1
Making Boston Pay: Or How To Defend An Empire
Without Provoking A Revolution
Modern History Research Seminar University of Dundee, 2005
© Colin Nicolson University of Stirling
Prelude
By way of a prelude I want to show you three familiar representations of eighteenth-century crowd action which mythologize confrontations in a colonial setting.
The first is Paul Revere’s depiction of the Boston Massacre of 5 March 1770, the most famous piece of colonial propaganda from the imperial crisis on the eve of the American Revolution. The crowd, such as it is, is passive: the well-dressed citizens at the front wear expressions of incredulity at what has just happened in
Boston’s main street, while those in the background have turned their faces away from the carnage. The scene, as the caption at the bottom notes, is a “glorious Tribute which embalms the dead”—the five who were killed outright and two others who were mortally wounded. Their oppressors are British regulars from the 29th regiment, stationed in Boston for the previous eighteen months: the grins on the soldiers’ faces are as bizarre as the balletic pose Revere has fashioned for them at the moment when they discharge their muskets. This widely circulated engraving certainly captures
Bostonians’ resentment of what was commonly regarded as an army of occupation.
It is also, however, “wildly inaccurate” in respect of historical detail. There is nothing here to suggest that the celebrated martyrdom of the “unhappy Sufferers” arose from a minor confrontation between a nervous sentry on duty at the Custom
1 2
House and youths bearing weapons no more dangerous than snow-balls, sticks and taunts. What transpired was a chaotic, bustling confrontation between soldiers sent with bayonets fixed to rescue the sentry and a hostile crowd four hundred strong, many of them armed with cudgels and a few with swords, who had flocked into King
Street when the fire alarm was shouted through the streets. Behind the soldiers is
Capt. Thomas Preston, famous in history for only one thing, something he did not do—order his men to fire a volley in order to carve a path through the crowd. Preston was subsequently tried and acquitted of murder, although two of the eight soldiers
(not seven as shown) were convicted of manslaughter by a colonial court. Nor is there any inkling—save ironically by the very presence of the regulars—that colonial crowds terrified imperial officials mainly because civil institutions were incapable of subduing rioters. (Zobel 1970, 180-205).
In the second image, a Currier and Ives lithograph of the 1850s, the military enforcers of law and order are conspicuously absent whilst the citizens defy imperial law in the interests of the commonwealth. It is the night of 16 December 1773, whereon occurred an event that only recently Americans had come to label euphemistically the “Boston Tea Party.” The cheering crowd has nothing to fear from
British soldiers or the Royal Navy ships anchored in the harbour as they watch a diligent company of citizens dressed as Mohawks destroy £9,000 worth of East India
Company tea. In reality, perhaps as many as five thousand citizens stood in silence as the Mohawks systematically went about their business, knowing full well that the crisis had been engineered by their political leaders as an act of defiance at British recalcitrance to defer to colonial aspirations on questions of power and authority that were at the heart of the already strained imperial relationship. (Labaree 1964;
RW.ERROR - Unable to find reference:2102).
2 3
In the last image, it is the putative enforcers who are the victims of community violence. James Drummond’s controversial 1855 painting of the Porteous Mob of
September 1736 compels the reader to peer into the dimly-lit proceedings in
Edinburgh’s Grassmarket, where the townsfolk are bearing witness to the hanging of
John Porteous, the captain of the City Guard, in one of the eighteenth-century’s most notorious instances of retributive justice. Porteous’s crime against the community of post-Union Edinburgh had been to order the guards to fire into a vexed and noisy crowd which was disturbing the execution of a smuggler, killing sixteen people. He was convicted of murder and sentenced to death; when the sentence was respited by the British government in London he was duly lynched by a gang that was abetted by huge crowds of up to 4,000 in total that successfully prevented the proceedings being broken up by the City Guards or Lord Provost.1
The limitations of time/space do not permit a thorough examination of these graphic representations or an in depth comparison of the three events. It is sufficient to note for the present that there is a common problem deserving of historical investigation: how did imperial governments respond to notable instances of community action? A quasi-authoritarian, imperialist perspective might begin by asking what ways and means are most appropriate and efficacious in dealing with popular power? On the other hand, it might said that Revere’s cautionary message is universally anti-imperial: whether Boston, London, Chicago, Saigon, Santiago, Cape
Town and Belfast, or Baghdad, regular soldiers rarely make good policemen when the rules of engagement are unclear and judgments manifestly clouded by mutual
1 H. T. Dickinson and Kenneth Logue, “The Porteous Riot: A Study of the Breakdown of Law and
Order in Edinburgh, 1736-1737,” The Journal of the Scottish Labour History Society 10 (June 1976):
21-40; W. Roughead, ed., The Trial of Captain Porteous (Glasgow: William Hodge & Co., 1909).
