When Words Fail: William Pitt, Benjamin Franklin and the Imperial Crisis of 1766

When Words Fail: William Pitt, Benjamin Franklin andthe Imperial Crisis of 1766

N E I L YO R K

Brigham Young University, Provo, Utah

Passage of an American stamp tax in 1765 produced a sharp political backlash before the yearwas out.That new tax was part of a larger programme of imperial reform championed by theGrenville ministry. Now out of power, Grenville and his supporters resisted the growing desirein both houses of parliament to end the imperial crisis by repealing the new tax.During debatesthat began in early 1766 there were those few,most notablyWilliam Pitt,who wanted to discussconstitutional ultimates as part of the move toward repeal. Pitt contended that parliament didnot have the authority to tax the colonies directly. Grenville disagreed and warned that ifparliament accepted any limit to its supremacy the colonists would eventually claim legislativeautonomy.When debating the distinction – if indeed any such distinction existed – betweentaxation and legislation, and between internal and external taxes, Pitt, Grenville and theirparliamentary contemporaries raised questions about authority and power that they could notanswer.There were no words to describe perfectly the imperial relationship, a relationship that,as Benjamin Franklin hinted in his testimony to the Commons, was always subject to changeanyway.Avoiding constitutional questions had not seemed to work; trying to answer them didnot work any better, at least in the contentious atmosphere of that moment.

Keywords: Pitt; Grenville; Rockingham; Franklin; parliament; stamp; tax; repeal; declaratory;1766

Taxation is no part of the governing or legislative power . . . taxes are a voluntary giftand grant of the Commons alone . . . The distinction between legislation and taxa-tion is essentially necessary to liberty. (William Pitt, in the house of commons, 14January 1766)

Q: Does the distinction between the internal and external tax exist in the words ofthe [Pennsylvania] charter?

A: No, to be sure.

Q: Then may they [the colonists] not by the same interpretation object to the rightof external tax?

A: They never have. Many arguments have been used to show them there is nodifference. In time they may be convinced by these. (Benjamin Franklin (‘A’), in thehouse of commons, 13 February 1766)1

1 Proceedings and Debates of the British Parliaments Respecting North America, 1754–1783, ed. R.C. Simmons andP.D.G.Thomas (6 vols, Millwood, 1982– ), ii, 86 (Pitt); ii, 233 (Franklin). For context see Charles R. Ritcheson,

Parliamentary History, Vol. 28, pt. 3 (2009), pp. 341–374

© The Parliamentary History Yearbook Trust 2009

The American Stamp Act passed by the British parliament in 1765 ended up as deadletter law within a year. Even so, parliamentary debates leading to its repeal provedcontentious. Those who believed repeal was essential to restoring peace in the empirewere countered by those who feared repeal would bring a catastrophic end to imperialauthority.William Pitt’s statement in opening the debate helped produce the contention;Benjamin Franklin’s testimony a month later subtly underscored it. Perhaps by accident,perhaps by design – perhaps, paradoxically, by both – their words obscured rather thanclarified imperial relations. Repeal and a temporary easing of tensions notwithstanding,the empire was not better defined nor was the proper relationship between mothercountry and colonies better understood afterwards than it had been before. If anything,that relationship would only become more muddled on both sides of the Atlantic. Themore that disgruntled colonists and exasperated imperialists attempted to address eachother, the more alienated they became. Recurring to ‘first principles’, as Machiavellirecommended when a political culture lost its way, did not necessarily improve thesituation.2 Constitutional disquisition on taxes and representation in this setting deep-ened rather than diminished prevailing misunderstandings.

Pitt and Franklin were caught up in the 1766 parliamentary debate over colonialrights that became an inseparable part of the Stamp Act crisis. There is, of course, adanger in reading too much importance into what they said, as if their words shaped allthe events that followed. With good reason, the ‘great man’ approach to historicalcausation has been criticized as simplistic: just as the Stamp Act was not the brainchildof one man, George Grenville,3 its repeal was not brought about by Pitt, who was onlyone member of the Commons, and, or even less, by Franklin, a mere colonial agent. Butthis was high political drama and they played roles at once symbolic and real: real,because they did have some impact on their contemporaries; symbolic, because theypersonified what was becoming the intractable problem of empire, the question to whichthere seemed no satisfactory answer.That question was deceptively simple: was authoritydivisible or would any attempt to federalise the empire – to develop power-sharingbetween mother country and colonies – produce a dreaded imperium in imperio?4 Pitt’s

1 (continued) British Politics and the American Revolution (Norman, 1954); P. Langford, The First RockinghamMinistry (Oxford, 1973); Ross J.S. Hoffman, The Marquis (New York, 1973); P.D.G. Thomas, British Politics andthe Stamp Act Crisis (Oxford, 1975); Frank O’Gorman, The Rise of Party in England (1975). Although thesestudies note the problem of finding reliable sources for parliamentary debates, they do not discuss the problemof language the way that it is examined here.

2 Proceedings and Debates, ed. Simmons and Thomas, ii, 322: Baron Camden in the house of lords, 7 Mar.1766, when speaking against the Declaratory Act.

3 For Grenville and the evolution of what became the Stamp Act, see Lawrence Henry Gipson, The BritishEmpire Before the American Revolution (15 vols, New York, 1936–70), x, 253–8; The Grenville Papers, ed.WilliamJames Smith (4 vols, 1852–3), ii, 373–4 n. 1; BL, Add. MS 33028, f. 376: an example of an earlier stamp actproposal (from 1742); and the discussion in Thomas, British Politics, 69–100, which surpasses Lawrence HenryGipson, ‘The Great Debate in the Committee of the Whole House on the Stamp Act, 1766, as Reported byNathaniel Ryder’, Pennsylvania Magazine of History and Biography, lxxxvi (1962),10–41.Also see John L. Bullion,A Great and Necessary Measure (Columbia, 1982); with a reaction to Bullion by Thomas Slaughter, ‘The EmpireStrikes Back: George Grenville and the Stamp Tax’, Reviews in American History, xii (1984), 204–10.

4 In the Commons debates of 3 Feb. 1766, Hans Stanley warned of Massachusetts forming a ‘Federal Union’to operate independently of London. In the Lords, Baron Lyttelton argued that, in any governmental form,ultimate authority must rest somewhere within it, ‘and that must be fixed, or otherwise there is an end of allgovernment. “Imperium in imperio” ’: as quoted in Proceedings and Debates, ed. Smith and Thomas, ii, 126 and136, respectively.

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inability during the 1766 debates to achieve a constitutional consensus in parliament onthis issue should not be surprising; others would experience the same failing, the samefrustration, in the larger dispute over rights in the empire.And Franklin’s warning in thehearings interspersed between those debates, that Americans might change their consti-tutional position, would be repeated by others – to no avail.

1

Still, at the beginning of 1766 the future did not appear fixed, even if bleak.The StampAct, passed by overwhelming majorities in both houses of parliament and eagerly signedinto law by George III the previous March, had produced a political firestorm, violentlanguage and violent acts that shook the empire. With Grenville out of power and themarquess of Rockingham in, an end to the troubles now seemed possible.The Stamp Actcould be swept away by members of the ministry, if they could agree among themselvesand if they could muster the parliamentary votes in support.Achieving the former provedalmost as difficult as securing the latter. Sir Lewis Namier can be forgiven for thinkingthat parliamentary leaders in this atmosphere subordinated imperial issues to office-seeking, because with office came power, and with that power the ability to set agovernmental agenda.5

Eager to be delivered from transatlantic discord, some looked upon Pitt messianically.Anticipating the new parliamentary session scheduled for January 1766 one concernedEnglishman wrote: ‘if He comes to undertake the Cure of the present Disorder, we mayI think expect a more speedy Deliverance than could be hoped for from any otherHead’.6 Expectations could be high even on the far side of the Atlantic. ‘If it is possibleto form a Plan of Policy that shall for Ages establish the Union of Great Britain and theColonies’, gushed John Dickinson of Pennsylvania, ‘We think it may be expected fromYou’7 – Pitt, the saviour of empire. It was an image that Pitt himself had been cultivatingfor a political lifetime. When he rose to make his speech in the house of commons on14 January 1766, his first at Westminster in over a year, he knew that he did so beforeexpectant, even anxious, members, both those who dreaded what he might say and thosehoping that he would lead them out of crisis. The Rockingham ministry, despite manymonths in office, had yet to take effective control and put its impress on national policy.No doubt some hoped that Pitt would act as a ‘Prometheus’, giving the ministry‘animation’, stealing ‘fire from Heaven’ for that purpose.8 But as suited a Prometheancharacter, Pitt spoke as he chose, not as others preferred. ‘What new confusion’ Pitt’s

5 Lewis Namier, The Structure of Politics at the Accession of George III (rev. edn, 1957); Lewis Namier, Englandin the Age of the American Revolution (rev. edn, 1961). In ‘Human Nature and Politics’, Namier also conceded that‘in any action there are inscrutable components’: printed in Lewis Namier, Personalities and Powers (New York,1955), 3.

6 Edward Weston – a Bute man, interestingly enough – on 24 Dec. 1765, in HMC, 10th Report, AppendixI, 399.

7 TNA, Pitt Papers, PRO 30/8/97, f. 39: Dickinson to Pitt, 21 Dec. 1765.8 Grenville Papers, ed. Smith, iii, 77: a wish expressed by Baron Camden to Earl Temple in a letter of 7 Aug.

1765, early in the Rockingham ministry’s history; a wish still unfulfilled six months later.

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dramatic appearance and passionate speech would cause, noted one MP, ‘only time candiscover for everybody was surprized by the unexpected scene’.9

Pitt’s precise words have become a matter of dispute. Did he actually speak the linesquoted in the opening epigraph, making a distinction between taxation and legislationwhile condemning the Stamp Act as unconstitutional? There is no official record of thedebates, the press was, for all intents and purposes, prohibited from reporting what wassaid in both Houses, and Pitt left no drafts of, no notes for, or scarcely any reference to,his speech.10 What we have are a few brief accounts by members and a much longerversion, apparently rendered by an Irish visitor. His version ultimately became part ofwhat is often accepted as the ‘official’ record, compiled long after the fact.11

Professor Ian Christie reviewed the extant sources just over 30 years ago to try todetermine which is the most reliable. He decided that Pitt had probably not made sucha sharp distinction; rather, Pitt differentiated between ‘internal’ and ‘external’ taxation,which echoed what others had said or written before him, and was seemingly more inline with his reaction to subsequent parliamentary action aimed at the colonies, mostnotably the Townshend duties of 1767. ‘The more evidence is put under scrutiny, the lesslikely does it appear that Pitt condemned all taxation by Parliament as unconstitutional’,Christie concluded tentatively.12

Christie picked and chose between sources – his only option, given the fragmentaryand contradictory record. And so the record remains. But Christie’s choices are notmine.13 Pitt’s positions on later imperial disputes, the controversial Townshendprogramme included, can be reconciled with a claim that parliament could not

9 HMC, Polwarth, v, 362: John Pringle to Walter Scott, 16 Jan. 1766.10 There is virtually nothing among Pitt’s papers that proves helpful here. For the larger setting see P.D.G.

Thomas, ‘The Beginning of Parliamentary Reporting’, EHR, lxxiv (1959), 623–36; J.R. Pole, The Gift ofGovernment (Athens, 1983), 87–116. Franklin’s friend, William Strahan, complained (in a letter to David Hallof 6 Apr. 1766) that ‘This Winter especially, when the Stamp Act was canvassing in both Houses, none butMembers were admitted, and any Account of the Debates which could be procured from those who heardthem, was so very lame and imperfect, it was really good for nothing.’ In The Papers of Benjamin Franklin, ed.Leonard Labaree (38 vols, New Haven, 1959– ), xiii, 40, included within the editorial commentary leading towhat may or may not have been Franklin’s firsthand account of the speech (on 41–4).

11 That is to say, what appeared in the Parliamentary History of England from the Norman Conquest in 1066 tothe Year 1803, ed. William Cobbett (36 vols, 1806–20), xvi, cols 98–108.

12 Ian R. Christie, ‘William Pitt and American Taxation: A Problem of Parliamentary Reporting’, Studiesin Burke and His Time, xvii (1976),170; also see Basil Williams, The Life of William Pitt (2 vols, 1913), ii, 195n. 1 and 335–51 (Appendix A), who also noted the difficulty of finding reliable sources for Pitt’s speechesbut concluded that the version that ended up in the official record, as reported by Sir Robert Deane, anIrish baronet, with the assistance of the earl of Charlemont, another Anglo-Irishman, was essentially accu-rate. Deane had a seat in the Irish parliament, not at Westminster, but as Thomas, British Politics, 171 n. 2,commented, as an ‘Irish M.P., Deane would have been permitted to hear the debate’. Although Thomas alsocautioned that ‘it is impossible to reconstruct an accurate account’ of the exchange between Pitt andGrenville (British Politics, 172 n. 1), he does take issue with the Morgans’s characterisation of Pitt on internalversus external taxes (see below, note 46). Charlemont did not arrive in London until 28 January, so Deane’saccount most likely came out at least several weeks after the actual event. See Original Letters Principally fromLord Charlemont . . . to the Right Hon. Henry Flood, ed. Thomas Rodd (1820), 5–6: Charlemont to HenryFlood, [2]8 Jan. 1766.

13 In Marie Peters, ‘The Myth of William Pitt, Earl of Chatham, Great Imperialist. Part II: Chatham andImperial Reorganization,1763–78’, Journal of Imperial and Commonwealth History, xxii (1994), 395, and MariePeters, The Elder Pitt (1998), 9, 157, Marie Peters appears to follow Christie’s line of thinking. Pitt’s ideas, whilenot in vogue, were hardly ‘abstruse’, as Peters put it.

