American Tempest (7 page)

In 1759 British troops forced the French to evacuate the last of their forts in the West and retreat into Upper Canada (now Ontario) and Quebec. To the south, 11,000 troops under Amherst sat on the banks of the St. Lawrence River opposite Montreal. From the east, a fleet of twenty-one British ships of the line, twenty-two frigates and sloops, and nearly one hundred transports sailed up the St. Lawrence toward Quebec with an army of about 7,500 under the command of Major General James Wolfe. The French defenders numbered about 15,000 but offered no resistance as the British landed at the foot of the cliffs beneath Quebec city. On the evening of September 12, Wolfe sent his light infantry scaling the cliffs. By seven the next morning, they had reached the top and the Plains of Abraham, initially catching the French by surprise. By nine, the two sides had lined up against each other in traditional linear warfare. After several days of furious exchanges, the French retreated, and on September 18, 1759, the city of Quebec surrendered to the British. British forces captured Montreal the following summer, effectively ending the North American segment of the Seven Years' War and giving Britain control of Canada and the rest of North America east of the Mississippi River. Although
the Seven Years' War would rage on in Europe, Africa, Asia, and the high seas until 1763, peace returned to North America, where British authorities pieced together the events that had hindered their victory.

Clearly, many merchants in Massachusetts had prolonged the war by smuggling essential goods to French forces, not only undermining the British military effort but depriving the British treasury of revenues to help pay for the war. A British vice-admiral, for example, found almost one hundred vessels flying British colors in the French West Indies, where they were purchasing molasses that they planned to smuggle to New England distillers, who had paid for it with contraband war materiel for French forces. Aside from trading with the enemy, the New England merchants were depriving the British government of revenues by smuggling in French molasses duty-free and, at the same time, threatening the future of British sugar cane growers in the British West Indies.

“So pernicious is this illicit trade,” Justice Peter Oliver railed, “that it . . . wrongs the society of those dues which are the resources for its support and injures the fair dealer by lessening his abilities to aid society and maintain his private family.”
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New England merchants disagreed vehemently, however—idealizing what Oliver called “illicit trade” as legitimate free trade and a basic right of free men.

When Sir Francis Bernard accepted the governorship of Massachusetts in 1760, he ignited the first embers of revolution by assuring William Pitt that he would crush the smugglers. A former governor of New Jersey, Bernard arrived in Boston and made a show of appointing one of his personal aides, James Cockle, as customs inspector in Salem, which harbored much of the molasses smuggling trade. Bernard then ordered importers of French molasses either to pay duties on their cargoes or switch to duty-free molasses from the British West Indies. Within months, shippers apparently stopped smuggling French molasses into Salem and imported only duty-free British molasses. The strategy boded well for the economy of the British West Indies but reduced customs collections in Salem to near zero—and attracted the attention of John Temple, the surveyor-general of Massachusetts customs. To his astonishment, Salem merchants were importing more cane from the English island of Anguilla in just a few weeks than that island's entire annual crop.

“It was known that the island did not grow as many sugar canes as to afford cargo for one vessel,” Thomas Hutchinson explained. In fact, he said, the Salem merchants had continued importing French molasses, paying Cockle sizable sums to relabel the cargo as duty-free British molasses. A subsequent investigation proved that Governor Bernard had engineered the scheme. Before coming to America, one of his predecessor governors had explained the financial benefits that accrued to permissive royal governors, and Bernard arrived in Boston prepared to make Massachusetts merchants pay him dearly for the right to continue their smuggling trade.

Within weeks of Cockle's appointment, every ship coming into Salem with dutiable goods paid Cockle (and Bernard) substantial bribes for labeling a cargo as entirely or partially duty-free. According to an affidavit filed at the Salem Custom House, Cockle accepted “casks of wine, boxes of fruit, etc., which was a gratuity for allowing . . . vessels to be entered with salt or ballast only, and passing over unnoticed such prohibited cargoes as wine, fruit, etc . . . part of which the said James Cockle used to share with Governor Bernard.”
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When a smuggler offered a bribe that did not meet Bernard's expectations, the governor ordered Cockle to seize the ship and, under admiralty proceedings, often recovered triple damages from forfeiture of the ship and its cargo. One-third of the award went to the “informer”—in this case Cockle, who shared his proceeds with Bernard—one-third to the province (Bernard pocketed much of the award), and one-third to the crown.

“The governor,” Hutchinson wrote later, “was very active in promoting seizures for illicit trade, which he made profitable by his share in the forfeitures. The collector in Salem [Cockle] was the Governor's creature.”
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When confronted, Cockle tried bribing the surveyor-general, who summarily fired him. “This raised a great clamor, a great share of which was against the governor,” according to Hutchinson. Bernard not only denied participating in Cockle's schemes, he denied that they were, in fact, corrupt. “If conniving at foreign sugar and molasses, and Portugal wines and fruit is to be reckoned corruption,” he scoffed, “there was never, I believe, an uncorrupt customs house officer in America.”
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Exposure of the Cockle-Bernard scheme left Bernard all but impotent as governor—a target for merchant jokes and laughter. By participating in
merchant smuggling, he had crossed a line as fateful as the Rubicon—a line that neither he nor the British government would ever be able to re-establish. Bernard was, after all, the king's own representative, and Boston merchants naturally assumed that the king himself had agreed to ignore smuggling in favor of fostering the local colonial economy.