3 4 resentment. By the same token, Drummond illustrates what every eighteenth-century urban dweller knew: that local militias could never withstand a large and determined gathering; he grimly hints at the mayhem of which all crowds are capable though rarely embrace—such is the expression of outrage on the face of the gentleman on the stairs to the right of the painting, as he focuses on the attentions that a Phrygian- capped artisan is visiting upon a well-to-do lady in the foreground, while, to her rear, a militia drummer is being overpowered. In 1770 Boston, the withdrawal of the regulars after the Boston Massacre left imperial officials feeling extremely vulnerable, particularly when it was rumoured that the radicals would “Porteous” Preston if, fully expecting a guilty verdict, the army captain was ever respited.(Zobel 1970, 216). In contrast, Currier and Ives’s commemoration of the Tea Party glosses over the tumultuous aspects of crowd action, like the elite Bostonians who in the nineteenth century shaped the city’s public history of the Revolution by consciously expunging or avoiding any public memorial to the more violent Stamp Act riots and anti-customs riots.
Aims and Objectives
The focus of my attention in this paper is the British government’s reaction to the destruction of the tea in Boston. The North administration’s adoption of a series of punitive measures, known as the Coercive or Intolerable Acts, provoked massive resistance in Massachusetts, which in turn galvanized rebellion throughout the
American Colonies during 1774 and 1775. The Coercive Acts were not only provocative but, as one historian noted, patently “misjudged the mood of
4 5
Americans.”(Derry 1976, 59-60). Why that was so is not entirely clear, for British historians have led us to believe that the Coercive Acts were conceived as a means to defend an empire faced with popular resistance without provoking a rebellion.
(Ritcheson 1954; Donoghue 1964; Christie 1966; Christie 1982; Dickinson 1998, 64-
96). There is a substantial literature on the imperial crisis of 1774, which I will review and discuss. I then want to provide, as far as I might, a fresh perspective in trying to understand why the British reacted to the Boston Tea Party in the ways that they did.
What follows is an explanation that takes greater account of the work of historians of colonial America. It emphasizes far more than historians of British politics have done the significance of information emanating from imperial officials in
Massachusetts over several years and its influence on decisions taken in London. It certainly does not propose that the colonists’ perception of a conspiracy was a political reality. Rather, those imperial officials caught in the cross-fire of transatlantic disputes, who had been urging the reform of colonial government and imperial administration, had given ministers one or two ideas, which, in a moment of crisis, provided, as they thought, the means to act decisively and proportionately. Both officials and ministers viewed the crisis as something of an opportunity to scare the radicals into submission by invoking the legal precedent of Boston’s corporate liability for the tea party and to revivify royal government in Massachusetts by circumscribing the radicals’ political power. Was compromise ever possible?
There is a vast literature on crowd action in the eighteenth-century transatlantic world, the bulk of which delineates its endemic nature and the socio- economic and political conditions which gave rise to riots and other forms of protest.
It also tends to explore the dynamics of crowd behaviour rather more than it does government responses. Be that as it may, historians of English crowds have revealed
5 6 the extent to which social elites and local government condoned extra-legal actions as much as they used the law was used to snuff out would-be class agitation.(Stevenson
1979; Hay 1977; Brewer and Styles 1980) What Brewer and Styles say of England could with caution also be applied to the American colonies: while the “law of patrician society was not the justice of plebeian culture” popular attitudes prescribed a general view that the “law should work pro bono publico” and that the public had a right to “participate in securing justice”—which entailed in effect extra-legal forms of community action.(Brewer and Styles 1980, 16-17)
American historians generally have emphasized the reformist and oppositional nature of colonial political strategies above any revolutionary goals and seditious tendencies. (Hoerder 1977; Nash 1979; Maier 1991; Gilje 1996) The American colonists, with some justification, were wont to view colonial crowds as being more
“restrained” in their behaviour than those in Britain. Imperial officials, of course, were far more hostile to crowd action, which they often portrayed as being treasonable and dangerous. Throughout the 1760s and 1770s, governors Bernard and Hutchinson variously called on London to undertake some signal intervention whether by reforming colonial government, bringing regulars to Boston or punishing rioters and the towns in which riots occurred.(Nicolson 2000, 85-90)
Boston Tea Party
The most famous instance of crowd action in colonial history might never have happened had the governor and the radicals been less intractable. Gov.
Hutchinson was not prepared to concede to radical demands to ask the tea consignees to return their cargoes, which started arriving on 29 November 1773; but he was determined to uphold the law and confiscate the cargoes if, after registering their
6 7 vessels at the Custom House, the consignees had not unloaded the tea and paid the duty within the statutory twenty days; the radicals’ pressed the consignees not to land the cargo and, illegally, return it to England without paying the duty. On the night before the last day, the radicals seized the initiative and destroyed the tea. (Labaree
1964, 125-142)
The Tea Party is an exemplar of the “highly politicized” nature of crowd action during the imperial crisis (Hoerder 1977, 128). The Tea Party was conceived as a community-based initiative against an arbitrary exercise of power in accordance with the oppositional strategy developed by colonial leaders during the non- importation controversy of 1768-70. Hutchinson’s strictures and the tea consignees’ pleadings were debated before an extra-legal assembly of several thousand townspeople named the “The Body of Trade,” far in excess of the numbers legally entitled to vote at town meetings; it was the largest such gathering to date. These methods of protest legitimized the threat of community violence as a political tool, and, because they were invariably successful in attaining their objectives—impeding or preventing the implementation of unpopular imperial laws—there was no rationale for recourse to violence less restrained. Imperial officials were nonetheless alarmed by “unlawful assemblies” as Hutchinson deemed “The Body,” and, in particular, the encouragement to popular political participation that community enforcement of the boycott on tea had fostered. He rightly refused to see the destruction of the tea as simply a criminal act.
