James Otis: Against
Writs of Assistance
Writs of Assistance
February 24. 1761
The "Writs of Assistance"
were general warrants allowing officials to search for smuggled
material within any suspected premises. James Otis was
Advocate-General when the legality of these warrents was attacked,
but promptly resigned his office when called upon to defend that
legality. The Boston merchants then retained him as their counsel to
oppose the writs before the Superior Court of Massachusetts. Otis
refused the fee they offered, saying that in such a cause he despised
all fees. In a five-hour speech, which was witnessed by a young John
Adams, Otis argued that the writs were unconstitutional. He based his
case on the rights guaranteed in English common law.
MAY it please your Honors: I was
desired by one of the court to look into the books, and consider the
question now before them concerning Writs of Assistance. I have
accordingly considered it, and now appear not only in obedience to
your order, but likewise in behalf of the inhabitants of this town,
who have presented another petition, and out of regard to the
liberties of the subject. And I take this opportunity to declare that
whether under a fee or not (for in such a cause as this I despise a
fee) I will to my dying day oppose, with all the powers and faculties
God has given me, all such instruments of slavery on the one hand and
villainy on the other as this Writ of Assistance is.
It appears to me the worst instrument
of arbitrary power, the most destructive of English liberty and the
fundamental principles of law, that ever was found in an English
law-book. I must therefore beg your Honors' patience and attention to
the whole range of an argument that may perhaps appear uncommon in
many things, as well as to points of learning that are more remote
and unusual, that the whole tendency of my design may the more easily
be perceived, the conclusions better descend, and the force of them
be better felt. I shall not think much of my pains in this cause, as
I engaged in it from principle.
I was solicited to argue this cause as
Advocate-General; and, because I would not, I have been charged with
desertion from my office. To this charge I can give a very sufficient
answer. I renounced that office and I argue this cause from the same
principle; and I argue it with the greater pleasure, as it is in
favor of British liberty, at a time when we hear the greatest monarch
upon earth declaring from his throne that he glories in the name of
Briton and that the privileges of his people are dearer to him than
the most valuable prerogatives of his crown; and as it is in
opposition to a kind of power, the exercise of which in former
periods of history cost one king of England his head and another his
throne. I have taken more pains in this cause than I ever will take
again, although my engaging in this and another popular cause has
raised much resentment. But I think I can sincerely declare that I
cheerfully submit myself to every odious name for conscience' sake;
and from my soul I despise all those whose guilt, malice, or folly
has made them my foes. Let the consequences be what they will, I am
determined to proceed. The only principles of public conduct that are
worthy of a gentleman or a man are to sacrifice estate, ease, health,
and applause, and even life, to the sacred calls of his country.
These manly sentiments, in private
life, make good citizens; in public life, the patriot and the hero. I
do not say that, when brought to the test, I shall be invincible. I
pray God I may never be brought to the melancholy trial; but, if ever
I should, it will then be known how far I can reduce to practice
principles which I know to be founded in truth. In the meantime I
will proceed to the subject of this writ.
Your Honors will find in the old books
concerning the office of a justice of the peace precedents of general
warrants to search suspected houses. But in more modern books you
will find only special warrants to search such and such houses,
specially named, in which the complainant has before sworn that he
suspects his goods are concealed; and will find it adjudged that
special warrants only are legal. In the same manner I rely on it,
that the writ prayed for in this petition, being general, is illegal.
It is a power that places the liberty of every man in the hands of
every petty officer. I say I admit that special Writs of Assistance,
to search special places, may be granted to certain persons on oath;
but I deny that the writ now prayed for can be granted, for I beg
leave to make some observations on the writ itself, before I proceed
to other Acts of Parliament.
In the first place, the writ is
universal, being directed "to all and singular justices,
sheriffs, constables, and all other officers and subjects"; so
that, in short, it is directed to every subject in the King's
dominions. Every one with this writ may be a tyrant; if this
commission be legal, a tyrant in a legal manner, also, may control,
imprison, or murder any one within the realm. In the next place, it
is perpetual; there is no return. A man is accountable to no person
for his doings. Every man may reign secure in his petty tyranny, and
spread terror and desolation around him, until the trump of the
Archangel shall excite different emotions in his soul. In the third
place, a person with this writ, in the daytime, may enter all houses,
shops, etc., at will, and command all to assist him. Fourthly, by
this writ not only deputies, etc., but even their menial servants,
are allowed to lord it over us. What is this but to have the curse of
Canaan with a witness on us: to be the servants of servants, the most
despicable of God's creation?
Now, one of the most essential branches
of English liberty is the freedom of one's house. A man's house is
his castle; and whilst he is quiet, he is as well guarded as a prince
in his castle. This writ, if it should be declared legal, would
totally annihilate this privilege. Custom-house officers may enter
our houses when they please; we are commanded to permit their entry.
Their menial servants may enter, may break locks, bars, and
everything in their way; and whether they break through malice or
revenge, no man, no court can inquire. Bare suspicion without oath is
sufficient.
