18. For depriving us in many cases, of the benefits of Trial by Jury:

Jonathan Swift’s “A Modest Proposal,” written early in the Georgian era, skewers what can happen when soulless, spreadsheet logic is applied to solving a real-life problem.

Swift’s policy nerd narrator, who has “turned my thoughts for many years upon this important subject [Irish poverty],” concludes, upon the advice of “a very knowing American (a) of my acquaintance in London, that a young healthy child well nursed, is, at a year old, a most delicious nourishing and wholesome food, whether stewed, roasted, baked, or boiled.”
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(a) While Swift was playing with the tropes that Americans were uncivilized and savage-adjacent, it worked because of a persistent, most-believable rumor that Americans practiced cannibalism. Like many rumors, it was built on a kernel of truth, which Swift subsumed.

Reports from the “Starving Time” of 1609-1610, when the population of Jamestown collapsed from 500 to 60, included lurid accounts of cannibalism, including one told by Captain John Smith. He recounted a man was executed for murdering his pregnant wife and eating her: “whether she was better roasted, boiled, or carbonadoed [grilled], I know not, but of such a dish as powdered [salted] wife I never heard of.”

Long dismissed as a tall tale, in 2012 a team of Smithsonian archeologists unearthed the skull of an English teenager among butchered animal bones discarded during the “Starving Time.” After “months of intensive scientific testing” it provided the first forensic evidence of “survival cannibalism” at any early American colony.
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Three decades later, after the end of the Seven Years’ War, in 1763 King George named George Grenville his Prime Minister and Chancellor of the Exchequer. Of “unpleasant disposition” and “arrogance,” Grenville lacked finesse, eloquence, and imagination. But he was the right man for the moment.

The great governmental problem was finance. England’s debt had ballooned to 150 percent of GNP, with annual interest payments of £4.4 million consuming nearly half of the country’s total tax revenue. Figuring out how to pay the interest alone was enough to give the King and his government angina.

Grenville could “deal with the money men of the city,” and was “skilled in money matters,” having served in the Treasury and as Treasurer of the Navy. Nonetheless, the rotund Horace Walpole, who we met in connection with the first grievance, a Brit wit quick with a quip, memorably summed up Grenville with a thumbs down: He has “the mind of a clerk in a counting house.”

England was tapped out, America paid nothing. As Grenville’s deputy Thomas Whately observed, “There is not a blade of grass…any thing that is produced,…nor any thing that is eaten, in the whole island of Great Britain, which is not taxed; while the people of America…pay no taxes at all.” Remarkably this was an understatement: In 1763, the annual cost to operate American Customs was £7,600; through “Neglect, Connivance and Fraud,” collections totaled £1,800. (a)
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(a) Basically the same amount that six years later the South Carolina assembly voted to gift to the John Wilkes defense fund.
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The one tax of consequence England levied on the Americans was an onerous duty on molasses imported from French, Dutch, and Spanish Caribbean colonies, which was used in New England to distill rum. (a) So no one paid. Importers either would bribe corrupt Customs’ officers – and pretty much every officer had an open palm. Or they would smuggle molasses, confident that if they were caught by the Crown and prosecuted, no New England jury would convict. So the Crown collected bupkis.
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(a) These duties were part of the Navigation Acts, which created the Mercantilist economic system designed to enrich England. American raw materials were exported to England or other British colonies; the colonies imported manufactured goods from England and raw materials from other colonies; and all were moved in English or colonial ships. A system from which all benefited...but England the most.
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This revenue deficiency Grenville and his team set out to remedy. With a solution suggestive of Swift. They correctly analyzed half of the problem. The molasses duty was designed to prevent imports from Caribbean islands belonging to other countries. So Grenville proposed lowering the rate to make compliance a better choice than bribes or smuggling. (a)
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(a) The Sugar Act passed by Parliament in 1764 cut the molasses duty in half, additional rate cuts followed, and by 1766 equilibrium had been reached. Smuggling and bribes no longer paid, the British collected £35,000 from molasses duties.
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Grenville did not believe in Adam Smith’s invisible hand. Grenville believed in the mailed fist. As the sarcastic, snide, and sage Horace Walpole observed, “Grenville lost America because he read the American despatches, which none of his predecessors ever did.” He knew the Americans hated taxes and supported smuggling, so American juries would not convict scofflaws. Presto, Grenville in the Sugar Act moved enforcement from the local courts with local juries, to the Vice Admiralty Courts.

The Vice Admiralty Courts were quintessentially British. Established in the late Middle Ages, these courts handled commercial cases involving ships and sailors. They had their own bar, building, and traditions; drew upon Roman law, not English common law; and cases were decided by judges not juries. Along with adjudicating disputes about prizes (a) and resolving commercial disputes among merchants, charterers, shipowners, captains, seamen, suppliers, etc., they also handled violations of the Navigation Acts.
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(a) In the Americas there were three categories of prizes. Ships captured by the Royal Navy during a time of war for trading with the enemy. Ships captured by privateers that had “letters of marque” issued by England, the colonies or foreign countries. And ships seized by the Royal Navy for violating the Navigation Acts. Prize cases made up one-third of American admiralty court trials from 1702 to 1763.
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By 1763 nine vice admiralty courts covered the American colonies. Each operated under the authority of a Royal Governor, who for this task were named vice-admirals and chose the judges, all with no input from the colonial legislature. Grenville turned to these courts to enforce his new tax regime.

It was defensible to argue that failing to pay duties on molasses fell under the Admiralty Courts – at least ports abut the sea. But this jurisdictional overreach became untenable with the Stamp Act, where purely land-based transactions were hauled into Admiralty Courts.

Parliament enacted additional procedural changes to weight the scales of justice in favor of convictions and aggressive enforcement. The burden of proof in these trials was passed to the defendant. The prosecutor could choose a venue distant from the home of the defendant. If a defendant was found innocent, yet the judge found that probable cause had existed, the defendant would need to pay the trial costs.

The money from any seizures or fines no longer would go to the colony where the trial took place, but would be sent to London to the Royal Treasury, which was seen as additional incentive for judges to convict. The cherry on top of the cake was admiralty judges received a percentage of the value of seized goods or fines.

It is of little matter that the admiralty courts in reality did little in the run up to the revolution. It was enough that the colonists assumed certain events would take place. Petitions and protests complained about anticipated, rather than experienced, hardships. No matter. These regulations were the law.

And these changes to the Americans were seen as another attack on their constitutional rights, in this case their right to a trial by a jury of one’s peers, drawn from their neighbors in their local community.

For the colonists saw juries, more than legislatures, as the institution providing for ordinary citizens to participate in their governance. Since Americans were suspicious of those with power – whether they were Crown officials, judges, or even colonial legislators – juries were the bulwark protecting their liberty and preventing despotism.

As the John Peter Zenger trial illustrated, juries were the Colonial defense against conniving Royal Governors and complicit judges. The trials of John Wilkes showed how a person could lose their liberty if they were not provided with a jury trial.

The centrality of a local trial by a jury of neighbors and friends in the colonial era is hard to overstate. The Continental Congress in 1774 proclaimed the right to a jury trial. (a) Twelve states wrote new constitutions soon after independence. The only right each contained was the right of a criminal defendant to a jury trial. The right to a jury trial in criminal cases is included in both article three of the Constitution and the Bill of Rights.
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(a) And condemned the Admiralty Courts: “…extending the jurisdiction of the courts of admiralty beyond its ancient limits, have a manifest tendency to subvert the rights and liberties of the colonists.” A clear sign of the conspiracy – to those looking for it – to enslave the Americans.
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Colonial era trials, as mentioned in earlier posts, mainly overseen by local justices of the peace, local bigwigs who were not big on the law, were largely fact-free zones, allowing juries to decide outcomes on the basis of common sense and what verdict best served the community. Necessitating a local jury familiar with local norms, the circumstances of the dispute, and the character of the parties. (a)
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(a) Juries abound on TV, in Scott Turow novels, and for high-profile cases like Musk v. Altman. But like the majestic American chestnut tree that made up a quarter of Eastern forests at the time of the revolution, in real life juries have virtually disappeared, as have trials. Today over 95% of criminal convictions are guilty pleas, as the system is geared to plea bargaining. For civil filings, most settle out of court or are dismissed by the judge. Just above 0% go to a jury trial.

In a survey I conducted at Sunday brunch, among eight people – and no lawyers – who have been adult citizens for approximately 250 years, collectively we have served on about a dozen juries, about one every twenty years. Everyone found it a worthwhile civic experience.
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But these were features, not bugs. For ultimately, the jury decisions were seen as more than deciding guilt or innocence, it was promoting the community’s general welfare. Juries restrained the powerful. Juries were a shield against government oppression. Juries determined the law. (a) At no time was that more important than when the Americans feared the British wanted to make them slaves. (b)
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(a) John Adams argued in a 1766 pamphlet that the British Constitution was divided into three parts: The King (Executive); The Parliament (Legislative); the Jury (Judicial). Adams, with more emotion and eloquence than he is generally credited with, explained juries are the citizens side of the triangle: The people “have no other fortification against wanton, cruel power: no other indemnification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and cloathed like swine and hounds.”

(b) Of lesser importance was whether juries were a good way to decide guilt or innocence. Jefferson thought juries were no better than a coin flip. But preferable to a decision by “a judge whose mind is warped by any motive whatever.”
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Back to Grenville. The King named him Prime Minister to tax the Americans. He expected – and here his expectations were correct – that the Americans would object. And would turn to the courts. And here, in the words of our steady guide Sidney Fisher, “no American jury would convict anybody” for evading these newly imposed and widely despised tariffs and taxes.

Following this logic train, Grenville came to the logical, practical conclusion: Suspend the right to a trial decided by a local jury if imperial law was to impose policies Americans disagreed with. But that required a frontal assault on a fundamental right of the Americans, the ancient privilege to a jury trial, and the one that protected them exactly from this sort of arbitrary Royal overreach. The charge is grievance 18: “For depriving us in many cases, of the benefits of Trial by Jury.”

Grenville, like Swift’s narrator, when he arrived at the end of his chain of reasoning, did not say, “This is nuts, let me revisit my calculations and come up with a solution that makes sense.”

Most likely he was pleased with his analytically correct answer to the vexing problem of levying taxes on over-protected, under-taxed, prosperous, pampered, and ungrateful Americans, whose juries simply would not enforce the law, and thought à la Swift’s narrator – just a few paragraphs prior to proposing to fricassee Irish babies: “whoever could find out a fair, cheap, and easy method of making these children sound and useful members of the commonwealth, would deserve so well of the publick, as to have his statue set up for a preserver of the nation.”

There are no known public monuments erected in Grenville’s honor.

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My schedule has slipped. I had planned to combine grievances 18 (this one) and the next, the final abuse of the legal system – transporting Americans to London for trials. I plan to post that this coming Thursday. Wish me luck.

All the best,

Kahndiment

John Peter Zenger
In History 101 the dramatic 1735 acquittal of the New York newspaper editor John Peter Zenger of seditious libel is celebrated for asserting the truth should be a defense against libel charges, an early milestone on the road to freedom of the press. But the wrangling that proceeded the trial, and the jury verdict itself, was viewed on our side of the pond as a victory for liberty and showed the British that the American legal system was tilted in favor of the home team. (a)
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(a) A Brief Narrative of the Case and Tryal of John Peter Zenger, Printer of the New-York Weekly Journal, an instant pamphlet detailing the dispute, ostensibly penned by Zenger and published days after the trial, became a bestselling sensation in the colonies and England. Unlike most instant books, it was reprinted for decades and was read by our revolutionary leaders and the English who wanted to understand America.
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The dispute emerged from a personal squabble. William Cosby, talentless, arrogant, grasping and corrupt, was appointed the Royal Governor of New York by King George II and arrived 13 months later in 1733, replacing the acting governor. The colorfully named Rip Van Dam, 72 years old, was the senior member of the Governor’s Council and a native-born leader of the old New Amsterdam establishment, praised (?) as “a hard-headed, tight-fisted, honest Dutchman.”

Cosby arrived carrying a royal order requiring Van Dam to turn over half of the salary he earned during the interregnum. Van Dam demurred. Cosby sued. And while every Toonerville Trolley is an entertaining ride, (a) for our story I want to stick to the main line of courts, judges, and juries. And here, difficulties aplenty ensued, as Cosby could not get New York’s legal system to enforce an order issued by the reigning King, in spite of the fact that New York had been conquered by Charles II, making it a Royal Province where King George II possessed an absolute prerogative, was the “Lord of the Soil,” and the “Fountain of Justice.”
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(a) One tangent I cannot resist is shortly after the dust settled, Gov. Cosby, a broken man on his death bed, suspended Van Dam from the Governor’s Council, where he had served for three decades, to prevent him from again becoming acting Governor. Cosby tapped his colleague George Clarke to succeed him. Needless to say, our hard-headed Dutchman did not stand aside.

à la the two Popes of Avignon, both Clarke and Van Dam asserted they were the acting governor after Cosby shuffled off this mortal coil. As Van Dam prepared to move into the Governor’s house, which was within the perimeter of Ft. George (at the tip of Manhattan), Clarke and his supporters occupied Ft. George, loaded its cannons with grapeshot, and prepared to fire on any mob or militia (often indistinguishable) supporting Van Dam’s ascension.