The Coercive Acts
In spite of the vagaries of transatlantic communications, the North administration received detailed and full information about the Boston Tea Party from
7 8 official and unofficial sources within six weeks,2 and by 10 March the cabinet had secretly devised a legislative programme for Parliament. The first part of the programme was the Boston Port Act, enacted at the end of the month as a direct response to the destruction of the East India Company tea. It was a “temporary” measure: Boston harbor was to be closed to incoming vessels on 1 June and outgoing traffic on 15 June until such time as the king and Privy Council decided “that peace and obedience to the laws” were restored in Boston.
The remainder of the legislative programme was enacted in May, and purported to provide a more “permanent” solution to the imperial crisis by reforming colonial government. The Massachusetts Government Act centralized power in the royal governor’s office by establishing a mandamus Council, i.e. it allowed the Crown to appoint directly the upper legislative chamber. The governor was given new powers to appoint sheriffs and judges without the consent of the Council; jurors, who had been notoriously reluctant to indict or convict rioters, were henceforth to be selected by the county sheriffs instead of local constables, who were invariably in the pocket of local radicals, and henceforth were to hold office at the discretion of the governor.
Town meetings, the power base of the popular opposition, were to be restricted to one per year for the election of officials and representatives, the permission of the governor being required for all other meetings.
A third measure, the Administration of Justice Act, allowed British officials to be tried in England or in other colonies to avoid another popular cause celebre such as the Boston Massacre trials. A fourth measure, a revamped Quartering Act, was made it easier for civil authorities to request military assistance to quell riots. The Quebec
2 The first news arrived on 19 January 1774 and Gov. Thomas Hutchinson’s official account on 27
January.
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Act was considered by the colonists to be part of North’s programme for seeking to guarantee the civil and political rights of Canada’s Roman Catholics, at a time when the other measures abrogated the rights of New England Protestants who had helped expel the French; in reality it had a “long gestation” and will not be considered here, but the haste with which the measure was introduced suggests that it was designed primarily to keep Canada loyal in the event of conflict with the continental colonies.
(Thomas 1991, 88-117; Valentine 1967, 1: 328-329)
The Historiographical Context
British historians have argued that North’s punitive policy was essentially a moderate response to anti-imperialism and lawlessness that is understandable if not altogether wise. H. T. Dickinson has written: “They merely sought to arrest a revolutionary challenge through legally constituted civil officers empowered by constitutional acts of parliament. These measures were harsh when judged by earlier
British responses to American resistance, but they were the minimum necessary if
Britain were to restore its authority in Massachusetts. North’s ministry had a choice only between imposing British authority on the colonies or acknowledging their de facto independence.”(Dickinson 1998, 64-96, at 71) P. D. G. Thomas, in his detailed and forensic study of British policymaking during the crisis, supposed that the
Coercive Acts were the “minimum response that could have been adopted.”(Thomas
1991, 47). Edward Gibbon cast them as “a most lenient prescription”. (quoted in
Valentine 1967, 1: 321). Similar judgements can be found in the most detailed study of the crisis by an American historian, Benjamin W. Labaree.(Labaree 1964, 173-
175).
9 10
This interpretation successfully articulates ministers’ predicament. First,
British colonial policymaking, such as it was, was invariably reactive in its conception and pragmatic in its objectives. Ministers’ principal objectives in 1774 were to isolate
Massachusetts from the other colonies and encourage loyalist opposition to the Boston radicals who conceivably seemed to be behind every instance of disorder and defiance. Second, while the North administration enjoyed a secure majority in
Parliament and the confidence of King George III, ministers were wary that by eliciting strong opinions American issues were potentially destabilising. They did not have to negotiate a compromise with parliamentary factions or the opposition, let alone satisfy all shades of opinion, for the overwhelming majority of parliamentarians agreed with the principle of punishing Boston, as is evident in the lack of opposition to the Port Bill and any sustained and united opposition to the other measures. But ministers had to avoid the appearance of presenting an inchoate response to the Tea
Party that undermined the doctrine of parliamentary sovereignty the colonists were reputedly to have challenged when they dumped the dutied tea in Boston harbour.
While the Coercive Acts contrasted with the conciliatory approaches adopted by the
Rockingham administration in repealing the Stamp Act in 1766 and North himself in partially repealing the Townshend duties in 1770, there was a substantial body of opinion in government and Parliament that called for more drastic measures, such as revoking the 1691 Massachusetts Charter of government or using the regulars to bring the colonists to heel. Ministers avoided the imposition of direct rule from London and military intervention on the reasonable assumption that either would have provoked a colonial rebellion.
Third, others, pre-eminently noted “friends” of the Americans, articulately, if ultimately unpersuasively, urged compromise: conciliation by means of repealing the
10 11 tea duty and punishment by having Boston compensate the East India Company.