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constitutionally tax the colonies.14 Moreover, contemporary reaction to the 14 January1766 speech gives credence to reports that Pitt made a startling assertion. Gilbert Elliot,who was in the Commons that day, remembered Pitt as ‘denying expressly the right ofParliament to tax the colonies’ when he condemned the Stamp Act.15 Christie, forwhatever reason, considered Elliot a less reliable witness than Lord George Sackville, whowas also present for the debate. Sackville’s rather snide comments, which Christie offersas evidence for his case, bear repeating at length:

It seems we have all been in a mistake in regard to the Constitution, for Mr. Pittasserts that the legislature of this country has no right whatever to lay internal taxesupon the colonys; that they are neither actually nor virtually represented, and there-fore not subject to our jurisdiction in that particular; but still, as the Mother Country,we may tax and regulate their commerce, prohibit or restrain manufactures, and doeverything but what we have done by the Stamp Act; that in our representativecapacity we raise taxes internally and in our legislative capacity we do all the otheracts of power. If you understand the difference between representative and legislativecapacity it is more than I do, but I assure you it was very fine when I heard it.16

14 That he did nothing to block Townshend, whose programme came under his ministry the next year, doesnot prove anything. Since he allowed parliament the right to regulate colonial commerce and supported thelarger navigation system, he need not have objected to the new duties on principle, even though they wereintended to raise revenue, not simply regulate trade. For him the Stamp Act stood apart from other navigationacts, despite Grenville’s attempts to incorporate it within the navigation system, including the prosecution ofviolators through vice-admiralty rather than common-law courts. Christie’s assertion that by 1774 Pitt (by thenLord Chatham) ‘deeply regretted the publicity given to his words in 1766’ is based on a thirdhand report, notPitt himself – the earl of Mansfield, a Pitt opponent, who supposedly heard this from Pitt and passed theanecdote along to Thomas Hutchinson, who, in turn, passed it on in a letter to a friend. See Christie, ‘Pitt andAmerican Taxation’, 178–9, drawing from The Diary and Letters of Thomas Hutchinson, ed. Peter OrlandoHutchinson (2 vols, 1883–6), i, 202–3, with Mansfield telling Hutchinson that ‘he declared to me, he never didsay what was attributed to him – that Parliat. had no right to tax America: and never intended any more thanthat a scheme of taxation of Amer. was utterly inexpedient’; also see Thomas, British Politics, 172 n. 2, wholikewise accepts Hutchinson’s report as accurate. Still, even if there are questions as to Hutchinson orMansfield’s reliability, there is also the question of Pitt’s own consistency.Williams, in his adulatory Life of Pitt,conceded that the ‘Great Commoner’ was ‘ever prone to appeal to the imagination no less than to theunderstanding’ (ii, 307) and that ‘he looked on charges of inconsistency with Olympian indifference, and oftensuffered for his impetuous habit of using any argument that came to hand to drive home his point, howeverdangerous they might prove afterwards’ (i, 149). On the one hand, Pitt’s big ego and little imprecisionsnotwithstanding, it does not seem plausible that he said what Mansfield claimed he did, given his emphaticclaims for having taken the constitutionally-correct position then, which he took again in 1774 (see below,note 110). On the other, at least once in the debates over repeal he gave the impression he had shifted towardthe ministry’s view that parliament had the authority to tax the colonies, but it was inexpedient to do so (seebelow, note 76). Both Pitt and Franklin might have expressed surprise at the notion that consistency should bethe test of their sincerity. If, in their minds, saving the empire came first, perhaps all else had to be second,including the particulars of what they said about the distribution of authority and power in that empire.

15 George F.S. Elliot, The Border Elliots and the Family of Minto (Edinburgh, 1897), 397–8; also cited inChristie, ‘Pitt and American Taxation’, 170. MP James Harris, present as well, recorded Pitt as stating that ‘taxescould be legally imposed only on those, who the imposers represented. The Commons of Great Britain were norepresentatives of the people of America. Ergo could impose no tax on them’ (Proceedings and Debates, ed.Simmons and Thomas, ii, 81). Christie did not mention Harris. He did quote William Rouet, a Scotsman thenin London, though not as an MP: ‘He [Pitt] denied any subjects could be tax’d without their own consent;that the Americans were not represented, and therefore had not, and indeed could not, consent to such an Act.’William Mure, Selections from the Family Papers Preserved at Caldwell (3 vols, Paisley, 1883–5), pt II, ii, 60: Rouetto Baron Mure, 16 Jan. 1766.

16 HMC, Stopford-Sackville, i, 104: Lord George Sackville to Sir John Irwin, 17 Jan. 1766.

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At first glance it might appear that Pitt talked about ‘internal’ taxes explicitly, ‘external’taxes only implicitly, and not at all about taxation versus legislation. But then Sackvillealso noted Pitt’s differentiation between ‘representative’ and ‘legislative’ capacities, whichwould seem to be hinting at something more: the taxation/legislation distinction, evenif not in those exact words. James West, another witness on whom Christie called toposthumously support his argument, recorded Pitt as saying that the Stamp Act ‘ought tobe totally & absolutely repealed as an Erroneous policy, that no Treasury ever hadthought of taxing America in the most necessitous times, that the parliament had nopower to enact an Internal Taxation in America’.17 So what should be gleaned here,West’s comment that the Stamp Act was wrong because parliament attempted to tax, orwrong because it was an attempt to tax internally? My view is that Pitt actually said both– that he distinguished between taxation and legislation, and between internal andexternal taxes, because he gave two speeches, not one, and what happened in betweenexplains the shift. This becomes most evident in the account eventually printed in thequasi-official record.

2

Never truly free of the gout that, by itself, could have kept him from taking his seat moreregularly, troubled too by bouts of depression matched by periods of manic energy neverdiscussed in polite company, Pitt made sure his audience was in rapt attention beforebeginning his speech. Declaring that he came to the Commons ‘unconnected andunconsulted’ – his choice, incidentally, not the ministry’s, and not true, as his own wordswould show – he lashed out verbally at Grenville, his brother-in-law, who sat with justone other MP between them. ‘As to the late ministry’, he intoned while turning towardGrenville, ‘every capital measure they have taken, has been entirely wrong.’18 Listeners

17 BL,Add. MS 32973, f. 133: James West to the duke of Newcastle, 14 Jan. 1766; also cited by Christie, ‘Pittand American Taxation’, 170–1, with some minor differences in transcription.West routinely reported on theCommons debates to Newcastle while they were in progress so that Newcastle, in the Lords, could stay abreastof what was going on simultaneously in the other House.

18 However Deane and the earl of Charlemont constructed their version of the speech, it was in print beforethe session ended as The Celebrated Speech of a Celebrated Commoner (1766); the thinly-disguised Political Debates(Paris: Chez J.W. [ John Wilkes?] Imprimeur, 1766); and The Speech of Mr. P – (1766). Of these three, the lastcited was the most obviously enamoured of Pitt. A shorter version appeared soon after in The Gentleman’sMagazine, xxxvi (1766), 155–9.The pamphlets are so close in overall content on Pitt’s speech(es), though notliterally identical, that any or all could have been the original source for later reprintings. John Almon woulduse one (or all) of these earlier versions for The Debates and Proceedings of the British House of Commons, from1765 to 1768 (1772), 61–77, then again in his A Collection of Interesting, Authentic Papers, Relative to the Disputebetween Great Britain and America (1777), 57–64 (followed by Franklin’s testimony on 64–81), and, for a thirdtime, in his Anecdotes of the Life of the Right Hon.William Pitt, Earl of Chatham (7th edn, 3 vols, 1810), i, 424–45(and there, at 424 n, he identified Dean[e] and Charlemont as the source). The Correspondence of William Pitt,Earl of Chatham, ed.William Stanhope Taylor and John Henry Pringle (4 vols, 1838–40), ii, 364n–73n, turnedto it as well, as did Parliamentary History, ed. Cobbett, xvi, cols 98–108. Proceedings and Debates, ed. Simmons andThomas, ii, 84–91, included the version printed in Almon’s Debates, plus the notes taken by James Harris andJames West, who had been in the Commons that day, and the version later rendered by Horace Walpole, whohad not. The Answer at Large to Mr. P–tt’s Speech (1766) appears to be a response to the Celebrated Speech orPolitical Debates – the printed version of the speech as read, rather than the speech itself as heard. The AnnualRegister . . . For theYear 1766 (2nd edn, 1772), pt I, 35–44, offered an overview of the debates leading to repeal.It did not name speakers (with Pitt in the Commons and Camden in the Lords on 14 January

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knew that he meant the Stamp Act above all else, that it, more than any other piece oflegislation passed under Grenville’s auspices, demonstrated political wrongheadedness.Turning toward leaders of the Rockingham ministry he pronounced them acceptable, inwords more condescending than flattering. He did concede that they had treated himwell, that they had even sought his advice, while their predecessors had not. Claimingthat he had only wanted to serve, he complained that again and again he had beenthwarted by those who were less publicly-minded. Having targeted Grenville at theoutset, he took the earl of Bute within his sights as well. He reminded listeners that theScotsman had driven him from power five years before and that Bute still had the king’sear, despite being replaced by Grenville and then Rockingham: ‘When I ceased to servehis majesty as a minister, it was not the COUNTRY of the man by which I was moved– but THE MAN of that country wanted WISDOM, and held principles incompatiblewith FREEDOM.’19

Pitt had not begun to ramble; this was a tangent with a purpose. As a disappointedfather might scold errant children, he warned that he would not stand to see soundadvice ignored. In other words, he had been thwarted once by fools and he was reluctantto give them another opportunity by renewing his involvement in public affairs. For nowduty called and he responded, but all that could change. ‘When the resolution was takenin the house to tax America, I was ill in bed.’ Had he been able to endure travelling toWestminster he would have come, ‘so great was the agitation of my mind for theconsequences!’ He berated the ministry for not informing parliament earlier of thespreading disturbances in the colonies, sparked by protests against the Stamp Act that hadgrown violent during the summer. He did so, not to bring the current ministrydown, but to put it on notice that he felt it could have done better than it had to thatpoint – a way to justify keeping his own distance from its current policies. Playing onwhatever sense of guilt he could tap into, gathering whatever admiration other MPs feltfor him as the ‘Great Commoner’, he lamented that he could not be sure how long hewould stay, could not be certain that he would return, and that he, therefore, had to seizethe moment. ‘I will speak to one point, a point which seems not to have been generallyunderstood – I mean the right.’ Pitt the devoted public servant then became Pitt theconstitutionalist:

It is my opinion that this kingdom has no right to lay a tax upon the colonies. Atthe same time, I assert the authority of this kingdom over the colonies, to besovereign and supreme, in every circumstance of government and legislation what-soever. – They are the subjects of this kingdom, equally intitled with yourselves toall the natural rights of mankind and the peculiar privileges of Englishmen. Equallybound by its law, and equally participating of the constitution of this free country.The Americans are the sons, not the bastards of England. Taxation is no part of the

18 (continued) identifiable regardless), but it did present as distinct the taxation/legislation issue, and thequestion of internal versus external taxes. If the first issue had, in fact, been raised incorrectly in the press andafter the fact rather than in the Commons itself, it seems that the magazine’s editors, who leaned more towardRockingham than Pitt, would have noted just that. Thomas R. Adams, The American Controversy (2 vols,Providence, 1980), i, 39–78, lists the various pamphlets related to the repeal controversy and tries to establishtheir provenance.

19 Celebrated Speech, 5.

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governing or legislative power. – The taxes are a voluntary gift and grant of thecommons alone.20

Thus his insistence that ‘the distinction between legislation and taxation’ was ‘necessaryto liberty’. Parliament could not take property away from people without their consent,the people could only offer that consent through their representatives, and Americans –unlike Britons – were not represented in parliament. To say that they were ‘virtually’represented, in the way that many Britons were ‘virtually’ represented even though theymight not literally exercise the franchise, was ludicrous. Americans were in a fundamen-tally different situation. Only colonial assemblies could tax colonists directly, by circum-stance and by right. ‘The idea of a virtual representation of America in this house, is themost contemptible idea that ever entered into the head of a man – It does not deservea serious refutation.’ Britain was sovereign, parliament was supreme, the colonies couldhave their economic enterprise restrained, and they could be legislated for ‘in everything, except that of taking their money out of their pockets without their consent’.Tofinish with a dramatic flurry, he quoted a famous passage from Horace, starting inEnglish: ‘Here I would draw the line’, and ending with the original Latin, ‘Quam ultracitraque nequit consistere rectum’ – right demands a middle ground between extremes.21

Apparently Pitt left his listeners speechless. Henry Seymour Conway, a leader in theRockingham ministry, stood only after a long pause: ‘waiting to see whether any answerwould be given, to what had been advanced by the right honourable gentleman,reserving himself for the reply’. He had expected someone to oppose Pitt and anticipatedrallying to Pitt’s support – on the assumption that he could predict what Pitt would sayand that he would find it agreeable. But he, too, seems to have been flustered, seekingonly to explain that the ministry had not withheld information about American distur-bances; rather, leaders did not want to inflame antagonisms so they were choosing not tocomment until more facts were known.22 As Pitt nodded contentedly to Conway fromhis seat, an insulted, incensed Grenville finally stood. ‘He avoided meddling with thedoctrine of taxation’ espoused by Pitt; likewise for Pitt’s condemnation of ‘virtualrepresentation’ being applied to the colonists. Instead, he began where Pitt and Conwayhad left off: the ministry’s ‘delay’ in notifying parliament ‘of the disturbances in America’.More to the point, he linked protest with riot and warned of worse to come:

I fear they will lose that name to take that of Revolution.The government over thembeing dissolved a revolution will take place in America. I cannot understand thedifference between external and internal taxes. They are the same effect, and onlydiffer in name. That this kingdom is the sovereign, supreme legislative power overAmerica, is granted. It cannot be denied; and taxation is a part of that sovereign

20 Celebrated Speech, 6–7.21 Celebrated Speech, 8. From Horace, Satires, Book 1, Satire 1, lines 106–7, an idiomatic rather than a literal

translation, in line with Pitt’s attempts to find a happy medium between parliament having unboundedauthority and no authority at all. Using famous phrases to pithily score a point in debate was part of Pitt’s Etonexperience, carried to Oxford – and familiar to fellow MPs of a similar background.

22 According to a firsthand account Conway had been one of only two MPs in the previous session to argueagainst parliament’s authority to pass the Stamp Act (see below, note 40).

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power. It is one branch of the legislation. It is, it has been exercised, over those whoare not, who never were represented.23

Grenville defended the navigation system as the ‘paladium’ of ‘British commerce’ afterrailing against the ‘seditious spirit’ shown by the ‘ungrateful people of America!’ And forthat he blamed ‘factions’ in the Commons who, only after the Stamp Act became law,raised the question of right. ‘When I proposed to tax America’, he recalled, ‘I asked thehouse, if any gentleman would object to the right; I repeatedly asked it, and no manwould attempt to deny it.’24

Whereas Pitt had stunned most listeners into continued silence, Grenville provokedothers to jump to their feet. Then Pitt himself stirred, as if he would respond directly.Despite rules of debate that forbade his speaking again until all others had spoken, to theclamours of ‘go on, go on’ he did in fact speak, arguing – in a way that probably fewothers would have attempted – that he had not really finished, that he was offering thesecond part of one speech rather than beginning a second.25 Pitt, being Pitt, was able topull it off. Grenville had upped the rhetorical ante; Pitt in turn raised it again. ‘Thegentleman tells us, America is obstinate; America is almost in open rebellion’, Pittobserved. Then so be it. ‘I rejoice that America has resisted.’ He repeated his assertion:‘that the parliament has a right to bind, to restrain America. Our legislative power overthe colonies, is sovereign and supreme.’ Moreover:

If the gentleman does not understand the difference between internal and externaltaxes, I cannot help it; but there is a plain distinction between taxes levied for thepurposes of raising a revenue, and duties imposed for the regulation of trade, for theaccommodation of the subject; although, in the consequences, some revenue mightincidentally arise from the latter.26

That was all Pitt said on the subject of internal and external taxes. He did not elaboratebecause that had not been his point. He returned to the issue as he, not Grenville, haddefined it: taxation and representation, and taxation as distinct from other forms oflegislation, to which Grenville had also referred. As far as Pitt was concerned, whetheror not anyone in the Commons had questioned parliament’s authority to tax whenGrenville introduced the Stamp Act in February 1765 was irrelevant; perhaps his

23 Celebrated Speech, 9. In professing not to ‘understand the difference between internal and external taxes’,Grenville echoed a passage from a pamphlet published before the Stamp Act was even passed, probably writtenby his friend William Knox (see below, note 42). For Knox as the personification of the imperialist who alsodefended the notion of colonial rights, and whose position on the Stamp Act was therefore complicated, seeLeland J. Bellot, William Knox (Austin, 1977), 61–70.

