From a Committee of the Massachusetts House of Representatives
LS: University of Virginia Library
For many years the Massachusetts General Court had passed annual legislation that taxed the income of all royal officials residing in and paid by the province.6 In 1768 the customs commissioners, created by one of the Townshend Acts, were also assessed as resident officials. Although they argued that their salaries were exempt as coming from the crown, not the province, they said that they paid under threat of prosecution by local tax collectors. In 1769, however, they requested Lieutenant Governor Hutchinson to secure them exemption in future. He considered their grievance valid and was inclined to agree in principle; yet he saw no possibility, as he wrote Hillsborough, of convincing the House. The matter was submitted to the law officers of the crown, who reported early in 1770 that all royal officials, whatever the source of their salaries, were subject to any tax levied on them by the province in which they resided. This opinion was forwarded to Hutchinson, and by him to the commissioners.
There the matter rested until February, 1771, when the government suddenly overrode the earlier legal opinion and that of Richard Jackson, counsel to the Board of Trade.7 Hutchinson had been promoted to governor, and his instructions were being prepared; in them was inserted an article forbidding him to assent to any tax bill that did not exempt salaries of royal officials paid by the crown.8 The Governor was taken aback by this article; Whitehall’s reversing itself to support the commissioners, he believed, created a needless political crisis and was a disservice to government.9 But he had no choice. In early July he vetoed the tax bills for that year, and notified the House that he had done so on instruction. In its angry response the House asserted some startling constitutional views: it denied the right of Parliament to create the customs commissioners or to collect any revenue in America, claimed that the provincial charter empowered the House to tax as it pleased, and stigmatized the Governor’s act as an abrogation of the charter.1 These assertions rested upon bold premises. If the commissioners had no legal standing, Parliament had no power to regulate colonial trade. If the Governor violated the charter by obeying his instructions about a tax bill, as about moving the General Court or refusing a salary from it,2 the royal prerogative was circumscribed by whatever interpretations the colonial legislatures might put upon their charters. The position of the Massachusetts House, in short, was a significant logical advance along the road toward independence.3
Boston July 13th. 1771.
We take this Opportunity just to acquaint you that our Governor has received a late Instruction by which he is expressly forbid for the future upon any Pretence whatever to give his Consent to any Law or Laws whereby the Commissioners, or any Person employed in the King’s Service whose Offices have no peculiar Relation to this Province shall be liable to pay Taxes during his Residence here, for such Salaries or Allowances as do not issue out of any Monies granted by the Legislature of this Province. This Instruction was communicated to the House the last Day but one of the late Session and threw the House into great Consternation, as it was looked upon to be as arbitrary a Measure as any that has yet [been] taken by Administration. You will see the Message of the Governor to the House in Consequence of this Instruction and their Answer, in the inclosed Paper. This is indeed a natural Effect of the Right assumed by Parliament to tax America; for if the Property of the Colonists is at the Disposal of the Mother Country, to be taxed by Parliament at Pleasure, it infers a Right in them to exempt such Persons as they please from any Share of the Burthen. The People of every Class in Town and Country, except the Crown Officers, are greatly alarmed, and think it would, if conceded to, be a Precedent, for the future Exemption of all who will fall into and support the oppressive Measures, which will have a Tendency to increase the Number of their Dependents, and consequently to give them an Influence which must be to the greatest Degree dangerous. We have not Time to enlarge at present, but shall write you more fully by the next Opportunity. In the mean Time we inclose you an Account of the Taxes the Commissioners have paid, under the Hands of the Assessors,4 which appear to have been so light, that we can hardly think their Complaint of them can arise from any other Principle but a haughty Disposition to be independent of the Government of this Province, which they have heretofore treated with an insufferable Insolence: We are with respect Your most humble Servants
|Thomas Cushing||James Otis|
|Committee of the House of Representatives|
Benjamin Franklin Esqr
Endorsed: Thos. Cushing, Jas. Otis, and Saml Adams Com. Ho. of Reps of Mass to Benjn Franklin July 13th 1771.
6. For recent examples of these bills, 1768–70, see Mass. Acts and Resolves, iv, 959–73; v, 5–20, 89–106.
7. For the developing controversy over the commissioners see ibid., V, 53–5. The documents printed there give no explanation of the government’s volte-face.
8. Board of Trade Jour., 1768–75, pp. 169–70; Acts Privy Coun., Col., V, 264–5.
9. Hutchinson, History, III, 247.
1. Mass. House Jour., 1st session, May–July, 1771, pp. 107–9, 111 ; see also Gipson, British Empire, XII, 44–5. The argument ignored the King’s right under the charter to veto any legislation of the General Court, as Hutchinson subsequently pointed out: History, III, 248.
2. See above, BF to Cushing, June 10, n. 1, and the House to BF, June 29.
3. The squabble in which the House took its position precluded any tax bills in 1771–72. A surplus in the treasury met the operating expenses of the province, although taxes were still collected under a supply bill of 1770 for retiring the provincial debt. Whether the commissioners’ salaries were actually taxed for this purpose we do not know; the available evidence suggests merely that the whole controversy petered out. See Hutchinson, History, III, 251, and his letters in Mass. Arch., XXVII, 190–5, 301–2, 353, 485; “State of the Proceedings Respecting the Commissioners of the Customs’ Complaint of Being Taxed by the Boston Assessors,” William Salt Library, Stafford.
4. The enclosure was actually in Cushing to BF below, July 20.