men in power. This spirit is so far from being incompatible with the British constitution, that it is the greatest glory of it; and the nation has always been most prosperous, when it has most prevailed and been most encouraged by the crown. I wish it increased in every part of the world, especially in America; and I think the measures the tories are now pursuing will increase it to a degree that will insure us, in the end, redress of grievances, and a happy reconciliation with Great Britain.
“Governor Hutchinson strove to convince us, by the principles of government, our charters, and acknowledgments, that our claims were inconsistent with the subordination due to Great Britain,” &c., says this writer. Suffer me to introduce here a little history. In 1764, when the system of taxing and new-modelling the colonies was first apprehended, Lieutenant-Governor Hutchinson’s friends struggled, in several successive sessions of the general court, to get him chosen agent for the province at the court of Great Britain. At this time, he declared freely, that he was of the same sentiment with the people, that parliament had no right to tax them; but differed from the country party only in his opinion of the policy of denying that right in their petitions, &c. I would not injure him; I was told this by three gentlemen, who were of the committee of both houses, to prepare that petition, that he made this declaration explicitly before that committee. I have been told by other gentlemen, that he made the same declaration to them. It is possible that he might make use of expressions studied for the purpose, which would not strictly bear this construction. But it is certain that they understood him so, and that this was the general opinion of his sentiments until he came to the chair.
The country party saw that this aspiring genius aimed at keeping fair with the ministry, by supporting their measures, and with the people, by pretending to be of our principles, and between both, to trim himself up to the chair. The only reason why he did not obtain an election at one time, and was excused from the service at another, after he had been chosen by a small majority, was because the members knew he would not openly deny the right, and assure his majesty, the parliament, and ministry, that the people never would submit to it. For the same reason he was left out of council. But he continued to cultivate his popularity, and to maintain a general opinion among the people that he denied the right in his private judgment, and this idea preserved most of those who continued their esteem for him.
But upon Bernard’s removal, and his taking the chair as lieutenant-governor, he had no further expectations from the people, nor complaisance for their opinions. In one of his first speeches he took care to advance the supreme authority of parliament. This astonished many of his friends. They were heard to say, we have been deceived. We thought he had been abused, but we now find what has been said of him is true. He is determined to join in the designs against this country. After his promotion to the government, finding that the people had little confidence in him, and knowing that he had no interest at home to support him, but what he had acquired by joining with Bernard in kicking up a dust, he determined to strike a bold stroke, and, in a formal speech to both houses, became a champion for the unbounded authority of parliament over the colonies. This, he thought, would lay the ministry under obligation to support him in the government, or else to provide for him out of it, not considering that starting that question before that assembly, and calling upon them, as he did, to dispute with him upon it, was scattering firebrands, arrows, and death in sport. The arguments he then advanced were inconclusive indeed; but they shall be considered, when I come to the feeble attempt of Massachusettensis to give a color to the same position.
The house, thus called upon either to acknowledge the unlimited authority of parliament, or confute his arguments, were bound, by their duty to God, their country, and posterity, to give him a full and explicit answer. They proved incontestably that he was out in his facts, inconsistent with himself, and in every principle of his law he had committed a blunder. Thus the fowler was caught in his own snare; and although this country has suffered severe temporary calamities in consequence of this speech, yet I hope they will not be durable; but his ruin was certainly in part owing to it. Nothing ever opened the eyes of the people so much, as to his designs, excepting his letters. Thus it is the fate of Massachusettensis to praise this gentleman for those things which the wise part of mankind condemn in him, as the most insidious and mischievous of actions. If it was out of his power to do us any more injuries, I should wish to forget the past; but, as there is reason to fear he is still to continue his malevolent labors against this country, although he is out of our sight, he ought not to be out of our minds. This country has every thing to fear, in the present state of the British court, while the lords Bute, Mansfield, and North have the principal conduct of affairs, from the deep intrigues of that artful man.
To proceed to his successor, whom Massachusettensis has been pleased to compliment with the epithet of “amiable.” I have no inclination to detract from this praise; but have no panegyrics or invectives for any man, much less for any governor, until satisfied of his character and designs. This gentleman’s conduct, although he came here to support the systems of his two predecessors, and contracted to throw himself into the arms of their connections, when he has acted himself, and not been teased by others much less amiable and judicious than himself, into measures which his own inclination would have avoided, has been in general as unexceptionable as could be expected, in his very delicate, intricate, and difficult situation.