Carnage was averted by the proverbial “ship appears on the horizon,” this one carrying an official order naming Clarke governor. Van Dam withdrew, remarking that while he believed Clarke was a villain, he would not rebel against a commission signed by the King. But he would rebel against any other Royal order.
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If Cosby sued for Van Dam’s half pay in the N.Y. Supreme Court, he would face a local jury, which was unlikely to favor a newly arrived British official over a well-respected New Yorker who had done the work – the King’s order be damned. So Cosby issued an order to reconstitute the Supreme Court as a Court of the Exchequer (a) for this one case, which would allow it to be decided by the three judges. This backfired, as the Chief Justice Lewis Morrris – who over the years had developed a strong independent streak, even though he had been appointed by a Royal Governor and served at the Crown’s pleasure – ruled against him. (b) Cosby summarily removed the chief justice.
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(a) Exchequer courts handled legal matters affecting the revenues of the crown. They did not use juries, so were rightly seen as tools of the government.

(b) Judge Morris opined, “”I am of opinion that the Court of Exchequer, as a Court of Equity, is a new Court; and that the King cannot by his Prerogative alone, without an Act of Parliament, or a settled Usage time out of Mind, erect a new Court of Equity.” Tough words that cost Morris his job. His grandson, also named Lewis Morris, signed the Declaration.
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Those allied with Van Dam – who, it is worth remembering, is the senior member of the Governor’s Council – and the ex-chief justice now worked to enrage the public against Cosby, publishing articles ridiculing Cosby in a newspaper they controlled, the New York Weekly Journal, which Peter Zenger printed. Cosby again went to court. A grand jury of New Yorkers considered the case but refused to indict Zenger, even though what he published was without question libelous by the standards of the time.

As his Plan B, Cosby reduced the charge to a misdemeanor. This allowed the Governor’s Council, which Cosby controlled even though Van Dam was its senior member, to charge Zenger. But he arranged to have bail set at £800, Zenger’s net worth was £40. This left Zenger in prison for eight months awaiting trial. (a)
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(a) His political friends like Van Dam could have posted bail, they did not. For their purposes a martyred, languishing Zenger was fodder for their public relations campaign. I found no record reporting how Zenger felt about this stratagem; he died 11 years later at age 48. Cause unspecified, but spending over 200 days in an eighteenth-century prison probably did his longevity no favors.
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Determining the verdict was to be split between a New York jury, which only was to decide if Zenger actually published the words in question, i.e., the facts of the case. A new Chief Justice, James Delancey, a young, loyalist-leaning lawyer newly appointed by Gov. Cosby, along with a second supreme court judge – also allied with Cosby – would decide if what was written was libelous. (a)
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(a) The 3^rd Supreme Court justice had been dismissed by Cosby.
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Zenger’s one-day trial was cinematic. The most famous lawyer in the colonies, Andrew Hamilton, unexpectedly appeared to defend Zenger. He implored the jurors that since what Zenger wrote was true, they should acquit him, precluding any ruling by the judges. Judge Delancey in turn instructed the jury only to decide if Zenger printed the newspaper (which he had admitted to). The judges would then decide if that constituted libel.

Zenger in his instant book described the verdict: “The jury withdrew, and returned in a small time. Being asked by the clerk whether they were agreed on their verdict…they answered by Thomas Hunt, their foreman, “Not guilty.” Upon which there were three huzzas in the hall, which was crowded with people;” (a)
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(a) One problematic element of the trial was that Zenger was “guilty” under the libel laws of the time. As will be covered in the next post, jury nullification was viewed favorably by the American colonists for protecting their compatriots. Juries and nullification took on a different hue when it became impossible to convict white southerners for crimes against blacks in the post-Civil War South.
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What you learned depended on where you stood

1. Crown Arrogance. New York was an important colony (admittedly, not nearly as important as Jamaica, Barbados, or the Leeward Islands, but important nonetheless). The British dispatch a venal and inept jerk to be its governor, and add to the insult by sending with him a note ordering the respected acting governor surrender half of his past year’s salary. The British do this again and again.

2. Crown Impotence. Nonetheless, prediction markets would give odds that Cosby would collect his pay one way or the other. But on the ground in Manhattan, the British lacked coercive powers. No Praetorian Guard for the Royal Governor. No Lobsterbacks. Rip Van Dam simply says “nope.” Crosby is reduced to going to the local court to collect what the King ordered he receive. Orders drafted in St. James Palace, written on vellum, signed George R, and authenticated in red wax with the Privy Seal mean squat by the time they cross the ocean.

3. New Yorkers are New Yorkers. Van Dam and his chums exhibit no qualms about tussling with the Royal Governor. When pushed, they escalate. They fight dirty. Their insults are insulting. Not then nor now are New Yorkers meek.

4. Judges were in the bag for the British. The Governor or the Crown chose the judges. While their loyalties were conflicted, ultimately the judges were beholden to the Brits. Cosby fired, demoted, and promoted judges to serve his ends. In the Zenger saga, ultimately the judges side with the British.

5. Juries are uncontrollable. The grand Jury refused to indict Zenger. The criminal jury refused to convict him. Juries spoke their own minds. And the last word. Crosby was correct: the best way in the colonial legal system to ensure a conviction favored by the Crown is to have the judges rule.

John Wilkes

A close-to-perfect anti-hero, John Wilkes “would have been a bad man in any age; certainly he was a thorough representative of the most filthy stratum of the fast society of his time.” (a) But to Americans from New England to South Carolina, those flaws were beside the point, “he was a man of courage, coolness, [who] became a rallying point for constitutional liberty.” His London trials in the 1760s were eerily similar to those of Peter Zenger in New York thirty years earlier. And the outcome could not have been more different.
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(a) And a rake and a wit, a dangerous combo in any era. Wilkes is credited with an oft-repeated example of slightly risqué British political repartee. Challenged by John Montagu, 4th Earl of Sandwich, “Sir, I do not know whether you will die on the gallows or of the pox,” Wilkes shot back: “That depends, my lord, on whether I embrace your lordship’s principles or your mistress.”
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Unsurprisingly, Wilkes ran afoul of the authorities. In 1762 while a member of Parliament, Wilkes started publishing a radical weekly, The North Briton, to mock the government of the recently coronated King George III. In April 1763 Wilkes published in issue 45 of his paper a caustic editorial critical of the King’s speech at the opening of Parliament. While the King had not written the speech – then as now, the King was reading words penned by the Prime Minister – nonetheless, George felt insulted.

Three days later, Lord Halifax, George’s Secretary of State, issued a General Warrant, giving British messengers unchecked power to arrest, search, and seize private papers. In a rampage, houses are searched and forty-nine unconnected people are arrested. Wilkes, who all knew was the publisher, finally has his house ransacked, is charged with sedition, and is thrown into the Tower of London. (a) Wilkes successfully parried this charge, contending that parliamentary privilege protected him, and prevailed. (b)
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(a) This flagrant abuse of general warrants directly led to our 4^th amendment, with the text mirroring exactly what happened to Wilkes: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…” The reach of Wilkes is with us today.

(b) Parliament immediately acted to remove the legal shield for MPs writing and publishing seditious libel. This reversed centuries of protection for MPs. And another ominous omen for the Americans.
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Wilkes, no surprise, made plenty of enemies. Following his acquittal, Wilkes was involved in a duel – circumstances murky – survived, but was injured, and repaired to Paris to repair. While out of the county, his enemies struck. Wilkes had written and privately published thirteen copies of an erotic, blasphemous, line-for-line spoof of Alexander’s Pope Essay on Man. Titled An Essay on Woman, the Earl of Sandwich, a now-estranged fellow member of the Hellfire Club, obtained a copy, and read it aloud in full to the House of Lords. Outrage, presumably much feigned, perhaps some real, followed.

Wilkes did not return to London to defend himself, was expelled from Parliament, and now lacking parliamentary immunity, was charged and tried in absentia for reprinting issue 45 of The North Briton and for printing and publishing his Essay on Women. Like with the Zenger trial, the jury was empaneled only to determine if the facts were correct. Without a defendant or defense attorney, the jury instructions issued by Lord Mansfield, the chief justice, were followed and Wilkes was convicted.

Debts and boredom caused Wilkes in February 1768 to return to London. Facing possible arrest, Wilkes flipped the script by running for Parliament, and was elected an MP for Middlesex at the end of March. Wilkes then appeared before the King’s Bench to try to reverse his obscenity conviction. Again Lord Mansfield presided. But this was an appeal without a jury. The original verdict was upheld, and Wilkes was sentenced to twenty-two months in prison and a £1000 fine. He served his full sentence.

The cherry on top of the poisoned cake came from Parliament. Following his conviction Wilkes was booted from Parliament. Undeterred, Wilkes continued to run for his now-vacant seat. The self-certain 1911 edition of the Encyclopedia Brittanica tells the tale:

"he was expelled from the House on the 3rd of February 1769, and with this proceeding there began a series of contests between the ministry and the electors of Middlesex without parallel in English history. They promptly re-elected him (16th of February), only to find him pronounced incapable of sitting and his election void. Again they returned him (16th of March) and again he was rejected. A fourth election then followed (13th of April), when Colonel Henry Lawes Luttrell, with all the influence of the court and the Fox family in his favour, obtained 296 votes, while 1143 were given for Wilkes, but two days later the House declared that Luttrell had been duly elected. Through these audacious proceedings a storm of fury broke out throughout the country. In the cause of “Wilkes and liberty” high and low enlisted themselves. His prison cell was thronged daily by the chief of the Whigs, and large sums of money were subscribed for his support.”

Compare and Contrast

Both Zenger and Wilkes ran afoul of the most powerful man in their patch – Governor Cosby in New York and King George in England. Zenger and Wilkes were arrested on fanciful charges. In each case the initial judges followed the law and rejected the indictment. Undeterred, Gov. Cosby and King George went back for a second bite. But Cosby could not stop Zenger from having a legitimate trial with a New York jury. In London, the rules of the game had changed. Wilkes lost his Parliamentary immunity, was in Paris and so was tried in absentia, with the trial conducted by a merciless Judge.

Zenger’s trial ended with “three huzzahs” following the jury’s “not guilty” verdict. Wilkes’ conviction and expulsion from Parliament was “met by a storm of fury…throughout the county.”

The importance of Wilkes to Americans cannot be overstated – at the extreme, per grievance 5, the South Carolina legislature so wanted to support Wilkes that it choose to be shut down for years rather than buckle. Bernard Bailyn concluded, “his fate, the colonists came to believe, was intimately involved with their own [and that the British] constitution was being deliberately, not inadvertently, torn up by its roots.”

They knew every twist of the knife in his tragic tale. And what they saw in his tribulations, trials, conviction, and expulsion in London was the mirror opposite of the acquittal Peter Zenger received in New York. They saw a determined and ruthless King determined to get his way.

The Grievance

After the sustained assault by the Crown on the colonial legislatures, the topic of the prior grievances, I was primed for a similar assault by the Crown on the colonial legal system. Instead, I came away feeling that the Crown suffered from the colonial justice system, cue the Zenger case. This was because juries simply would not convict colonials. (a) The judges were more bit players than on center stage. The British assault on juries is the subject of the next two grievances.
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(a) In the most famous trial in the run-up to independence, a principled John Adams in 1770 defended eight British soldiers accused of murder during the Boston Massacre. Here the jury acquitted six, and found two guilty of manslaughter for firing directly into the crowd. Three hip-hip-hoorays for these jurors – even if in the history books largely celebrate this as a “Profiles in Courage” moment by Adams.
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The best lens I see for understanding this grievance is going with Bailyn’s thesis, that the Americans genuinely saw and feared a world-wide conspiracy against liberty orchestrated by King George and his ministers.

No better evidence for that than the Wilkes saga. What happened to John Wilkes in London is what the King wanted to happen in the future in New York to the next Peter Zenger. That model was dependent on compliant and corrupt judges.

In 1701 the Act of Settlement changed English Judges to serving “during good behavior,” which established life tenure. (a) But this did not apply to the Dominions – territories conquered, owned, and operated by the Crown. So in the colonies the standard that emerged late in the Middle Ages still applied: Judges served “at the pleasure” of the Crown.
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(a) The Act of Settlement required a Protestant succession to the English throne. The allowed the House of Hannover from Germany to leapfrog over fifty Catholics in the line of succession to establish a dynasty that ran from George I to Queen Victoria. Included in a fragment of one sentence tucked into the 7^th subpoint were words that established an independent judiciary: “…Judges Commissions be made Quam diu se bene Gesserint [”during good behavior”] and their Salaries ascertained and established...” It always pays to read the fine print...and translate all foreign phrases.
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For sixty years following the Act of Settlement, in the American colonies the question of whether judges should serve for life or be subject to removal at any time by the Crown was a question of little import. The Royal Court would on occasion appoint judges to vacancies, as these were paid positions, but most were chosen by the Royal Governor and his council – as with all other senior officials. The few judges dismissed were on the losing side of political squabbles, and were fired by the Royal Governor.