This wanton exercise of this power is
not a chimerical suggestion of a heated brain. I will mention some
facts. Mr. Pew had one of these writs, and, when Mr. Ware succeeded
him, he endorsed this writ over to Mr. Ware; so that these writs are
negotiable from one officer to another; and so your Honors have no
opportunity of judging the persons to whom this vast power is
delegated. Another instance is this: Mr. Justice Walley had called
this same Mr. Ware before him, by a constable, to answer for a breach
of the Sabbath-day Acts, or that of profane swearing. As soon as he
had finished, Mr. Ware asked him if he had done. He replied, "Yes."
"Well then," said Mr. Ware, "I will show you a little
of my power. I command you to permit me to search your house for
uncustomed goods" - and went on to search the house from the
garret to the cellar; and then served the constable in the same
manner!
But to show another absurdity in this
writ: if it should be established, I insist upon it every person, by
the 14th Charles Second, has this power as well as the custom-house
officers. The words are: "It shall be lawful for any person or
persons authorized," etc. What a scene does this open! Every man
prompted by revenge, ill-humor, or wantonness to inspect the inside
of his neighbor's house, may get a Writ of Assistance. Others will
ask it from self-defence; one arbitrary exertion will provoke
another, until society be involved in tumult and in blood.
[The remainder of the speech exists
only in the following summary by John Adams:]
A dissertation on the rights of man in
a state of nature. He asserted that every man, merely natural, was an
independent sovereign, subject to no law but the law written on his
heart and revealed to him by his Maker, in the constitution of his
nature and the inspiration of his understanding and his conscience.
His right to his life, his liberty, no created being could rightfully
contest. Nor was his right to his property less incontestable. The
club that he had snapped from a tree, for a staff or for defense, was
his own. His bow and arrow were his own; if by a pebble he had killed
a partridge or a squirrel, it was his own. No creature, man or beast,
had a right to take it from him. If he had taken an eel or a smelt or
a sculpin, it was his property. In short, he sported upon this topic
with so much wit and humor, and at the same time with so much
indisputable truth and reason, that he was not less entertaining than
instructive.
He asserted that these rights were
inherent and inalienable. That they never could be surrendered or
alienated but by idiots or madmen and all the acts of idiots and
lunatics were void and not obligatory, by all the laws of God and
man. Nor were the poor Negroes forgotten. Not a Quaker in
Philadelphia or Mr. Jefferson in Virginia ever asserted the rights of
Negroes in stronger terms. Young as I was and ignorant as I was, I
shuddered at the doctrine he taught; and I have all my life
shuddered, and still shudder, at the consequences that may be drawn
from such premises. Shall we say that the rights of masters and
servants clash and can be decided only by force? I adore the idea of
gradual abolitions! but who shall decide how fast or how slowly these
abolitions shall be made?
From individual independence he
proceeded to association. If it was inconsistent with the dignity of
human nature to say that men were gregarious animals, like wild
geese, it surely could offend no delicacy to say they were
social animals by nature, that there were natural sympathies, and,
above all, the sweet attraction of the sexes, which must soon draw
them together in little groups, and by degrees in larger
congregations, for mutual assistance and defense And this must have
happened before any formal covenant, by express words or signs, was
concluded. When general councils and deliberations commenced, the
objects could be no other than the mutual defense and security of
every individual for his life, his liberty, and his property. To
suppose them to have surrendered these in any other way than by equal
rules and general consent was to suppose them idiots or madmen whose
acts were never binding. To suppose them surprised by fraud or
compelled by force into any other compact, such fraud and such force
could confer no obligation. Every man had a right to trample it
underfoot whenever he pleased. In short, he asserted these rights to
be derived only from nature and the Author of nature; that they were
inherent, inalienable, and indefeasible by any laws, pacts,
contracts, covenants, or stipulations which man could devise.
These principles and these rights were
wrought into the English constitution as fundamental laws. And under
this head he went back to the old Saxon laws and to Magna Carta and
the fifty confirmations of it in Parliament and the executions
ordained against the violators of it and the national vengeance which
had been taken on them from time to time, down to the Jameses and
Charleses, and to the position of rights and the Bill of Rights and
the revolution.
He asserted that the security of these
rights to life, liberty, and property had been the object of all
those struggles against arbitrary power, temporal and spiritual,
civil and political, military and ecclesiastical, in every age. He
asserted that our ancestors, as British subjects, and we their
descendants, as British subjects, were entitled to all those rights
by the British constitution as well as by the law of nature and our
provincial character as much as any inhabitant of London or Bristol
or any part of England, and were not to be cheated out of them by any
phantom of "virtual representation" or any other fiction of
law or politics or any monkish trick of deceit and hypocrisy.
He then examined the Acts of Trade, one
by one, and demonstrated that, if they were considered as revenue
laws, they destroyed all our security of property, liberty, and life,
every right of nature and the English constitution and the charter of
the province. Here he considered the distinction between "external
and internal taxes," at that time a popular and commonplace
distinction. But he asserted that there was no such distinction in
theory or upon any principle but "necessity." The necessity
that the commerce of the Empire should be under one direction was
obvious. The Americans had been so sensible of this necessity that
they had connived at the distinction between external and internal
taxes, and had submitted to the Acts of Trade as regulations of
commerce hut never as taxations or revenue laws. Nor had the British
government till now ever dared to attempt to enforce them as
taxations or revenue laws.