We are then told, “that disaffection to Great Britain was infused into the body of the people.” The leading whigs have ever, systematically and upon principle, endeavored to preserve the people from all disaffection to the king, on the one hand, and the body of the people of England, on the other; but to lay the blame, where it is justly due, on the ministry and their instruments.
We are next conducted into the superior court, and informed “that the judges were dependent on the annual grants of the general court; that their salaries were small, in proportion to the salaries of other officers of less importance; that they often petitioned the assembly to enlarge them, without success, and were reminded of their dependence; that they remained unshaken amid the raging tempests, which is to be attributed rather to their firmness than situation.”
That the salaries were small must be allowed; but not smaller in proportion than those of other officers. All salaries in this province have been and are small. It has been the policy of the country to keep them so; not so much from a spirit of parsimony, as an opinion, that the service of the public ought to be an honorary, rather than a lucrative employment; and that the great men ought to be obliged to set examples of simplicity and frugality before the people.
But, if we consider things maturely, and make allowance for all circumstances, I think the country may be vindicated. This province, during the last war, had such overbearing burdens upon it, that it was necessitated to use economy in every thing. At the peace she was half a million sterling in debt, nearly. She thought it the best policy to get out of debt before she raised the wages of her servants; and if Great Britain had thought as wisely, she would not now have had one hundred and forty millions to pay; and she would never have thought of taxing America. Low as the wages were, it was found that, whenever a vacancy happened, the place was solicited with much more anxiety and zeal than the kingdom of heaven.
Another cause which had its effect was this. The judges of that court had almost always enjoyed some other office. At the time of the Stamp Act the chief justice was lieutenant-governor, which yielded him a profit; and a judge of probate for the county of Suffolk, which yielded him another profit; and a counsellor, which, if it was not very profitable, gave him an opportunity of promoting his family and friends to other profitable offices, an opportunity which the country saw he most religiously improved. Another justice of this court was a judge of admiralty, and another was judge of probate for the county of Plymouth. The people thought, therefore, that as their time was not wholly taken up by their offices, as judges of the superior court, there was no reason why they should be paid as much as if it had been.
Another reason was this. Those justices had not been bred to the bar, but taken from merchandise, husbandry, and other occupations; had been at no great expense for education or libraries, and therefore, the people thought that equity did not demand large salaries.
It must be confessed that another motive had its weight. The people were growing jealous of the chief justice, and two other justices at least, and therefore thought it imprudent to enlarge their salaries, and, by that means, their influence.
Whether all these arguments were sufficient to vindicate the people for not enlarging their salaries, I shall leave to you, my friends, whose right it is to judge. But that the judges petitioned “often” to the assembly I do not remember. I knew it was suspected by many, and confidently affirmed by some, that Judge Russell carried home with him, in 1766, a petition to his majesty, subscribed by himself and Chief Justice Hutchinson at least, praying his majesty to take the payment of the judges into his own hands; and that this petition, together with the solicitations of Governor Bernard and others, had the success to procure the act of parliament, to enable his majesty to appropriate the revenue to the support of the administration of justice, &c., from whence a great part of the present calamities of America have flowed.
That the high whigs took care to get themselves chosen of the grand juries, I do not believe. Nine tenths of the people were high whigs; and therefore it was not easy to get a grand jury without nine whigs in ten, in it. And the matter would not be much mended by the new act of parliament. The sheriff must return the same set of jurors, court after court, or else his juries would be, nine tenths of them, high whigs still. Indeed the tories are so envenomed now with malice, envy, revenge and disappointed ambition, that they would be willing, for what I know, to be jurors for life, in order to give verdicts against the whigs. And many of them would readily do it, I doubt not, without any other law or evidence than what they found in their own breasts. The suggestion of legerdemain, in drawing the names of petit jurors out of the box, is scandalous. Human wisdom cannot devise a method of obtaining petit jurors more fairly, and better secured against a possibility of corruption of any kind, than that established by our provincial law. They were drawn by chance out of a box in open town meeting, to which the tories went, or might have gone, as well as the whigs, and have seen with their own eyes, that nothing unfair ever did or could take place. If the jurors consisted of whigs, it was because the freeholders were whigs, that is honest men. But now, it seems, if Massachusettensis can have his will, the sheriff, who will be a person properly qualified for the purpose, is to pick out a tory jury, if he can find one in ten, or one in twenty, of that character among the freeholders; and it is no doubt expected, that every newspaper that presumes to deny the right of parliament to tax us, or destroy our charter, will be presented as a libel, and every member of a committee of correspondence, or a congress, &c. &c. &c., is to be indicted for rebellion. These would be pleasant times to Massachusettensis and the junto, but they will never live to see them.