Into this peaceful scene, King George entered guns blazing. George ascended to the throne on October 25, 1760. Just over a year later, on December 2, 1761, the King sent an obnoxious and pointless Circular Letter to seven Royal Governors ordering them to disallow any act of the colonial legislature regulating the tenue of judges. (a) Instead all judges served at the King’s pleasure – the charge leveled in this grievance. A right that had been stripped from the King during the English revolution. That he was reasserting. Very disconcerting.
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(a) London contended if judges were not removable, judges with minimal qualifications – which, in truth, encompassed a decent share of the colonial judges – could not be replaced even if a qualified replacement became available. But the Americans suspected a trap. A qualified judge to the Crown would be a London-trained lawyer in the mold of the amoral Lord Mansfield.
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The implications were clear to all Americans. Judges serving at the pleasure of the King would be subject to his will. (a) They saw the humiliations and imprisonment of John Wilkes as the fate King George had in mind for them. A clear example of a usurpation by a tyrant bent on reducing Americans to slaves. No matter that George really never used this power.
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(a) The second part of the grievance, referring to the payment of their salaries, is another Massachusetts special, involving the payment of judicial salaries directly from tea tax revenues, bypassing the Massachusetts legislature. By this point, post the Tea Party, Massachusetts and the Crown were fighting on many fronts.
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So onto the pawns, the anonymous, countless colonial juries, who could topple Kings – or at least the King’s men in the colonies, and the 3^rd of four grievances dealing with the legal system.

As I wrote at the outset, I would aim to post a grievance every other Thursday. I missed by an eight-day week my self-imposed publishing date. I aim to get back on schedule, so hope to post about juries next Thursday.

In the meantime, a very happy May Day to all,

Kahndiment

Henry Fielding wrote Tom Jones, his satiric comic masterpiece, in 1749, a few years prior to the Seven Years’ War. Opening in rural Somerset, Fielding skewers England’s hereditary, landowning, gentry, creating Squire Western, an unlettered oaf and huntsman, whose “thoughts were generally either in the field, the stable, or the dog-kennel.”

Nonetheless this “stranger to the law,” by virtue of his birth and social status, served as the local Justice of the Peace, settling disputes, administering justice, and ruling his slice of England based on local customs, clerks who “had a smattering of law,” and whim.

Squire Western achieved literary immortality for wanting to sentence his daughter’s maid to Bridewell prison for calling the Squire’s sister an “ugly old cat.” Cutting, but not criminal. (a)
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(a) And maybe not as funny as it once seemed. But an awful lot of the book is.
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In real life, the Squire Westerns served as the local JPs, the primary legal system for the tenant farmers and other commoners living in rural England. And they owned rural England. At the time of our revolution, nearly three-quarters of English farmland was owned by landed gentry, and 4,000 scions owned approximately half.

This appalling system of near-feudal tenancy and local life being controlled by the oldest sons of ancient families, who donned judicial wigs to administer harsh justice from thrones in their manor houses, was one of many reasons to flee England for America.

A rural Arcadia – but better not to look too hard

American rural life for was organized very differently. (a) For the most part the colonies were settled by freeholders who owned their own land along a frontier line that was moving steadily west. (b)
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(a) But always an exception. Dutch settlers in New Amsterdam, known as patroons, owned large, feudal estates along the Hudson River, replete with tenant farmers and their own courts. When England took possession of New York in 1674, these estates retained their privileges. While NY state made this system illegal after the revolution, crafty lawyers, including Alexander Hamilton, created “durable leases” to bypass the law. In the early 1840s Stephen Van Rensselaer IV (the tenth and last patroon of Rensselaerswijck, a 1,200 mi² estate near Albany) tried to collect back rents, his tenants rebelled, and in 1846 a new NY State constitution limited agricultural leases to 12 years, driving the final stake into this feudal system.

(b) Of course, none of this applied to the African immigrants during the colonial era who were sold into slavery upon reaching America.
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Instead of squires and manor houses, the country (inferior) courts became the center of civic life for these communities, handling the functions of local government, dealing with local problems beyond the purview or interest of the colonial legislature. And given the difficulties of travel, courts were the only arm of the government accessible to most of the colonial population. (a)
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(a) Grievance 3 – where the Crown restricted representation for new counties as settlers surged west – also addressed the importance of county seats and courts.
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Land titles were recorded and stored (a) at the county courthouse; the endemic land disputes were settled there. (b) Both criminal and civil matters – contracts (often involving the terms of indentured servants), debts – were settled by these courts. The courts also acted as a “public service commission,” overseeing local affairs and set local rules and regulations, which were detailed, extensive, and intrusive.
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(a) Accessing these titles was more important than one might think. With the relative abundance of land, prospective settlers would check to see what attractive, undeveloped parcels were available. So the courthouse became the hub for the local real estate community, the major industry on the frontier. The importance of access to records was part of grievance 4.

(b) The traditional English practice of surveying property based on “metes and bounds” – combining local markers (like a particular tree, rock, or bend in a river) and boundary lines defined by humans – did not map well to the American frontier. (And probably did not really work well in England.) Competent surveyors were in short supply, and the colonial frontier by definition was undeveloped and hard to access. So surveys and titles were a mess, fodder for fights and lawsuits.

One of the great accomplishments under the Articles of Confederation was enacting the Land Ordinance of 1785. This created the Public Land Survey System, based on rectangular grids linked to north-south and east-west baselines. First used in the Northwest Territory, starting in Ohio, it remains the basis for land ownership and titles in most of the U.S. west of the original states. Still in use, the system is now within the Department of the Interior.
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The iconic image of the country courthouse anchoring small town America was born in the colonial era – and lived on at least until the mid-1950s based on the centrality of the Courthouse, with its clock tower to the idealized small town of Hill Valley in Back to the Future.

These country courthouses, appearances notwithstanding, were not austere and harmonious civic temples, instead they were informal, chaotic, and ragged. Daniel Blinka described a typical colonial era trial in the American Journal of Legal History:

Justice raw, rough, and far from blind. But accessible, egalitarian, and a whole lot better than what was served up by Squire Western and his high-born pals.

A smaller layer of superior courts heard more serious crimes – often in terms of the amount of money at stake. Specialized courts run by the Crown also existed, with the Admiralty Courts that dealt with maritime and trade being the most important.

The colonial courts were not seen as a coequal branch of government in a separation-of-powers triangle, either in Britain or the colonies. (a) The colonial legislatures set up the local courts and financed the system, including paying the judges, with the colonies steadily becoming less and less supervised in how they ran their system of laws, legal system, and courthouses in the decades of neglect from London prior to the Seven Years’ War.
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(a) In England, the Crown, House of Lords, and Parliament. In the colonies, the Crown, the Governor and his Council, and the Colonial Legislature.
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Legalistic to a fault, the colonists were happy with their legal system, an accidental combination of judicial and administrative functions, with its importance magnified by its centrality to land ownership, which played such an outsized role in colonial life. The courts were not just used by the rich and powerful to keep down the poor and weak. Records show colonial courts were open to plaintiffs from “a wide range of occupations and ranks,” and many criminal cases began as private actions.

Juries played an outsized role as neither the judges nor attorneys were especially able. J.R. Pole, a leading British scholar of the colonial courts, concluded people understood these courts could “work in their collective interests…with particular force [in] the country courts.”

Our system looked even better when contrasted with England’s. It was bad enough in the countryside, with its Squire Westons. Even worse was London. There corruption and malevolence were ascendent. The Robinocracy was buying and bribing judges. John Wilkes, who has appeared regularly in these grievances, with fervent supporters from Boston to Charleston, was silenced by his trumped-up arrest and conviction for seditious libel, all because the King wanted to silence him.

A Needless Needle

Another colony, another Royal Governor, another pointless fight. In this case North Carolina. Here the Governor managed to turn a technical dispute over a rarely used mechanism for debt collection into a crisis that deftly shuttered both the state legislature and its courts – in sum all of the organs of government controlled by the colonists.

The first detailed court law in North Carolina was enacted in 1746, and included a foreign attachment clause. (a) This addressed the problem of collecting debts from nonresidents who had never been in North Carolina. It enabled a creditor to “attach” the money, goods or assets of a debtor that were held by a third person, which deprived the debtor from using or transporting them until the debt was satisfied.
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(a) Many in England, including the Board of Trade which was the private body overseeing commerce with the colonies for the Crown, asserted creating courts was an act of sovereignty belonging solely to the King, so this law should be disallowed, and the courts should be under the jurisdiction of the Royal Governor. But this was the period when London had little interest in interfering with local affairs in the colonies. After a lot of back of forth, a judicial law was passed by the assembly and signed by the governor, but with a fixed term of five years.
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In real life, this meant a merchant or trader in London who did not pay money they owed to a seller in North Carolina could have other assets they owned in North Carolina (like other goods they bought through a factor in North Carolina) seized until they settled the past-due debt.

This was the only practical remedy against a foreign debtor. In this case, foreign means from another jurisdiction. (a) And rarely used. While court records from the colonial era are scarce, for the Edenton District Superior Court (the courthouse pictured above), the most populous and prosperous corner of the state before the revolution, the total annual amount recovered in suits invoking foreign attachment averaged £231. Even then this was peanuts.
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(a) In the mercantilist system run by England, the American colonies traded with other colonies – especially those in the Caribbean – and England itself.
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And was not noticed. Foreign attachment was included in the court law was passed and signed by the Governor in 1768, with another renewal was due in 1773. In 1770 the Board of Trade flagged the attachment clause and recommended this clause be amended or omitted from the next renewal. But the objection was not based on legal principles. It was based on geography. What was essential for a merchant in London was an encroachment and impractical when practiced in Edenton.

By this time the Crown was looking for ways to assert it primacy. In 1772 the Crown instructed the Royal Governors to not accept any law which contained a foreign attachment clause without a suspending clause (subject of grievance 2), preventing the law from going into effect until approved by the Crown.

To North Carolina’s new Royal Governor, Josiah Martin, described as “stubborn, tactless and intolerant, obsequious to those in authority and overbearing to those under his authority,” this instruction was catnip. He wrote the Board of Trade, accepting this as license to crush “the too prevalent disposition here to favour Colonists at the expense of the Briton of which the …attachment [law] is an irrefragable proof…” (a)
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(a) Apparently the other Royal Governors threw this particular instruction into the litter box, as no other colony was caught up in a fight over attachment.
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North Carolina’s 1768 Court law expired in 1773. Governor Martin bared his claws; the colonial legislators did as well. North Carolina courts for all practical purposes never met again until Governor Martin fled and the colonial government was replaced by the North Carolina state government.

Why oh Why

Like several prior grievances, the details of the back and forth between the Governor and the colonial legislature are numbing. Lawyers for both sides became involved, and as lawyers do to this day, argued any compromise mistreated their “client.”

It is another instance of the British – or in this case, one zealous Royal Governor – seeking ways to assert control over the Americans, finding a “gotcha” that had been ignored for decades, declaring it of existential import, to justify firing the Crown’s bazookas.

In this case, Governor Martin not only killed the courts for an entire colony. In the process, he killed local government in North Carolina. He stunted the growth of the colony, as the westward settlement was bound up with land titles, claims, and the courts. (The subject of the prior grievance 7.) For good measure, to kill the courts, he repeatedly shuttered the state legislature (grievance 5).

This fits to a T the view that the colonists faced a multi-pronged conspiracy to deprive them of their liberties and “enslave” them. And shows why the situation was intractable. The Crown and the new breed of Royal Governors thought England was superior to the colonies. The Americans looked at the beautiful courthouse they had built a few years prior in the aptly-named Edenton, North Carolina, and thought they much preferred justice by the people to that handed down by hereditary JPs like Squire Weston and biased judges like Lord Mansfield, whom the colonists believed stunk to high hell.

Next post is the 2^nd of the four grievances dealing with the judiciary.

And a very happy Patriot’s Day to all who celebrate our esteemed Paul Revere,

Kahndiment

The Open Door

From John Smith and his fellow planters first establishing Jamestown until 1773, British and European immigrants to the American colonies faced few restrictions once they disembarked in Philadelphia, Charleston, New York, or the tobacco hubs of Annapolis and Alexandria. (a)
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(a) Boston does not make this list, as immigration to New England largely stopped by 1640 with outbreak of the English Civil War, when Puritans stayed in England to fight for Cromwell. New England continued to grow from natural population increase. By 1760 the four New England colonies were fully settled, and native New Englanders were heading West (admittedly into Vermont and New York, but still west).
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While the King possessed undisputed power to control immigration and set naturalization policies, (a) this was one of many areas where policy-making authority was seized by the colonial legislatures before the Seven Years War. The colonies propped their doors wide-open to immigrants and made naturalization easy. Naturalization gave immigrants full civil rights, with landowning the most important, the right to practice a trade and participate in commerce, (b) and almost always the same rights to vote as the native born. (c)
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(a) English political thought and law actually went much further. Since the primary duty of Englishmen was to serve and defend the King, the monarchs had the right to regulate the movement of their subjects even within the realm.

(b) Taverns, mills, bakers, even peddlers were licensed and regulated by each colony. With the passage of the Navigation Acts in 1651, London started running an Empire-wide trading and transport system, with ship owning and commerce open only to citizens and naturalized residents.

(c) Our old friend George Fisher, in his analysis of the “Charges against the King,” noted: “The right to vote which we now always associate with naturalization, was not then of so much importance.” The times they change.
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The Crown had no reason to push back.

England faced a difficult dilemma in how to populate its North American colonies. With a population half the size of Spain and a quarter of France, the Crown wanted to limit the migration of its subjects to America. But their Eastern seaboard colonies did not contain exploitable resources like gold or silver, so they needed a labor force to produce salable commodities.