The Navigation Act he allowed to be
binding upon us because we had consented to it by our own
legislature. Here he gave a history of the Navigation Act of the
first of Charles II, a plagiarism from Oliver Cromwell. In
1675, after repeated letters and orders from the King, Governor
Leverett very candidly informs His Majesty that the law had not been
executed because it was thought unconstitutional, Parliament not
having authority over us.
John Adams
29 November, 1815
Quincy
Jedidiah Morse
Quincy
,
29 November, 1815
.
A
history of military operations from April 19th, 1775, to the 3d of
September, 1783, is not a history of the American Revolution, any
more than the Marquis of Quincy’s military history of Louis XIV.,
though much esteemed, is a history of the reign of that monarch. The
revolution was in the minds and hearts of the people, and in the
union of the colonies; both of which were substantially effected
before hostilities commenced.
When,
where, by what means, and in what manner was this great intellectual,
moral, and political change accomplished? Undoubtedly it was begun in
the towns of Boston and Salem, where the British government first
opened their designs, and first urged their pretensions.
In the
month of February, 1761, the great cause of writs of assistance was
argued before the supreme judicature of the province, in the council
chamber in Boston; and this important question was tainted from the
beginning with an odious and [183] corrupt intrigue. Chief
Justice Stephen Sewall, who was an enlightened friend of liberty,
having great doubts of the legality and constitutionality of this
projected writ of assistance, at November term, 1760, at Salem, where
it was solicited by Cockle, a custom-house officer, had ordered the
question to be argued before the court at the next February term in
Boston; but Sewall in the mean time died, and Bernard, instead of
fulfilling the promises of two of his predecessors, Shirley and
Pownall, to give the next vacancy on that bench to Colonel Otis,
appointed Hutchinson, for the very purpose of deciding the fate of
the writs of assistance, and all other causes in which the claims of
Great Britain might be directly or indirectly implicated, though
Hutchinson was then lieutenant-governor, judge of probate, member of
council, his brother, Oliver, secretary, and his brother, Oliver,
judge of the Supreme Court; and himself furnished with no education
to the law, and very little knowledge of it. When the cause came on,
however, Mr. Otis displayed so comprehensive a knowledge of the
subject, showed not only the illegality of the writ, its insidious
and mischievous tendency, but he laid open the views and designs of
Great Britain, in taxing us, of destroying our charters and assuming
the powers of our government, legislative, executive, and judicial,
external and internal, civil and ecclesiastical, temporal and
spiritual; and all this was performed with such a profusion of
learning, such convincing argument, and such a torrent of sublime and
pathetic eloquence, that a great crowd of spectators and auditors
went away absolutely electrified. The next May, Mr. Otis was elected
by the town of Boston into the legislature, and for ten years
afterwards; during the whole of which period his tongue and his pen
were incessantly employed in enlightening his fellow-citizens and
countrymen in the knowledge of their rights, and developing and
opposing the designs of Great Britain. He governed the town of Boston
and the House of Representatives, notwithstanding a few
eccentricities, with a caution, a prudence and sagacity, which
astonished his friends and confounded his enemies. His fame soon
spread though the continent, and three or four years afterwards was
emulated by Mr. Dickinson in his Farmer’s Letters; and some other
gentlemen in Virginia began to think.
-----------------------------
The
following abstract of the argument in the cause of writs of
assistants or assistance is the one alluded to in the note to page
125 of this volume.
Gridley. The
Constables distraining for rates, more inconsistent with English
rights and liberties than Writs of Assistance; and necessity
authorizes both.
Thacher. I
have searched in all the ancient repertories of precedents, in
Fitzherbert’s Natura Brevium, and in the register (Q. What
the register is) and have found no such writ of assistance as this
petition prays. I have found two writs of assistance in the
register, but they are very different from the writ prayed for. In a
book, intituled the Modern Practice of the Court of Exchequer, there
is indeed one such writ, and but one.
By
the Act of Parliament, any other private person may, as well as a
custom-house officer, take an officer, a sheriff or constable, &c.,
and go into any shop, store, &c., and seize; any person
authorized by such a writ, under the seal of the Court of Exchequer,
may; not custom-house officers only. Strange.
The
most material question is, whether the practice of the Exchequer
will warrant this Court in granting the same. The act empowers all
the officers of the revenue to enter and seize in the plantations as
well as in England. 7 & 8 William III. c. 22, s. 6, gives the
same as 13 & 14 Charles II. gives in England. The ground of Mr.
Gridley’s argument is this, that this Court has the power of the
Court of Exchequer. But this Court has renounced the Chancery
Jurisdiction, which the Exchequer has, in cases where either party
is the King’s debtor. (Q. into that case.)
In
England all informations of uncustomed or prohibited importations
are in the Exchequer. So that the custom-house officers are the
officers of that Court, under the eye and direction of the Barons.
The
writ of assistance is not returnable. If such seizure were brought
before your honors, you would often find a wanton exercise of their
power. At home, the officers seize at their peril, even with
probable cause.