“The judges pointed out seditious libels on governors, magistrates, and the whole government to no effect.” They did so; but the jurors thought some of these no libels, but solemn truths. At one time, I have heard that all the newspapers for several years, the Massachusetts Gazette, Evening Post, Boston Chronicle, Boston Gazette, and Massachusetts Spy, were laid before a grand jury at once. The jurors thought there were multitudes of libels written by the tories, and they did not know whom they should attack, if they presented them; perhaps Governor Bernard, Lieutenant-Governor Hutchinson, Secretary Oliver—-possibly, the Attorney-General. They saw so many difficulties they knew not what to do.
As to the riots and insurrections, it is surprising that this writer should say,—-“Scarce one offender was indicted, and I think not one convicted.” Were not many indicted, convicted, and punished too, in the counties of Essex, and Middlesex, and indeed, in every other country? But, perhaps he will say, he means such as were connected with politics. Yet this is not true; for a large number in Essex were punished for abusing an informer, and others were indicted and convicted in Boston for a similar offense. None were indicted for pulling down the stamp office, because this was thought an honorable and glorious action, not a riot. And so it must be said of several other tumults. But was not this the case in royal as well as charter governments? Nor will this inconvenience be remedied by a sheriff ’s jury, if such a one should ever sit. For if such a jury should convict, the people will never bear the punishment. It is in vain to expect or hope to carry on government against the universal bent and genius of the people; we may whimper and whine as much as we will, but nature made it impossible when she made men.
If “causes of meum and tuum were not always exempt from party influence,” the tories will get no credit by an examination into particular cases. Though I believe there was no great blame on either party in this respect, where the case was not connected with politics.
We are then told,—-“The whigs once flattered themselves they should be able to divide the province between them.” I suppose he means, that they should be able to get the honorable and lucrative offices of the province into their hands. If this was true, they would be chargeable with only designing what the tories have actually done; with this difference, that the whigs would have done it by saving the liberties and the constitution of the province, whereas the tories have done it by the destruction of both. That the whigs have ambition, a desire of profit, and other passions, like other men, it would be foolish to deny. But this writer cannot name a set of men, in the whole British empire, who have sacrificed their private interest to their nation’s honor and the public good in so remarkable a manner, as the leading whigs have done in the two last administrations.
As to “cutting asunder the sinews of government, and breaking in pieces the ligament of social life,” so far as this has been done, I have proved by incontestable evidence from Bernard’s, Hutchinson’s, and Oliver’s letters, that the tories have done it, against all the endeavors of the whigs to prevent them from first to last.
The public is then amused with two instances of the weakness of our government, and these are, with equal artifice and injustice, insinuated to be chargeable upon the whigs. But the whigs are as innocent of these as the tories. Malcolm was injured as much against the inclinations and judgment of the whigs as the tories. But the real injury he received is exaggerated by this writer. The cruelty of his whipping and the danger of his life, are too highly colored.
Malcolm was such an oddity as naturally to excite the curiosity and ridicule of the lowest class of people wherever he went; had been active in battle against the regulators in North Carolina, who were thought in Boston to be an injured people. A few weeks before, he had made a seizure at Kennebec River, a hundred and fifty miles from Boston, and by some imprudence had excited the wrath of the people there in such a degree that they tarred and feathered him over his clothes. He comes to Boston to complain. The news of it was spread in town. It was a critical time, when the passions of the people were warm. Malcolm attacked a lad in the street, and cut his head with a cutlass, in return for some words from the boy, which I suppose were irritating. The boy ran bleeding through the street to his relations, of whom he had many. As he passed the street, the people inquired into the cause of his wounds; and a sudden heat arose against Malcolm, which neither whigs nor tories, though both endeavored it, could restrain, and produced the injuries of which he justly complained. But such a coincidence of circumstances might at any time, and in any place, have produced such an effect; and therefore it is no evidence of the weakness of government. Why he petitioned the general court, unless he was advised to it by the tories, to make a noise, I know not. That court had nothing to do with it. He might have brought his action against the trespassers, but never did. He chose to go to England, and get two hundred pounds a year, which would make his tarring the luckiest incident of his life.
