Hutchinson, Thomas (1711–1780)

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HUTCHINSON, THOMAS (1711–1780)

Thomas Hutchinson, described by his biographer, Bernard Bailyn, as "the most distinguished, as well as the most loyal, colonial-born official of his time," was the leading exponent of "Tory" constitutional theory at the outbreak of the american revolution. Hutchinson was not a political theorist, however, but a practical politician who turned to theory in order to justify his actions.

Hutchinson was the leader of the wealthy, interrelated clique that ruled Massachusetts in the eighteenth century. Although he was born in Boston, his loyalty was always to the ministry in England, and he defended his policies by appealing to the most extreme doctrines of royal and parliamentary supremacy. During his career he held every important office in the colony, and at one point (in 1763) he was simultaneously lieutenant governor, chief justice of the Supreme Court, president of the Council, and judge of probate.

In 1761 Hutchinson, as Chief Justice, presided over the paxton ' scase, in which the Superior Court was asked to issue general warrants to authorize searches by customs officials. He personally opposed the use of writs of assistance and as lieutenant governor had argued against their issuance on the governor's authority, but as a judge Hutchinson rejected the argument of james otis that such writs were illegal under the common law. It was sufficient that writs of assistance were valid in English law and that Parliament had, by statute, authorized their use in the colonies, and so the writs were issued.

Hutchinson became acting governor of Massachusetts in 1769 and governor in 1771. He was temperamentally unsuited for the position in so critical a time. When the policies he pursued became so unpopular that the Assembly would not appropriate money to pay his salary, Hutchinson secured for himself a special salary paid by the British crown. To insure that the courts would remain loyal to the British government he arranged that the judges' salaries, too, should be paid by the crown. These moves, which rendered the executive and judicial powers independent of the legislature and of the citizens, enraged public opinion.

Responding defiantly, Hutchinson summoned the General Court and, on January 6, 1773, delivered an address that spelled out his understanding of the principles of Anglo-American constitutionalism. The British Empire and Massachusetts's place in it, he argued, required the absolute and indivisible sovereignty of the king-in-Parliament. The power of the British Parliament was unlimited and illimitable, but, since Parliament represented all British subjects, both in Britain and in the colonies, that power would necessarily be used benignly and humanely. As the American colonies were too weak to survive without British protection, the freedom of Americans depended upon their acceptance of absolute parliamentary authority. Hutchinson refused to concede the possibility that the General Court of Massachusetts exercised a separate legislative authority. "No line," he argued, "can be drawn between the supreme authority of Parliament and the total independence of the colonies."

If Hutchinson expected the address to quell criticism he was seriously mistaken. The effect was rather to enhance the standing of the most radical leaders of the opposition. The task of preparing the Assembly's response fell to samuel adams, the leader of the popular party and Hutchinson's chief rival. The Assembly adopted a resolution accepting, for argument's sake, Hutchinson's position that there could be no middle ground between absolute parliamentary authority and colonial autonomy. But the conclusion drawn was the opposite of Hutchinson's. The Assembly claimed that Massachusetts was a realm separate from Britain, sharing a common executive—the king—but with its own legislature. Only the General Court, and not Parliament, could legislate for Massachusetts.

Hutchinson was only reluctantly an enemy of his fellow colonists. He opposed many of the measures adopted by the British government, including the Sugar Act and the stamp act. But Hutchinson's objections were prudential, not constitutional. He never doubted Parliament's right to legislate for the colonies, however disastrous the exercise of that right, or his own duty to obey and enforce such legislation.

After being forced in 1774 to flee to England, Hutchinson endured the six years until his death as a lonely pensioner of the crown. His career had a deep, if negative, influence on American constitutional thought: it was proof of the evils of plural office-holding and of an executive not dependent on the people's representatives for his pay. His outspoken insistence on the indivisibility of sovereignty helped to impel the formation of American theories of

federalism.

Dennis J. Mahoney
(1986)