Otis. This
writ is against the fundamental principles of law. The privilege of
House. A man who is quiet, is as secure in his house, as a prince in
his castle—notwithstanding all his debts and civil processes of
any kind. But—
For
flagrant crimes and in cases of great public necessity, the
privilege may be infringed on. For felonies an officer may break,
upon process and oath, [522] that is, by a special warrant
to search such a house, sworn to be suspected, and good grounds of
suspicion appearing.
Make
oath coram Lord Treasurer, or Exchequer in England, or a
magistrate here, and get a special warrant for the public good, to
infringe the privilege of house.
General
warrant to search for felonies. Hawkins, Pleas of the Crown. Every
petty officer, from the highest to the lowest; and if some of them
are common, others are uncommon.
Government
justices used to issue such perpetual edicts. (Q. with what
particular reference.) But one precedent, and that in the reign of
Charles II., when star chamber powers, and all powers but lawful and
useful powers, were pushed to extremity.
The
authority of this modern practice of the Court of Exchequer. It has
an Imprimatur. But what may not have? It may be owing to some
ignorant Clerk of the Exchequer. But all precedents, and this among
the rest, are under the control of the principles of law. Lord
Talbot. Better to observe the known principles of law than any one
precedent, though in the House of Lords.
As to
Acts of Parliament. An act against the Constitution is void; an act
against natural equity is void; and if an act of Parliament should
be made, in the very words of this petition, it would be void. The
executive Courts must pass such acts into disuse.
8
Rep. 118 from Viner. Reason of the common law to control an act of
Parliament. Iron manufacture. Noble Lord’s proposal, that we
should send our horses to England to be shod. If an officer will
justify under a writ, he must return it. 12 Mod. 396, perpetual
writ. Statute Charles II. We have all as good right to inform as
custom-house officers, and every man may have a general irreturnable
commission to break houses.
By 12
of Charles, on oath before Lord Treasurer, Barons of Exchequer, or
Chief Magistrate, to break, with an officer. 14 C. to issue a
warrant requiring sheriffs, &c., to assist the officers to
search for goods not entered or prohibited. 7 & 8. W. & M.
gives officers in plantations same powers with officers in England.
Continuance
of writs and processes proves no more, nor so much, as I grant a
special writ of assistance on special oath for special purpose.
Gridley. By
the 7 & 8 Wm. c. 22, s. 6, this authority of breaking and
entering ships, warehouses, cellars, &c. given to the
custom-house officers in England. By the statutes of the 12 & 14
of Charles II. it is extended to the custom-house officers in the
plantations; and by the statute of 6 Anne, writs of assistance are
continued, in company with all other legal processes used, for six
months after the demise of the Crown. Now, what this writ of
assistance is, we can know only by books of precedents.
And we have produced, in a book
intituled the Modern Practice of the Court of Exchequer, a form of
such a writ of assistance to the officers of the customs. The book
has the imprimatur of Wright C. J. of the K. B., which is as great a
sanction as any books of precedents ever have, although books of
reports are usually approved by all the [523] Judges, and
I take Brown, the author of this book, to have been a very good
collector of precedents. I have two volumes of precedents, of his
collection, which I look upon as good as any, except Coke and
Rastall.
And
the power given in this writ, is no greater infringement of our
liberty than the method of collecting taxes in this Province.
Everybody knows that the subject has the privilege of house only
against his fellow subjects, not versus the King either in matters
of crime or fine.1
The
report of a part of Mr. Otis’s speech as given in Minot’s
History, must have been written out by Mr. Adams, at a later moment.
In his own copy of that work, he has underlined the passages in it,
which he says were interpolated by the person who furnished it for
publication. It is no more than just to all parties, the speaker as
well as the reporter, that the correct version should be given,—
“I
was desired by one of the Court to look into the books, and consider
the question now before them concerning writs of assistance. I have
accordingly considered it, and now appear, not only in obedience to
your order, but likewise in behalf of the inhabitants of this town,
who have presented another petition, and out of regard to the
liberties of the subject. And I take this opportunity to declare,
that whether under a fee or not (for in such a cause as this I
despise a fee) I will to my dying day oppose with all the powers and
faculties God has given me, all such instruments of slavery on the
one hand, and villany on the other, as this writ of assistance is.
It
appears to me the worst instrument of arbitrary power, the most
destructive of English liberty and the fundamental principles of
law, that ever was found in an English law-book. I must, therefore,
beg your Honors’ patience and attention to the whole range of an
argument, that may perhaps appear uncommon in many things, as well
as to points of learning that are more remote and unusual; that the
whole tendency of my design may the more easily be perceived, the
conclusions better discerned, and the force of them be better felt.
I shall not think much of my pains in
this cause, as I engaged in it from principle. I was solicited to
argue this cause as Advocate-General; and because I would not, I
have been charged with desertion from my office. To this charge I
can give a very sufficient answer. I renounced that office, and I
argue this cause, from the same principle; and I argue it with the
greater pleasure, as it is in favor of British liberty, at a time
when we hear the greatest monarch upon earth declaring from his
throne that he glories in the name of Briton, and that the
privileges of his people are dearer to him than the most valuable
prerogatives of his crown; and as it is in opposition to a kind of
power, the exercise of which, in former periods of English history,
cost one King of England his head, and another his throne.