A mere dozen years after the first Brits arrived in Virginia, twenty Africans disembarked as enslaved laborers, beginning a horrifying policy that proved brutally effective. By the time of the revolution, just under half of the approximately one million people who survived the Atlantic crossing to disembark in the thirteen colonies were enslaved Africans. (a)
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(a) Captured and transported Africans slave working on plantations remained the sole labor force on Jamaica, Barbados, and the other “Sugar Islands.” These were the crown jewels of the British empire, with Jamaica alone just prior to the revolution producing more wealth for England than the American colonies.
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The Crown also enacted policies to populate their American colonies with various home-grown undesirables – religious, impoverished, lawbreakers. While the English authorities were happy to use the colonies as a dump for people they viewed as an economic drain or security threat, pretty quickly the colonists already settled were chafing at the arrival of “the very scum of the earth.”

The Mercantilist Meat-Grinder

At the same time, the Crown’s attitude toward this “scum” underwent a 180⁰. Newly ascendent mercantile theory held that a country’s wealth was measured by its population. Not only was England’s population small relative to its principal rivals, during the second half of the seventeenth century England’s population shrank, chilling interest in promoting emigration. (a)
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(a) England’s seventeenth century population peaked in the 1650s at about 5.3 million, declining to under 5.0 million by 1700. The decline began with the Great Plague of London.
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And a vocal group of mercantile thinkers no longer viewed the poor as dangerous and a threat to the nation, but instead an underutilized resource that could be put to work at low wages. (a) Their labor would allow England to manufacture cheap goods for export – nothing about improving living standards for the workers in this philosophy – to ensure England could win global trade wars.
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(a) The one group that remained irredeemable was convicts. As mentioned in my post on the first grievance, London transported convicts to the American colonies, with attendant friction, until the Revolution began, and the convict ships were prevented from docking. The British then began shipping convicts to Australia for nearly another century.
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A pithy if pitiless distillation of this philosophy was penned by William Petyt in 1680, when he explained: “plenty of people also cause cheapness in wages, which causes cheapness in manufacture.” Transporting the English poor to America made England poorer, sending them instead to the slums in London to toil made England richer. (a) So the Crown searched for others to populate America.
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(a) A century later Adam Smith took down mercantilism and its proponents for its misguided focus on zero-sum, low wages, and amassing gold à la Scrooge McDuck. Petyt was largely forgotten. But his writings are returning from the off-site stacks; Petyt’s day job was the Keeper of the Records at the Tower of London, where he pioneered using data to run a large enterprise – like an empire. His books and pamphlets are again being read. Too early to tell if they will be seen as a warning for Baal-like worship of data, or as a “how to.”
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By the beginning of the eighteenth century, the Crown settled on a policy to “improve and thicken her colonys with people not her own.” England promoted its American colonies as a land of refuge for victims of religious and political oppression and the economically discontented. Promises of religious toleration, free land, and economic opportunity lured immigrants from England’s continental rivals. A two-fer, the English Empire was made stronger, England’s rivals weaker. No wonder the British were all for the American open door.

Immigrants were promised religious toleration, (a) easy naturalization, inexpensive land, and the freedoms enshrined in the English constitution. The high-water mark of this policy was enactment by Parliament of the Plantation Act of 1740. It conferred English citizenship on aliens who lived for seven years in any American colony, paid a two-shilling fee, and swore allegiance to the King. (b) On the ground, few wanted to wait, and went instead with the well-established practice of quickly becoming a naturalized resident of the colony where they settled. (c)
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(a) The Crown during the 1600’s was nullifying or not enforcing anti-Semitic laws imposed by the Colonial governments, creating a landscape more tolerant than in England. For instance, Judah Monis, a member of the Jewish community in New York, received a degree from Harvard in 1720: Oxford and Cambridge did not admit Jewish students until 130 years later. He stayed on to teach Hebrew, but Harvard required all faculty be professing Christians, and Monis converted. So perhaps just half a loaf.

(b) It included a religious requirement to profess belief in Christianity, but Quakers and Jews could skip this and tailor the required oaths to suit their beliefs.

(c) Another power that was assumed, since none of the Royal Charters granted the right of a colony to naturalize foreigners. And pretty easy to obtain. In Virginia there is no record of any refusal, and very few in any other colony.
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The Door Slams

All of this came to a screeching halt with England’s victory over France in the Seven Years’ War. Policies that had worked so well to attract foreign immigrants to the American colonies suddenly looked counterproductive and dangerous to the Crown.

An unexpected surge in Scots-Irish and Highlander emigration from the British Isles cut England’s resources at home. (a) Settlers moving to the frontier were no longer part of a picket line of cheap defense against the now-departed French, instead they were imposing a cost on the treasury, as the settlers were “irritating” and trading arrows and bullets with Indian tribes allied with the British.
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(a) And not just to labor on the home front. The Scots were feared warriors and troublemakers, with centuries of friction with the Crown. The British wanted the Scots for their army, and sure as hell did not want to be fighting them in America. “Braveheart” is more accurate than I imagined.
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And the Americans were simply becoming stronger and stronger, and increasingly rambunctious and rebellious. The Crown saw no reason to make a potential foe more powerful.

So the Crown enacted policies that sounded reasonable when concocted in St. James Palace, simply withdrawing support to promote immigration, all of which indisputably fell under the King’s purview. Predictably, when these hit the Americans, they formed the basis for another grievance against the King.

In 1767 the King’s privy council stopped Georgia from offering free transportation to Protestants immigrating to the Colony, four years later they stopped North Carolina from offering land to Scottish Highlanders. This was followed by a ban on land grants in 1774, western land now needed to be purchased.

The pièce de résistance was restricting naturalization by the colonies. In 1773 the Royal Governors were “strictly enjoined and required, upon pain of our highest displeasure... that you do not, upon any pretence whatsoever, pass any bill or bills for the Naturalization of Aliens.” Suddenly a non-British immigrant would need to wait seven years for naturalization. A long, long time to wait to own land or enter a regulated occupation, so it was seen for what it was: an effort to slam the door shut on European immigration. (a)
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(a) And another flashing neon sign that the days of laissez-faire with the colonies running their own affairs were gone.
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These constitute the charges levied against the King in grievance seven.

While I feel out of my league in critiquing Jefferson’s rhetorical choices; nonetheless, to my thinking this grievance fits much better after grievances 1 and 2, which also critiqued ways the King misused his powers, failing his obligation to promote the welfare of Americans. Charges 1 and 2 alluded to rather petty ways the King abused his powers. But this charge cuts to the essence of the American project.

Free Men Standing Tall

The American colonies were populated from immigrants, and the immigrants – or their children – pushed west. Not only were they seeking liberty and freedom from oppression. They were also seeking happiness, which became synonymous with owning land to farm and building a wholesome, comfortable life. America was a land where toil will be “rewarded by ample subsistence.”

And while many landing in America, starting with the enslaved African immigrants, were excluded from this ideal, for white male Europeans it had more than a kernel of truth.

Seventy percent of all colonial farmers owned their own land. Studies of probate records from the 1770s show ordinary, white colonists enjoyed a higher standard of living than those in Europe. Americans were taller, the average soldier in the Continental Army was 5 feet, 8 inches, 3 inches taller than the Lobsterbacks they were fighting, and as tall as the American soldiers fighting in World War II.

The driver for all of this was Westward movement. Which the King and his agents had promoted for several generations. And this the Crown stopped on a shilling.

So what was to happen to the Americans, if the Crown had its way, and they remained confined to the settled counties along the Eastern seaboard? To the well-read and conspiracy-minded Americans, it was crystal clear. Pamphleteers like William Petyt supplied the words, and artists like William Hogarth, drew the picture. Blocked off from Paradise, they would be moved to Hell. Americans were to be reduced to slaves toiling for the decadent and corrupt British elite.

The Americans believed they were the object of a “comprehensive conspiracy against liberty.” This grievance is Exhibit A.

I wish Jefferson had made this the third grievance, as it complements and completes the first two. With that thought, I am planning to cover the four grievances that deal with the judicial system (8, 9, 18, 19) seriatim during April and May. If nothing else, it will make my research, such as it is, easier.

A happy opening day to all, and at this moment my Cubs – and my Nationals – are undefeated,

Kahndiment

6. He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

Let’s start at the end. In the run-up to revolution neither France, nor Spain nor pirates invaded, nor did the colonies face internal uprisings. The first clause is repetitive; it is covered by the prior abuse. The second is misplaced; this digression seemingly fits within the Declaration’s philosophical paragraphs. What to make of this dog’s breakfast?

John Lind, an acid-penned lawyer commissioned in 1776 by the British government to rebut the Declaration line by line, (a) questioned Jefferson’s cause and effect. He sarcastically questioned “how the dissolution of their General Courts [i.e., colonial legislatures] should invite, or their being assembled, should repel [invasions from without], is more than I am able to conceive.” (b)
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(a) The King and his ministers thought a formal response to the Declaration would lend legitimacy to the Continental Congress, which they viewed as an illegal body, but they wanted to get in their licks. In an early disinformation campaign, the P.M. clandestinely hired John Lind, a professional pamphleteer with a sharp mind and cutting wit. His 100+ page rebuttal makes the Americans look like hypocrites and lawbreakers. It landed with a thud.

(b) He twists the knife, when he goes on to note:, Just a few years earlier, during the Seven Years’ War, the British repelled an invasion by France, by “lavishing the treasures and the blood…, by the armies, the victories and the treaties, of that Prince [King George, here demoted], whom they now so ungratefully revile.” Ouch.
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Historians playing the game of “can you find Jefferson’s grievance?” have washed their hands of this mess.

Our old friend Sydney Fisher, in his 1907 dissection of the 27 grievances, observed “The consequences of ‘invasion from without and convulsions within’ do not seem to have occurred.” (a)
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(a) Fischer does add “…unless the convulsion of the revolutionary movement itself and the invasion of British troops to suppress it, be counted.”
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Pauline Maier, a leading historian of the revolutionary period, in her “magisterial” (a) 1997 book, American Scripture, dismissed this grievance – and several others – as leaving “observers, then and now, scrambling to figure out what it was talking about.”
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(a) NY Post, earlier this week, from an article about the Declaration – chatter is building toward the semiquincentennial. And everyone needs a niche. Prof. Maier’s was taking down Jefferson, whom she called “the most overrated person in American history.”
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These criticisms miss the mark. Even I can identify the “invasion from without and convulsions within” this grievance refers to. As Humpty Dumpty told Alice, “When I use a word, it means what I choose it to mean – neither more nor less.” These clauses describe South Carolina to a T. The head-scratching question is why did Jefferson bother?

First the events.

South Carolina was the bloody heart of slavery in our colonies prior to the revolution. Rice, indigo, and hemp production by slave labor soared on plantations along the coast in South Carolina’s low country. The ratio of enslaved people to white settlers in these areas approached 10 to 1 by the revolution.

As the importance of slave labor grew, white Carolinians saw themselves as more and more vulnerable to attacks and acts of resistance by slaves. Plans for uprisings were uncovered in 1714 and 1720, causing the white settlers to speak of “intense Dangers” presented by the large slave population, especially if coupled with support from France or Spain. To be replaced by England, in the critical months before the composition of the Declaration.

In the run-up to the “War of Jenkins Ear,” (a) Spain offered freedom and refuge to slaves from the British colonies if they could reach St. Augustine in Spanish Florida. This proved the catalyst for the largest slave revolt during our colonial era.
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(a) According to Google Gemini, which I believe pilfered this from Wikipedia: “The War of Jenkins’ Ear (1739–1748) was a maritime conflict between Great Britain and Spain, driven by commercial disputes in the Caribbean and territorial tensions between Florida and Georgia. It was sparked by British public outrage after Captain Robert Jenkins allegedly displayed his ear, severed by Spanish coastguards and preserved in a jar of liquid… to the House of Commons in 1738 to prove Spanish cruelty, though historical records of him producing it are not definitive.” And no, you cannot view it. Again, according to Google Gemini, “its whereabouts after the parliamentary inquiry are unknown.”
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Twenty slaves on September 9, 1739 attacked a store in Stono, 15 miles from Charleston. They decapitated two shopkeepers, seized weapons, and as the word spread, their numbers grew to nearly 100. White militiamen assembled, and in a short battle 14 blacks died, those captured were summarily and brutally executed, and more than 30 escaped. About a week later most of the rebels were killed further along the road to St. Augustine, although a few Stono rebels remained at large for several more years.

In response to this “barbarous and horrid Rebellion” by “Domestic Enemies,” South Carolina’s legislature enacted the notorious South Carolia Slave Code, (a) a state-sanctioned system of control that mandated a patrol system that turned every white male into a domestic soldier. On the South Carolina coast, low-country planters and white settlers saw danger everywhere and were terrified of “convulsions within.”
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(a) Officially the “Negro Act of 1740.” According to the Equal Justice Initiative website, “The law prohibited enslaved African people from growing their own food, learning to read, moving freely, assembling in groups, and earning money. It also authorized white enslavers to whip and kill enslaved Africans for being “rebellious.””

