The Glorious Cause, page 15
These appeals for relief were couched in terms calculated not to raise the constitutional scruples of Parliament. The colonists with all their talk about representation had already trampled on these scruples; the merchants, if not wiser at least more prudent, framed their petitions in terms of the health of the economy. The present situation, they forecast, could only worsen should action not be taken; indeed, according to the London committee, it threatened to “annihilate” the trade to North America. Everyone knew something of the commercial depression in progress; the merchants also reported bankruptcies caused by the Sugar Act and Stamp Act and on the difficulty of collecting debts in America. No exact estimate of defaults could be given, but more than one group predicted that losses might reach several million pounds sterling.40
Even with this powerful support from out-of-doors, Rockingham had his work cut out and he knew it. When Parliament reconvened on January 14 of the New Year, he and the ministry had resolved to attempt to get the Stamp Act repealed. Earlier in the winter they had played with the idea of amendments—for example, of allowing each colony to pay the tax in its own currency rather than sterling. Events disabused the ministry that anything short of repeal would end the upheavals in America.
Facing a Parliament angry over the riots and the challenge to its sovereignty, Rockingham decided to tap the discontent of English merchants and manufacturers. If he could demonstrate that the consequence of a failure to repeal would be economic disaster, he had a good chance of ridding the statute books of the Act. His problem was how to deal with the embarrassing defiance of Parliament’s authority. The colonies had denied that authority: Parliament had no right to tax Americans, they said, because Americans were unrepresented in Parliament. To be sure, Parliament was the sovereign body in the empire and it might pass statutes affecting the colonies. Legislation was one of its rights as the center of sovereignty, but legislation did not include the right to tax, which belonged to representative bodies. Whatever the distinctions that the colonies made between legislation and taxation, the fact remained that they had challenged a right Parliament had long cherished. How to blunt that challenge, or better yet how to bury it?
How indeed when—doubtless to Rockingham’s despair—these issues were raised by William Pitt, upon whom the Rockingham Whigs counted to help solve problems, not create them. Pitt entered the debate soon after it began on January 14—” entered” does not begin to describe the sensation his speech produced. He began in a voice so low as to be inaudible, and then, explaining that he had not heard the address from the Crown, asked that it be read again. As in the speech of December, the ministry had given the king only vagueness to espouse, a fact he almost immediately used to announce to the House and to George Grenville, who sat one place away from him, that “every capital measure” taken by the late ministry “has been entirely wrong!”41 Having disposed of the Grenville ministry, Pitt defended the constitutional case made in America. “It is my opinion,” he said, “that this Kingdom has no right to lay a tax upon the colonies. At the same time, I assert the authority of this kingdom over the colonies, to be sovereign and supreme, in every circumstance of government and legislation whatsoever.” For in Pitt’s view the Americans shared all the rights of Englishmen, were bound by England’s laws, and were subject to all the protections of its constitution. And the crucial one in this case was the right to be taxed by one’s representatives. Taxes after all were “no part of the governing or legislative power.” Rather, “taxes are a voluntary gift and grant of the Commons alone. In legislation the three estates of the realm are alike concerned, but the concurrence of the peers and the crown to a tax, is only necessary to close with the form of a law. The gift and grant is of the Commons alone.”
Pitt then asked what happened when Commons levied a tax. The answer seemed obvious to him—” we give and grant what is our own.” But in taxing America what did the Commons do? “We your Majesty’s Commons of Great Britain, give and grant to your Majesty, what? Our own Property? No. We give and grant to your Majesty, the property of your Majesty’s commons of America. It is an absurdity in terms.”
Pitt knew that several Englishmen, among them perhaps George Grenville, had anticipated the objection to taxation without representation by insisting that the Americans were “virtually represented” in Parliament. Pitt dismissed this notion in half a dozen sentences. Who in England represented the Americans, he sneered—the knights of the shire, the representative of a borough, “a borough, which perhaps, its own representative never saw.” Here was another absurdity, “the most contemptible idea that ever entered into the head of man.”
The Parliamentary History, wherein this speech was printed, reports that a “considerable pause” ensued after Pitt’s speech—members understandably disliked following Pitt—but Secretary Conway gathered his courage and said that he agreed with Pitt, though in fact he disagreed on several points unrelated to the constitutional argument.42 The House did not want to hear Conway, and no doubt he knew it. Everyone waited for Grenville, who now rose to answer Pitt.
Grenville’s answer was brilliant rhetorically, capturing much of the doubt and resentment of the House. He began by censuring the ministry for delay in reporting the rebellion in America and predicted that should Pitt’s “doctrine” be upheld the rebellion would become a revolution. And he declared that he could not “understand the difference between external and internal taxes.”43 Nor could he understand the difference between legislation and taxation. Taxation, he insisted, was both part of the sovereign power and “one branch of the legislation.” Moreover, taxation had long been exercised over many who were unrepresented—the great manufacturing towns, for example. As for America, no member had objected to Parliament’s right to tax the colonies when the Stamp Act was introduced.