24 Celebrated Speech, 10.25 This rule was set aside when the Commons convened itself as a committee of the whole or as an inclusive

special committee – as it would whenever it became the committee on American affairs – in the comingweeks, beginning on 28 January.As an anonymous tract on House procedure, c.1763, explained, committees ofthe whole were formed when matters ‘are imagined of too great Importance to go to a Select Committee andare therefore referred to a Committee of the whole House that the Matter may be discussed with the morefreedom every Member being at liberty to speak in a Committee as often as he pleases to any point whereasin the House he is confined to speak no more than once unless he speak to order or to explain himself ’:printed in The Liverpool Tractate, ed. Catherine Strateman (New York, 1937), 36; also see P.D.G. Thomas’soverview of procedures in The House of Commons in the Eighteenth Century (Oxford, 1971), 187–228.

26 Celebrated Speech, 14.

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colleagues had been too modest then, he chided. But the time for caution had passed,as Grenville’s own words proved.Taking a hard line against the colonists would promptthe very rebellion Grenville alleged already existed, at least as a state of mind.To be sure,Britain had power sufficient to force the colonists to yield but ‘America, if she fell, wouldfall like the strong man’, he thundered. ‘She would embrace the pillars of the state, andpull down the constitution along with her.’The only just course was for the Commonsto follow his recommendation:

It is, that the Stamp-Act be REPEALED ABSOLUTELY, TOTALLY, and IMME-DIATELY. That the reason for the repeal be assigned, because it was founded on anerroneous principle.At the same time, let the sovereign authority of this country overthe colonies, be asserted in as strong terms as can be devised, and be made to extendto every point of legislation whatsoever. That we may bind their TRADE, confinetheir MANUFACTURES, and exercise every POWER whatsoever, except that oftaking their money out of their pockets without their consent!27

If Conway and other members of the ministry had been stunned when Pitt spoke thefirst time, they were probably equally as stunned the second. He was calling the questionon two points: not only had he demanded the Stamp Act’s repeal, he had denied itsconstitutional legitimacy. Each assertion posed its own set of problems.

3

Because of the spotty record it is difficult to know who in the Commons siding withPitt shared his view of taxation and legislation as well as his desire for repeal.At least oneMP, George Cooke, concurred that ‘the Act was illegal’ and he ‘doubted the power of theLegislature of this country to tax the Colonies’.28 Others may have joined Cooke,though it is hard to say. Pitt’s proposal did not result in a formal motion for repeal. Pitt’sally in the house of lords, Baron Camden, may have argued along similar lines –afterwards Pitt told his wife that Camden had been ‘divine’29 – but, again, it is hard toknow. For Pitt to have made the taxation/legislation argument was one thing; forCamden, chief justice of the court of common pleas, it was quite another. No one reallyexpected Pitt to be constitutionally precise and he would be forgiven flights of consti-tutional fancy denied Camden.

But had Pitt and Camden been so off the mark? Parliamentary procedure itself lentsome credibility to the distinction between taxation and legislation, and the tying oftaxation to representation. Building on previous acts dating from 1661, the Commons,in response to a joint committee report from both Houses and advice from the solicitorgeneral, resolved in 1678 that ‘all Aids and Supplies, and Aids to his Majesty in

27 Celebrated Speech, 16–17.28 As recorded by James West in a note to Newcastle, 14 Jan. 1766, BL, Add. MS 32973, f. 135; also printed

in Proceedings and Debates, ed. Simmons and Thomas, ii, 91. Did West quote Cooke correctly? Did Cooke say‘power’ when he meant ‘authority?’ Or did he consider the words synonymous, and freely exchange one forthe other? If he did, did such syntactical imprecision make him different from most of his colleagues? Now adda fifth question: is it possible to answer the first four?

29 Pitt Corres., ed. Taylor and Pringle, ii, 365: Pitt to Hester, 15 Jan. 1766.

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Parliament, are the sole Gift of the Commons’.Therefore ‘all Bills for Granting any suchAids and Supplies ought to begin with the Commons’. Furthermore, the Commons hadthe ‘sole right’ to determine the purpose as well as the form of such bills, ‘which oughtnot to be changed, or altered by the House of Lords’.30 Such had been the practice eversince, if not before.The exactness captured in that resolution was partially lost, however,in the long-standing practice of treating all money bills the same: essentially as ‘supply’requests for crown and parliament to carry out governmental responsibilities throughthe use of public funds.The word tax came up in virtually all discussions leading to thepassage of those money or supply bills, whether for mother country or colonies or bothtogether, or, in the case of the colonies apart, whether regulating trade or raising revenue.Hence Grenville’s belief that stamp duties could just be added to the long list of itemsalready enumerated under the navigation system.

And yet Pitt still had a point, based on a specific parliamentary resolution andsubsequent parliamentary practice over the previous century, and on judicial reasoninggoing back much further. Long before parliament had begun to tax within the realm andwell before there were English colonies across the Atlantic, constitutional limits had beenset to what the crown could do, even at a time when many monarchs still tried tooperate independently of parliament. Sir John Fortescue, chief justice of the court ofking’s bench, whose writings from the 1470s still circulated in the 1760s, opined that aking could not alter old laws or make new ones ‘without the express consent of thewhole kingdom in parliament assembled’ and that ‘every inhabitant is at his liberty fullyto use and enjoy whatever his farms produceth, the fruits of the earth, the increase of hisflock, and the like: all the improvements he makes, whether by his own proper industry,or of those he retains in his service, are his own to use and enjoy without lett,interruption or denial of any’.31 As reinforced by later jurists, most famously Sir EdwardCoke during the reign of James I, such stipulations had evolved into a belief that crownand parliament were bound by higher law, and that taxation, in order to be constitu-tional, required representation.

William Blackstone, whose commentaries on the law had just begun appearing as theStamp Act crisis unfolded, only altered that understanding in part. ‘The supreme poweris divided into two branches’, he wrote, ‘the one legislative, to wit, the parliament,consisting of king, lords and commons’, and ‘the other executive, consisting of the kingalone.’ In speaking of the crown in parliament he determined that ‘it hath sovereign anduncontrolable authority in making, confirming, enlarging, restraining, abrogating, repeal-ing, reviving, and expounding the laws’; ultimately it was ‘the place where that absolutedespotic power, which in all government must reside somewhere, is entrusted by theconstitution of these kingdoms’.32 If readers deduced that Blackstone stood closer to

30 As taken from The Law & Working of the Constitution, ed.W.C. Costin and J. Steven Watson (2 vols, 1952),i, 154.

31 Sir John Fortescue, De Laudibus Legum Angliae (Cincinnati, 1874), 143. Fortescue had been translated intoEnglish as early as Elizabeth I’s reign; a new English language edition had appeared as recently as 1741.

32 William Blackstone, Commentaries on the Laws of England (4 vols, Chicago, 1979), i, 143 and 156,respectively.Therefore parliament ‘hath power to bind every subject in the land, and the dominions thereuntobelonging; nay, even the king himself, if particularly named therein’ (i, 178; referring to the king in hisexecutive role; he did not act independently of parliament when performing legislative functions – at leastconstitutionally, that is). Whether this represented a fundamental reordering of the relationship of crown to

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Thomas Hobbes than John Locke on the political philosophy underlying constitutionallaw, at least on one level they would have been correct. After noting Locke’s view thatall legitimate power had to be vested in, not simply derived from, the people, Blackstoneadded:

however just this conclusion may be in theory, we cannot adopt it, or argue from it,under any dispensation of government at present existing. For this devolutionof power, to the people at large, includes in it a dissolution of the whole form ofgovernment established by that people, reduces all members to their original state ofequality, and by annihilating the sovereign power repeals all positive laws whatsoeverbefore enacted. No human laws will therefore suppose a case, which at once mustdestroy all law, and compel men to build afresh upon a new foundation; nor will theymake provision for so desperate an event, as must render all legal provisions ineffec-tual. So long therefore as the English constitution lasts, we may venture to affirm, thatthe power of parliament is absolute and without control.33

Still, Blackstone could not put the lie to Pitt, even though as a member of parliamenthe would argue against Pitt’s position.34 Blackstone noted that within parliament eachcomponent part – kings, Lords, Commons – enjoyed rights that were not to be abridgedby the other two. Those included the Commons’ sole authority to draft money bills.Consequently, even in Blackstone’s constitutional world the Commons had a specialcharge to secure the people’s rights, including their taxable property. Moreover, Black-stone preferred monarchical populism to absolutism and used language that reinforcedassumptions that kings, too, were bound by the law, that they had a legitimate claim tothe throne only so long as they served the people.

That was Pitt’s understanding of the relationship between governor and governed.Others in parliament felt the same. Like Pitt they were attached to an idealised ancientconstitution, reified in the accompanying notion that there were fundamental rightsbeyond the reach of even the crown in parliament.35 But the more pragmatic amongthem avoided trying to win a political point by making constitutionalist assertions –which might, they feared, spark a debate causing them to wander off into the foggy mistsof the past or into the even more nebulous realm of political philosophy. Blackstone,by contrast, represented a move toward legal positivism that eventually would press

32 (continued) parliament traceable to the Glorious Revolution has been the source of some debate, for whichsee John Phillip Reid, Constitutional History of the American Revolution (4 vols, Madison, 1986–93), whoconcludes that it did, and Jeffrey Goldsworthy, The Sovereignty of Parliament (Oxford, 1999), who concludes thatit did not.

33 Blackstone, Commentaries, i, 157.34 During the Commons debates on 3 Feb. 1766; see Proceedings and Debates, ed. Simmons and Thomas, ii,

140.35 O.A. Sherrard, Lord Chatham (3 vols, 1952–8), depicted Pitt’s argument as ‘new’ as well as ‘unexpected’.

Rather than connect Pitt to those who had gone before, Sherrard presented him as a forerunner to those whowould come later, with ideas that reached ‘full fruition only in the Budget controversy of 1909’ (iii, 187). Bycontrast, John Phillip Reid, Constitutional History of the American Revolution (abridged edn, Madison, 1995), 28,132 n. 7, linked Pitt to the English whig past, as did Charles Howard McIlwain, The High Court of Parliamentand its Supremacy (New Haven, 1910) and J.W. Gough, Fundamental Law in English Constitutional History(Oxford, 1955). J.G.A. Pocock, The Ancient Constitution and the Feudal Law (rev. edn, Cambridge, 1987) did not.Also see Caroline Robbins, The Eighteenth-Century Commonwealthman (Cambridge, 1959); H.Trevor Colbourn,The Lamp of Experience (Chapel Hill, 1965).

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constitutionalists to distinguish between what was legally, as opposed to morally, correct,and to what extent crown and parliament were obliged to respond to judicial rulings orpublic opinion.36 If, by definition, the high court of parliament could not act illegally,could it none the less act unconstitutionally? Blackstone felt that the only logical answer– logical in terms of political stability and governmental coherence – was ‘no’. ThoughBlackstone himself did not spurn natural law he was reluctant to incorporate it withina system where the crown in parliament was deemed supreme. For all intents andpurposes he rejected the notion that there could be a right of revolution within British(more properly, English) constitutionalism, even though the people had a natural right tooverthrow tyrannical government. Pitt, by limiting parliament’s purview, by treating it assupreme and yet not absolute, kept natural and positive law joined, thereby raisingconstitutional questions that his generation was simply not prepared to answer.37

The internal/external distinction is another matter. Grenville rejected it, but then hewas not responding directly to Pitt, who had not talked in those terms.38 Rather, helumped Pitt’s taxation/legislation distinction with that of internal/external taxes becausehe did not accept the validity of either one and, besides, he saw no plausible distinctionbetween them. Pitt may have been the first to vigorously argue the former against himon the floor of the House – as Grenville charged in his response on 14 January – buthe had heard variations on both distinctions before; indeed, on the very day heintroduced the bill that became the Stamp Act. Not only that, he had had a foretaste ofthe issues that would be raised then during the preceding session, when the Sugar Billwas debated on its way to becoming law.

The record, imperfect as it is, shows that on 6 February 1765, Grenville introduced hisproposed Stamp Act as one ‘means of raising [a] tax upon North America to pay for’ its‘defence and protection’, and that he also said something, however vague, about parlia-ment’s right ‘to bind as to laws and taxes’.39 Given what he considered ‘the strangelanguage he has met with in conversation and public writing upon the subject’ ofparliament’s authority to tax the colonies, Grenville laid out what he thought incon-trovertible proof establishing both the ‘propriety and the expedience of laying this tax’.Thatis to say, parliament had the right as well as the need to tax the colonies directly – anassertion of right that, his claim the next year notwithstanding, seems to have been

36 For the classic discussion of the problems of setting constitutional and legal limits within an evolvingBritish system see H.L.A. Hart, The Concept of Law (2nd edn, Oxford, 1994); supplemented by T.R.S. Allan inLaw, Liberty, and Justice (Oxford, 1993).

37 See H.T. Dickinson’s essays, ‘The Eighteenth-Century Debate on the Sovereignty of Parliament’, TRHS,5th ser., xxvi (1976), 189–210; ‘Britain’s Imperial Sovereignty: The Ideological Case Against the AmericanColonists’, in Britain and the American Revolution, ed. H.T. Dickinson (1998), 64–96; the overviews in Jack P.Greene, Peripheries and Center (Athens, 1986); Lee Ward, The Politics of Liberty in England and RevolutionaryAmerica (Cambridge, 2004).

38 He could have been responding to issues raised the year before, or even the year before that, as he guidedthe Sugar and Stamp Acts through the Commons. He could also have been responding to things said outsideof the Commons altogether, in American pamphlets and newspaper pieces reprinted in London, or to morerecent pieces in the press. E.g., ‘Aequus’ wrote essays for the London Chronicle, printed on 4, 7 and 11 Jan. 1766that rejected virtual representation and distinguished between internal and external taxes as part of an argumentsupporting the claim of colonial legislatures to tax themselves. In short, Grenville could have had any numberof antagonists in mind, not just Pitt.

39 Proceedings and Debates, ed. Simmons and Thomas, ii, 9, for ‘raising tax’ (as taken from MP NathanielRyder’s diary) and ii, 14, for ‘bind’ (as recorded by MP James Harris).

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opposed by a few there.40 Knowing that some colonists had already complained that theyheld no seats in parliament, he also contended that they were ‘virtually represented’,41 aswere all subjects of the crown.

Challenged directly on the question of need and more obliquely on the matter ofright, he was warned that Americans had already raised the question of right and thatthey would raise it again.42 William Beckford, alderman for the city of London and aPittite, suggested that the colonists ‘do not think an internal and external duty the same’,that they accepted the latter but not the former as a legitimate extension of parliament’sauthority through the navigation system. And what constituted an ‘external duty’?As Beckford explained it, setting rates on imports and exports, then collecting theproceeds.43

Jared Ingersoll, agent for Connecticut, recorded what has become the most famousexchange during debates that day, between Charles Townshend and Isaac Barré. Town-shend complained that the colonists were ‘children planted by our care’, that they hadgrown wealthy and strong, ‘protected by our arms’, but now they ‘grudge to contributetheir mite to relieve us from the heavy burden’ that Britain carried for the good of all.To which Barré retorted:‘They planted by your care? No!Your oppressions planted themin America’, charged the veteran army officer, who had lost an eye fighting under Wolfeon the Plains of Abraham outside Quebec:

They protected by your arms? They have nobly taken up arms in your defence, haveexerted a valour amidst their constant and laborious defence of a country, whosefrontier, while drenched in blood, its interior parts have yielded little savings to youremolument. And believe me, remember I this day told you so, that same spirit offreedom which actuated that people at first, will accompany them still. But prudenceforbids me to explain myself further. God knows I do not at this time speak frommotives of party heat, what I deliver are the genuine sentiments of my heart; howeversuperior to me in general knowledge and experience the reputable body of this House

40 ‘And here I would remark, that in the whole Debate, first and last, Alderman Beckford, and GeneralConway were the only Persons who disputed the Right of Parliament to Tax us’, wrote Jared Ingersoll, agentfor Connecticut, to Governor Thomas Fitch of Connecticut, 6 Mar. 1765, printed in Mr. Ingersoll’s LettersRelating to the Stamp-Act (New Haven, 1766), 22. In a letter to the Connecticut assembly the following 19September he repeated that Beckford and Conway ‘denied the right of Parliament to Tax us’, but also notedthat others who objected did so ‘not on Account of it’s being Unconstitutional, but because they tho’t theMeasure imprudent, and, perhaps, burdensome’ (31).