I have taken more pains in this cause,
than I ever will take again, although my engaging in this and
another popular cause has raised much resentment. But I think I can
sincerely declare, that I cheerfully submit myself to every odious
name for conscience’ sake; and from my soul I despise all those,
whose guilt, malice, or folly has made them [524] my foes.
Let the consequences be what they
will, I am determined to proceed. The only principles of public
conduct, that are worthy of a gentleman or a man, are to sacrifice
estate, ease, health, and applause, and even life, to the sacred
calls of his country. These manly sentiments, in private life, make
the good citizen; in public life, the patriot and the hero. I do not
say, that when brought to the test, I shall be invincible. I pray
God I may never be brought to the melancholy trial; but if ever I
should, it will be then known how far I can reduce to practice
principles, which I know to be founded in truth. In the mean time I
will proceed to the subject of this writ.
“In
the first place, may it please your Honors, I will admit that writs
of one kind may be legal; that is, special writs, directed to
special officers, and to search certain houses, &c. specially
set forth in the writ, may be granted by the Court of Exchequer at
home, upon oath made before the Lord Treasurer by the person who
asks it, that he suspects such goods to be concealed in those very
places he desires to search. The act of 14 Charles II. which Mr.
Gridley mentions, proves this. And in this light the writ appears
like a warrant from a Justice of the Peace to search for stolen
goods.
Your Honors will find in the old books
concerning the office of a Justice of the Peace, precedents of
general warrants to search suspected houses. But in more modern
books you will find only special warrants to search such and such
houses specially named, in which the complainant has before sworn
that he suspects his goods are concealed; and you will find it
adjudged that special warrants only are legal.
In the same manner I rely on it, that
the writ prayed for in this petition, being general, is illegal. It
is a power, that places the liberty of every man in the hands of
every petty officer.
I say I admit that special writs of
assistance, to search special places, may be granted to certain
persons on oath; but I deny that the writ now prayed for can be
granted, for I beg leave to make some observations on the writ
itself, before I proceed to other acts of Parliament.
In the first place, the writ is
universal, being directed ‘to all and singular Justices, Sheriffs,
Constables, and all other officers and subjects;’ so, that, in
short, it is directed to every subject in the King’s dominions.
Every one with this writ may be a tyrant; if this commission be
legal, a tyrant in a legal manner also may control, imprison, or
murder any one within the realm.
In the next place, it is perpetual;
there is no return. A man is accountable to no person for his
doings. Every man may reign secure in his petty tyranny, and spread
terror and desolation around him.
In the third place, a person with this
writ, in the daytime, may enter all houses, shops, &c. at will,
and command all to assist him.
Fourthly, by this writ not only
deputies, &c., but even their menial servants, are allowed to
lord it over us. Now one of the most essential branches of English
liberty is the freedom of one’s house. A man’s house is his
castle; and whilst he is quiet, he is as well guarded as a prince in
his castle. This writ, if it should be declared legal, would totally
annihilate this privilege. Custom-house officers may enter our
houses, when they please; we are commanded to permit their entry.
Their menial servants may enter, may break locks, bars, and every
thing in their way; and whether they break through malice or
revenge, no man, no court, can inquire. Bare suspicion without oath
is sufficient.
This wanton exercise of this power is
not a chimerical suggestion of a heated brain. I will mention some
facts. Mr. Pew had one of these writs, and [525] when Mr.
Ware succeeded him, he endorsed this writ over to Mr. Ware; so that
these writs are negotiable from one officer to another; and so your
Honors have no opportunity of judging the persons to whom this vast
power is delegated.
Another instance is this: Mr. Justice
Walley had called this same Mr. Ware before him, by a constable, to
answer for a breach of Sabbath-day acts, or that of profane
swearing. As soon as he had finished, Mr. Ware asked him if he had
done. He replied, Yes. Well then, said Mr. Ware, I will show you a
little of my power. I command you to permit me to search your house
for uncustomed goods. And went on to search his house from the
garret to the cellar; and then served the constable in the same
manner.
But to show another absurdity in this
writ; if it should be established, I insist upon it, every person by
the 14 Charles II. has this power as well as custom-house officers.
The words are, ‘It shall be lawful for any person or persons
authorized,’ &c. What a scene does this open! Every man,
prompted by revenge, ill humor, or wantonness, to inspect the inside
of his neighbor’s house, may get a writ of assistance. Others will
ask it from self-defence; one arbitrary exertion will provoke
another, until society be involved in tumult and in blood.
“Again,
these writs are not returned. Writs in their nature are temporary
things. When the purposes for which they are issued are answered,
they exist no more; but these live forever; no one can be called to
account. Thus reason and the constitution are both against this
writ. Let us see what authority there is for it. Not more than one
instance can be found of it in all our law-books; and that was in
the zenith of arbitrary power, namely, in the reign of Charles II.,
when star-chamber powers were pushed to extremity by some ignorant
clerk of the exchequer. But had this writ been in any book whatever,
it would have been illegal.