The hospital at Marblehead is another instance, no more owing to the politics of the times than the burning of the temple at Ephesus. This hospital was newly erected, much against the will of the multitude. The patients were careless, some of them wantonly so; and others were suspected of designing to spread the smallpox in the town, which was full of people who had not passed through the distemper. It is needless to be particular; but the apprehension became general; the people arose and burnt the hospital. But the whigs are so little blamable for this, that two of the principal whigs in the province, gentlemen highly esteemed and beloved in the town, even by those who burnt the building, were owners of it. The principles and temper of the times had no share in this, any more than in cutting down the market in Boston, or in demolishing mills and dams in some parts of the country, in order to let the alewives pass up the streams, forty years ago. Such incidents happen in all governments at times; and it is a fresh proof of the weakness of this writer’s cause, that he is driven to such wretched shifts to defend it.
Towards the close of this long speculation, Massachusettensis grows more and more splenetical, peevish, angry, and absurd.
He tells us, that in order to avoid the necessity of altering our provincial constitution, government at home made the judges independent of the grants of the general assembly. That is, in order to avoid the hazard of taking the fort by storm, they determined to take it by sap. In order to avoid altering our constitution, they changed it in the most essential manner; for, surely, by our charter, the province was to pay the judges as well as the governor. Taking away this privilege, and making them receive their pay from the crown, was destroying the charter so far forth, and making them dependent on the minister. As to their being dependent on the leading whigs, he means they were dependent on the province. And which is fairest to be dependent on, the province or the minister? In all this troublesome period, the leading whigs had never hesitated about granting their salaries, nor ever once moved to have them lessened; nor would the house have listened to them if they had. “This was done,” he says, “to make them steady.” We know that very well. Steady to what? Steady to the plans of Bernard, Hutchinson, Oliver, North, Mansfield, and Bute, which the people thought was steadiness to their ruin; and therefore it was found that a determined spirit of opposition to it arose in every part of the province, like that to the Stamp Act.
The chief justice, it is true, was accused by the house of representatives, of receiving a bribe,—-a ministerial, not a royal bribe. For the king can do no wrong, although he may be deceived in his grant. The minister is accountable. The crime of receiving an illegal patent is not the less for purchasing it even of the king himself. Many impeachments have been for such offences.
He talks about “attempts to strengthen government and save our charter.” With what modesty can he say this, when he knows that the overthrow of our charter was the very object which the junto had been invariably pursuing for a long course of years? Does he think his readers are to be deceived by such gross arts? But he says, “the whigs subverted the charter constitution, abridged the freedom of the house, annihilated the freedom of the board, and rendered the governor a doge of Venice.” The freedom of the house was never abridged; the freedom of the board was never lessened. The governor had as much power as ever. The house and board, it is true, would do nothing in favor of parliamentary taxation. Their judgments and consciences were against it; and if they ever had done any thing in favor of it, it would have been through fear and not freedom. The governor found he could do nothing in favor of it, excepting to promote, in every department in the state, men who hated the people, and were hated by them. Enough of this he did in all conscience; and, after filling offices with men who were despised, he wondered that the officers were not revered. “They, the whigs, engrossed all the power of the province into their own hands.” That is, the house and board were whigs; the grand juries and petit juries were whigs; towns were whigs; the clergy were whigs; the agents were whigs; and wherever you found people, you found all whigs; excepting those who had commissions from the crown or the governor. This is almost true; and it is to the eternal shame of the tories that they should pursue their ignis fatuus with such ungovernable fury as they have done, after such repeated and multiplied demonstrations, that the whole people were so universally bent against them. But nothing will satisfy them still but blood and carnage. The destruction of the whigs, charters, English liberties, and all, they must and will have, if it costs the blood of tens of thousands of innocent people. This is the benign temper of the tories.
This influence of the whigs he calls a democracy or republic, and then a despotism; two ideas incompatible with each other. A democratical despotism is a contradiction in terms.
He then says, that “the good policy of the act for regulating the government in this province will be the subject of some future paper.” But that paper is still to come, and I suspect ever will be. I wish to hear him upon it, however.
With this, he and the junto ought to have begun. Bernard and the rest, in 1764, ought to have published their objections to this government, if they had been honest men, and produced their arguments in favor of the alteration, convinced the people of the necessity of it, and proposed some constitutional plan for effecting it. But the same motives which induced them to take another course, will prevail with Massachusettensis to wave the good policy of the act. He will be much more cunningly employed in laboring to terrify women and children with the horrors of a civil war, and the dread of a division among the people. There lies your forte, Massachusettensis; make the most of it.