41 Proceedings and Debates, ed. Simmons and Thomas, ii, 9 (Ryder diary). An argument offered in print by[Thomas Whately], The Regulations Lately Made concerning the Colonies, and the Taxes Imposed upon ThemConsidered (1765).

42 As seen, e.g., in [Thomas Fitch], Reasons Why the British Colonies, in America, should not be Charged withInternal Taxes, by Authority of Parliament (New Haven, 1764), which prompted a rebuttal, [William Knox], TheClaim of the Colonies to an Exemption from Internal Taxes Imposed by Authority of Parliament, Examined (1765) –proof, if any should be required, that the internal/external tax distinction was being made before the StampAct became law. Rhode Islander, Stephen Hopkins, whose pamphlet The Rights of the Colonies Examined(Providence, 1765) appeared not long after Fitch’s, argued that colonial legislatures had the ability to managetheir ‘internal’ government (35), not precisely the distinction that Pitt would make between taxation andlegislation, and yet neither was it the internal versus external tax discussion – again, language confusing ratherthan clarifying issues.‘For my own part, I confess, I cannot clearly understand the distinction said to be betweenan internal and external tax’, wrote Knox, author of The Claim . . . Examined, 14, a line nearly repeated byGrenville in the Commons debates of 14 January.

43 Proceedings and Debates, ed. Simmons and Thomas, ii, 11 (Ryder again).

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may be, yet I claim to know more of America than most of you, having seen and beenconversant in that country.The people I believe are as truly loyal as any subjects theKing has, but a people jealous of their liberties and who will vindicate them, if ever theyshould be violated, but the subject is too delicate and I will say no more.44

Pittite though Barré had become, the warning he offered here illustrates why he got onwell with Rockingham, and why it is misleading to lump political leaders on either sideof the Atlantic into easily-definable groups – this adhering to one constitutional theory,that to another. Reading between the lines, Barré advised his colleagues that Grenville’sprogramme threatened the empire on both practical and theoretical grounds. On thepractical side, Grenville had justified the Stamp Act as a financial necessity: money wasrequired to meet the increased expense of empire, Americans could afford to pay it, andthey should help cover costs – costs incurred for their benefit. On the theoretical side heconceded that Americans had no constitutional right to object because what the crownin parliament ruled applied to all. But Barré was emphatic: insult the colonists and theywould resist; placate them and they would be obedient. Pitt, had he been there, mighthave been impressed with Barré’s admonition even if he would have raised his eyebrowsat Barré’s more constricted view of American rights. Rockingham had no reason toobject, either to Barré’s caveat or to his position on American rights.

4

Rockingham and Pitt not only differed on constitutional fundamentals; they also differedin their political tactics. The marquess hoped to avoid constitutional issues and calmpolitical disputes by addressing financial needs, while Pitt felt that constitutional issueshad to be met head-on if there was to be any hope of an equitable financial arrangementor a lasting political settlement. But Pitt’s direct, confrontational style went against theparliamentary grain.A more oblique approach to taxing had been the accepted way, evenunder Grenville, all of his growling about parliament’s authority to tax during debatesin the Commons notwithstanding. Tellingly, neither the Sugar nor Stamp Acts talkedspecifically of taxes. The Sugar Act specified that it was passed so a ‘revenue’ could ‘beraised’ and the Stamp Act stipulated that it was intended ‘for raising a further revenue’,but both were characterised as duties rather than taxes.45 Grenville had managed tododge most criticism of the Stamp Bill in parliament before it passed by refusing toreceive petitions protesting against it from the colonies.46 With those protests not entered

44 Proceedings and Debates, ed. Simmons and Thomas, ii, 16–17 (from Jared Ingersoll’s letter to GovernorThomas Fitch of Connecticut). ‘An Englishman’ echoed Barré a year later, during the dispute over repeal, inthe Public Advertiser, 7 Feb. 1766. Or as the 13th in a set of queries put it for the London Chronicle, 1 Feb. 1766:‘If the number of North-Americans is at present three millions, how long will it be, by the usual way ofcalculating increase of people in that country, before the number will become doubled? And then how are weto rule them?’

45 The Statutes at Large, ed. Danby Pickering (46 vols, Cambridge, 1762–1807), 4 Geo. III, c. 15 for the SugarAct (1764); and 5 Geo. III, c. 12 for the Stamp Act (1765).

46 Grenville hid behind a procedural rule that petitions against money bills could not be received becausethey would prove too disruptive and delay the legislative process. Because Grenville announced in 1764 hisintention to bring in a stamp act the next year, giving the colonists a chance to respond, there are those who

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into the record, Grenville could avoid responding to American complaints or counteringthe protesters’ view of parliamentary authority and colonial rights. Rockingham did nothave the luxury of ignoring colonial protests because they had moved from the hypo-thetical to the real, with trade disrupted and imperial authority endangered. Nor did hewant to ignore them. They became essential to his argument for a change in imperialpolicy. He did not, however, want to concede any constitutional point to the protestingcolonists because, frankly, like Grenville, he thought those colonists were wrong.

Rockingham would consequently be precise when it suited his purposes, imprecisewhen it did not. He was hardly unique in that regard. Most members of parliament knewthat debating constitutional points rarely resolved political disputes – Pitt, too, when hisego did not get in the way. Language – the words avoided as well as those expressed –could further complicate already complicated issues.This had been the case even beforeGrenville introduced the Stamp Bill for parliamentary debate. The shocked reaction toPitt’s speech on 14 January, then, was not because the ‘Great Commoner’ had created aconstitutional confusion hitherto unknown; rather, it was that he had been so bold, sounequivocal in bringing the issue of taxation to the floor of the House and demandingthat the confusion surrounding it end.

Pitt could rightly feel that he was forcing members of parliament to debate openlywhat was already being discussed privately, to settle what was already argued publicly inthe press on both sides of the Atlantic. Just because Pitt spent the month before hisJanuary 1766 speech recuperating at Bath in anticipation of going to Westminster did notmean that he was out of touch with the growing imperial dispute. Had he, for example,read in the London papers that the town of Braintree, Massachusetts, condemned theStamp Act as unconstitutional and an unfair burden on the local economy?47 Had heperused the resolutions passed by the Stamp Act Congress in October, one of whichstipulated ‘That all Supplies to the Crown, being the free gifts of the People, it isunreasonable and inconsistent with the Principle and Spirit of the British Constitution,for the People of Great-Britain, to grant his Majesty the Property of the Colonists?’48 Pittwas about to become part of a transatlantic debate well under way, a debate that had, infact, begun a century before and was only intensified with Grenville’s programme.49 It

46 (continued) contend that he was being disingenuous – that he would do what he intended, their objectionsregardless, while others counter that he was giving them a genuine chance to be part of the discussion, eitherin suggesting how the stamps should be issued or in coming up with an alternative to them through the oldrequisition system. Grenville the sincere; Grenville the cynical – it has proved difficult to move past eitherstereotype. Edmund S. Morgan gathered many of the colonial protests and petitions, both before and afterpassage, for his (along with Helen M. Morgan) The Stamp Act Crisis (Chapel Hill, 1953) and had them printedin Prologue to Revolution (Chapel Hill, 1959). Transcripts for many of them are bound together in BL, StoweMSS 264, 265. For more on Morgan and his view, see below, note 82.

47 As reported in the London Chronicle, 11 Jan. 1766; resolutions passed on 24 September.48 Proceedings of the Congress at NewYork (Annapolis, 1766), 15. Note that the delegates to Congress, like the

townsmen of Braintree, swore their allegiance to crown and parliament, accepting Britain’s sovereignty and notrejecting parliamentary supremacy. Copies of the Congress’s various resolutions are preserved in BL, Add. MS32971, ff. 113–27 – having been made for Newcastle to help him prepare for the debates that he knew wouldarise in parliament come January. Also see C.A. Weslager, The Stamp Act Congress (Newark, 1976), for theproceedings as well as the resolutions passed there.

49 See Richard R. Johnson, ‘ “Parliamentary Egotisms”: The Clash of Legislatures in the Making of theAmerican Revolution’, Journal of American History, lxxiv (1987), 338–62; John Phillip Reid, ‘ “In Our Con-tracted Sphere”: The Constitutional Contract, The Stamp Act Crisis, and the Coming of the AmericanRevolution’, Columbia Law Review, lxxvi (1976), 21–47; J.M. Bumsted, ‘ “Things in the Womb of Time”: Ideas

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was also a debate that heretofore had been intermittent rather than continuous, tendingto involve first one political component of the transatlantic empire and then another,rather than all simultaneously.

Some of what Pitt said in the Commons echoed Daniel Dulany of Maryland’spamphlet defending American rights and protesting against the Stamp Act.50 WhetherDulany actually shaped or merely paralleled Pitt’s thinking is impossible to tell, but thenthat is the case with most instances of supposed influence. If Pitt simply picked and chosewhat complemented his own thinking while he ignored the rest, that would have madehim no different from others engaged in the debate.

Dulany accepted as a given that the colonies were subordinate to the mother countryand that parliament was in some sense supreme, and he did not condemn the idea ofparliament regulating trade in the empire. As Pitt would do in his later speech, Dulanycontained parliamentary authority within natural rights. Like Pitt he drew a distinctionbetween parliamentary authority and parliamentary power, hoping that parliament itselfwould see the difference and adhere to older notions of higher law. He contendedthat taxation required consent and that the colonists were not – and could not be –represented at Westminster, either actually or virtually. Like Pitt he knew about the 1678resolution restricting money bills to the Commons and complained of ‘the improprietyof a taxation by the British parliament’.51 Rather than distinguish between taxation andlegislation he talked of ‘internal taxation’,52 condemning it most harshly when it wasused to raise revenue rather than simply regulate colonial commerce. Parliament did nothave carte blanche to do as it pleased under the navigation system.

No doubt his terminology was conflated with Pitt’s in many minds and understand-ably so, since both condemned the Stamp Act as a constitutional innovation and violation

49 (continued) of American Independence, 1633–1763’, William and Mary Quarterly, 3rd ser., xxxi (1974),533–64. Thomas R. Adams, American Independence (Providence, 1965) and Adams’s later American Controversy(see above, note 18) listed the pamphlet literature produced in both England and the colonies.

50 Williams, Life of Pitt, ii, 191, noted the parallel between the phrase ‘gift and grant’, as spoken by Pitt,reproduced in Proceedings and Debates, ed. Simmons and Thomas, ii, 86, and ‘give and grant’, as first printed in[Daniel Dulany], Considerations on the Propriety of Imposing Taxes in the British Colonies (1765), 5.Adams, AmericanIndependence, 8–11, lists the various printings and editions of the pamphlet that appeared around the colonieswithin a year.Also see Adams’s American Controversy, i, 24–5, for copies that were circulating in England before theend of the year, and a London reprint early the next.Williams, Life of Pitt, ii, 197 also saw (stretching, perhaps) aconnection between Pitt’s use of ‘desert’ in a Commons speech on 27 Jan. 1766 and Dulany’s use of ‘wilderness’in his Considerations. Shelburne commented on Pitt’s use of Dulany in his letter to Pitt (by then Lord Chatham)of 6 Feb. 1767, in Pitt Corres., ed. Taylor and Pringle, iii, 192. Like Dulany, James Otis condemned virtualrepresentation and argued on the basis of natural rights; unlike Dulany, he thought a solution to the problem wasto give Americans seats at Westminster. In his Considerations on Behalf of the Colonists (1765) Otis proclaimedparliament supreme while also condemning taxation without representation. Pitt would have had time to see itbefore his 14 January speech. Still,Otis did not make the taxation versus legislation distinction at the heart of Pitt’sargument, here or in his earlier The Rights of the British Colonies Asserted and Proved (Boston, 1764), also reprintedin London before the year was out. Otis, interestingly, denied that there was any difference ‘between an internaland an external tax on the colonies’ (42), a statement that may have been prompted by his reading of [ThomasPownall], The Administration of the Colonies (1764). For Pownall’s evolving argument see G.H. Guttridge,‘ThomasPownall’s The Administration of the Colonies:The Six Editions’, William and Mary Quarterly, 3rd ser., xxvi (1969),31–46. For shifts in Otis’s thinking see below, note 116.

51 ‘The granting of Supplies, or Laying Taxes, is deemed to be the Province of the House of Commons as theRepresentative of the People. – All Supplies are supposed to flow from their Gift; and the other Orders arepermitted only to assent, or reject generally, not to propose any modification,Amendment, or partial Alterationof it’: [Dulany], Considerations, 5; 14 for ‘impropriety’.

52 Dulany, Considerations, at 13 and passim.

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of the colonists’ natural rights.53 In later debates Pitt himself would use terminologysimilar to Dulany’s.54 None the less, Dulany’s emphasis differed from Pitt’s, which provedconfusing to those looking for perfect consistency, for a single, coherent position. Pitttreated the Stamp Act as distinct from other laws encompassed within the navigationsystem; Dulany had been more sweeping, talking about the ‘intent’ behind legislation thatdetermined its legitimacy – its constitutionality, something that John Dickinson woulddevelop even more when he took on the guise of a Pennsylvania farmer two years laterduring the Townshend duties crisis.55 All of this might have struck a constitutionalprecisionist as terribly sloppy, especially for Dulany, who, unlike Pitt, was trained as abarrister, but precision was well-nigh impossible. What Dulany called ‘internal’ taxes insome passages seem to correspond to what Pitt meant by ‘taxation’. But in other places,where Dulany used internal tax as a way to validate his critique of navigation actsdesigned to raise revenue rather than simply regulate trade, he and Pitt were notnecessarily thinking alike.

Dulany complimented Pitt in his pamphlet without naming him.56 Did he hopethereby to influence him – and through him, others? Quite possibly; after all, influencingpublic opinion and changing government policy was the whole point behind his essayand those of his contemporaries, on all sides of the imperial dispute.To be sure, Dulanywas selective in his use of sources, presenting what he hoped would be persuasivearguments for his case as he belittled those of his opponents – not unlike what Pittwould do when he took the floor in the Commons. Constitutional scholar John PhillipReid has emphasized repeatedly – and for me, persuasively – that arguments of this typemade an eclectic use of evidence to produce ‘forensic history’. Dulany wrote hispamphlet as a polemic, a brief to win a case, in the court of public opinion as well asin the high court of parliament.57 The same was true of Pitt in his 14 January speech.They drew from whatever sources they deemed appropriate, which did not ipso factomake them intellectually disingenuous even if politically opportunistic. Convinced thatright was on their side they read deliberately even before they argued selectively, and,given the fluid state of empire, that selectivity could prove disastrous for those wantingto calm a roiling political sea.