The law was nullified by South Carolina’s ratification of the 13^th Amendment after Appomattox in 1865, to be immediately replaced by Black Codes, which were repealed during Reconstruction, to be followed by Jim Crow laws late in the 19^th century, which were dismantled during the 1950s and 1960s by legal challenges and the enactment of federal Civil Rights laws. Your prediction for the next turn of the wheel is as good as mine.
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While the upcountry frontiersmen were terrified of “invasions from without” – and for these settlers, “without” meant the Cherokee Nation. On February 1, 1760 a group of about 150 settlers were moving towards Augusta for safety during one of the periodic surges in frontier tension, when their wagons became bogged down in the mud. One hundred Cherokee warriors attacked and killed 23 settlers, most women and children. Known as the Long Cane Massacre, this was the “Stono” in the mountains. (a) Paid “Frontier Rangers” were grafted onto the security system South Carolina operated alongthe coast.
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(a) The massacre occurred during The Cherokee War (1758-1761), a stupefying cavalcade of allies becoming enemies, broken promises, hostages seized and killed, misunderstandings, gratuitous violence, venality, and stupidity.
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All of this came to a head in the explosive atmosphere of Charleston in 1775. The Commons House had been suspended for the prior half-decade due to the Wilkes Controversy (discussed in prior posts). During this time no official budget had been passed. Boston was occupied by Lobsterbacks, and on May 8 the news of Lexington and Concord, the “Shot Heard Round the World” reached Charleston.

At the same time, letters from London reported the British planned to incite Indian attacks and slave rebellions in South Carolina. While not true, the heated atmosphere and traditional fears made it perfect “fake news.”

Henry Laurens, a leading and temperate South Carolinian – and a master of unintentional irony, wrote: “It has been discovered that [the British] had it in contemplation to instigate the Indians to fall on the Frontier, and the Negroes on the Sea Coast... nothing can be more hellish than the design of stirring up an internal enemy to cut the throats of those who are contending for the rights of mankind.”

From the point forward, colonial government in South Carolina was over. A Provincial Congress came into session on June 12, 1775. It established a council on public safety – Laurens was its first president – to run South Carolina. It raised troops by issuing paper currency – including paying the slave patrols (a) -- and sent ships to seize gunpowder from a British merchant ship intended for British officials to distribute to the Cherokee and Loyalists on the frontier.
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(a) Charleston didn’t rely on volunteers; it had a professional, salaried “Watch” that patrolled the streets. Funds also were needed for horses for the Frontier Rangers, along with other expenses for a surveillance state.
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A new constitution was approved by the Provincial Congress on March 26, 1776. The five-year vacuum created by the Crown’s legislative dissolutions was filled by a new government, created by the People through the Provincial Congress, restoring the ability of the state to defend itself from “the dangers of invasions from without, and convulsions from within.” Albeit by paying Frontier Rangers and Slave Patrols.

So this grievance is a mess of mismatched ideas tossed into a single bowl. It is hard to blend liberty and Slave Patrols, even harder when Jefferson asserts a few inches above, “All men are created equal.” The British were happy to throw this in our face.

In Jefferson’s beloved Virginia, the Royal Governor Lord Dunmore, who in the prior post had fled Williamsburg and was issuing orders from the deck of a British warship, in November 1775 made an offer that sent a seismic shock through the Southern colonies: “I do hereby further declare all indented Servants, Negroes, or others, (appertaining to Rebels,) free that are able and willing to bear Arms...”

I can see why historians want to close their eyes to this grievance. And pretend they have no idea what the hell Jefferson is talking about.

Rather than leave it there, I will stand up for Jefferson (sort of). This grievance, along with the prior two, have the most to say in the Declaration about the paramount importance of the legislative assemblies in resisting tyranny, defending liberty, and protecting the people from dangers.

The Crown and the Royal Governors had launched a multi-year assault to break the back of the legislatures. But as Obi-Wan Kenobi said to Darth Vader, “If you strike me down, I shall become more powerful than you can possibly imagine.”

So I will try to form my triptych portraying the “Royal Assault on our Assembly Rights.”

Massachusetts on the left, with pictures of Liberty Bowls and Harvard Hall. South Carolina on the right, with John Wilkes standing tall. Underneath these, on each side, depictions of the usurpations and abuses inflicted by the Crown and their Royal Governors on Georgia, North Carolina, and Virginia.

And rising in the center, like Botticelli’s Birth of Venus, resplendent and beautiful, new legislatures to protect the rights and lives of a free people, as the Legislative Powers are incapable of Annihilation. But in Jefferson’s triptych, there is no sea foam. Instead of a scallop shell, the new legislatures emerge from miasmic swamps, balanced on the backs of the very ‘Domestic Enemies’ and ‘Savages’ that so many settlers sought to crush.

Onto grievance 7, one with current resonance:

And a point of personal privilege: When I come across nuggets that I find interesting, even if disruptive or downright irrelevant, I assume others will as well. (I have told more people about William & Mary, Oxford and Cambridge having legislative seats than anything else from these posts.) I have included several in this outing – I would judge writing about the War of Jenkins Ear, The Cherokee War, and the fate of the Slave Codes, as not really needed.

I omitted several gems: Why South Carolina became the Palmetto State. A tangent about Liberty Bowls (absolutely fascinating, at least to me, but tethered to this post by a microscopic thread.)

Any thoughts about whether these disrupt the flow and should be dropped, or are welcome diversions, would be appreciated. (a) And anything else, good, bad, or irrelevant.
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(a) The first response has been received: My Google Gemini AI assistant, who reviews the final draft, took it upon herself to answer. She wrote, “My vote: Keep them.”
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Kahndiment

So many dissolutions – who knew, not me. Below is a table summarizing the legislative closures ordered by the Royal Governors following King George III’s ascension, and ending when the Governors decamped for London, defeated, down, and deflated, with the patriots still upright.

The King’s ancient prerogative to dissolve a legislative assembly was originally a stabilizing force intended to maintain constitutional balance. It was a power to be used rarely, and only in extreme circumstances. By the mid-18^th century, it sat largely dormant – both in England, where it was last exercised by Charles II around 1680, and in the American colonies.

This changed literally in a day, triggered by Virginia’s seismic response to the Stamp Act. Dissolution became a sorcerer’s wand waved by the Royal Governors not to redress a dire constitutional imbalance, but more as a Draconian disciplinary tool used by stressed, impatient, and thoughtless parents facing “misbehaving” children. No surprise, the kids did not like this change. And it always made things worse.

Patrick Henry, (a) newly elected to the Virginia House of Burgesses, a generationally gifted orator, this rustic, rabble-rousing, 29-year old, dismissed by Lt. Gov. Fauquier as one of “…the young, hot and giddy members of the House, who were mostly from the upper [western frontier] counties;” (b) at the tail end of a sleepy legislative session, in the words of one of his more colorful biographers, Henry “with his Stamp Act resolves backed by his Treason Speech, (c) spectacularly seized control from the conservative Tidewater oligarchy and powerfully stiffened resistance throughout British America.”
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(a) A myth-crusted, larger-than-life figure, best known for his immortal quotes, Patrick Henry landed on the founder’s second team, probably because of his strident opposition to the constitution (but in the process galvanizing support for a Bill of Rights). He left few papers or other source materials behind, and his first popular biographer, William Wirt in 1817, “was influenced by…the curious historical standards of that day” blending facts and myths that have never been untangled. But like Forrest Gump, when on the scene, Henry shaped history.

(b) The exact sort of county, and for this exact reason, whose formation the Brits tried to stifle, per grievance 3, two posts ago.

(c) During this debate, when Henry threatened King George with the tyrant’s fate that befell Caesar and Charles the First, the assembly speaker shouted, “treason.” In response, Henry uttered one of his quotable – although possibly apocryphal – lines extolling civil revolution: “If this be treason, make the most of it.” Many other Burgesses in attendance claim to have heard it, but the exchange, like many a Yogi-ism, does sound too good to be true.
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Five resolves penned by Henry opposing Britain’s right to tax the Americans passed, shocking and terrifying the acting governor, with the fifth that passed by one vote sounding like treason. (a) Henry then left Williamsburg for the frontier, clad in his buckskin breeches, on foot, leading his “lean horse” behind him. With the backwoods orator gone, the conservative Tidewater representatives rescinded the fifth resolution and expunged it from the official record.
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(a) “Resolved, Therefore that the General Assembly of this Colony have the only and exclusive Right and Power to lay Taxes and Impositions upon the Inhabitants of this Colony and that every Attempt to vest such Power in any person or persons whatsoever other than the General Assembly aforesaid has a manifest Tendency to destroy British as well as American Freedom.” Sounds like treason to me.
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With this acceptable outcome in hand, Fauquier dissolved the House posthaste to stop anything worse from happening. (a)
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(a) He did not succeed. Instead of burying the resolves, they were spirited north and quickly reprinted in every major newspaper in America (except Virginia’s, which was controlled by Fauquier) including the flaming-hot fifth resolution. The Stamp Act Congress in New York followed, the first gathering of the colonies. Fauquier kept the House of Burgesses suspended for 17 months, preventing Virginia from sending delegates. A pretty perfect picture of a man hoisted by his own petard.
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So, an ancient prerogative to be used only in a “break glass in case of fire” moment was deployed prospectively on the off-chance Patrick Henry, who was walking home, would hear that his fifth resolution had been rescinded, return to Williamsburg like Sir Lancelot storming Camelot to rescue Guinevere, again arouse the Burgesses, and convince them to do something they would regret the next day.

This is so bizarre the Americans concluded legislative dissolution was another vector in the plot to deprive them of their rights and reduce them to slaves. Subsequent events certainly support that conclusion.

This tone-deaf, hair-triggered, response to seemingly small and petty affronts by dropping the dissolution card was reenacted by Royal Governors from Massachusetts to Georgia. Five of the dissolutions I found were reactions to petitions to Parliament passed by the colonial legislatures. The dissolutions were thoughtless and swift and ineffectual.

In response to the Virginia Resolves of 1769 opposing the Townshend Acts and the British plan to transport “traitors” imprisoned in iron cages to England for trial, Governor Botetourt summoned the Burgesses and told them in a speech that lasted seconds, “I have heard of your Resolves…and I auger ill of their Effects – You have made it my Duty to dissolve you; and you are dissolved accordingly.” The right to petition Parliament went back to the Magna Carta.

Matters internal to a colony could trigger dissolution. North Carolina was left without a court system when its legislature refused to repeal a long-standing law that allowed local courts to authorize seizing land in the colony owned by British merchants to settle unpaid debts. Georgia’s legislature elected the radical Noble Wimberly Jones as their speaker seven times and the legislature was dissolved after each vote. South Carolina’s was dissolved for how it chose to spend £1500 of its own money. (a)
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(a) The John Wilkes controversy, mentioned briefly in the prior post and a tentpole for the next.
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These dissolutions snuffed out the legislative life in these colonies. Georgia’s legislature was closed for a year. North Carolina went through a multi-year battle that featured closed courts, multiple legislative dissolutions, and eventually the establishment of a provincial congress that exercised real power. The South Carolina brawl ended at independence, the colony’s official government ending for practical purposes by 1773.

The Governors said to the colonies, you can have a legislature, but only so long as it does what we want, without question, without hesitation, without squawking. The colonies gave the Crown the bird.

The dissolution saga ends where it began, in Williamsburg. On May 24, 1774 the House of Burgesses passed a resolution to observe June 1^st —the day the port of Boston was to be closed by the British – as a day of “Fasting, Humiliation, and Prayer.” Governor Dunmore could not let this stand, and on May 26^th officially dissolved the Burgesses.

Eighty-nine Delegates marched 500 yards to the Raleigh Tavern. Patrick Henry, the frontier firebrand, along Jefferson and the Lees, leaders of the Commonwealth’s political establishment, now working together, created a new “Association,” approved a total boycott of British goods, declared an attack on one colony was an attack on all, and issued a call for a “general congress” of deputies from all of the colonies, putting Virginia in the vanguard of the march to independence.

A year later, on June 8, 1775, Gov. Dunmore fled Williamsburg for the refuge of a British warship. From its decks, he issued a series of increasingly futile messages demanding the Burgesses come aboard to conduct official business. This charade continued for a year.

On May 6, 1776, a handful of members gathered in the Capitol Building in Williamsburg to pen the final word in a saga that began eleven years earlier in that very room. The entry in in the legislative journal of Virginia’s House of Burgesses consisted of just one word: “FINIT.” Six weeks later, on June 29, 1776 Patrick Henry was elected the first governor of the Commonwealth of Virginia.

So, the second panel of the triptych is complete: A damning tableau showing eight Royal dissolutions, each different, but each dripping with disdain, distaste and contempt for the colonial legislatures. The Crown expected dissolution would cause the legislators to crumble and buckle. Instead, legislators from Massachusetts to Georgia fought back against these attacks, I think it is fair to say with “manly firmness.”

We are onto the third and final grievance in the legislative triptych:

All the best,

Kahndiment

This is the second of four sequential grievances accusing the King of interfering with the lower legislative houses in the American colonies. The prior charge centered on limiting representation in the Virginia House of Burgesses, which Jefferson decried as an existential threat to free people by a tyrant. This abuse is a major step down on the injury scale. Here the harm is fatiguing legislators. But linked with the next two abuses, it forms the left side panel of a triptych portraying the “Royal Assault on our Assembly Rights.”

