Much of that smuggling and defrauding centered on molasses, the raw ingredient needed for rum. Nearly all the molasses that American rum distilleries used to make their product came from Caribbean islands controlled by rival empires like the Dutch and the French. The demand for rum was bottomless, because rum was more than a drink. It was a kind of currency itself, a key commodity of exchange. Caribbean planters sent molasses north, the American colonies distilled the molasses into rum, and the rum was then sent across the Atlantic to the Gold Coast of Africa, where slavers used it to purchase slaves to bring back to the Caribbean.
Smuggling in the colonies was not so different from drug dealing in economically depressed neighborhoods and regions today. During the pre-Revolutionary era, smugglers created economic activity that caused huge knock-off effects: a cascade of subsidiary industries and cash flow that kept a whole lot of people in the colonies (not to mention lots of business back in merry old England) in the money. The same goes for dealers in, say, Westside Baltimore or the South Side of Chicago or the South Bronx, or northern Maine or eastern Kentucky or South Central Los Angeles. Sure, the drug trade is illegal, reckless, and destructive, but it encourages commerce in places where the legitimate economy produces few jobs. While dealers and “the street” are viewed skeptically, often angrily, they also command status. Dealers, like smugglers, become institutions—the way, say, New Englanders viewed John Hancock in the years leading to the revolution.
Such extensive criminal conspiracies depend and depended on codes of silence and the confidence that snitches will be punished. In 1759, when one informer in New York threatened to expose an illegal smuggling ring, a local official sympathetic to the smugglers arrested him on trumped-up charges, and an angry mob beat him to a pulp. Smuggling was so embedded in colonial society, British officers complained they couldn’t find anyone to enforce the law who wasn’t somehow connected to it. When they did manage to prosecute cases, they found that colonial juries engaged in their own version of nullification. Between 1680 and 1682 New England’s head of customs brought thirty-two seizure cases to trial. He lost thirty.
The laws were unenforceable because the market demand was nearly limitless, and the colonies were an ocean away. And for much of the eighteenth century, the British Empire’s attitude toward our Founders’ rampant smuggling was one of benign neglect. The law was enforced in the same way drug laws are very loosely “enforced” on elite college campuses. Authorities know it’s happening, but they don’t go out of their way to bust people for it. Between 1710 and 1760, as the population of the colonies quintupled to over 1.5 million, the total number of customs agents rose from thirty-seven to fifty.
But then, as is so often the case, a war changed everything. Between 1754 and 1763 Britain fought a bloody and expensive campaign against the French and allied indigenous tribes in North America. As the so-called Seven Years’ War dragged on, colonial officials watched in horror as smugglers openly flouted wartime laws that prohibited trading with the French enemy. When Britain signed the Treaty of Paris, ending the conflict, it gained much of Canada and Florida—but it had incurred a staggering amount of debt. The inexperienced young king, George III, turned to tariff enforcement in the colonies as a relatively painless way of replenishing the royal coffers. Or so he thought.
Because taxes were ultimately enforced through police actions, the British crackdown essentially inaugurated America’s first tough-on-crime era. It was a classic crackdown: more customs officials were granted more expansive powers, while courts were streamlined to produce swift punishment and avoid the maddening jury nullification that had made it so hard to punish smugglers in previous decades. After 1763 customs officials no longer looked the other way in exchange for small bribes. Instead, they began operating in ways that looked a lot like what we now call “stop and frisk.”
British customs officials took to trawling the coast, stopping merchant ships to search and harass them. Authorities had no specific cause for these searches other than their confidence that they’d find illicit goods. This was the same approach and justification that the NYPD infamously used to search for drugs and guns in the pockets of hundreds of thousands of young men, disproportionately black and brown, on the streets of New York in the 2000s. In a landmark legal ruling, a federal district judge found that “stop and frisk” amounted to wholesale, systematic violation of the Fourth Amendment protections against unwarranted search and seizure. “While it is true that any one stop is a limited intrusion in duration and deprivation of liberty, each stop is also a demeaning and humiliating experience,” Judge Shira Scheindlin wrote in her opinion. “No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life.”
The British legal tradition has no Fourth Amendment, but common law had developed some privacy protections. In the 1604 Semayne’s Case, a British court ruled that the inhabitant of a house could rightfully bar the entry of a king’s officer if the officer had not gone through the proper process. This case articulated the now-famous Castle Doctrine, with British jurist Sir Edward Coke declaiming, “The house of every one is to him as his castle and fortress, as well for his defense against injury and violence as for his repose.”
But the American colonists were subject to British invasions of their carriages, ships, and homes without the safeguards enjoyed by their English cousins. Widely used “writs of assistance” allowed British officials to invade their homes willy-nilly, as part of a broader scheme to squeeze American pocketbooks. After the Seven Years’ War, the hated writs of assistance empowered British customs officials to stop and search ships coming into New England ports.