These proposals were manifestly unwelcome to North, not because they were illogical or were condemned as wholly unreasonable in the circumstances, but because they would likely redefine and extend the matters at issue by bringing to the forefront of the dispute the colonists’ protestations about parliamentary taxation. North, who had retained the tea duty on principle, had no desire to turn the contest into a debate on legislative authority. (See Thomas 1991, 29-85)
The American Secretary the earl of Dartmouth, on the other hand, might have done had he had the chance. This view presupposes that Dartmouth’s pre-crisis reputation of being sympathetic to the colonists informed the cabinet’s deliberations on the Coercive Acts; it did to some extent, but the earl was a political light-weight, and in any case came to share North’s conviction to make Boston pay; he was never, it seems, interested in resigning and making an issue out of his concerns. (Labaree
1964, 171, 182-183; Christie and Labaree 1976, 165, 186-87)
This conventional interpretation does not fail to consider in sufficient depth how ministers conceived and rationalized their legislative programme. It would also be churlish of me to suggest that it leaves us with a paradox: if the Coercive Acts, as
North maintained, were neither unwarranted nor excessive, why did the colonists consider them to be Draconian? For sure, no minister seriously thought that the
Coercive Acts would push the Americans to the brink of war, or believed that
Massachusetts colonists were united behind a radical leadership, or indeed was so deluded as to suppose that the administration had resolved the imperial crisis. It is conceivable, however, that muddled thinking about colonial politics by North’s notoriously “disorganized” administration (Valentine 1967, 1: 330) had produced a muddled policy: that because ministers were unable to make informed judgements
11 12 about the situation in Boston and the colonies they were unable to devise a less provocative response to the Tea Party. Parliament’s sense of outrage and desire to see
Boston punished offered ministers little room for manoeuvre. The tragedy was that with a clear majority in both houses of Parliament, there was little chance of pro-
Americans being able to water down the controversial measures that were proposed.
There is no paradox, however, for ministers did not act in studied ignorance of the likely consequences of their actions, though many parliamentarians did. The brief discussion that follows goes some way to explaining why ministers implemented a programme that could scarcely have been any worse in threatening to provoke a colonial rebellion. The Coercive Acts were as intolerable and extreme as the colonists said they were, precisely because they encapsulated much of what imperial officials had been providing by way of analysis and interpretation of the colonial protest movement.
Synchronic Analysis Jan.-May 1774
Synchronic analyses of British responses to the imperial crisis between
January and May 1774 indicate that there were several policy options or modus operandi present in the policymaking process. That is not to say that ministers gave equal attention to each or that they fully embraced the range of options identified and superimposed by historians when they formulated a response to the Boston Tea Party.
First, there was the option of inaction—of doing nothing, of avoiding a precipitous response: waiting until mid-summer to re-assess the situation in Boston and ascertain how other colonies had responded to the Tea Party. In moments of counterfactual reflection, this is the option that many historians, such as Jeremy Black for example, suggest North should have chosen.(Black 1991). It tends, however, to
12 13 underestimate the fact that while it was only in Boston that dutied tea was destroyed nearly all the other mainland colonies took steps to prevent commerce in East India
Company tea. Moreover, the substantial pressure on the administration to formulate a specific response to Boston’s act of defiance precluded prevarication.
Second, at the other extreme was the option of military deployment. There had been occasions in the previous ten years when ministers considered using the regulars to enforce imperial law, most notably in the aftermath of the Stamp Act riots in
Boston and New York in 1765. Ministers quickly abandoned such plans when it transpired that colonial opposition was not lawless and that crowd action was not protracted.(Bullion 1992, pp. 89-107; Nicolson 2000, 139-140) Three years later, however, as the non-importation movement gathered pace, Gov. Bernard and other imperial officials were unable to persuade the Council, whose consent was legally required, to ask Gen. Gage for assistance. They were, however, able to persuade
American Secretary the earl of Hillsborough and by extension the cabinet that intermittent “civil disorder” warranted the military “cantonment” of Boston. Four regiments were sent to Boston in 1768, essentially to deter rioters and protect officials; they were an intimidating presence, of that there is no doubt—over two thousand soldiers in a town of 16,000 people. Never, at any stage, were plans laid to use the regulars as a police force or to break up demonstrators, though daily tensions between the soldiers and civilians culminated in the Boston Massacre or King Street
Riot of 5 March 1770. The removal of two of the regiments in 1769 and the withdrawal of the other two to Castle William in Boston Harbour after the Massacre on the insistence of Gov. Thomas Hutchinson had eased tensions considerably. While the threat of violence was regarded by both sides as a legitimate political tool, the
British never imposed martial law or turned the soldiers against the citizenry, as they
13 14 did in Ireland and England, and the colonists themselves refrained from murdering
Britons. We might put this down to good sense and a pervasive appreciation of shared identities. More tellingly, perhaps, as J. P. Reid has shown, the “conditions of law” in
Massachusetts, unlike Ireland, simply did not allow the British to act as a militaristic power.(Reid 1977)
However, in May 1774, North and Dartmouth drew up new instructions for
General Thomas Gage, who was to be sent to Boston as both royal governor and commander-in-chief of British North American forces. Gage’s appointment, and the reinforcements he would subsequently receive, were a show of strength only. No-one in London expected that before the year was out the colonists would have forced Gage to fortify Boston as the last bastion of royal government in the province.