All precedents are under the control
of the principles of law. Lord Talbot says it is better to observe
these than any precedents, though in the House of Lords, the last
resort of the subject. No Acts of Parliament can establish such a
writ; though it should be made in the very words of the petition, it
would be void. An act against the constitution is void. (vid.
Viner.) But these prove no more than what I before observed, that
special writs may be granted on oath and probable suspicion.
The act of 7 & 8 William III. that
the officers of the plantations shall have the same powers, &c.
is confined to this sense; that an officer should show probable
ground; should take his oath of it; should do this before a
magistrate; and that such magistrate, if he think proper, should
issue a special warrant to a constable to search the places. That of
6 Anne can prove no more.”
[520]
[521]
The
Adams Papers On-line
Quincy
,
1 June, 1818
.
No
man could have written from memory Mr. Otis’s argument of four or
five hours, against the acts of trade, as revenue laws, and against
writs of assistance, as a tyrannical engine to execute them, the
next day after it was spoken. How awkward, then, would be an attempt
to do it after a lapse of fifty-seven years! Nevertheless, some of
the heads of his discourse are so indelibly imprinted on my mind,
that I will endeavor to give you some very short hints of them.
- He began with an exordium, containing an apology for his resignation of the office of Advocate-General in the Court of Admiralty; and for his appearance in that cause, in opposition to the Crown, and in favor of the town of Boston, and the merchants of Boston and Salem.
- A dissertation on the rights of man in a state of nature. He asserted that every man, merely natural, was an independent sovereign, subject to no law, but the law written on his heart, and revealed to him by his Maker in the constitution of his nature and the inspiration of his understanding and his conscience. His right to his life, his liberty, no created being could rightfully contest. Nor was his right to his property less incontestable. The club that he had snapped from a tree, for a staff or for defence, was his own. His bow and arrow were [315] his own; if by a pebble he had killed a partridge or a squirrel, it was his own. No creature, man or beast, had a right to take it from him. If he had taken an eel, or a smelt, or a sculpion, it was his property. In short, he sported upon this topic with so much wit and humor, and at the same time so much indisputable truth and reason, that he was not less entertaining than instructive. He asserted that these rights were inherent and inalienable. That they never could be surrendered or alienated but by idiots or madmen, and all the acts of idiots and lunatics were void, and not obligatory by all the laws of God and man. Nor were the poor negroes forgotten. Not a Quaker in Philadelphia, or Mr. Jefferson, of Virginia, ever asserted the rights of negroes in stronger terms. Young as I was, and ignorant as I was, I shuddered at the doctrine he taught; and I have all my lifetime shuddered, and still shudder, at the consequences that may be drawn from such premises. Shall we say, that the rights of masters and servants clash, and can be decided only by force? I adore the idea of gradual abolitions! But who shall decide how fast or how slowly these abolitions shall be made?
- From individual independence he proceeded to association. If it was inconsistent with the dignity of human nature to say that men were gregarious animals, like wild horses and wild geese, it surely could offend no delicacy to say they were social animals by nature, that there were mutual sympathies, and, above all, the sweet attraction of the sexes, which must soon draw them together in little groups, and by degrees in larger congregations, for mutual assistance and defence. And this must have happened before any formal covenant, by express words or signs, was concluded. When general counsels and deliberations commenced, the objects could be no other than the mutual defence and security of every individual for his life, his liberty, and his property. To suppose them to have surrendered these in any other way than by equal rules and general consent was to suppose them idiots or madmen, whose acts were never binding. To suppose them surprised by fraud, or compelled by force, into any other compact, such fraud and such force could confer no obligation. Every man had a right to trample it under foot whenever he pleased. In short, he asserted these rights to be derived only from nature and the author of nature; [316] that they were inherent, inalienable, and indefeasible by any laws, pacts, contracts, covenants, or stipulations, which man could devise.
- These principles and these rights were wrought into the English constitution as fundamental laws. And under this head he went back to the old Saxon laws, and to Magna Charta and the fifty confirmations of it in Parliament, and the execrations ordained against the violators of it, and the national vengeance which had been taken on them from time to time, down to the Jameses and Charleses; and to the petition of rights and the bill of rights, and the Revolution. He asserted, that the security of these rights to life, liberty, and property, had been the object of all those struggles against arbitrary power, temporal and spiritual, civil and political, military and ecclesiastical, in every age. He asserted, that our ancestors, as British subjects, and we, their descendants, as British subjects, were entitled to all those rights, by the British constitution, as well as by the law of nature, and our provincial charter, as much as any inhabitant of London or Bristol, or any part of England; and were not to be cheated out of them by any phantom of “virtual representation,” or any other fiction of law or politics, or any monkish trick of deceit and hypocrisy.
- He then examined the acts of trade, one by one, and demonstrated, that if they were considered as revenue laws, they destroyed all our security of property, liberty, and life, every right of nature, and the English constitution, and the charter of the province. Here he considered the distinction between “external and internal taxes,” at that time a popular and commonplace distinction. But he asserted there was no such distinction in theory, or upon any principle but “necessity.” The necessity that the commerce of the empire should be under one direction, was obvious. The Americans had been so sensible of this necessity, that they had connived at the distinction between external and internal taxes, and had submitted to the acts of trade as regulations of commerce, but never as taxations or revenue laws. Nor had the British government, till now, ever dared to attempt to enforce them as taxation or revenue laws. They had lain dormant in that character for a century almost.