This charge refers to the relocation of the Massachusetts General Court (its lower legislative body) from the Old State House in Boston to Harvard Hall in Cambridge from 1769 to 1772. (a)
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(a) Always there is a qualification. The South Carolina legislature was also relocated, meeting for three days during 1772 in the Beaufort courthouse, before returning to the State House in Charleston, a small act in the disastrous effort by the royal governor to stem the Wilkes Fund Controversy. A radical member of the House of Commons, John Wilkes spoke out against King George, was arrested and convicted for libel, and became a folk hero in the colonies. The South Carolina legislature voted in 1769 to send Wilkes £1500, royal officials in London would not allow the payment to be made, and the South Carolina legislature and the royal governor squared off in a constitutional crisis that propelled the colony into the independence camp. The payment was made. And, yes, Lincoln’s assassin was named for him.
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The trigger for the legislative relo was the Circular Letter adopted by the General Court in February 1768. This was a protest against the Townshend Acts, a package of punitive actions by the Parliament that included duties on tea, paper, lead, glass, and paint. When word of this petition reached England, Lord Hillsborough, the Secretary of State for the Colonies, demanded the Massachusetts General Court rescind the letter or face dissolution by the Royal Governor, Francis Bernard. On June 30th, the General Court voted 92 to 17 against rescinding.

The next day Governor Bernard officially dissolved the General Court. In the eyes of the Crown, Massachusetts was in a state of rebellion. London dispatched a convoy of warships carrying over 2,000 “Lobsterbacks” to occupy a city of 16,000 people.

During this explosion of tensions, London – tone deaf as always – sent a royal instruction to Governor Bernard that he could convene the next session of the General Court in Cambridge or Salem, somehow expecting this “lenient” gesture would discredit the radical leaders in the eyes of the ordinary citizens, and stop the legislators from being intimidated by a “licentious and unrestrained Mob.” He thought relocating would accomplish nothing, so he reconvened the General Court at the Old State House in central Boston on May 31, 1769.

The legislature spent the next two weeks in a battle with Governor Bernard over the British military presence. Their first act was to refuse to conduct business while “an armada by sea and land,” was surrounding them — British cannon were mounted outside the State House and soldiers we’re drilling in front of the building. Same as today, the critical legislative business was passing a budget, which would reimburse the Crown for the expense of operating its administration, including the cost of the troops occupying Boston.

Bernard said he could not remove the troops (undoubtedly true); onThursday, June 15 the General Court formally declared this a breach of privilege. The next day, the Governor used his royal prerogative to adjourn the session and ordered the legislature to reconvene Saturday morning in Cambridge at Harvard Hall. (a) The legislators did relocate, with their first action a resolution condemning Bernard’s administration, which included a complaint about being exiled to Cambridge.
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(a) In an odd coincidence, this building was paid for by the citizens of Massachusetts. The original Harvard Hall burnt to the ground in 1764 while it was being used by the General Court to avoid a smallpox outbreak in Boston. The conflagration began in the library, “where a fire had been kept for the use of the General Court…And in a very short time, this venerable monument of the piety of our ancestors was turned to a heap of ruins.” So wrote President Holyoke of Harvard, in what reads very much like a fund-raising letter. Harvard persuaded the General Court they were legally and morally responsible, and they appropriated funds to build the new Harvard Hall, which was completed in 1766 and still stands.
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This quickly turned into absurdist theatre, an early “Waiting for Godot,” where the characters dialogue does not align, there is no understanding, and not a lot happens. Governor Bernard was preparing to leave Boston for good, was dealing with a PR disaster, (a) and wanted the General Court to pass a budget.
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(a) Six letters Gov. Bernard wrote to Lord Hillsborough, the Secretary of State for the Colonies, dumping on individual legislators, calling for troops to be stationed permanently in Boston, and declaring “the town of Boston is now in the hands of a lawless and desperate mob,” were purloined, leaked, and published during April in the Boston Gazette.
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Other than protesting their removal from Boston, the legislators did nothing. Like a customer service department that is open from noon to 12:15 PM, the General Court would convene as ordered by the Governor, verify the troops were still in Boston, say no to whatever the Governor asked, adjourn, and move from Harvard Hall to a tavern.

On July 15, Governor Bernard summoned the legislatures to his council chamber, told them they were wasting time, demonstrating “total disregard” for the King’s authority, and were sitting on the budget. He suspended the assembly until early 1770. Governor Bernard left Boston on August 1, 1769 to the relief of all, passing the baton and mess to his successor, Thomas Hutchinson.

We now move from the absurd and theatrical onto the minute and tedious – at least concerning the locus of the Massachusetts General Court. The General Court reconvened again in Harvard Hall on March 15, 1770, five days after the Boston Massacre. They picked up where they left off, complaining about inconvenience (a) and being uncomfortable, (b) and refusing to pass any legislation while in exile in Cambridge. While the new, able, and stubborn Gov. Hutchinson dug in.
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(a) Without ready access to their records and documents, researching any point required a multi-day round trip by a courier to Boston. It is a lucky break they were not interested in legislating.

(b) The legislators seemed genuinely put out that they needed to abandon their chamber in the Old State House, which had been their home for over a half century. And meet instead in the chapel of Harvard Hall, which they felt did not meet their needs. Based on what I have learned, they spent precious little time meeting, so perhaps it was that Cambridge, which was remote and rural, had fewer decent bars and taverns than today.
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This standoff continued until an unsatisfying compromise – driven by the necessity of a passing budget – was reached to return the General Court to the Old State House – which both sides claimed as a victory, and each interpreted differently – with the first meeting back in Boston on June 17, 1772, exactly three years after they first met in Cambridge.

This charge was not included by Jefferson in his first draft of the Declaration but was added during the editing reviews, most likely by John Adams, (a) for whom the events in Boston were top of mind. But even in the story of the revolution in Boston, the relocation of the General Court to Cambridge is not a major stop on the freedom trail from the Stamp Act to the Tea Party and onto Lexington and Concord. The most cinematic parts of the removal story occurred while still in Boston. The days, months, and years in Cambridge come across as dull and slow. Convene, provoke Governor Hutchinson for a few minutes, adjourn, quaff, repeat. And the standoff ended with an anticlimactic whimper.
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(a) Scholars know this charge was added during rewrite because a slip of paper with parts of this grievance was gummed onto Jefferson’s draft, an eighteenth century post-it note. It is an educated guess that John Adams added it, based on this being a Massachusetts-specific grievance. Jefferson got the final word by making it look lame and trivial compared to the existential affront his beloved Virginia suffered in the prior charge.
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If this grievance were omitted, I doubt many scholars would be puzzling over its absence. It would save trying to explain what was so unusual or uncomfortable about meeting in Cambridge. (a) Or how easily legislators fighting a despot could be fatigued. (b)
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(a) Only 4 of the approximately 115 legislators were from Boston, so most were away from home in either spot. And no one has a clue as to what made Cambridge so uncomfortable — beyond not finding the chapel in Harvard Hall to their liking, and Cambridge’s dearth of taverns.

(b) Gov. Hutchinson in his detailed rebuttal of the Declaration sniped, “The Assembly …fatigued the Governor [i.e., me] by adjourning from day to day, and refusing to do business one Session after another, while he [i.e., I] gave his [i.e., my] constant attendance to no purpose; and this they make the King’s fatiguing them to compel them to comply with his measures.” Touché.
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But in an important way this grievance merits inclusion. Governor Hutchinson was sharp and precise. He argued that setting the meeting location for the General Court was a prerogative power held by the Crown, who instructed him via a Royal Order to make this decision, so the decision whether to return to Boston would be his alone. When this episode began, all agreed that the King held prerogative powers.

Hutchinson dug in. He would have none of the colonist’s arguments that the Massachusetts charter gave this power to the General Court, nor did he consider their need to have ready access to their records. The colonists started arguing that his actions to be legitimate needed to be consistent with the public good. To this, Hutchinson said, “pshaw.” The public good was his call. This was the Crown’s decision, full stop.

Hutchinson’s notion of the prerogative, clearly and coldly expressed, reinforced the belief that Americans were facing an implacable, Crown-led conspiracy to take away their liberty. These attacks on the colonial legislatures were an effort at more than showing them who was boss or fatiguing them into passing a budget. They were another sign Americans needed to challenge a King and his agents who saw no limits to their power, were becoming increasingly aggressive, and wanted to trample on their liberty, security, and happiness.

Onto charge 5, a step up in malicious meddling by the King in the mechanics of the colonial legislatures. But, whoa, wasn’t the Massachusetts General Court dissolved as part of their removal to Cambridge? We will leave that till next time.:

In the mean time, a very happy Lincoln’s birthday,

Kahndiment

This is the first of four charges concerning the operation of the lower legislative houses in the American colonies.

While seemingly to any generalization about colonial America an exception exists, during the 1600s every colony established a lower house, (a) focused on levying local taxes and ratifying legislation proposed initially by the chartered companies and soon by royal governors and their councils.
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(a) Establishing local assemblies was British policy, not only for their North American colonies but also for their Caribbean possessions. Virginia, in 1619 is the oldest, followed a year later by Bermuda. Both are still operating.
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By the end of the Seven Years War this equation had flipped. (a) The colonial legislatures for the most part had acquired significant control not only over local finance, but also over the appointment of officials and executive affairs, and over their legislative agendas.
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(a) And without bloodshed or resistance. In England the same dynamic required multiple revolutions, battles, and two beheadings (King Charles I and Oliver Cromwell, who was exhumed and beheaded three years after his death). But by 1700 Parliament was paramount in the British constitutional system, while the King retained executive authority and his crown.
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Representation in the colonial legislatures was based on geographic units: towns in New England, counties elsewhere. (a) Generally, two representatives were elected from each geographic unit, regardless of population.
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(a) With one exception, the College of William and Mary was granted a seat in the Virginia House of Burgesses by the royal charter founding the school in 1693, and it retained its seat until independence. This followed the model of Oxford and Cambridge, which each received two seats in the House of Commons in 1603. (Issac Newton held the Cambridge seat in the late 1600s.) Over time the British increased the number of universities that could elect one or more members to Parliament, with the last additions made in 1918. These twelve seats were abolished in 1948, on the grounds that alumni of these schools had two votes, one in their local constituency and one in their university constituency which allowed all graduates a vote.
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As the area of settlement in a colony grew, as a matter of course new towns or counties were created. In Virginia, which I am going to focus on, wealthy plantation owners in the Tidewater were often speculators in western land, with George Washington leading the pack, so they too supported forming new counties, (a) even if it diluted their power in Williamsburg. So, the House of Burgesses (the Virginia lower house) would create new counties, and with that more assembly members. The royal governor saw no reason to object. In 1650 the Virginia House of Burgesses had 30 members from 15 counties, in 1767 membership totaled 122.
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(a) In Virginia the county seat was the center of public life, requiring frequent trips by residents to record land titles (a prime reason people moved west was to own land) and settle endemic disputes about property lines, prosecute or defend lawsuits (also endemic), pay taxes, vote, secure licenses to operate any business such as a tavern or mill, and the list goes on. With crappy roads and the Burgesses adopting an informal “one-day ride” standard — that every free settler in the county should be able to reach the county courthouse, conduct their business, and ride home in one day — Virginia counties stayed compact.
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This all changed in 1767. The King’s privy council sent a royal instruction to the colonial governors that they could only approve forming a new county if it agreed to not send representatives to the legislative assembly. (a) This was issued at the instigation of the Board of Trade, which sensed growing hostility to the British on the frontier (b) and believed smaller assemblies would be easier to control. While to the Virginian eye, the West was a massive slab of beef, just waiting to be sliced into easily digestible, one-day-ride counties.
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(a) With one exception, in Massachusetts the colonial charter specifically protected it from this sort of royal interference — a harbinger of problems to come.

(b) And they were right. The last county created in Virginia before the door slammed was Dunmore, named for Lord Dunmore the colony’s royal governor. In 1777, in an early example of cancel culture, the residents found the name dishonorable, and changed it to Shenandoah, for the river that ran through it.
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Virginia before the revolution

As was so often the case with the British during the early years on the road to independence, implementing this instruction proved comically inept. Like the silly scene in the movie “Blazing Saddles” where the dim-witted Governor played by Mel Brooks signs a stack of “emergency” papers that include appointing Clevon Little as the first Black sheriff of Rock Ridge, the Brits did not realize that under a law passed a century earlier any new county in Virginia automatically received two seats in the House of Burgesses. Lord Dunmore approved eight counties, with sixteen additional representatives, between 1767 and 1773 when the Board of Trade discovered what was going on, and the kitchen closed.

For the Crown, this royal order was just another opportunity to annoy and inconvenience the Americans, demonstrate who was boss, and wrest back authority ceded over the prior 150 years — similar to the currency dispute mentioned as a trigger for the first grievance. Churlish and childish but not diabolical. (a)
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(a) Jefferson endorsed the indifference thesis when he wrote in 1774 about this royal order blocking new counties, “Is it possible then, that his majesty can have bestowed a single thought on the situation of those people, who in order to obtain justice for their injuries…must attend the county court, at such a distance, with all their witnesses, monthly, till their litigation be determined?” The colonists were a litigious lot.
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The British subscribed to the principle of “virtual representation,” where each member of Parliament represented the whole nation, not their particular town, shire, or university. Edmund Burke articulated this in 1774 in an oft-cited quote: “Parliament is a deliberative assembly of one nation with one interest, that of the whole; not local purposes, not local prejudices, ought to guide, but the general good.” So the 90 percent of the people in Britain with no vote for who went to Parliament — including all in the emerging commerical and manufacturing cities of Birmingham, Leeds, Manchester, and Sheffield — were in fact represented.