The third option, though less controversial, was equally unpromising: taking legal action against those individuals who had boarded the ships and thrown the tea overboard—in other words treat the incident as a criminal act. Such proceedings were anathema to imperial officials and ministers, largely because of the ineffectiveness of legal processes in discouraging rioting in Massachusetts and enforcing unpopular imperial laws. First, both those colonists who broke the law and those who enforced it, such as magistrates and town officials, invariably viewed extra-legal crowd action as being unthreatening to the civil and social order; after 1766 no Massachusetts colonist was ever convicted of rioting in cases involving imperial law. Second, the restraint demonstrated by colonial crowds during the Tea Party and previous incidents owes much to the fact that community actions were rarely spontaneous and were orchestrated by political leaders. As with most previous riots, the governor and attorney general were unable to collect sufficient material evidence as to the identities of participants and the extent of their involvement as principal felons or accessories
14 15 on which a prosecution of the Tea Party rioters could be based. Any trial of those
“abettors of consequence” Bernard supposed were behind every instance of disorder since 1765, or radical leaders like Samuel Adams and John Hancock, especially if held in London, would have sensationalized the crisis in the colonies beyond ministers’ comprehension.
The fourth option—compromise—has already been partially discussed.
Ironically, Lords North and Dartmouth had never been more in favor of conciliating the Americans over the Tea Act and tea duty when news of the Boston Tea Party arrived to dampen their enthusiasm. Still, we might speculate a compromise could have been devised that specified both the conditions whereby Boston could make restitution and a timetable whereby the Port Act could be lifted. Several speakers in the debates, having agreed with the principle of Boston’s corporate liability, urged that the government fine the Bostonians or insist on compensation being made to the
East India Company.
These might have been promoted on the basis of one fiction and one fact, both of which had become common political currency since 1765. The “fiction,” which ministers and officials were wont to encourage when it suited their purposes, was that opposition to British colonial policies was the work of a faction; we might speculate that restitution almost certainly would have elicited political divisions in
Massachusetts that the British might have been able to exploit. The “fact” was that the king’s representatives were politically weak. The notion that royal officials bore considerable blame for the deterioration in British-colonial relations had become
Whig orthodoxy in the colonies, but many Britons too had come to doubt the veracity of governors Bernard and Hutchinson following the publication of controversial secret official and private correspondence in 1769 and 1773 respectively, which had
15 16 destroyed their careers and reputations in Massachusetts.(Nicolson 2000, 198-204;
Bailyn 1974, 221-258).
It is doubtful, however, whether there was alternative personnel in Britain— intermediaries other than the governors—during in the crucial months of January to
May 1774 able to initiate a compromise on the Americans’ behalf. London’s
American residents were not an organised group, and while they briefed the opposition did not exert any influence on ministers during 1774 and 1775.3 Benjamin
Franklin, the most prominent of the colonial agents and American residents, was in disgrace for his part in the exposure of the Hutchinson-Oliver letters and smarting from Solicitor General Alexander Wedderburn’s dressing-down before the Privy
Council on 20 January. (The administration made secret contact with Franklin in
March 1775, however.) The eleven Rockinghamite Lords who subscribed to a protest against the Massachusetts Government Act were too few to make any wider impact, though Lord Camden was a notable heavyweight. (Thomas 1991, 27-28, 83) Members of Parliament Rose Fuller and Edmund Burke, who on 19 April proposed repealing the tea duty, were not sufficiently well-known to the Americans; the Rockinghamite
William Dowdeswell was better known but would be dead within a year. The earl of
Chatham, the most famous of all pro-Americans, was for the moment too infirm to undertake a personal role in any prospective negotiations, though his speeches were as inspiring as ever. In 1774, this left as the most obvious candidates three of North’s critics: former Massachusetts governor Thomas Pownall, Gen. Henry Seymour
Conway and Col. Isaac Barre none of whom had the leadership qualities and
3 It has been suggested, however, that private contacts between Americans in London and the administration probably had more potential than formal contacts between colonial agents and ministers.(Flavell 1992a, 335-369)
16 17 opportunity to marshal the parliamentary opposition, and all except Conway had accepted that somehow Boston had to be made to pay.4 It also left the moderates and conservatives in Massachusetts largely to their own devices, and time was most surely against them. Thomas Hutchinson, who knew the situation in Massachusetts better than any other official, arrived in London in June, too late to make any difference, though he had promised his countrymen that he would do what he could to mitigate the Port Act provided they voted to repay the cost of the tea.(Tyler 1986, 222).
It is unnecessary to continue discussion of the fifth and sixth options, for these are the ones that were implemented to make Boston “pay” for what some of its citizens had done. I wish now to undertake a diachronic analysis of how the precedent of Boston’s corporate liability and the reform of colonial government were projected into the policy making arena.