- The navigation act he allowed to be binding upon us, because we had consented to it by our [317] own legislature. Here he gave a history of the navigation act of the first of Charles II., a plagiarism from Oliver Cromwell. This act had lain dormant for fifteen years. In 1675, after repeated letters and orders from the king, Governor Winthrop very candidly informs his Majesty, that the law had not been executed, because it was thought unconstitutional, Parliament not having authority over us.
I
shall pursue this subject in a short series of letters. Providence
pursues its incomprehensible and inscrutable designs in its own way
and by its own instruments. And as I sincerely believe Mr. Otis to
have been the earliest and the principal founder of one of the
greatest political revolutions that ever occurred among men, it
seems to me of some importance that his name and character should
not be forgotten. Young men should be taught to honor merit, but not
to adore it. The greatest men have the greatest faults.
John Adams
9 June, 1818
Quincy
William Tudor
Quincy
,
9 June, 1818
.
I
have promised you hints of the heads of Mr. Otis’s oration,
argument, speech, call it what you will, against the acts of trade,
as revenue laws, and against writs of assistance, as tyrannical
instruments to carry them into execution. . . .
Mr.
Otis, after rapidly running over the history of the continual
terrors, vexations, and irritations, which our ancestors endured
from the British government, from 1620, under James I. and Charles
I.; and acknowledging the tranquillity under the [318] parliament
of Cromwell, from 1648, to the restoration, in 1660, produced the
navigation act as the first fruit of the blessed restoration of a
Stuart’s reign.
“For the increase of shipping and encouragement of the navigation
of this nation, wherein, under the good Providence and protection of
God, the wealth, safety, and strength of this kingdom, is so much
concerned, be it enacted, that from and after the first day of
December, 1660, and from thence forward, no goods or commodities,
whatsoever, shall be imported into, or exported out of, any lands,
islands, plantations, or territories, to his Majesty belonging or in
his possession, or which may hereafter belong unto or be in the
possession of his Majesty, his heirs and successors, in Asia,
Africa, or America, in any other ship or ships, vessel or vessels,
whatsoever, but in such ships or vessels, as do truly and without
fraud, belong only to the people of England or Ireland, dominion of
Wales, or town of Berwick upon Tweed, or are of the build of, and
belonging to, any of the said lands, islands, plantations, or
territories, as the proprietors and right owners thereof, and
whereof the master, and three fourths of the mariners, at least, are
English; under the penalty of the forfeiture and loss of all the
goods and commodities which shall be imported into, or exported out
of any of the aforesaid places, in any other ship or vessel, as also
of the ship or vessel, with all its guns, furniture, tackle,
ammunition, and apparel; one third part thereof to his majesty, his
heirs and successors; one third part to the governor of such land,
plantation, island, or territory, where such default shall be
committed, in case the said ship or goods be there seized, or,
otherwise, that third part also to his Majesty, his heirs and
successors; and the other third part to him or them who shall seize,
inform, or sue for the same in any court of record, by bill,
information, plaint, or other action, wherein no essoin, protection,
or wager of law shall be allowed. And all admirals and other
commanders at sea, of any of the ships of war or other ships, having
commission from his Majesty, or from his heirs or successors, are
hereby authorized, and strictly required to seize and bring in as
prize all such ships or vessels as shall have offended contrary
hereunto, and deliver them to the Courts of Admiralty, there to be
proceeded against; and in case of condemnation, one moiety of such
forfeitures shall be to the use of such admirals or commanders, and
their companies, to be divided and proportioned among them,
according to the rules and orders of the sea, in case of ships taken
prize; and the other moiety to the use of his Majesty, his heirs and
successors.”
Section second enacts, all governors shall take a solemn oath to do
their utmost, that every clause shall be punctually obeyed. See the
statute at large.
Section fourth enacts, that no goods of foreign growth, production,
or manufacture shall be brought, even in English
shipping, [319] from any other countries, but only from
those of the said growth, production, or manufacture, under all the
foregoing penalties.
Mr.
Otis commented on this statute in all its parts, especially on the
foregoing section, with great severity. He expatiated on its narrow,
contracted, selfish, and exclusive spirit. Yet he could not and
would not deny its policy, or controvert the necessity of it, for
England, in that age, surrounded as she was by France, Spain,
Holland, and other jealous rivals; nor would he dispute the prudence
of Governor Leverett, and the Massachusetts legislature, in adopting
it, in 1675, after it had lain dormant for fifteen years; though the
adoption of it was infinitely prejudicial to the interests, the
growth, the increase, the prosperity of the colonies in general, of
New England in particular, and most of all, to the town of Boston.
It was an immense sacrifice to what was called the mother country.
Mr. Otis thought that this statute ought to have been sufficient to
satisfy the ambition, the avarice, the cupidity of any nation, but
especially of one who boasted of being a tender mother of her
children colonies; and when those children had always been so fondly
disposed to acknowledge the condescending tenderness of their dear
indulgent mother.