Pitt’s impassioned 14 January plea for repeal put Rockingham in a most awkwardposition. The marquess had kept his ministry non-committal on the Stamp Act to thatpoint. Pitt’s harangue came on the first day of a new parliamentary session, when the

53 Transplanted New Yorker, Stephen Sayre, for one, apparently saw no difference. He wrote to Pitt andcomplimented him for standing ‘forth in the august Assembly of the nation’ and supporting ‘our diing [dying]Cause and the Cause of Liberty to the astonishment of all, and confusion of many around you’. He noted thathe expected to be called to testify before parliament and he was ready to tell how ‘internal Taxation’ wasdestroying trade. TNA, Pitt Papers, PRO 30/8/55, ff. 111–15: Sayre to Pitt, 25 Jan. 1766.

54 Proceedings and Debates, ed. Simmons and Thomas, ii, 285 (Ryder diary): see Pitt in Commons debates for21 February and 22 February.

55 See [ John Dickinson], Letters from A Farmer in Pennsylvania (Philadelphia, 1768), which first beganappearing sequentially as ‘letters’ in the Pennsylvania Chronicle on 30 Nov. 1767, a dozen in all.

56 Dulany, Considerations, 19.57 See Reid’s Constitutional History, iii, 159–71 for a discussion of ‘forensic history’; also Reid’s case study,

In a Rebellious Spirit (University Park, 1979), which shows how this phenomenon played out in the 1768 Libertyaffair; and his more recent comments in The Ancient Constitution and the Origins of Anglo-American Liberty(DeKalb, 2005).

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speech from the throne and response to it from both Houses normally set the legislativeagenda. ‘I have the strongest Reliance on your Resolution to do every Thing that maybe most expedient in the present State of my Colonies in America’, the king proclaimed.He left Rockingham’s options open; or, more correctly, Rockingham and his ministerswho actually wrote the speech for the king kept their options open, wording theirresponse as vaguely as they phrased the king’s charge to them.58 They had devised theirstrategy for both the Lords and the Commons at late night meetings, most often atRockingham’s London residence.There was little that was spontaneous to what they didon the floor of either House. Most of what they said had been carefully worked out inadvance, in meetings behind closed doors, whose details are now lost.59

The marquess knew that he had to have some response to the American unrest, andthat meant a new policy to coincide with a new session of parliament. He, the duke ofNewcastle, the duke of Grafton, Henry Seymour Conway and a handful of others hadbegun their planning by the middle of November but still had not settled on whichdirection to take.60 As Rockingham told a nervous Newcastle two days into the newyear, ‘Some as yet not many’ of his ministerial colleagues supported ‘a Suspension & Veryfew’ would support ‘a Repeal’.61 No one knew better than Rockingham that he presidedover a coalition ministry held together by shaky majorities in the Lords and theCommons, with a king whose heart told him to be tough with the colonists even if hishead told him otherwise.62

Rockingham had been advised that he would have to try and prevent Isaac Barré’sFebruary 1765 caution from becoming a self-fulfilling prophecy. ‘Depend on it’, warneda NewYorker, colonists would resist rather than submit to the Stamp Act and they wouldnot be satisfied with anything less than complete repeal; revision would not be enough.‘Supplies being Gifts’, parliament could not ‘constitutionally grant away our Property’,

58 Proceedings and Debates, ed. Simmons and Thomas, ii, 63, for this excerpt from the king’s speech.‘Whateverremains to be done on this Occasion, I commit to your Wisdom’, he added, as long as they endeavoured ‘topreserve those Constitutional Rights over the Colonies, and to restore to them that Harmony and Tranquility,which have lately been interrupted by Riots and Disorders of the most dangerous Nature’ (ii, 64). On 30December Attorney General Charles Yorke had sent Rockingham a draft for part of the speech. ‘To shew yourLordship, that I do not think it difficult to pen words for the Royal mouth’, he boasted, ‘I inclose to you adraught of so much as relates to the American disturbances.When you have read it twice with care, you will find,that the king cannot say less, and I think it necessary and proper for him to say more’ (Sheffield City Archives,Wentworth Woodhouse Muniments [hereafter cited as WWM], R1/544).

59 For examples of such meetings see BL, Add. MS 35430, ff. 31–5: Rockingham to Charles Yorke, 17, 20,21 Jan. 1766. Important decisions were made in these meetings, invisible to the public, invisible even to amajority of peers and MPs, with the king being involved only tangentially. Invisible to most contemporaries,they remain invisible now to historians, who usually must infer what went on there.

60 See Newcastle’s letter to Rockingham, dated simply Nov. 1765, where Newcastle sketched in possibleareas of discussion in anticipation of the new session, in WWM, R1/530, the first of many such notesNewcastle would write over the next two months as Rockingham cobbled together his colonial policy; see alsoBL, Add. MS 32971, ff. 317–21.

61 BL, Add. MS 32973, f. 12: Rockingham to Newcastle, 2 Jan. 1766.62 Rumours of repeal were circulating before the Stamp Act even took effect (though signed into law

in March it did not become operative until 1 November) – see Ingersoll’s Letters, 44–50: Jared Ingersoll toThomas Whately, 2 Nov. 1765, evidence, as is often noted, that disgruntled colonists often responded tooppression anticipated rather than oppression experienced. For the rumours circulating closer to themoment that Rockingham contemplated his options see both The Public Advertiser and Lloyd’s Evening Postfor 13 Jan. 1766.

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just as the delegates to the Stamp Act Congress had declared.63 Even so, Rockinghamwas undecided going into January 1766, as were many of his colleagues in the ministry.Some indeed wanted a full repeal; others would have been content with some sort ofmodification. Rockingham knew that Grenville would press for tighter enforcement andhe feared that the king might support him, especially if urged to by Bute. AlthoughGrenville’s December attempt to insist on enforcement had been blocked, Rockinghamcould not be sure what January would bring when parliament reconvened.64

The plodding nature of Rockingham’s response to pressure, from out of doors as wellas from Whitehall and Westminster, was reinforced by the assumption that nothingsubstantial could be done without Pitt’s assistance, either informally by involving him inpolicy discussions or formally by having him join the ministry.65 Grafton and Conwaysent MP Thomas Townshend to meet with Pitt in Bath before he returned to Londonfor the new session of parliament, and they did so with Rockingham’s blessing. Pitt letTownshend know what concessions would have to be made to get him into the ministry– too many, as it turned out. On American affairs he was much more evasive.66 Evenso, despite his demands and despite his raising constitutional issues that Rockinghamwould have preferred to be left alone, Rockingham only reluctantly gave up on tryingto bring Pitt into his political fold.67 He probably never had a chance, with Pitt in some

63 From excerpts of a letter dated 8 Nov. 1765 sent to Thomas Boone, former governor of New Jersey andSouth Carolina, which Boone forwarded to Rockingham, in WWM, R1/522.

64 A worried Edmund Burke complained that ‘the Grenvillians rejoice and Triumph as if they had obtainedsome capital advantage, by the confusions into which they have thrown every thing’: The Correspondence ofEdmund Burke, ed.Thomas Copeland (10 vols, Cambridge, 1958–78), i, 229: Burke to Charles O’Hara, 31 Dec.1765. What Burke alluded to is what had occurred in the Commons not two weeks before. Parliament met17–20 December so that writs for elections could be issued in order to fill vacant seats in the Commons andprovide a full House in January.The very brief speech from the throne, which Rockingham and key adviserswrote and the king approved before delivering, referred in passing to ‘Matters of Importance in some of MyColonies in America, which will demand the most serious Attention of Parliament’. Grenville moved to amendthe proposed response to express ‘deep Concern and Indignation at the dangerous Tumults and Insurrections’in the colonies. He withdrew the motion when he saw that he did not have the votes, but that in no waymeant that repeal of the Stamp Act was a foregone conclusion come January. See Proceedings and Debates, ed.Simmons and Thomas, ii, 54, for the message and failed amendment; the typically tart observations of HoraceWalpole in his Memoirs of the Reign of King George III (4 vols, 1845), ii, 166–8; and the overview in Thomas,British Politics, 154–9. Hints of how the king’s message was drafted for him were offered in Charles Jenkinson’sletter to Grenville of 15 Dec. 1765, in Grenville Papers, ed. Smith, iii, 110–11. John L. Bullion, ‘British Ministersand American Resistance to the Stamp Act, October-December 1765’, William and Mary Quarterly, 3rd ser., xlix(1992), 89–106, has Rockingham moving toward repeal by this time, with the use of force never being a realoption.

65 Newcastle was lord privy seal, the office that Pitt would take – out of spite? – when he formed his ownministry the following July, with Rockingham’s fall. See MP John Pringle’s comments on Rockingham’sdifficulties in a letter of 8 Nov. 1765 to Walter Scott in HMC, Polwarth, v, 360–2. For context see Thomas,British Politics, 154–252; and the discussions in Ritcheson, British Politics, 38–67; Paul Langford, First RockinghamAdministration, 1765–1766 (Oxford, 1973), 109–98; Hoffman, The Marquis, 98–115; and O’Gorman, Rise ofParty, 110–56.

66 See BL, Add. MS 35430, ff. 29–30: Rockingham to Charles Yorke, 11 Jan. 1766; Add. MS 35430, ff.111–13: Newcastle to the archbishop of Canterbury, 12 Jan. 1766, for Townshend; and the king’s note tohimself of 18 January, in The Correspondence of King George the Third, from 1760 to December 1783, ed. Sir JohnFortescue (6 vols, 1927–8), i, 237–9, for Pitt’s demands, which at the very least entailed Newcastle’s resignationfrom the ministry, plus places being found for Shelburne and Camden, Pitt’s allies in the house of lords.

67 As Rockingham wrote to the king the next day: ‘His declaration in the debate, roundly and positivelyagainst all the measures of the late Administration, has given him great credit, and gratified the animosity ofmany who now form the firm support of the present Administration’: printed in George Thomas [Keppel], earlof Albemarle, Memoirs of the Marquis of Rockingham and His Contemporaries (2 vols, 1852), i, 270.

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sense determined to play the role of ‘spoiler’, as biographer Jeremy Black put it.68 Ifhe could not get what he wanted, he was not particularly concerned with helpingothers.

5

Still, Pitt’s speech on 14 January may have helped nudge Rockingham toward repealand away from modification. Rockingham had never favoured tougher enforcementand there was nothing that Grenville – even with rumours of Bute’s backing – coulddo to get his support for a hard-line policy. Pitt’s views were soon being spread byothers who had not been in the Commons, with the same sort of counter-argumentsthat had been made to Pitt there.69 Within a week of Pitt’s speech Rockingham hadfinally decided on repeal. The trick would be to secure the majority he needed whilethreading his way between Grenville and Pitt in the Commons. That task fell toConway and William Dowdeswell, while he and Grafton would lead the way in theLords. Pitt’s performance had perhaps eased Rockingham’s task by making it possiblefor him to appear to be choosing a less radical position, a political middle ground inline with constitutional orthodoxy. At the same time, Pitt had unleashed a heateddebate in the press and Rockingham could not keep arguments aired there fromspilling back into parliament.70

Rockingham decided against permitting any Stamp Act Congress petition from beingentered in the journal because the meeting had been extra-legal and in his eyes had nostanding. He allowed in petitions from various legislatures that made the very sameassertions about violated rights, knowing full well that the complaints expressed therewould be combined in members’ minds with the information that he requested from thetreasury showing a decline in trade revenue since the troubles spawned by the Stamp Act,petitions from merchants around the country complaining of their own growing debtand lost profits, and the increased overhead for the customs service due to the costs ofenforcement.71 For someone not known as a skilled political manager, Rockingham was

68 Jeremy Black, Pitt the Elder (Phoenix Mill, 1999), 27.69 The Public Advertiser, 27 Jan. 1766, ran notices announcing three new pamphlets: The Crisis (1766), which

embraced the Pitt view; J.M. [pseud.], The Legislative Authority of the British Parliament, With Respect to NorthAmerica (1766), which did not; and likewise the more terse, anonymously authored Constitutional Considerationson the Power of Parliament to Levy Taxes on the North American Colonies (1766). An Examination of the Rights of theColonies, Upon Principles of Law, ‘By a Gentleman at the Bar’ (1766), though dismissing both the taxation/legislation and internal/external taxes distinctions, was aimed more at common folk who dared to discussdeeper issues, than at Pitt – which prompted The Monthly Review, xxxiv (1766), 64, to huff: ‘how happy it isfor this country that her liberties have not always been left to the arguments and decisions of lawyers’.

70 See the challenge issued to Pitt by ‘AVolunteer’, Lloyd’s Evening Post, 6 Jan. 1766, before he even returnedto London, and a vituperative series of essays by ‘Anti-Sejanus’ that appeared in that paper and various others– the St James Chronicle, London Chronicle, and Public Advertiser – from Jan. into Mar. 1766. Samuel Clapham,editor of Sermons on Interesting Subjects (1816), pp. vii–viii, identified the Reverend James Scott, author of thesermons that he had gathered, as ‘Anti-Sejanus’. Many of those screeds were reprinted in A New and ImpartialCollection of Interesting Letters (2 vols, 1767), ii, 3–31, as well as those by ‘An Occasional Writer’ who defendedPitt (at ii, 75–111), and others.

71 For papers from the colonies entered into the Commons Journal on 14 January, see Proceedings and Debates,ed. Simmons and Thomas, ii, 74–80; the request for figures on imports and exports on 20 January (ii, 101); forarmy expenses in the colonies the next day (ii, 102–3); and the overhead for the customs service the day

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obviously astute enough to see the value of building a case with evidence from a rangeof sources.

Pitt, his dramatic speech made, figured less and less prominently as January becameFebruary. Exhausted by his initial outburst, he did not even participate in debates againuntil 27 January when he took the losing side on receiving the Stamp Act Congresspetition, he in favour, a solid majority opposed. His accusation that the Stamp Act brokethe ‘original compact’ between Britain and the colonies won him no friends and sparkeda furious retort from Sir Fletcher Norton, an indication that Pitt’s oratory dividedwithout conquering.72 By then all attempts at bringing Pitt into the ministry or formingan entirely new ministry around him had been abandoned.73 Pitt was not ignored norwas he disgraced.74 By the summer he would be at the head of his own ministry. But fornow his ability to shape policy was circumscribed.And as lengthy debates on 3 Februarywould demonstrate, a growing number in favour of repeal did not mean that hisconstitutional argument would prevail; just the opposite. Though Rockingham and hissupporters agreed with Pitt on the need to rescind the Stamp Act, they disagreed withhim on the issue of parliamentary authority. Like Grenville they saw no distinctionbetween taxation and legislation or between internal and external taxes. Unlike Grenvilleand like Pitt they had concluded that the Stamp Act caused undue financial harm andpolitical discontent. For them repeal became a question of expedience, of politicalnecessity.Virtually no one outside Pitt’s small group of supporters concurred with thetaxation/legislation distinction or Pitt’s contention that parliament was only supremeover the colonies within limits.

Rockingham put off debate on repeal in both houses until he could carry a set of fiveresolutions that he and his closest advisers had drafted to smooth the way. Theiravoidance of the incendiary word ‘taxation’ in those resolutions was an artful dodge, anattempt to keep the focus on repeal and off constitutional issues.75 To prevail, Rocking-ham would have to reassure a majority that repeal not only made financial sense; it

71 (continued) following (ii, 106). Refusal to receive any petition from the Stamp Act Congress came afterdebate on 27 January (ii, 108–13), prompting the comments made by Charles Garth in a 26 February letterto the Maryland assembly in ‘Stamp Act Papers’, Maryland Historical Magazine, vi (1911), 282–7.