Diachronic Analysis
More than one historian has remarked in passing on Lord North’s striking analogy between events in Boston and notorious riots in London, Glasgow and
Edinburgh. The first instance was the murder of Dr. Lamb, a supposed advisor to
King Charles I [wrongly cited as Charles II], for which the city of London was fined
1500 merks. The second was the Glasgow Malt Tax Riot of 1725, for which the burgh was punished with a fine after rioters tore down the house of a member of Parliament.
The third was the Porteous affair of 1736, which divided Robert Walpole’s administration and the opposition after several alleged rioters were found not guilty in
Edinburgh’s courts: rather than arraign or impeach the city fathers before Parliament,
4 (on Barre see Labaree 1964, 186; RW.ERROR - Unable to find reference:2105).
17 18
Walpole had to settle for fining Edinburgh £2,000. North did not attempt to justify the provisions of the Coercive Acts with reference to these specific and rather different measures, so much as the principle for parliamentary action against local authorities and the precedent of corporate liability.(Reid 1991, 31-32). We should not be surprised that eighteenth-century politicians should feel compelled to discuss legal precedents in a political forum. Boston was not a chartered town like London,
Glasgow or Edinburgh, and parliamentary punishment of local government remained highly controversial. Much of the debate on the Port Bill was thus taken up by arguments over precedent. For the colonists, it raised two legal doctrines: first, to proceed against Boston by legislation was itself arbitrary and, second, setting a precedent was ipso facto “constitutionally questionable” for it would permit “future arbitrary statutes.” (Reid 1991, 31-32)
I am certainly not the first historian to consider the significance of the analogy between Boston and Scotland’s towns, but no-one has yet been able to piece together a paper trail that might show its evolution in the policymaking process. The trail does not begin the private papers of ministers—at least not yet, for I have still to examine these—but in the House of Lords on 28 January 1774. That day the Lords received a lengthy report from the knowledgeable and experienced American Undersecretary
John Pownall. Titled a report on the “State of the Disorders, Confusion and Mis- government” in Massachusetts it provided a summary view of and substantial supporting evidence about the “illegal, violent & unwarrantable” proceedings in the province since the repeal of the Stamp Act. It echoed much of what Pownall had said in a report presented four years earlier to a Privy Council enquiry, and was evidently updated in the wake of the Tea Party. The supporting evidence was largely drawn from the voluminous official correspondence that Pownall had conducted with
18 19 governors Bernard and Hutchinson, and, not surprisingly, it contained many ideas emanating from these discussions. On 29 January, the day the cabinet resolved to punish Boston for the Tea Party, Pownall began to produce another report, but this time it had specific proposals for action. He recommended, inter alia, closing the port of Boston and strengthening military and naval forces in Massachusetts, both of which we know were subsequently acted upon.(Wickwire 1966, 146-1477) . Pownall’s reports cited the Glasgow5 and Edinburgh cases as political precedents for establishing Boston’s corporate liability without exploring the legal basis. Pownall was not a lawyer—though Bernard, his long-time associate, was—and he may have sought advice from the attorney general and privately from the Lord Chief Justice.6
Ultimately, it was not the legal aspects which interested let alone troubled
Pownall and North so much as the ways and means of proceeding against Boston. The reason was that in his long correspondence with Bernard and Hutchinson it was manifestly clear that a conciliatory British approach, coupled with instances of
5 The Glasgow Malt Tax Riots were cited by Hugh Baillie, a former judge of the Admiralty Court in
Ireland, and a pro-American in his discussion of the Coercive Acts in A Letter to Dr. Shebear:
Containing a Refutation of his Arguments Concerning the Boston and Quebec Acts of Parliament
(London: J. Donaldson, 1774), 23.
6 The opposition was certain that William Murray, the Lord Chief Justice, was a “secret advisor” to the king and cabinet, partly because he took an “unusually prominent role” in the Lords debates on the
Boston Port Bill. (RW.ERROR - Unable to find reference:2105). Murray was a former friend of
Francis Bernard and had been Edinburgh Corporation’s counsel during the Parliament’s inquiry to the
Porteous affair. He was successful in persuading Parliament not to introduce the Bill of
Disenfranchisement, for which he received with the freedom of the city. Bernard and Pownall could not fail to be aware of the contemporary significance of the case. C. H. S. Fifoot, Lord Mansfield (Oxford:
Clarendon Press, 1963), 35-36; Nicolson, Infamas Govener, 32.
19 20 firmness akin to the Declaratory Act of 1766 and the dispatch of the regulars to
Boston, had manifestly failed to dissipate colonial opposition. What was needed, he argued, was more a forensic assessment to render an incisive method of proceeding.