Under this notion, Issac Newton represented not the dons and students of Cambridge, (a) but the whole of England and the settlers in North America. As did, at the time of our revolution, the two MP’s apiece from Old Sarum (an uninhabited hill controlled by the Pitt family) and Dunwich (a town that had fallen into the North Sea). And no need to increase the size or Parliament or add seats, whose size and apportionment had been fixed since 1687. (b) This ‘sauce for the goose is sauce for the gander’ is what George was imposing on the American legislatures. Along with a soupçon of malice.
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(a) Newton according to legend spoke only once in Parliament — to ask an usher to close a window because of a draft.

(b) This changed with a bang half a century later with the passage of the Great Reform Act of 1832, which abolished the rotten boroughs and shifted representation to where people lived.
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While on our side of the pond, virtual representation was universally rejected. And despised. Americans had come to believe that local representatives were a bulwark defending liberty, protecting the citizens from the government, which was engaged in a conspiracy to steal their liberty. (Cue Walpole and the Robinocracy.) Legislators distant from their constituents were easily bribed and bought. And the smaller the legislative body, the fewer the politicians to be corrupted to achieve despotism.

While American hypocrisy about representation is hard to exceed, on this dimension we were consistent: Forget the inanity that the Pitt family who ‘owned’ two seats in Parliament from Old Sarum could represent American interests. Not only were the American colonies diverse from New Hampshire to Georgia, even within each colony there was the recognition that the coastal dwellers could not speak in the lower houses of their colonial legislatures for the immigrants settling the western parts of those colonies. On this, there were no exceptions. All of the colonial legislatures added seats as the colonies expanded. To block representation became the action not of a bully but of a tyrant.

When the King tampered with this norm, most likely just to spite us, he kicked over a hornet’s nest. I suspect the last reaction the British expected to this royal order, which was not important enough to vigilantly enforce, was the only moment of soaring passion from Jefferson in the list of 27 abuses, a cri de coeur that the “right of Representation in the Legislature” is a “right estimable to them [i.e., the people] and formidable to tyrants [i.e., King George] only,”

What the King saw as a trivial administrative thump, Jefferson saw as an existential threat to seize the soul of a free people. Jefferson amps it up to 11, the right of dusty people in muddy Virginia to elect their own, local representatives, forget those representatives, in the words of a snide pamphleteer are “plain, illiterate husbandmen, whose views seldom extended farther than to the regulation of highways, the destruction of wolves, wildcats, and foxes, and the advancement of the other little interests of [their] particular counties”, becomes ‘inestimable’ — literarily beyond price, and an illustration of how the Americans and the British were looking at pretty much everything through opposite ends of the telescope.

Onto charge 4, another interference by the King in the mechanics of the colonial legislatures:

Hope all are surviving the cold and snow — but it is nothing like the Continental Army endured at Valley Forge, or the Ukrainian army today,

Kahndiment

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The first charge was that King George refused “his Assent to laws;” pretty puny for an aspiring tyrant. The second charge looks even weaker.

Under long-standing practice, the colonial legislatures enacted laws, these went into effect, the reigning King very occasionally disallowed it, and the law died. (a) As the charge reads, King George changed this practice, instructing the royal governors to require that certain laws “of immediate and pressing importance” be “suspended in their operation” until the King opined thumbs up or thumbs down, or – as happened in practice, he “utterly neglected to attend to them.” While maddening, an eighteenth-century variant of a pocket veto hardly looks like a precursor to incipient despotism.

(a) British Kings also possessed the right to disallow laws passed by Parliament, but following the English civil wars of the 1600s and the reworking of the balance between the Crown and Parliament, this right was not used.

And solvable without a divorce. But like many a divorce, while to an outsider the proximate cause looks risible, it was anything but to those who are already jousting.

Lotteries had been a staple of colonial life since Jamestown. Initially colonials needing to generate cash would sell their property via private lotteries, which soon turned into merchandising schemes. (a) Lotteries became a popular form of entertainment and encountered little moral or religious pushback (b).

(a) A colonial-era amalgam of Facebook Marketplace, eBay, and “Buy Nothing,” these were largely outside of governmental control, including not paying tax, and with many of the same pluses and perils.

(b) Except in Pennsylvania. There Quakers held sway, they condemned gambling for promoting materialism, greed, and reliance on luck, and lotteries were illegal. Other denominations seemingly were happy with the cash lotteries sent their way.

Colonial governments got in on the action, authorizing over 160 public lotteries before independence to pay government expenses, raise cash for public works, support private projects, and avoid raising taxes. Roads and bridges; canals and lighthouses; colleges (a) and churches, these all were funded by lotteries. Lotteries became a pillar of revenue in most colonies, providing some fun and raising few objections from their citizens – a wonderful way to raise money from a populace that hated taxes.

(a) Seven of the eight Ivy League universities received funds from public lotteries. Only Cornell, founded in 1865 as New York’s land grant college, well after the end of America’s lottery era, missed out.

When the British looked to tighten control over American affairs after the French and Indian War, lotteries became a target. In the early 1760s, the Board of Trade, which represented British commercial interests, requested colonial governments restrict private lotteries, viewing them as antithetical to mercantilist principles: Instead of buying products manufactured in Britain, private lotteries allowed colonists to create a large market for used goods, reducing trade, dependence on English imports, and the collection of custom duties.

In 1769 King George came after the lotteries run by the colonial governments. The Bank of England authorized a massive lottery to raise money for his royal treasury. This was the first English lottery where the payouts were fixed in advance, so George’s profit would be a function of how many tickets were sold.

London was itching to impose its will on the Americans. The King wanted to sell them lottery tickets. If he could ban the colonial lotteries, Americans, to scratch their gambling itch, instead would buy English State Lottery tickets, or so the logic ran. So, he issued royal instructions requiring his colonial governors to secure his preapproval before a colony could hold a lottery (a). The lottery generated a King’s ransom, kicking off a series of annual British lotteries (b), and ending public lotteries in the colonies (c), as King George never approved another.
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(a) As noted above, standard practice held that colonial laws would be allowed to go into effect, and if the King disallowed, the law would be voided. For acts authorizing lotteries, this had the obvious problem that since a round-trip trans-Atlantic journey took many months, the tickets would have been sold and prizes distributed well before the King could opine. Even in our age of instant communication, we are facing an analogous problem with the possibility that the tariffs levied by the current administration will be disallowed by the Supreme Court, after countless untraceable individuals have paid billions of dollars in tariff duties.

(b) While I could not find whether Americans bought many tickets or boycotted this lottery, either way it produced a gigantic profit of £165,000. Public lotteries remained an important funding source in England for decades. Organized opposition to lotteries as “highly injurious to the commerce of the kingdom and the welfare and prosperity of the people” emerged in late 1700s, in 1808 a Parliamentary Select Committee found lotteries “burthensome, pernicious, and unproductive,” and they were banned in 1826.

(c) Six months after independence, the Continental Congress authorized holding the “United States Lottery” to cover war expenses. While draped in patriotism, “even the unsuccessful adventurer will [contribute] to the great and glorious American cause,” anemic ticket sales over several years barely covered its cost. It did not help that the prizes were paid in fast-depreciating Continental dollars. This was the first and only federal lottery. State lotteries never regained their pre-independence popularity and were largely gone by the Civil War. Only to return a century later. During 2023 state lotteries produced about $30 billion in government revenue on over $100 billion in ticket sales.

This was too clever by half.

Americans willingly acknowledged the King’s authority over the colonies, including the right of suspension. But his authority came with obligations, including an obligation to promote the welfare of the Americans. George first stood accused of suspending laws the most wholesome and necessary for the public good. In this charge, the King blocked laws of immediate and pressing importance.

No specifics are provided in these first two charges. The reason scholars generally give is that readers of the Declaration across the colonies could fill in a fitting local offense. I think Jefferson knew it would look ridiculous to argue we were entitled to independence because of disputes with King George over indentured servants, currencies, or lotteries.

But Americans, hyper-attuned to detect abuses of power and the shirking of obligations by the Parliament and government ministers, now saw the King take a small set of petty actions that put his selfish interests and those of Britain ahead of those of his American subjects. That was a betrayal of his constitutional duty. That merited leading the cavalcade of charges. Even if it was just to sell a few stinking lottery tickets.

Having established a contractual, constitutional default, Jefferson can pivot to the nub of the matter, delineating concrete, despotic acts to justify an extreme remedy (breaking the political bands that tied us to Great Britain), starting with the third charge—

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-Kahndiment

The charge is not George enacted something noxious. It instead is that he did nothing. As the charge reads, he refused “his Assent to Laws” passed by several of the colonial assemblies. How does this lead to King George establishing a tyranny?

King George disallowed several legislative acts passed by colonial assemblies – a right the British King was granted in eleven of the colonial charters (a) – but fewer acts than his predecessors. He did not allow South Carolina, New Jersey, or Virginia to tax the slave trade, (b) and blocked laws to stop the importation of convicts to the colonies from Britain. (c) He initially refused to approve laws passed by colonial legislatures that would allow them to issue paper currency which would be legal tender for the payment of debts owed to the government, a bitter struggle that took nine years to resolve (d). That’s it (e).

(a) The establishment of British colonies in North America was so haphazard that the British King did not possess “royal disallowance” rights in Connecticut or Rhode Island, nor did he appoint their governor, who instead was elected by the colonists.

(b) Putting aside the immorality, hypocrisy, and repugnance surrounding the trans-Atlantic slave trade, the British empire centered on trade, with English commercial interests paramount (cue selling East Indian tea in Boston), so hard for us to see in this case of “A plague o’ both your houses!” how in any way “the public good” was at play here. Yet, as noted in a note in my prior post, Jefferson to his dying day was obsessed with this “injustice” by King George.

(c) The British Parliament enacted the Transportation Act of 1718 to regularize the transport of convicts, to address a surging prison population at home and a labor shortage abroad. Approximately 50,000 prisoners were sent across the Atlantic by 1776, mainly to Maryland and Virginia, where they were purchased for terms of seven or fourteen years, primarily to toil on tobacco plantations. While this solved a problem for England, and for the plantation owners, many colonials opposed these arrivals for reasons that sound eerily familiar: the convicts brought crime, they brought disease, they would unleash civil disorder.

Virginia and Maryland passed legislation forbidding the import of convicts, which King George blocked. With the outbreak of the Revolution, British convict ships were no longer accepted in U.S. ports. In 1786 Parliament passed an act to transport convicts to Australia, and 164,000 prisoners were sent to Australia between 1788 and 1868, with lasting repercussions for that continent. As is so often the case, what constitutes “the public good” is relative to where one stands.

(d) A solution was reached in 1773 that allowed each colony to issue paper currency redeemable at the provincial treasury. Bewildering fights over arcane elements of currency policy remained a recurring theme of American history until well into the twentieth century, stupefying generations of students – and I suspect lawmakers as well.

(e) I am concerned that I am not unearthing any in-depth analyses of these charges. As my cousin wrote to me after reading the introductory post, “surprising that no one has ever written a book about this!”

So why do the founders view disallowing a handful of new laws over a dozen years as the first of “a long train of abuses and usurpations” that aim to establish “an absolute Tyranny over these States?”

It starts with nonsense – but a prevalent and potent brew of nonsense. By 1760, when George was crowned, leading colonists believed a “comprehensive conspiracy against liberty” was afoot “throughout the English-speaking world,” led by the King’s ministers, with Sir Robert Walpole the chief villain (a). Their first object was to deprive Americans of their historic rights and enslave them by turning “power into a malignant force….on this there was absolute agreement” (b). So even before the revolutionary period began, before any taxes were levied, a wide swath of American leaders believed a British cabal wanted to deprive them of their ancient liberties, impose a tyranny, and reduce them to slavery.

(a) Robert Walpole was the dominating figure in British politics during the first half of the eighteenth century, when Parliament was establishing its primacy in the English constitutional system. Walpole is considered England’s first Prime Minister and a moderate figure, albeit adept at pulling political strings and with a whiff of corruption. To the colonists, these were signs that Walpole, while maintaining the veneer of a moderate, was instead buying off members of Parliament to allow the government ministers, who were appointed by the King, to expand their powers, and reduce the Americans – and for that matter everyone in the English-speaking world – to slavery.

(b) The quotes and argument are from Bernard Bailyn’s masterwork, “The Ideological Origins of the American Revolution,” published in 1967, which as the title suggests, argued ideology was the prime driver of the revolution. Praised in his NYT obit for both rigorous scholarship and elegant prose, this book remains compelling and enjoyable. I read it last summer in a lounger at our neighborhood pool and only hope to find as good a read for this coming season.

The “Robinocracy,” a clever mashup of Walpole’s first name with widespread venality, was just one piece of a very dark plot. Colonists believed successive Kings and their ministers corrupted the British House of Commons by distributing favors to its members in exchange for blindly approving royal policies, effectively co-opting Parliament’s role as a check on the King and his government. Another strand contended the British were angling to establish the Church of England in the colonies by stealth. As we know well from our current fixation with conspiracies, when one is wearing conspiracy glasses, every action or non-action becomes another bit of evidence in support of the dastardly designs of the malefactors.