“I do not know that he has done more than all his predecessors used to do,” Hutchinson sighed.
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The Cockle-Bernard scheme set off a wave of smuggling that made it the accepted, all-but-universal modus operandi in American international trade, expanding beyond West Indian molasses to include a wide range of dutiable goods from Europe—dry goods, wines, gunpowder, fruit, oil, salt, and an array of other imports, including tea. As imports of less-costly, duty-free smuggled goods increased, Massachusetts merchants amassed enormous wealth and power, and New England prospered from what amounted to free and unlimited, untaxed trade. For New England merchants—indeed, for most New Englanders—duty-free smuggling soon metamorphosed into one of the basic human rights afforded to all Americans.

The British treasury, meanwhile, suffered huge losses from the exercise of those rights, as revenues from duties plunged to a negligible £2,000—only about one-fourth of the costs of housing and paying the customs officials in America who collected them.

After firing Cockle, surveyor-general John Temple petitioned the superior court for writs of assistance, or search warrants, for the vessels in Salem harbor, and the court ordered the case sent to Boston, hoping to find an impartial jury less beholden to Salem's merchant-smugglers. Boston's chief justice, however, died before the appointed hearing date and Royal Governor Bernard incurred the wrath of Judge James Otis, the veteran jurist of Barnstable, Massachusetts. Instead of appointing Otis—the logical choice for chief justice—Bernard named Lieutenant Governor Hutchinson, Jr., with the expectation that Hutchinson would find for the Salem merchants and forbid issuance of the writs.

Forty years old by then, Hutchinson, Jr. had, like his father before him, graduated from Harvard and, after earning his M.A. in 1730, entered his father's great merchant-banking house. He had married in 1734, fathered five children—three sons and two daughters—and more than doubled the
size of his father's enterprise, amassing a fortune of his own. With wealth came increased responsibilities to protect his estate and way of life by participating in public service.

Turning management of the family enterprise over to his sons Thomas III and Elisha, Hutchinson served as a Boston selectman, then representative in the colonial lower house, and, finally, Speaker of the House from 1746 to 1748. Described as “tall, slender, fair-complexioned, and fair spoken,” he was both handsome and “a very good gentleman, who captivated half the pretty ladies in the colony [and] more than half the gentlemen.”
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Appointed to the bench in 1752, Hutchinson was a strong supporter of Benjamin Franklin's Plan of Union at Albany in 1754 to strengthen the colonies economically and militarily. He became lieutenant governor of Massachusetts in 1758 and held that post, along with his seat as Chief Justice of the Superior Court, when he heard the angry argument of lawyer James Otis, Jr., against John Temple's writ of assistance.

Otis's fiery tone surprised Hutchinson as well as many courtroom observers. Born in Barnstable in 1725, Otis had graduated from Harvard in 1743, studied law, and, after gaining admittance to the bar, moved to Boston in 1750. Five years later he married a merchant's daughter, and after the birth of their third child, he prepared to settle in as a member of Boston's plutocracy, serving as lawyer for his father-in-law's merchant friends. He joined the Merchants Club and the Freemasons, and his influential friends rewarded the young man by getting him appointed king's attorney then king's advocate general in the vice-admiralty court. Indeed, Governor Bernard had expected Otis to argue for the government in the writs case. Otis had, in fact, declared a few years earlier that “the authority of all acts of Parliament which concern the colonies and extend to them is ever acknowledged in all the courts of law and made the rule of all judicial proceedings in the province. . . . We know no inhabitant within the bounds of the government that ever questioned this authority.”
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When, however, Governor Bernard failed to name Otis's father as chief justice to the superior court and named Hutchinson instead, the younger Otis resigned his government post, lashed out at Bernard and Hutchinson, and chose to represent the smuggler-merchants in their resistance to Parliament.
As dramatic as Otis's decision to resign from government service was Justice Hutchinson's decision to hear a case that would force him to decide between the crown, to which he had sworn allegiance, and a group of merchants to whom he was tied by family and friends.

Thomas Hutchinson, Jr. Heir to a great Boston merchant-banking house, he went into the colonial government, becoming, successively, lieutenant governor, chief justice, and governor. His efforts to put down revolutionary activity in Boston eventually forced him to flee to Britain to live the rest of his life in exile.
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“No acts of Parliament can establish such a writ,” Otis declared, in direct contradiction to his assertion before the Massachusetts Assembly three years earlier. Calling the writs “instruments of slavery . . . and villainy,” Otis warned that such writs represented “a kind of power . . . which in former periods of English history cost one king of England his head and another his throne. I have taken more pains in this cause than ever I will take again.”
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Otis's argument non-plussed the usually implacable Hutchinson. Torn between his deep belief in individual liberty and his oath to the crown, he left the question in limbo by granting a continuance. Although his ruling seemed neutral, it proved a victory for the crown by failing to quash the writ—or halt the issuance of future writs—and Hutchinson would pay a high personal price for not ruling more decisively. In fact, Hutchinson opposed writs. As a merchant, he—like Otis—believed property sacrosanct under England's Magna Carta. As a loyal British subject, however, he believed—again, like Otis earlier—that Parliament had a constitutional right to legislate and British subjects had an obligation to obey the law. His effort to steer a neutral course between his own conflicting beliefs forced Bostonians to choose between the interests of the crown and the interests of free enterprise. In choosing, they widened the split that had been developing since the Land Bank days of the early 1740s between large merchant houses, which could afford to absorb the costs of duties, and smaller merchants, shopkeepers, and craftsmen, who depended on such low-cost smuggled goods as molasses and tea for enough profits to survive. The interest of the two had now become incompatible. Otis emerged from the case as champion of smaller merchants, winning election to the upper house of the General Court in 1763.