My own assessment will require a detailed examination of the legal principle of corporate liability as it applied in British local government and in the American colonies. That is a daunting task for a political historian, and until then I want to elaborate how Pownall’s political modus operandi drew heavily upon Bernard’s discussion of the modus vivendi in Massachusetts politics. Pownall’s proposal for holding the town of Boston corporately liable for the behaviour of its inhabitants had its origins in the Stamp Act Crisis. Pownall and Bernard evidently discussed the
Porteous case in 1766,7 when Bernard was locked in a dispute with the Massachusetts
General Court over British instructions to compensate the victims of the Stamp Act riots, in particular Lt. Gov. Thomas Hutchinson whose mansion house was ransacked and torn apart on the night of 26August 1765 in what was the most violent instance of crowd action the province had ever seen. Compensation was originally Bernard’s idea, which he presented to the General Court as one way in which the province could atone for the riots. The problem, as the House of Representatives pointed out in refusing the request, was that the entire province was being expected to bear the cost of compensation for crimes committed by a few individuals. Bernard’s initiative established public liability as a contested political principle. This was taken up by
Parliament when an Indemnity Act of 30 May 1766 obliged Bernard to continue to seek compensation.
7 [Francis Bernard], Observations on the Proceedings for the Indemnification of the Sufferers in the
Riots at Boston, n.d., [1766], CO 5/755: 573-588, enclosed in Bernard to Lords Commissioners for
Trade and Plantations, 19 Boston, July, 1766, CO 5/755, ff 569-570.
20 21
Public restitution proved to be a divisive issue for the colonial protest movement. Some clearly wished Boston to assume liability and bear the cost, while others rejected outright any form of compensation. Moreover, the costs--£4,000 provincial currency--could not be devolved upon the rioters: those people, who were mostly artisans and craftsmen who had been arrested in the days following the riots had been either peremptorily freed by the sheriff after threats of retribution or later sprung from gaol; a more enticing—though even less likely—prospect for Bernard was to apprehend and charge the “abettors of consequence” who had organized the riots. The majority of representatives were probably convinced of the propriety of making compensation but without accepting the principle of liability. When the legislature finally approved a bill, which Bernard signed, it attached two provisos which satisfied Whigs generally and eased Bostonians’ anxieties: public restitution was conditional on the granting of an amnesty to the rioters and acknowledgement that they had not conceded a precedent for corporate or public liability for the behaviour of rioters. The province act was subsequently disallowed by Parliament because of the amnesty clause, though not before the money had been paid to the victims. There the matter rested, overtaken by more serious disputes over the
Townshend Acts.(Nicolson 2000, 145-148)
The compensation dispute is a good example of imperial officials looking at alternative means of exacting punishment for crowd action and political radicalism. In the years ahead, Bernard and Hutchinson’s endeavors in this area were to prove particularly instructive for British ministers. First, as I have already said, it became manifestly obvious that imperial law could not be enforced when the “conditions of law” were determined by colonial Whigs. This effectively ruled out prosecutions of leading Whigs for breaking the trade laws, but it also explains the failure of royal
21 22 officials to gather sufficient evidence to initiate prosecutions for sedition and treason.
Second, by 1766 the political basis of royal government was beginning to break up, a process that foreshadowed and enabled radical domination of the legislature and town meetings by 1774, and which also helps to explain why there was no indigenous challenge to right the conditions of law more favourably toward imperial interests.
When these processes revealed themselves to Bernard and Hutchinson, they began to devise other ways and means of bringing the radicals to heel. Uppermost in their minds were plans to reform colonial government. Bernard was more radical than
Hutchinson in that, unlike his successor, he urged the reorganisation of the New
England colonies and, as a last resort the appointment of a mandamus Council and the revocation of the province Charter. The earl of Hillsborough, American Secretary between 1768 and 1772, warmed to Bernard’s ideas. The cabinet was unable to agree on precisely what they should do to in punishing Massachusetts, and in the end did nothing other than give the governor authority to convene the legislature out of
Boston; the carrot, on the other hand, was the repeal of all the Townshend duties except that on tea passed on the same day as the Boston Massacre.
Hillsborough’s departure and Bernard’s retirement from office did not preclude the governor having some residual influence through John Pownall, but by
1774 he was not in regular contact with Dartmouth and North. Even so, when seeking an alternative to blockading Boston port, Dartmouth, and Chief Justice Mansfield expressed interest in Bernard’s ideas for a mandamus Council and curtailments on town meetings. King George III and Dartmouth, North, and the rest of cabinet had earlier rejected these measures, rightly supposing that any attempt to tamper with the
Massachusetts constitution would inflame the colonists. But ministers were in no mood to compromise after the Tea Party, when to a man—Dartmouth included—they
22 23 subscribed to Bernard’s view that only by reforming the Massachusetts government could they ever roll back the Whig dominance. (Nicolson 2000, 222)
“In one sense,” P. D. G. Thomas has written, “what was occurring in America was a clarification rather than a change of attitude. A state of confrontation became apparent because the behavior of men like Bernard and Hutchinson in America and
Hillsborough and North in Britain obliged the colonists to devise logical and explicit expressions of hitherto unformulated assumptions.”(RW.ERROR - Unable to find reference:2105). Be that as it may, the extraordinary attempts by the General Court to have Bernard and Hutchinson dismissed and the Boston Tea Party are less important for what they tell us about the conduct of royal governors than for what they reveal about the radicalization of colonial politics. These were grand, public demonstrations of unity, meticulously organized, but they concealed a bitter truth that Samuel Adams and the radicals found difficult to stomach: the colonists were not and never had been united in their responses to British colonial policy. (Nicolson 2000, 224) The tragedy of British policymaking during 1774 was it failed to take fuller cognizance of the changed political situation in Boston, which was the main reason why Bernard and
Hutchinson had encouraged Boston’s corporate liability and the reform of colonial government.