72 Conway reported to George III about Pitt during the debates on 27 January, in Proceedings and Debates,ed. Simmons and Thomas, ii, 112.‘The Great Commoner never laid himself so open, never asserted such absurdand pernicious doctrines, and richly deserved to have been called to the bar, or sent to the Tower’, complainedthe earl of Hardwicke to his brother, Charles Yorke, in a letter the next day, printed in Albemarle, Rockingham,i, 290. George Onslow, writing on 30 January, advised Pitt, who had left soon after for Bath, to bide his time,to not return until truly needed. He most likely was present for the debates on 3 February because he had beeninformed that Conway would present the ministry’s resolutions then. Onslow’s letter is in Pitt Corres., ed.Taylor and Pringle, ii, 374–5.

73 For the sputtering out of attempts to woo Pitt see BL, Add. MS 32973, ff. 174: Newcastle’s note toRockingham on 18 January; ff. 194–6: Rockingham to Newcastle on 21 January.

74 Which is why Newcastle still, as late as the middle of February, could write: ‘It seems to be theUnanimous Opinion of almost Every Body,That Mr. Pitt’s Assistance & Service, are absolutely necessary.’ BL,Add. MS 32974, ff. 5–7: Newcastle to the archbishop of Canterbury, 15 Feb. 1766. ‘How many more Capriceshe may have, private or publick, if he gets into power again, no one can foresee’, complained one ofNewcastle’s supporters–perhaps seeing where politics were headed (BL, Add. MS 32974, f. 18).

75 Thus Rockingham’s striking from the resolution that became the Declaratory Act Charles Yorke’sinsertion of: ‘as well as cases of taxation’ before the phrase ‘in all cases whatsoever’. See Rockingham’s desirethat it be excised in a letter to Yorke of 25 January in BL, Add. MS 35430, ff. 37–8, also printed with slightvariations in Albemarle, Rockingham, ii, 287–8. Even then Rockingham was worried about not offending Pitt,though he was confident of passage in the Commons; he anticipated more difficulty in the Lords.

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would not undercut parliamentary authority in the colonies and inadvertently jeopardiseBritain’s sovereignty over them. He could predict that Pitt, who had nothing to do withwriting the resolutions, would not support his avoidance of constitutional issues to reachhis political and financial objectives. Luckily for Rockingham, Pitt was more subduedafter 14 January. Perhaps Pitt saw that pushing his constitutional notions too hard wouldjeopardise repeal, which he wanted even more than Rockingham.76

Resolutions two through five complained of ‘tumults’ in the colonies, alleged that thelegislatures there had helped precipitate the unrest, exhorted governors to restore order,pressured colonial courts to prosecute offenders, and insisted that those who had sufferedin the disturbances be compensated. Because of the ‘manifest violation of the Laws andLegislative Authority of this Kingdom’ that threatened the ‘constitutional dependency ofthe said Colonies on the Imperial Crown and Parliament of Great Britain’, the firstresolution, the most crucial of the five, declared:

That the King’s Majesty by and with the Advice and Consent of the Lords Spiritualand Temporal and the Commons of Great Britain in Parliament assembled had, hath,and of Right ought to have full Power and Authority to make Laws and Statutes ofsufficient Force and Validity to bind the Colonies and People of America, Subjects ofthe Crown of Great Britain, in all Cases whatsoever.77

Pitt, seconding Barré, tried and failed to have ‘in all cases whatsoever’ stricken from theresolution. He had used ‘whatsoever’ as a catch-all twice himself on 14 January insustaining Britain’s sovereignty and parliament’s limited supremacy over the colonieswhen calling for repeal, but he feared that, in this context, the ministry was leaving a doorto taxation open that he wanted to close. He was not imagining things; that was preciselywhat Rockingham intended.To Conway’s great relief the ministry’s attempt to finesse theissue through evasive language succeeded: the Commons did not even divide on thequestion and approved the resolution as written. The Lords did vote, after Camdencontended that the resolution was ‘too general’ and implicitly gave parliament ‘an absolutepower of laying any tax upon America’. He was countered effectively by the earl ofMansfield, chief justice of the court of king’s bench. Camden did not subsequently dropthe argument, however. He held to it and though most assuredly wrong in the practical

76 Pitt was reported to have spoken ‘with much more moderation than usual’. See Grenville’s ‘diary’ entryfor 3 February in Grenville Papers, ed. Smith, iii, 357; Proceedings and Debates, ed. Simmons and Thomas, ii, 15l;and HMC, Polwarth, v, 363: John Pringle to Walter Scott, 4 Feb. 1766. Nathaniel Ryder even quotes him assaying on 5 February: ‘That though he did acknowledge the authority of the legislature in imposing the taxes,yet without entering into reasons he would never be for taxing America’: Proceedings and Debates, ed. Simmonsand Thomas, ii, 159. And as Sackville wrote, he had acted ‘openly in favour of the ministers’ (HMC,Stopford-Sackville, i, 107: Sackville to Irwin, 10 Feb. 1766). So had he abandoned his 14 January position tobecome more like Rockingham, or was he holding open the option of using different words to say the samething? Pitt, as suited his purposes, was cryptic.

77 As taken from Proceedings and Debates, ed. Simmons and Thomas, ii, 124. For earlier drafts see, in sequentialorder, BL, Add. MS 33030, ff. 76–7 and 74–5. Corres. George III, ed. Fortescue, i, 262–4, includes them as theystood on 6 February, the Commons version in one column and the Lords facing it. In the initial drafts the firstresolution was actually last.The changed order was probably the result of shifting political tactics. In addition,a sixth resolution was added in the Commons to indemnify those not able to obtain stamped paper whoproceeded with necessary business anyway. For the crafting of the resolutions see BL,Add. MS 32973, ff. 287–9:Rockingham to Newcastle, 26 Jan. 1766; f. 342: Newcastle to the archbishop of Canterbury, 2 Feb. 1766. SeeBL, Add. MS 32973, f. 248: Newcastle to Rockingham, 23 Jan. 1766, which shows that at least some of theresolutions were already circulating around the inner circle.

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sense – he lost the political battle – that did not make him wrong philosophically, althoughthere was no other effective way to determine constitutionality except by debate inparliament.78 Camden and only four others opposed the resolution against 125 in favour,proof positive that he and Pitt were constitutionally out of step.79 This resolution, with the‘in all cases whatsoever’ clause intact, would eventually be reconstituted as the DeclaratoryAct, to which Pitt also objected, and for the same reason.80

6

The proceedings in the Commons begun on 3 February did not finally end until 3.00 amthe next morning.At some point before adjourning the House agreed that it be attendedby 30 expert witnesses who would be brought forward to testify concerning the effects ofthe Stamp Act on trade in the empire. Benjamin Franklin, agent for the PennsylvaniaAssembly, was on the list.81 He did not actually offer his testimony until 13 February, thesixth of seven men to appear before the Commons that day. His testimony is remembered,that of the other six witnesses is not, because he already enjoyed a fame denied them, famethat would only grow with time.Truth be known he said little that had not been said byprevious witnesses about the Stamp Act’s effect on commerce, something that merchantscould talk about more expertly anyway. Nor was his distinction between internal andexternal taxes, fastened on by some historians as particularly noteworthy, all that crucial. Itwas a distinction already made by other witnesses before him, a distinction offered bymembers of both Houses and an argument made repeatedly in the press.82

78 See Camden in the Lords on 7 March in Proceedings and Debates, ed. Simmons and Thomas, ii, 318–23,with Camden returning to the same issues that he had debated with Mansfield on 3 February.

79 Proceedings and Debates, ed. Simmons and Thomas, ii, 135–51 (the Commons); ii, 125–33 (the Lords;Camden statement on 128).

80 The Declaratory Act stated: ‘That the said colonies and plantations in America have been, are, and of rightought to be, subordinate unto, and dependent upon the imperial crown and parliament of Great Britain; andthat the King’s majesty, by and with the advice and consent of the lords spiritual and temporal, and commonsof Great Britain, in parliament assembled, had, hath, and of right ought to have, full power and authority tomake laws and statutes of sufficient force and validity to bind the colonies and people of America, subjects ofthe crown of Great Britain, in all cases whatsoever’ (Statutes at Large, ed. Pickering, 16 Geo. III, c. 12). Althoughit is true that the wording of this 1766 act was inspired by the 1720 act passed for Ireland (Statutes at Large,ed. Pickering, 6 Geo. I, c. 5), it is incorrect to say that the two statutes only differed ‘in the addition of thewords, “in all cases whatsoever” ’ – the view of Langford, First Rockingham Ministry, 151 n. 11. For the primarydifference see Neil York ‘The Impact of the American Revolution on Ireland’, in Britain and the AmericanRevolution, ed. Dickinson, 209–11.

81 Proceedings and Debates, ed. Simmons and Thomas, ii, 134.82 Edmund S. Morgan, ‘Colonial Ideas of Parliamentary Power, 1764–1766’, William and Mary Quarterly, 3rd

ser., v (1948), 311–41, a précis to the Stamp Act Crisis, 261–81, contended that few Americans made theinternal/external distinction attributed to them by Townshend when justifying his new duties in 1767. At thesame time that Morgan attempted to show how Americans made their arguments sincerely and that theyobjected to all forms of parliamentary taxation even as they accepted parliament’s authority to regulate trade,he had to confess that there was a certain amount of ‘ambiguity’ and even inconsistency in the colonialposition.The problem comes in trying to reconstruct a single colonial view – one that prevailed over all others,as if protesting colonists ever spoke with one voice, reflecting the collective thoughts of a unified mind. IanChristie rightly expressed doubts about a ‘unanimity of opinion’ in his ‘A Vision of Empire:Thomas Whatelyand The Regulations Lately Made Concerning the Colonies’, EHR, cxiii (1998), 317 n. 6. Morgan’s argument thatthe colonists passed through two stages rather than three in their opposition to parliamentary authority doesnot change the fact that eventually they went from protesting for their rights within the empire to demandinga nation independent of it.

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It is not the originality of Franklin’s observations on parliamentary authority andcolonial taxation that should stand out; rather, it is Franklin’s understanding of popularpsychology and the tenuousness of any talk of rights that most merit our attention.During the Commons debate ten days before Franklin testified, Isaac Barré, echoingwhat he had said in February 1765, cautioned that ‘all colonies have their date ofindependence. The wisdom or folly of our conduct may make it the sooner or later.’83

This was a logic that most British leaders sought to deny; Franklin hinted at the dangerof their living in denial.

Franklin came late to the proceedings, long after leading ministers had begunmeeting with discontented merchants to discuss the Stamp Act crisis, long after Rock-ingham had decided on repeal. Franklin knew this and it was not false modesty thatprompted him to say that ‘Great Honour and Thanks are due to the British Mer-chants, trading to America, who have all of them been our zealous and indefatigableFriends, particularly Mr. Trecothick and Mr. Capel Hanbury.’84 Rockingham had con-nected with Barlow Trecothick, a London merchant, back in November 1765 as heand other cabinet members planned for the coming parliamentary session. How,exactly, they co-ordinated their efforts remains unknown but over the coming monthsRockingham combined merchant petitions with the testimony of merchants as expertwitnesses to bolster his case for repeal. It was one of those rare instances when themainland American and West Indies lobbies could actually work in concert because ofshared grievances. Rockingham, backed by aggrieved merchants in Britain as well, hadno difficulty making his financial argument. Instead of demanding repeal the mer-chants requested relief, but in such a way as to make repeal rather than revision theonly sensible choice. It is quite possible that they even helped Rockingham and otherleading ministers move that way themselves.85

Some 60 witnesses would be summoned to appear before parliament. Most weremerchants or manufacturers; fewer than half actually testified.All but a few of those whoappeared did so for the ministry, in support of repeal. Grenville tried to counter withexperts of his own but they were not good witnesses for the cause of stricter enforce-ment over revision or repeal.

83 Barré in Proceedings and Debates, ed. Simmons and Thomas, ii, 144, the Commons debates of 3 Feb. 1766(Ryder diary).

84 Franklin Papers, ed. Labaree, xiii, 170: Franklin to Joseph Fox, 24 Feb. 1766.85 Thomas, British Politics, 144–50 and passim thereafter discusses all of this in his reliably thorough fashion.

Also see Langford, First Rockingham Ministry, 173–82; and Dora Mae Clark, British Opinion and the AmericanRevolution (New Haven, 1930), 17–50. Various merchant petitions submitted to parliament in Jan. 1766 arereferred to in Proceedings and Debates; ed. Simmons and Thomas, and that from London merchants is reprinted(ii, 95–7). For more on Trecothick see D.H. Watson, ‘Barlow Trecothick and Other Associates of LordRockingham During the Stamp Act Crisis, 1765–1766’, Sheffield University MA, 1957; and Bryce E.Withrow,A Biographical Study of Barlow Trecothick, 1720–1775 (Emporia, 1992).Trecothick’s testimony in the Commonson 11 February, two days before Franklin’s, is in Proceedings and Debates, ed. Simmons and Thomas, ii, 185–94(see below, note 86, for manuscript sources). ‘We find America in confusion, our property in danger, ourremittances uncertain and in danger of annihilation’, Trecothick complained. He contended that repeal, notrevision, was necessary. He seems to have distinguished between internal and external taxes – with the latteracceptable to Americans, and the former not, but he also stated that the colonists believed only their legislaturescould tax them, without distinguishing between internal or external, as did others; thus the confusion overconfused language.

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As one of those brought in by the ministry – a witness for the prosecution, withthe Stamp Act being the accused – Franklin could be expected to press for repeal,which he did. While saying so did he somehow misrepresent or misconstrue the ‘true’American view? Professor Edmund S. Morgan suggested as much, because Franklingave the impression that the colonists only objected to internal taxes when in fact, asMorgan read the record, they objected to parliament taxing them in any form. Whenasked: ‘Did you ever hear the authority of parliament to make laws for Americaquestioned til lately?’, Franklin responded that it ‘was allowed to be valid in all laws,except such as should lay internal taxes. It was never disputed in laying duties toregulate commerce.’ In response to a later question he elaborated, explaining that ‘anexternal tax is a duty laid on commodities imported’ – that is to say, a traditionalnavigation act, whereas ‘an internal tax is forced from the people without theirconsent, if not laid by their own representatives’ – meaning the Stamp Act, which inFranklin’s opinion did not qualify as a navigation act.86 Drawing on protests fromcolonial legislatures, the Stamp Act Congress declarations, and pamphleteers likeDulany, Morgan concluded that Franklin left the wrong impression. The positionstaken there allowed parliament only a superintending authority to regulate trade,with the revenue from that regulation being incidental rather than intentional. SurelyFranklin knew this, Morgan concluded.87

Franklin was undoubtedly aware of all the sources that Professor Morgan cited, but healso talked the language of internal taxation by long habit.That can be seen most readilyin his correspondence with Richard Jackson, which Morgan himself noted. Impressingsome as a polymath, Jackson, a barrister who kept chambers at the Inner Temple, wasunusual in being a member of the Commons who also acted as a colonial agent.88 Hehad begun discussing potential parliamentary taxation of the colonies with Franklin in1763, before Grenville implemented his programme. ‘I fear something relating toAmerica will be done very much against my Opinion, but I shall endeavour to preventit by all means in my Power both in the House & out of the House’, he wrote toFranklin from London in November 1763, when Franklin was briefly back in

86 The best source for Franklin’s testimony is the Franklin Papers, ed. Labaree, xiii, 124–62 (quotations abovefrom 135 and 139, respectively), which took the text printed as The Examination of Doctor Benjamin Franklin,Before an August Assembly, Relating to the Repeal of the Stamp-Act, &c. (Philadelphia, 1766) and combined it withFranklin’s marginalia on who questioned him, followed by Nathaniel Ryder’s brief notes. For the variousreprintings see Adams, American Independence, 21–5.There are also manuscript copies, one in the RockinghamPapers (WWM, R/27/43–52), the other in the Newcastle Papers (BL, Add. MS 33030, ff. 163–80). Thedifferences between these two versions are negligible, and one was probably taken from the other. Thedifferences between these and the printed accounts are more interesting, though they are close enough thatthere are not the same sort of questions as there are with Pitt’s speech of 14 Jan. 1766. Still, the differences arereminders of how tenuous a record can be that relies on the listening and transcription skills of whoeverrendered the account.