Up to this point, Grenville had kept his anger in check; now it broke through in a powerful denunciation of the Americans’ lack of gratitude for the military protection and economic advantage afforded them by the empire.
Protection and obedience are reciprocal. Great Britain protects America; America is bound to yield obedience. If not, tell me when the Americans were emancipated? When they want the protection of this kingdom, they are always ready to ask for it. That protection has always been afforded them in the most full and ample manner. The nation has run itself into an immense debt to give them their protection; and now they are called upon to contribute a small share towards the public expence, and expence arising from themselves, they renounce your authority, insult your officers, and break out, I might almost say, into open rebellion.44
Grenville said more, but these few words aroused Pitt, who got to his feet at the completion of the speech. Pitt now spoke with extraordinary eloquence and probably carried many members with him—at least temporarily. In several respects, however, he made the task of the ministry all the more difficult. For Pitt praised American resistance: “I rejoice that America has resisted. Three millions of people, so dead to all the feelings of liberty as voluntarily to submit to be slaves, would have been fit instruments to make slaves of the rest.” He also reasserted that Parliament possessed full authority to legislate for the colonies. England and her colonies were connected and “the one must necessarily govern; the greater must rule the less; but so rule it, as not to contradict the fundamental principles that are common to both.”45
Grenville had given him an opportunity to explain what ruling entailed by asking the question “when were the colonies emancipated?” Pitt’s brief reply—” I desire to know when they were made slaves?”—struck through all the rhetoric to the central issue of liberty within constitutional order. Of course the Americans could be crushed by armed force, Pitt noted, but the dangers of crushing them would be great. For “America, if she fell, would fall like a strong man. She would embrace the pillars of the state, and pull down the constitution along with her.”46
Pitt’s eloquence so thoroughly dazzled several of his listeners that they failed to understand what he was saying. One member wrote in a letter after hearing Pitt:
It seems we have all been in a mistake in regard to the Constitution, for Mr. Pitt asserts that the legislature of this country has no right whatever to lay internal taxes upon the colonys; that they are neither actually nor virtually represented, and therefore not subject to our jurisdiction in that particular; but still as the Mother Country we may tax and regulate their Commerce, prohibit or restrain their manufactures, and do everything but what we have done by the Stamp Act; that in our representative capacity we raise taxes internally and in our legislative capacity we do all the other acts of power. If you understand the difference between representative and legislative capacity it is more than I do, but I assure you it was very fine when I heard it.47
If Pitt created confusion, he also gave offense to many members by his statement approving of colonial resistance. Rockingham did nothing to remove the confusion, but he acted soon to shift the House’s attention from the treacherous sand of constitutional theory to the firm ground of economics. Between January 17 and 27 the petitions from merchants from all over the realm were presented and read. These petitions argued against the Stamp Act on economic grounds: they described the decay of trade, the inability of merchants to collect American debts, the hardships resulting to all classes in Britain, and several hinted that the merchants might remove themselves from the islands if repeal were not achieved.48
From this point on, the ministry asserted greater control in the House. First of all, on January 28, it persuaded the House to resolve itself into a committee of the whole and then to consider motions embodying a program of action in response to the crisis. This program made no concessions to Pitt’s argument that Parliament had no right to tax the colonies. That right had to be stated at the outset if the ministry was to obtain repeal. Therefore, on February 3, 1766, Conway moved a resolution declaring that Parliament possessed the power to make laws binding the colonies “in all Cases whatsoever.”49 In introducing this resolution—which was the basis of the Declaratory Act—Conway explained that while the right to tax was clear, the expediency of it was not. Whether this resolution had any meaning given the ministry’s intention to propose repeal of the stamp tax was immediately questioned by Hans Stanley, a highly respected member. Others clearly shared Stanley’s doubt—the declaration did not seem to comport well with repeal. Attorney General Yorke answered as well as he could for the ministry that the resolution did have meaning, and the resolution passed overwhelmingly on the next day with only Pitt, who had displayed unwonted indecisiveness in this debate, and three or four others voting against it. Over the next two days resolutions passed declaring that the riots in America violated the law, that the legislative assemblies in America had countenanced them, that those persons who suffered injury or damage on account of their desires to comply with the laws should be compensated by their colonies, that such persons who had desired to comply with the laws or assisted in their enforcement would have the protection of the House of Commons, and that anyone suffering penalties because stamped paper was unavailable ought to be compensated.50
These last two resolutions were offered by Grenville and accepted by the ministry. Their passage must have pleased him, though he could have been under no illusions that the House was disposed to take a hard line against the colonies. Still, on February 7, he offered a resolution calling for an address to the king informing him that the Commons would back him in enforcing the Stamp Act. Although this proposal went down to defeat 274 to 134, the debate was rough, with Grenville accusing the ministry of sacrificing the sovereignty of Britain to placate the colonies. Pitt hit the resolution hard, demonstrating, according to Horace Walpole, “the absurdity of enforcing an Act which in a very few days was likely to be repealed.”51 The absurdity might produce the spilling of blood, according to Pitt, who argued that orders countermanding the instruction to enforce the Act might be delayed—should enforcement and then repeal be approved. In the interval who knew what disasters this “absurdity” might produce?