Epilogue
When news of the Port Act arrived in Boston on 10 May,8 and General Gage with three regiments three days later, it precipitated an attempt by the conservative
8 Parliamentary debates on the Port Bill were reported in Boston Gazette, 16 May 1774 and those on
Massachusetts Government Act in ibid., 13 June, 1774.
23 24 and moderate merchants to realize what many townspeople were hitherto reluctant to say publicly: that the Port Act could be seen as condign punishment and that the town should compensate the East India Company for the destruction of its property. The emergence of the friends of government after the Boston Tea Party was a momentary opportunity for Britain to repair the bridges that had been so badly damaged by the controversies over taxation during Bernard’s administration. They represented the center ground in Massachusetts’s politics, in as much as they urged the British to be more sympathetic to American concerns and condemned the radicalism of the leading
Whigs. (Nicolson 2000, 227-228)
When the proposal for compensation was rejected by a town meeting, the friends of government asked the newly arrived governor, Gen. Thomas Gage, to intervene with the ministry. The Port Act did not include an indemnity clause which
Gage and the friends of government might have seized as a bargaining tool, and the
Whig-biased Massachusetts press avoided much discussion of the issue of repayment.
This might explain why Gage was so inflexible in following the letter of his instructions in not treating with any body other than the town meeting. In the last resort, the general shares some of the blame heaped upon North, for lacking initiative and failing to promote compromise during the critical period of late May to early
June, when the dispute over the Port Act escalated, and before reports of the other
Coercive Acts arrived. Any prospect of compromise evaporated when the
Massachusetts Government Act tore up the province’s constitution, and the Port Act, upheld by Britain’s civil, military and naval forces, began to devastate Boston’s economy.(Nicolson 2000, 228-231; Tyler 1986, 216-223).
As the autumn of 1774 approached, the collapse of the Council and the upsurge in crowd action in the Massachusetts countryside led Gage to concentrate his
24 25 small force of three thousand British troops in Boston. He effectively abandoned the friends of government, cutting them off from their last means of support. Provincial officials, judges, magistrates, and civilians alike had little option but to submit to the dictates of local patriot committees to disavow the Massachusetts Government Act.
The Revolution began with a “revolutionary assumption of authority” when the colonists collected a military force to lay siege to Boston and established a Provincial
Congress and local committees to assume temporarily the functions of government.(Brown 1970, 190). Thereafter, ministers sought a military solution to the siege of Boston that culminated in the commencement of hostilities at Lexington and
Concord in April 1775.
Conclusion
Some historians think that compromise was still possible before the shots that were echoed round the world disturbed the Massachusetts countryside in April 1775.
That is most unlikely. Constitutional independence may not have been an express political aim but de facto independence from royal government was achieved in the late summer and autumn of 1774, not at the time of the Boston Tea Party or when
North drafted the Coercive Acts, as H. T. Dickinson has wrongly asserted. As Gage warned, it would be impossible to restore royal government either on the basis of the status quo ante let alone the Massachusetts Government Act without substantial military reinforcements; the Continental Congress had assumed the role of chief negotiator for the colonists, and had sanctioned military preparations for the defence of the Bostonians and a colonial-wide embargo on trade with Britain.
25 26
Such a view tends to dismiss as unimportant sideshows the talk of compromise in 1775. One promising development was the Franklin-Chatham discussions which addressed Franklin’s seventeen point memorandum in which restitution to the East
India Company and the repeal of the Port Act were essential preconditions of negotiations. Chatham’s “provisional bill” of 20 January 1775 which tried to address
American concerns on taxation and ministers’ worries on challenges to parliamentary authority, and devised a series of conditions by which obnoxious legislation would be lifted. These ideas could have formed the basis for diplomacy, but only if North was prepared to accept and endorse them, and that he was not, especially if they came via
Franklin and Chatham.(Cook 1995, 201-218) {Cook 1995 #853}201-18. North’s plan for conciliation which he proposed to the Commons in February 1775 briefly interested Americans in London, but was utterly inadequate to the situation in New
England, and was quickly overtaken by events. (Flavell 1992a, 335-369; Flavell
1992b, 302-322)9 By August, Britain had declared the colonies to be in rebellion, ignored Congress’s Olive Branch petition and began preparations for a full-scale war in the colonies. Making Boston pay would prove costly indeed.
Illustrations
Paul Revere, The Boston Massacre, 1770 (1770)
9 In linking exemptions from taxation with full contributions made to imperial defence North went some way to addressing that particular issue of concern, but he stopped a long way short of addressing more fundamental issues of power and authority, by insisting that colonial tax bills be subject to parliamentary approval, and refused to treat with any bodies other than the colonial legislatures.
(Christie 1982, at 109).
26 27
Currier and Ives, The Boston Tea Party, 1773 (1850s)
James Drummond, The Porteous Riot, 1736 (1855)
-
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