87 Morgan, ‘Colonial Ideas’, 336–9; also see above, note 82. The Virginia merchant, James Balfour, whotestified just the day before Franklin, claimed that the colonists made ‘the distinction between internal andexternal duties and think now the money is taken out of their pockets’ (Proceedings and Debates, ed. Simmonsand Thomas, ii, 201). Trecothick had said something similar the day before that (see above, note 85).

88 Michael Kammen discusses Jackson in A Rope of Sand (Ithaca, 1968), 22–4, as do Sir Lewis Namier andJohn Brooke in The House of Commons, 1754–1790 (3 vols, 1964), ii, 669–72. The most detailed discussionremains Carl Van Doren’s introduction to his Letters and Papers of Benjamin Franklin and Richard Jackson,1753–1785 (Philadelphia, 1947), 1–30.

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Philadelphia.89 What Jackson called ‘inland duties’ then he referred to more consistentlyas ‘internal taxes’ thereafter. ‘I am most averse to an Internal Tax’ because ‘God knowshow far such a precedent may be extended’, he told Franklin.‘Your Objection to internalTaxes is undoubtedly just and solid’, Franklin responded, as both men began to dreadwhat would eventually take form as the Stamp Act.90

Jackson sat in the Commons when the Stamp Act was passed. He still had his seatwhen it was repealed. In February 1765, when Grenville introduced the Stamp Act, hestated that he was ‘not inclined to dispute whether the Americans ought to bear a shareof the burden they occasion or to dispute the power of Parliament’. In other words hewanted to steer clear of debating constitutional rights or financial needs, the two primarypolitical sore points.91 If he said anything memorable during the debates over repeal thefollowing year, no one recorded it. Based on some notes that he left from the year before,it appears that he was closer to Rockingham than to Pitt on ultimates: parliament hadthe authority to tax the colonies but should exercise that authority sparingly and wisely.‘Moderation and abstinence’, he concluded, should direct Westminster’s actions so thatconstitutional questions were not raised that no one could answer satisfactorily.92

Looking back on the debates that led to repeal, he commented:

In the course of the debates in both Houses, it has appeared that it was never thepractice in England to lay internal taxes on her dominions, that were not represented;or that if this practice ever was occasionally varied from, it was always complained of;and the practice either dropped, or a representative called to sit in Parliament soonafter. I endeavoured to shew in the House of Commons, that in all ages and nationsa difference has been made and felt, (though perhaps not distinguished by a line),between external and internal taxes, as well as between taxation and generallegislation.93

Note how he stated the facts as he had come to know them. Whether he agreed withthe distinctions drawn between taxation and legislation or internal versus external taxeswas not, in his estimation, especially relevant.The point was that some people did, somedid not, and arguments based on logic, law, or history did not seem to change minds.Talkof constitutional fundamentals did not simplify matters, did not clarify divisive issues.Parliamentarians – like pamphleteers – argued past each other, convinced that theirpositions were well-grounded. Jackson had been present when those who believedtaxation did not require representation fell back on the examples of Wales and the countypalatinates of Durham and Chester, once taxed by parliament without having represen-tatives. Those on the other side of the argument countered that now they wererepresented, in recognition of past injustice. If the debaters were common-law lawyers

89 Franklin and Jackson, ed.Van Doren, 111–14: Jackson to Franklin, 12 Nov. 1763 (quotation from 113); alsoin Franklin Papers, ed. Labaree, x, 368–72.

90 Franklin and Jackson, ed.Van Doren, 138: Jackson to Franklin, 26 Jan. 1764; 157: Franklin to Jackson, 1 May1764 (also in Franklin Papers, ed. Labaree, xi, 35 and 186, respectively).

91 Proceedings and Debates, ed. Simmons and Thomas, ii, 12 (Ryder diary).92 Franklin and Jackson, ed.Van Doren, 194–5: notes for 6 Feb. 1765, debate over the proposed Stamp Act.93 Printed in Speeches of the Governors of Massachusetts, from 1765 to 1775 (Boston, 1818), 73: Jackson to

Governor Francis Bernard of Massachusetts, 15 Mar. 1766.

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they may well have thought that the change was not a constitutional innovation or anact of political creation; rather, parliament had simply proclaimed the law as it once wasor should always have been.

Actual and idealised English history could easily become conflated. Consequently thepast, imperfectly understood, could be no perfect guide. There was not ‘a’ British viewof colonial rights, any more than there was a consistent, coherent American view ofcolonial rights. Franklin could not misrepresent what did not exist. Like his friendJackson he foresaw that the colonial past could be even more problematical in theimperial future. However much that past seemed to be valued, no one truly wanted tobe bound by it. And it was the future, not the past, that Franklin would attempt to getmembers of the Commons to envision when he testified before them – not only becausethe future would determine what was accepted as the past, but because the past could bespurned as easily as it could be embraced.

Whether responding to friend or foe in the Commons – and he was questioned byboth – Franklin’s answers aimed beyond the Stamp Act, at bigger targets. SometimesFranklin was doing as supporters of the ministry hoped; sometimes, like Pitt, he may haveventured further than they wanted. One of the more familiar instances of the formerwent as follows:

Q. Can any thing less than a military force carry the stamp-act into execution?

A. I do not see how a military force can be applied to that purpose.

Q. Why may it not?

A. Suppose a military force is sent into America, they will find nobody in arms; whatare they then to do? They cannot force a man to take stamps who chooses to dowithout them. They will not find a rebellion; they may indeed make one.

A ‘friend’ asked the first question; a member ‘of the late Ministry’ posed the second.94

The next, by another ‘friend’ – Grey Cooper, as Franklin recalled – shifted back to theissue of repeal to emphasize that only repeal could restore both commerce and affectionbetween mother country and colonies.95 Franklin’s earlier remark had quite likely strucka nerve. Most members of parliament sought to avoid the use of force, which they knewmight precipitate war rather than restore order. Indeed, George III, who would havepreferred revision to repeal, resigned himself to repeal if the only other choice wasuse of force. He, too, understood the truth of what Franklin said, before Franklin evensaid it.96

94 As from Franklin Papers, ed. Labaree, xiii, 142.The manuscript versions – WWM, R/27/47 and BL, Add.MS 33030, f. 170 – are more terse, though the gist is the same.

95 Franklin Papers, ed. Labaree, xiii, 143.96 The king’s preference for modification rather than repeal almost derailed Rockingham’s campaign. The

king told a confidant of his preference, which put Rockingham in the awkward position of asking the kingto make it known that, personal preference aside, he would support repeal, which the king did just two daysbefore Franklin testified. See Corres. George III, ed. Fortescue, i, 269–70: the king’s memorandum to himself of11 Feb. 1766; Grenville’s ‘diary’ entries for 31 Jan. and 12 Feb. 1766 in Grenville Papers, ed. Smith, iii, 353 and363–6, respectively; Albemarle, Rockingham, i, 300–2; and the discussion of this ‘Strange affair’ – for LordStrange, to whom the king had confided – in Langford, Rockingham Ministry, 163–7; and Thomas, British Politics,209–13.

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Franklin’s responses cut deep, to the core of empire, to the very essence of interest andidentity. ‘An Adversary’ asked the agent if repeal would cause the colonists to recognizeparliament’s rightful authority. He replied that it would.‘A Friend’ thereupon asked if thecolonists would object to a ‘smaller tax’, since he realized that Franklin’s understandingof ‘rightful’ authority probably differed from that of the previous questioner. HereFranklin gave by far his longest response. He emphasized that imperial policy makersneeded to distinguish between the ‘mob’ and ‘peaceable people’. Those who sat incolonial assemblies and protested against the Stamp Act were of the peaceable sort butthey would never submit to being taxed by parliament. ‘They will oppose it to the last’as financially unfair, politically crippling, and constitutionally unjust. They consideredthemselves loyal subjects of the crown, they had carried their share of the burden duringthe recent war with France, and they resented any imputation otherwise. CharlesTownshend, hardly a ‘friend’ but now, too, in favour of repeal, jumped in, prompting whatmay have been Franklin’s most telling comment and most vital warning:

Q. But suppose Great-Britain should be engaged in a war in Europe, would North-America contribute to the support of it?

A. I do think they would, as far as their circumstances would permit. They considerthemselves as a part of the British empire, and as having one common interest withit; they may be looked on here as foreigners, but they do not consider themselves assuch. They are zealous for the honour and prosperity of this nation, and, while theyare well used, will always be ready to support it, as far as their little power goes.97

In effect, Franklin had just said that American loyalty to the empire was conditional:colonists could only be relied upon ‘while they are well used’.What did Franklin meanby that phrase? Was he hoping that listeners would draw the right inference, that theywould realize the colonists themselves, not the crown, not parliament, would determinewhat qualified as ‘well used’? If so, that meant recognizing there was an unavoidableelement of volatility, and hence unpredictably, involved in American behaviour. Franklinhinted that those who talked of a distinction between an internal and external tax thatyear might not the next.98 He thereby gave Whitehall and Westminster fair warning thatthey could not know what colonial reaction to imperial policy would be. None the less,they could be certain that distrust and disobedience would be the result of any policythat colonists deemed unfair or unconstitutional.99

97 Franklin Papers, ed. Labaree, xiii, 150. The manuscript version in WWM, R/27/49 and BL, Add. MS33030, f. 175, are decidedly different, with nothing from the quoted passage after ‘I do think they would’ beforeFranklin moves on, in a relatively short response compared with the printed account.Which is more accurate,then, this version or the printed Examination used by Labaree? Thus my hedging my bet with ‘may have been’.Still, even if Franklin did not make his point so directly as in the Examination, it was woven through his entiretestimony: American loyalty to the empire should not be taken for granted; all is subject to change.

98 See above, note 1 (second of the epigraphs).99 Hence the piece that he wrote as ‘Pacificus Secundus’ for the Public Advertiser, 2 Jan. 1766, and ‘A Friend

to Both Countries’ for the Gazetteer, 23 Jan. 1766, both of which anticipated some of the points that he madethe next month in the Commons. Reprinted in Franklin Papers, ed. Labaree, xiii, 4–6 and 52–4, respectively.As he wrote in a letter of 6 January: ‘I apprehend no Taxes laid there by Parliament here, will ever be collected,but such as must be stain’d with Blood. And I am sure the Profit of such Taxes will never answer the Expenceof Collecting them; and that the Respect and Affection of the Americans to this Country will in the Strugglebe totally lost, perhaps never to be recover’d’ (xiii, 25). Thus, too, his printing of letters in the

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Franklin himself had already learned firsthand what it was like to be overtaken byevents. Although he had never favoured the Stamp Act he misjudged how negative theAmerican reaction to it would be. Assuming a mild financial impact and equally mildpolitical response, he had even gone along with the appointment of stamp commis-sioners. When, after repeal, he grumbled that Grenville had been ‘besotted’ with theStamp Act, one can sense his resentment that he had almost allowed himself to bedragged down with the former minister.100 Franklin’s testimony served as a political meaculpa, an effort to reclaim his reputation back home by distancing himself from policiesthat so many there resented as hateful, not merely misguided.101

7

It took another month but Franklin would have the satisfaction of seeing the Stamp Actrepealed. He would also know that he helped move the process along.102 Pitt had hisdetractors but he was also widely celebrated on both sides of the Atlantic for his role inapparently ending the dispute.103 He had managed to outmanœuvre Grenville at leastonce in the debates that followed his opening gambit. He also walked out as Grenvillewas speaking on another occasion – to Grenville’s consternation.104 Rockingham’s

99 (continued) London Chronicle, 8 Feb. 1766, that he had written to Governor William Shirley of Massachusettsin 1754 to prove that he had never supported parliamentary taxation of the colonies – that he had always beena defender of American rights.

100 Franklin Papers, ed. Labaree, xiii, 449: Franklin to Joseph Galloway, 11 Oct. 1766.101 What this tells us about Franklin at this moment in his career, or about his character in general, I cannot

decide. Where Gerald Stourzh, Benjamin Franklin and American Foreign Policy (Chicago, 1954), 90–2, saw amoralist at work, Edmund S. Morgan, Benjamin Franklin (New Haven, 2002), 142–61, saw, instead, more of apragmatist, and I suppose someone could come along and contend that these are not mutually exclusivecategories. Gordon S. Wood, The Americanization of Benjamin Franklin (New York, 2004), 117–20, has Franklinnow passing his peak as ‘a thoroughgoing imperialist and royalist’ with ‘a vision of a pan-British world that wasrivaled in its grandeur only by that of William Pitt’ (91). Professor Wood also confessed that ‘Franklin is notan easy man to get to know’ (13). It seems that the harder one tries to ‘know’ him, the more elusive hebecomes.

102 See Mure, Caldwell Family, pt II, ii, 72:William Rouet to Baron Mure, 18 Feb. 1766, who suggested thatFranklin was helping some to shift from backing modification to supporting full repeal. Conway, in moving hisresolution for repeal on 21 February, referred to Franklin’s testimony – in Proceedings and Debates, ed. Simmonsand Thomas, ii, 288.

103 ‘Anti-Sejanus’ had yet to put down his pen – see his piece in the St James Chronicle, 11 Mar. 1766, butPitt had his defenders too, such as ‘W’ in the same issue of that paper, and an anonymous piece ‘To the Printer’in the London Chronicle, 22 Mar. 1766. See the letter of thanks sent to Pitt by Liverpool merchants, dated 11Mar. 1766 (TNA, PRO 30/8/48, ff. 182–3); and one from James Otis of Massachusetts, on 9 June 1766, callingPitt a British Cato, even a ‘Divine Man’ (TNA, PRO 30/8/51, ff. 385–6). Boston’s thanks to Pitt, and Pitt’sresponse, are in Almon, Anecdotes, ii, 272–3.The Massachusetts House formally thanked Pitt on 21 June 1766(TNA, PRO 30/8/97). In responding to Governor Bernard’s opening of a new legislative session the weekbefore, the House used Pitt to support its protest against the Stamp Act and the actions of the Stamp ActCongress, which Bernard found objectionable. Pitt had been in the minority on the issue of colonial petitions,so the stage was only being set for further confrontation. See the Journals of the House of Representatives ofMassachusetts, 1766 (Boston, 1973), 27.