So even before the revolutionary period began, and before any taxes were levied, a wide swath of Americans believed a British cabal wanted to deprive them of their ancient liberties, impose a tyranny, and reduce them to slavery. The colonists were primed to explode. And all of this was before things turned nasty.

No matter this bore little relation to reality: “The government of Great Britain [was] apt to regard the problem of turnpikes in Yorkshire as vastly more important than the enforcement of the Navigation Acts in New York. Administration of the colonies was left to the King, who turned it over to his Secretary of State for the Southern Department [who} left it pretty much to the Board of Trade and Plantations, a sort of Chamber of Commerce [that] told the Secretary what to do; he told the royal governors; the governors told the colonists; and the colonists did as they pleased.” Yet, in this Fort Fumble-like approach to governance, the colonists saw “evidence of nothing less than a deliberate assault launched surreptitiously against liberty” (a).

(a) The first quote is from Edmund Morgan, “The Birth of the Republic,” published seventy years ago. Morgan began the shift in viewing the revolution as motivated by political ideas rather than taxes. The second is from Bailyn, published nearly sixty years ago. Their arguments have stood the test of time, albeit with help from their friends. Both were for decades beloved professors at Yale and Harvard respectively and supervised scores of doctoral students, many of whom became leading scholars who reinforced their ideas. They prove a lemma of Winston Churchill’s maxim, “History will be kind to me for I intend to write it.” Or my disciples will.

Flush with victory over the French in the Seven Years War but deep in debt, the British eyed the Americans as a ready source of revenue and in 1764 kicked off our rush to independence with the Sugar Act, a tax on imported molasses needed to distill rum (a). And the first of many missteps. That is not my story, however (b).

(a) Robert Walpole, cast as the principal Sith Lord in the conspiracy to enslave America, quipped when consulted about taxing the Americans, “I will leave that for some of my successors, who may have more courage than I have.”

(b) “The Birth of the Republic” by Edmund Morgan is a great read, admirably concise, and remains in print. By page 76 it has taken the Revolution from the Sugar Act to the Declaration of Independence.

What is on-point is a series of laws passed by Parliament triggered the antithesis of the crazy conspiracy that primed the Americans to be suspicious of the English: A thoughtful debate and rigorous analysis about how the colonies fit into the British constitutional system, which quickly led the colonists to reject the authority of the British Parliament.

But while the King’s ministers were allegedly engaged in a multi-dimensional conspiracy to enslave them, and the Parliament had no power over them, most Americans acknowledged the legitimate authority of the King over the colonies. Disallowance needed to be stripped away. Spoiler alert: It was.

But this can be covered in the next post, as Jefferson’s second charge against the King is somewhat a restatement of the first, operationalizing the right of disallowance:

A very happy 2026 to all.

Onto the Semiquincentennial,

Kahndiment

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But half of the Declaration are not words for the ages. They are “facts submitted to a candid world,” 27 terse accusations “of repeated injuries and usurpations” committed by the reigning British monarch George III, to justify severing “all Allegiance to the British Crown.”

Following passage, the Continental Congress ordered the immediate publication of the Declaration. 200 broadsheets were printed by George Dunlap on July 4, 1776, for immediate distribution across the colonies and for dispatch to England and Europe (a). Twenty-six still exist (b). Poster-sized and typeset in the easily readable Caslon font, (c) the indented accusations resemble a bullet-point list and make up the heart and bulk of the Declaration.

(a) Declaring independence was viewed as a prerequisite to get France and / or Spain to formally support the American cause. This was a central argument made by Thomas Paine in his catalytic pamphlet “Common Sense,” whose publication six months earlier ignited the final push for independence. This did not work as expected. The Declaration was dispatched post-haste on July 8th to Silas Deane, America’s secret envoy in Paris, but the ship either foundered or was captured by the British. Benjamin Franklin was sent to Paris very publicly by the Continental Congress later in 1776, and it took until 1778 for Franklin’s charms and American battlefield success to convince the French to sign a formal treaty with the American colonies. But the support of France (and Spain as well) did make all the difference.

(b) Dunlap broadsides are still discovered every few decades. One was found concealed in the back of a picture frame bought for $4 at a yard sale in Pennsylvania in 1989 (it was purchased in 2000 for over $8 million). In 2009 the British stumbled on a copy among overlooked correspondence in their national archive.

(c) Caslon was the first British-designed typeface, created in 1722. It replaced the Dutch typefaces that had been in use until that time and by 1776 was popular with printers in England and the American colonies. Ben Franklin, according to legend, superintended printing the Declaration at Dunlap’s printshop (Dunlap was the official printer for the Continental Congress) and suggested that it be set in Caslon so King George would have no trouble reading it. We have no trouble reading a Dunlap Broadsheet today – except for his pesky use of an “f” where we use an “s.”

As Jefferson noted in his autobiography, with uncharacteristic modesty, the Declaration asserted “a fact which already exists,” as the American and British armies were fighting fierce battles on multiple fronts. The Declaration was reprinted in newspapers and read aloud in public squares. Its words (a) were overshadowed by celebration: (b) fireworks, parades, musket and cannon fire, and in one memorable instance soldiers toppled a statue of King George and marched his decapitated head around lower Manhattan.

(a) The well-regarded (by Google’s Gemini), Oxford History of the United States recounts the public’s reaction: “What Americans thought and felt about the declaration’s “truths” …among them “life, liberty, and the pursuit of happiness” -- is not clear. There was no immediate discussion in public of these claims; nor was there of the contention that all men were “created equal.”

(b) John Adams presciently predicted the Declaration’s ratification would become “the great anniversary Festival…solemnized with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires and Illuminations from one End of this Continent to the other from this Time forward forever more.” But few divinations are 100% on target. Adams wrote this in a letter to his wife Abagail on July 3, 1776, following the approval of independence by the Continental Congress on the prior day. He confidently concluded, “The Second Day of July 1776, will be the most memorable Epocha, in the History of America.” In his defense, he could not foresee how prominently the date “July 4, 1776” would appear on the Dunlap Broadside and the engrossed version of the Declaration. Or perhaps it is just an early example of mansplaining.

After winning the war, Jefferson’s opening and concluding paragraphs became foundational text for our country. The first great American history, George Bancroft’s eight-volume masterwork, written over decades starting early in the 19th century, ended its triumphal saga with the ratification of the Declaration, “the principles on which [the United States] opened its new career.” (a) The Declaration’s soaring words became its heart, soul, and message to future generations of Americans and to the wider world.

(a) A beloved bestseller in its day, its florid prose and heroic tone soon became too much even for the jingoistic America of the late 19th century. Decide for yourself, here are parts of Bancroft’s description of the Declaration: “This immortal state paper…rose to the highest creative powers of which man is capable [and] proclaimed its faith in the truth and reality and unchangeableness of freedom, virtue, and right.”

While the charges against King George were forgotten.

The engrossed Declaration, the technical term for creating the official version,(a) written in a stylized, cursive script, became the venerated version of the Declaration (b). In 1820, John Quincy Adams, then Secretary of State and son of John Adams, a member of the Committee of Five that drafted the Declaration, commissioned the creation of a reproducible facsimile of the engrossed copy down to the signatures. Taking three years to complete, endless reproductions of this engraving have become the classic image of the Declaration, Artistically designed, the injuries inflicted by King George vanish into an esthetically pleasing, impenetrable block of text. The Dunlap Broadside bullet points are gone.

(a) The Continental Congress approved independence on July 2 and the text of the Declaration on July 4. Two weeks later on July 19th the Congress ordered the Declaration be engrossed on parchment. Signing the engrossed parchment began with a flourish by John Hancock, the President of the Congress, on August 2nd. Delegates sporadically signed over the next several weeks, with the laggards wedging their names into empty spaces.

(b) The engrossed Declaration passed through various hands during its early years, arriving in Washington about 1800. Popular history credits Dolley Madison with heroically saving the Declaration – perhaps the official version, most likely a copy since the original was stored in the State Department – when she fled the White House prior to British soldiers burning and looting Washington during August 1814. In any case, the engrossed version was secreted away preventing its possible destruction, elevating it to a secular relic. And like many relics, through a lot of handling and abuse, the Declaration was the worse for wear.

History followed suit. I could find only one point-by-point analysis of King George’s “abuses” from the American point-of-view, a 1907 journal article in “The Pennsylvania Magazine of History and Biography” by Sydney Fisher, a popular historian of his day (a). Many, following the lead of Bancroft, simply ignore this half of the Declaration. Others see it as a chance to show magnanimity to the much-reviled (b) King George. Dumas Malone wrote a Pulitzer Prize winning six-volume biography of Jefferson. When assessing the “Facts… compelling separation,” even this hagiographic biographer acknowledged that “At the bar of history these charges now seem extreme [and] certain of these charges were manifestly unjust.”

(a) Andrew Roberts, another well-regarded popular historian, in his 2021 biography of King George, “The Last King of America” refutes the charges leveled in the Declaration one-by-one. The affirmative case he takes from the century-old Sydney Fisher article, which made me feel better. Or perhaps Roberts was using Fisher as a straw man to make rebuttal easy. Please email me if you know of a more able defender.

(b) The piling-on continues. Lin-Manuel Miranda did King George no favors in “Hamilton,” when he had a sadistic and demented King George sing couplets like “And when push comes to shove, I will send a fully armed battalion to remind you of my love.” While more slander than fact, the song was a showstopper.

We are on the verge of our nation’s semiquincentennial. A tsunami of documentaries, podcasts, books, and clickbait about Jefferson’s timeless philosophy is heading our way (a). But most likely we will hear precious little about America’s injuries and the King’s abuses (b). That is a loss.

(a) An early entry, “The Greatest Sentence Ever Written” probably captures the tone of the coming year. Simon & Shuster, its publisher, described the book thusly: “To celebrate America’s 250th anniversary, Walter Isaacson [America’s bestselling biographer] takes readers on a fascinating deep dive into the creation of one of history’s most powerful sentences: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”… Isaacson unpacks its genius, word by word, illuminating the then-radical concepts behind it. Readers will gain a fresh appreciation for how it was drafted to inspire unity, equality, and the enduring promise of America.”

(b) With one exception that will prove the rule. Jefferson, 45 years after the fact, remained exercised in his fragmentary autobiography that the charge in his draft of the Declaration blaming King George “for enslaving the inhabitants of Africa was struck out in complaisance to South Carolina and Georgia, who had never attempted to restrain the importation of slaves [and] our northern brethren [who] had been pretty considerable carriers of them to others.” This sounds so clueless to us --and in fairness it sounded that way as well to the other delegates in Philadelphia – that few, including me, can resist the smug temptation to retell it. Nor could Ken Burns in his first-out-of-the-gate PBS documentary chronicling the Revolution. Prepare to hear it again and again.

For these concrete charges against the King are the heart of the Declaration. They delineate the “causes which impel separation,” driving America’s leaders to wage a war to become “Free and Independent States.” To recapture the “Spirit of 76,” understanding the grievances for which the signers – and by extension so many others – were risking their lives should be illuminating.

When I was kicking around this idea, I wandered to a book by Carl Becker, president of the American Historical Association a century ago. He concluded in his review of the Declaration, “the truth is that when one has found the particular act to which in each case the particular charge was intended to refer, one is likely to think the poor king less malevolently guilty than he is made out to be. Yet that Jefferson and his friends, honest and good men enough, and more intelligent than most, were convinced that the Declaration was a true bill, we need not doubt.”

I plan over this coming year (a) to look at each Dunlap Broadside bullet-pointed charge against the King, to see why these mattered enough to the founders that they were willing to risk their lives. And create our country in the process.

(a) My thought is to post sequentially on each charge every other Thursday, starting January 1. That would allow 27 posts during the Declaration’s semiquincentennial, with the final on Thursday December 31, 2026. But the realities of vacations, family commitments, work, and the vicissitudes of life, may render that plan infeasible.

I do not know where this is going. I plan to assess each seriously but not exhaustively. I hope it will be fun. I expect there will be some wisdom and lessons. I will post on January 1, 2026 what I have gleaned about the first “Fact” Jefferson submitted to a candid world:

Well, number one is baffling.

Fingers crossed,

Kahndiment (a)

(a) During the revolutionary period pamphleteers and essayists frequently wrote under pseudonyms for reasons including safety, anonymity, and to create a persona separate from the author. Ben Franklin published for twenty-five years an almanac written by Poor Richard, a self-proclaimed lover of learning. John Dickinson, a wealthy Philadelphia lawyer educated in London, published twelve widely reprinted “letters” opposing British tax impositions under the pseudonym “A Farmer,” conveying common sense rather than educated elitism. The pamphlet known as “Common Sense” was initially titled “The American Crisis”; Common Sense was Thomas Paine’s eponymous pseudonym. Many chose names evocative of the Roman Republic. Alexander Hamilton, James Madison, and John Jay published their essays that became the “Federalist Papers” under the name Publis.

For this project, I hope to be a good topping (like the tomatoes, pickle, mustard, and hot peppers atop a Chicago-style hotdog, a food I love) that adds some zest. Hence the mashup pseudonym incorporating my last name.