Having beaten Grenville again, and having clearly established that Commons believed in its right to tax the colonies, the ministry now proceeded to demonstrate the inexpediency of levying this particular tax. The petitions presented by the merchants in January had prepared the way for a motion for repeal. There was a bad moment when the king seemed to back away from repeal, but Rockingham went to him and demanded his support. The king gave it—grudgingly (and in the end about fifty of his “Friends” who sensed that his heart was not with the ministry voted against repeal). What remained for the ministry to do was to renew—or establish—in the minds of members the impression that economic ruin faced the nation if the statute remained on the books. This task appeared all the more difficult as the ministry came under especially bitter attack in the newspapers, attacks designed more to influence Parliament than the public. Anti-Sejanus, the cover of James Scot, chaplain to the Earl of Sandwich, asked the most embarrassing question—how did the ministry ever expect to collect taxes in America if it gave way on the stamp tax?52
The merchants paraded before Commons by Rockingham did not exactly answer this question. But these sad-eyed fellows made an impression as they appeared before the committee of the whole, dripping with pathos and full of the descriptions of present horrors, to be followed by worse if repeal failed. And to reassure the House that the Americans did not object to all taxes, and were really loyal subjects, the ministry called on the redoubtable Benjamin Franklin. Members of the ministry prepared themselves and Franklin for this examination, but, since they could not control the questioning, Grenville’s supporters asked slightly more than half the questions. Franklin performed brilliantly, meeting the hostility of the Grenville group with patience and tact, and cultivating the impression that the Americans were nothing but loyal subjects much put upon by a tax destructive to their interests. He also used the questions to feed the fears of Parliament that Grenville’s policies had begun a movement for economic independence in America. Repeal, however, he assured the House, would start the Americans consuming English manufactures once more. To the question “What used to be the pride of Americans?” he answered: “To indulge in the fashions and manufactures of Great-Britain.” And to the question that followed—” What is now their pride?”—the reply was “To wear their old cloaths over again, till they can make new ones.”53
Franklin’s most masterful comments came in answer to a question similar to the one posed by Anti-Sejanus—why should anyone expect them to pay taxes again if they succeed in escaping this one? In answer, Franklin made a distinction between internal and external taxes. The colonies, he told the House, objected only to internal taxes; they would willingly pay duties on trade to Britain in return for the protection the Royal Navy provided on the high seas. Franklin knew that some in England denied that there was any difference between the two sorts of taxes and reminded the House of it with a series of shrewd remarks to the effect that “At present they do not reason so, but in time they may possibly be convinced by these arguments.”
The ministry gave the House a week to consider this testimony along with the massive evidence from the merchants, and on February 21, Conway introduced the resolution to repeal the Stamp Act. This was the point to pull together the case against the Act. Conway did the job effectively, taking care to reaffirm once more that though the ministry believed in Parliament’s right to tax the colonies, enforcement would produce civil war to the disadvantage of trade and to the advantage of such vulturous nations as France and Spain. The hard core around Grenville remained unconvinced and said so. Grenville himself, trying one last desperate measure, interrupted Conway to say that repeal of the Act was premature since reports that morning had arrived which indicated that the southern colonies were complying with the Act. A listener to Grenville styled this attempt as “dilatory finesse”; in less polite language it was pure fabrication. Conway in any case was not deflected and neither was repeal, which passed 276 to 168. 54
By early March the resolutions which had been approved in February had been embodied in a Declaratory bill and a Repeal bill. After one more attempt by Pitt to remove the phrase “in all cases whatsoever,” which described Parliament’s claim to bind the colonies, both passed the House on March 4 with resounding majorities.55
The Commons sent the bills to the House of Lords the next day. The Lords too had listened to the addresses from the throne in December and January, and the Lords contained members who, like George Grenville, wished to reply with expressions of indignation at the “rebellion” in the colonies. Debate in the Lords included ferocious denunciations of the Americans and a few defenses of the American position that Parliament lacked the right to tax the colonies.
After these preliminaries were got out of the way, the Declaratory bill was quickly approved; the Repeal bill received its last reading on March 17 and the next day the king gave his assent.
6
Selden’s Penny
My penny is as much my own as the King’s ten pence is his: if the King may defend his ten pence, why not Selden his penny?
John Selden, member of Parliament during the struggles with Charles I, a learned lawyer whose work was used by the seventeenth-century opposition to the king, was only a minor hero to colonial pamphleteers and intellectuals. His name graced their writings far less often than Milton’s, Sidney’s, or Locke’s. Yet his maxim—“My penny is as much my own as the King’s ten pence. . . ”—was quoted during the crisis over the Stamp Act and for good reason: it captured the importance of property in this crisis.1