104 On 7 February, for which he apologised, and the brothers-in-law at least kept up the appearance ofcivility. See Pitt’s apology and Grenville’s response in Grenville Papers, ed. Smith, iii, 231 and 232, respectively(originals in BL, Add. MS 42084, ff. 13 and 15, respectively). For Pitt getting the better of Grenville two daysbefore see Proceedings and Debates, ed. Simmons and Thomas, ii, 157–63. Grenville had agreed to support repealof any part of the Stamp Act that could be proved flawed. Pitt had a field day with that concession.

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resolutions, moved through the Lords with little difficulty after an initial setback but cutand slashed in the Commons, became the basis for two new laws that ended theimmediate crisis. On 24 February the Commons agreed to draft a repeal bill and adeclaratory bill (the latter essentially already written as the first resolution). They wereboth approved on 4 March.105 After sharp debates the Lords voted for repeal on 11March and approved the Declaratory Bill on 17 March. Each vote produced formalprotests by peers who believed that their colleagues had been naïve, that they were onlyencouraging the colonists to resist parliamentary authority in the future, whenever itsuited them. George III, who had decided to side with his ministers fairly early on,signed both acts into law on 18 March.106

Repeal of the Stamp Act, ‘that Mother of Mischiefs’, heartened Franklin momentarily.Initially he did not concern himself with the Declaratory Act, dismissing it as a mere sop‘to save Appearances’.107 He had apparently been in the Commons gallery to hear Pitton 14 January; Pitt, by contrast, apparently did not bother to hear him when he testifiedthe next month. But then they were not working in concert.They had never even beenintroduced, despite Franklin’s many years in London.The Pennsylvanian tried to obtainan audience soon after he arrived in 1757 but Pitt ‘was then too great a Man, or toomuch occupy’d in Affairs of greater Moment’, Franklin wrote sarcastically in March1775, increasingly embittered and readying himself for a return to Pennsylvania and thelikelihood of revolt.108 He and Pitt had finally met, near the end of 1774, and at Pitt’srequest, not Franklin’s, in a futile attempt to join forces.109 It would not have been muchof a partnership. Pitt wanted Franklin’s endorsement, not his ideas. Even if they had

105 Developments in the Commons from 21 February (when debate began that did not end until the nextmorning) can be followed in Proceedings and Debates, ed. Simmons and Thomas, ii, 280–316.The most importantvote was probably that of 22 February, with 275 in favour of keeping the word ‘repeal’ to a seventh resolutionthat Conway had just introduced and 167 opposed (for the original five becoming six, see above, note 77).Thefinal bill, approved on 4 March, passed 250 to 122. Fine discussions can be found in, again, Thomas, BritishPolitics, 131–252; and Langford, First Rockingham Ministry, 149–98. Looking back nearly 40 years later, Graftonregretted that repeal was linked with the Declaratory Act, but that appeared to be the only way it would pass:in the Autobiography and Political Correspondence of Augustus Henry Third Duke of Grafton, ed. Sir William Anson(1898), 60.

106 Statutes at Large, ed. Pickering, 6 Geo. III, c. 11 (repeal) and c. 12 (Declaratory Act). Manuscript copiesof the Lords’ protests are in the PRO, Pitt Papers, 30/8/97, ff. 61–8 and 69–73, respectively. They are alsoprinted in Proceedings and Debates, ed. Simmons and Thomas, ii, 331–5 and 351–4, respectively.These Lords (33in the first ‘dissentient’, 28 in the second) feared that repeal would weaken parliament’s authority and givecolonists the wrong impression that their civil disobedience had been justified, and that their wrong ideas abouttheir place in the empire were somehow right.The colonists, they alleged, were seeking ‘a total Independence’– that is to say, autonomy within the empire, not a nation or empire of their own.Those peers were convincedthat the Declaratory Act would do nothing to change their erroneous assumptions or their disruptivebehaviour. Also see below, note 115.They echoed the fears expressed by ‘Anti-Sejanus’ before repeal was evenformally debated (in the Public Advertiser, 12 Feb. 1766). Also see British Parliamentary Lists, 1660–1800: ARegister, ed. G.M. Ditchfield, David Hayton and Clyve Jones (1995), 59–62, for the sources of house of lordsvoting lists dealing with the Stamp Act from Dec. 1765–Mar. 1766.That peers did not necessarily walk instepbehind their king on the issue of repeal is clear in Michael W. McCahill, ‘The House of Lords in the 1760s’,in A Pillar of the Constitution, ed. Clyve Jones (1989), 165–98.

107 Franklin Papers, ed. Labaree, xiii, 253: Franklin to Jonathan Williams, 28 Apr. 1766, for repeal; xiii, 187:Franklin to Joseph Fox, 1 Mar. 1766, for the Declaratory Act; also see xiii, 177–8: Franklin’s letter to HughRoberts of 27 Feb. 1766.

108 Franklin Papers, ed. Labaree, xxi, 546–7: Franklin to his son William, Mar. 1775.109 See Franklin’s comments on Pitt (Chatham) and his last-ditch efforts in Franklin Papers, ed. Labaree, xxi,

459–63 and 545–99.

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thrown themselves into a personal alliance there was little they could change, whichFranklin probably understood better than Pitt. Passage of the Coercive Acts and renewedcrisis had fired Pitt’s zeal, which had long cooled as earl of Chatham. He hoped that hemight accomplish again in 1774 what he had achieved – or thought he had achieved –in 1766.110

Pitt had not wanted parliament to spurn the Stamp Act Congress in that earlier crisis.It did anyway. Moreover, it refused to acknowledge the protests coming from any sourcein the colonies that threatened its supremacy. As part of the Declaratory Act it dismissedas ‘utterly null and void’ all the resolutions passed by colonial legislatures that questionedits ‘power and authority’.111 Rockingham allowed those protests to be entered into therecord, then he ignored them once repeal became certain. He did not accept theirconstitutional position, regardless of Pitt’s protestations. Pitt fared no better when hetried to get parliament to deal with the First Continental Congress that met in theautumn of 1774. His proposals early in 1775, which included recognizing it as alegitimate legislative body, went down to defeat. Franklin, preparing to sail away, hadguessed that would happen. And yet, despite his discouraged state of mind when leavingEngland, he, too, tried to come up with a way of making the Continental Congress partof the imperial structure.112

Superficially, then, he and Pitt still seemed to have something in common, even as lateas 1775. Both remained reluctant to abandon their belief that imperial authority couldbe shared, some matters falling within the purview of crown and parliament, otherswithin that of colonial government. But their fundamentally different views of parlia-mentary supremacy and British sovereignty, not obvious in 1766, would be by 1775.During the Stamp Act crisis some members of parliament who might have concurredwith Pitt on limiting parliamentary authority within the realm of England disagreedwith him on setting similar limits to parliamentary authority in the colonies. Theythought far less of charters guaranteeing colonists the rights of Englishmen, or of thelegislatures that governed them, than did Pitt. None the less, the issue of taxation aside,Pitt was not so different from the majority in the Commons and the Lords in his viewof parliamentary supremacy. During the 1766 debates over repeal he pleaded for therestoration of ‘perfect harmony’ to secure ‘a firm union’ between mother country andcolonies, the destruction of which ‘might possibly produce the ruin of both’.At the sametime he urged fellow members in the Commons: ‘you must communicate to Americathat if she dare not to be contented, with the repeal of the Act, we will teach her to

110 Just as Pitt drew on Dulany for his 1766 argument, he drew on another American source – theMassachusetts assembly’s circular letter of 11 Feb. 1768 – in making his case in 1774.The Massachusetts menhad accepted parliament as ‘the supreme legislative power over the whole empire’; it was none the less boundby the constitution and could not tax the colonists because they were not represented in it: printed in Journalsof the House of Representatives of Massachusetts, 1767–1768 (Boston, 1975), Appendix, 21; quoted by Pitt(Chatham) in Lords debates, 26 May 1774, in Proceedings and Debates, ed. Simmons and Thomas, iv, 449–50. Pittmay have been confused about what source he was quoting (‘an excellent pamphlet, which comes from thepen of an American gentleman’).

111 Statutes at Large, ed. Pickering, 6 Geo. III, c. 12.112 See Franklin’s July 1775 ‘Articles of Confederation and Perpetual Union’, which would have tied all of

British North America, the West Indies, and Ireland together into a legislative union under the crown, aContinental Congress expanded to include the British Atlantic basin, printed in The Journals of the ContinentalCongress, ed.Worthington C. Ford (34 vols,Washington, 1904–37), ii, 195–9. Franklin talked of it as a temporaryarrangement until the imperial dispute was resolved that could become ‘perpetual’ if it was not.

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submit’. Should colonists persist in their opposition to parliament’s rightful authority –which by Pitt’s definition meant anything short of direct taxation – then he would ‘givehis vote for employing the last ship and last man in this country to force them to perfectobedience’.113

Nine years later, even as he extended his hand to the Continental Congress, Pittoffered his own version of a declaratory act. As with Rockingham’s original, Pittavoided the word ‘taxation’, though for different reasons: Rockingham had soughtto end a political dispute, Pitt to not make an unconstitutional assertion of authority.With that one exception, parliament in Pitt’s empire stood as the ‘supreme legislativeauthority and superintending power’.114 Like Rockingham – like Franklin too – theoften confrontational Pitt used evasive language if he thought words would otherwiseget in the way.

In 1775 Pitt engaged in a little chest-thumping to reassure Britons that he was not softon Americans, that he, too, was a champion of empire. He also sought to placaterebellious colonists who had moved well beyond their protests of a decade before.Theyhad become more vocal in condemning what they took to be parliamentary oppressionand more restrictive in their view of parliament’s authority over them.There were eventhose who publicly denied its authority over them altogether. For some that was a newposition; for others it was not. Franklin may have been part of the latter group and, if so,he had hidden his true self from members of the Commons in 1766. Although he washappy with repeal, the two protests issued by dissenting peers troubled him. Neverthelesshe reacted privately, not publicly, in marginalia on the printed copies that were sooncirculating. Had the protesting peers seen those notes, which seem to have been madeshortly after their objections were published, they would have felt vindicated.They hadcontended that the colonists would not be satisfied until they renounced parliament’sauthority altogether. And that was exactly what Franklin was already doing – on paper,at least. Alongside the protestors’ assertion that parliament’s authority had to be indi-visible in order to be real Franklin had written: ‘Right, but we are different States,Subject to the King.’115

Ironically enough, then, he agreed with Grenville, not Pitt, on the issue of taxationversus legislation: it was all or nothing, just as Grenville had insisted. Therefore whatFranklin did not say in the Commons about internal and external taxes on 13 Februaryturns out to be more important than what he did say: namely, that others might

113 Pitt in the Commons, 22 Feb. 1766, in Proceedings and Debates, ed. Simmons and Thomas, ii, 284, 285(Ryder diary).

114 Pitt (Chatham) in the house of lords, 1 Feb. 1775, printed in Pitt Corres., ed.Taylor and Pringle, iv, 533–4;also see Proceedings and Debates, ed. Simmons and Thomas, v, 268–73. For the larger context go to Peter D.G.Thomas, Tea Party to Independence (Oxford, 1991), 176–219; Neil York, ‘Federalism and the Failure of ImperialReform, 1774–1775’, History, lxxxvi (2001), 155–79.

115 Franklin Papers, ed. Labaree, xiii, 215. See the editorial comments (207–10) for the difficulty in datingFranklin’s marginalia, though the editors were convinced that not too much time had passed because Franklin(they deduced) had considered responding in the press. Franklin did say in his 13 February testimony that ‘TheColonies are not supposed to be within the realm; they have assemblies of their own, which are theirparliaments, and they are in that respect, in the same situation as Ireland’ (153). If he had made the analogybetween parliament and colonial legislatures alone, then Franklin would seem to be saying that he saw themas equal and distinct. His adding Ireland complicates the comparison because parliament believed that it hadlegislative authority over Ireland too, which Franklin well knew, a position that it stood by until 1783.

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ultimately go where he had already gone.116 Speaking so candidly would have made itimpossible for him to pursue what he wanted to believe could be attained as well: Pitt’spromise of ‘harmony’ restored to the empire.

Had Franklin’s 1766 testimony been misleading? Probably, though not for the reasonsusually given. Besides, if so accused, Franklin might have retorted that he had acted inthe service of a good cause, a cause that could not bear one truth if it were to hold ontoanother. Where Franklin had often been evasive, Pitt had usually been direct; neitherapproach seemed to work. Ministries came and went, basic problems remained. Theproper American share of the imperial financial burden could not be decided upon;the question of how to divide political power and governmental authority in the empirewas not answered. In this setting no one seemed capable of raising constitutional issueswithout worsening the crisis. Whether this was a unique failure of statesmanship orwhether, instead, it demonstrated the futility of attempting to prevent the inevitablecould be the subject of a much longer essay.117

That the empire itself changed as it grew was of course a complicating – perhaps eventhe complicating – factor. In reviewing the disputes that had so riven the empire in 1766the editors of the Annual Register commented that ‘the constitution of this country hasbeen always in a moving state, either gaining or losing something’.118 That the consti-tution was unwritten does not explain its ‘moving state’ or the nagging dispute overconstitutionality.Americans now have a written constitution but the hue and cry against‘judicial activism’ and call for a jurisprudence based on ‘original meaning’ is a reminderthat ultimate questions of right and responsibility, of liberty and authority, will always beasked even though they may never be answered.119 The constitutional problems that besetBritain and the American colonies loomed large in 1766 and became insurmountable in1775 only because of a weak social foundation, the result of a transatlantic communitybuilt on sand. Talk of constitutional rights confounded political questions, a dangerouscombination among people whose shared identity had always been tenuous. Pitt andFranklin said what they thought they needed to say in their quest to end the imperialdispute. Their words failed. So did those of everyone else.

116 Franklin, of course, was an easy target long before D.H. Lawrence decried him as the first ‘dummyAmerican’. But before dismissing him as disingenuous it would be good to remember that others hid their truefeelings, hoping that the moment to show them could be avoided.Thus, e.g., James Wilson held off publishinghis Considerations on the Nature and Extent of the Legislative Authority of the British Parliament (Philadelphia, 1774)for four years. When he sat down to write the essay in 1770 he found that the argument he made – thatparliament had no authority over the colonies whatsoever – ‘was the result, and not the occasion’ of hisdisquisition (p. iii); also see Richard A. Samuelson, ‘The Constitutional Sanity of James Otis’, Review of Politics,lxi (1999), 493–523, for the suggestion that Otis’s shifts in position on the constitution of empire cannot simplybe dismissed as a function of mental instability.

117 Which could easily veer off toward the ‘blundering generation’ interpretation of how the United Statesstumbled into civil war in the next century. Charles M. Andrews, The Colonial Background of the AmericanRevolution (rev. edn, New Haven, 1931) came close to arguing just that.

118 Annual Register . . . for theYear 1766, pt I, 39. And yet the editors also saw fit to state that ‘the distinctionof internal and external taxes, is as false and groundless as any other that has been made’ (pt I, 4), illustratingthe almost irresistible urge discussed in Greene, Peripheries and Center – on both sides of the Atlantic – to findand make constitutionally ‘authoritative’ pronouncements (p. xi).

119 In the 18th century the ‘British constitution was whatever could be plausibly argued and forciblymaintained’, contended John Philip Reid in The Concept of Representation in the Age of the American Revolution(Chicago, 1989), 8. Professor Reid may be right; even so, American constitutional history does not stand as anexample apart.

374 Neil York


Documents

When Words Fail: William Pitt, Benjamin Franklin and the Imperial Crisis of 1766