This
statute, however, Mr. Otis said, was wholly prohibitory. It
abounded, indeed, with penalties and forfeitures, and with bribes to
governors and informers, and custom-house officers, and naval
officers and commanders; but it imposed no taxes. Taxes were laid in
abundance by subsequent acts of trade; but this act laid none.
Nevertheless, this was one of the acts that were to be carried into
strict execution by these writs of assistance. Houses were to be
broken open, and if a piece of Dutch linen could be found, from the
cellar to the cock-loft, it was to be seized and become the prey of
governors, informers, and majesty.
When
Mr. Otis had extended his observations on this act of navigation,
much farther than I dare to attempt to repeat, he proceeded to the
subsequent acts of trade. These, he contended, imposed taxes, and
enormous taxes, burdensome taxes, oppressive, ruinous, intolerable
taxes. And here he gave the reins to his genius, in declamation,
invective, philippic, call it which you will, against the
tyranny of taxation without representation.
Let
me, however, say, in my own name, if any man wishes to investigate
thoroughly, the causes, feelings, and principles of the Revolution,
he must study this act of navigation and the acts of trade, as a
philosopher, a politician, and a philanthropist.
John Adams
17 June, 1818
Quincy
William Tudor
Quincy
,
17 June, 1818
.
The
next statute produced and commented by Mr. Otis was the 15th of
Charles II., that is, 1663, chapter 7,—
Sec.
5. “And in regard his Majesty’s plantations beyond the seas are
inhabited and peopled by his subjects of this his kingdom of
England, for the maintaining a greater correspondence and kindness
between them, and keeping them in a firmer dependence upon
it, and rendering them yet more beneficial and advantageous
unto it, in the further employment and increase of English shipping
and seamen, vent of English woolen and other manufactures and
commodities, rendering the navigation to and from the same more
cheap and safe, and making this kingdom a staple, not only
of the commodities of those plantations, but also of the commodities
of other countries and places, for the supplying of them; and
it being the usage of other nations to keep their plantations trades
to themselves.”
Sec.
6. “Be it enacted, &c., that no commodity of the growth,
production, or manufacture of Europe, shall be imported into any
land, island, plantation, colony, territory, or place, to his
Majesty belonging, or which shall hereafter belong unto or be in
possession of his Majesty, his heirs and successors, in Asia, Africa
or America, (Tangier only excepted,) but what shall be bonâ
fide, and without fraud, laden and shipped in England, Wales,
or the town of Berwick upon Tweed, and in English built shipping, or
which were bonâ fide bought before the 1st of October,
1662, and had such certificate thereof as is directed in one act,
passed the last session of the present Parliament, entitled. “An
act for preventing frauds and regulating abuses in his Majesty’s
customs;” and whereof the master and three fourths of the
mariners, at least, are English, and which shall be carried directly
thence to the said lands, islands, plantations, colonies,
territories or places, and from no other place or places whatsoever;
any law, statute, or usage to the contrary notwithstanding; under
the penalty of the loss of all such commodities of the growth,
production, or manufacture of Europe, as shall be imported into any
of them, from any other place whatsoever, by land or water; and if
by water, of the ship or vessel, also, in which [321] they
were imported, with all her guns, tackle, furniture, ammunition, and
apparel; one third part to his Majesty, his heirs, and successors;
one third part to the governor of such land, island, plantation,
colony, territory, or place, into which such goods were imported, if
the said ship, vessel, or goods be there seized or informed against
and sued for; or, otherwise, that third part, also, to his Majesty,
his heirs, and successors; and the other third part to him or them
who shall seize, inform, or sue for the same in any of his Majesty’s
courts in such of the said lands, islands, colonies, plantations,
territories or places where the offence was committed, or in any
court of record in England, by bill, information, plaint, or other
action, wherein no essoin, protection, or wager of law
shall be allowed.”
Sections
7, 8, 9, and 10 of this odious instrument of mischief and misery to
mankind, were all calculated to fortify by oaths and penalties the
tyrannical ordinances of the preceding sections.
Mr.
Otis’s observations on these statutes were numerous, and some of
them appeared to me at the time, young as I was, bitter. But as I
cannot pretend to recollect those observations with precision, I
will recommend to you and others to make your own remarks upon them.
You
must remember, Mr. Tudor, that you and I had much trouble with these
statutes after you came into my office, in 1770, and I had been
tormented with them for nine years before, that is, from 1761. I
have no scruple in making a confession with all the simplicity of
Jean Jacques Rousseau, that I never turned over the leaves of these
statutes, or any section of them, without pronouncing a hearty curse
upon them. I felt them as a humiliation, a degradation, a disgrace
to my country, and to myself as a native of it.
Let
me respectfully recommend to the future orators on the 4th of July
to peruse these statutes in pursuit of “principles and feelings
that produced the revolution.”
Oh!
Mr. Tudor, when will France, Spain, England, and Holland renounce
their selfish, contracted, exclusive systems of religion,
government, and commerce? I fear, never. But they may depend upon
it, their present systems of colonization cannot endure. Colonies
universally, ardently breathe for independence. No man, who has a
soul, will ever live in a colony under the present establishments
one moment longer than necessity compels him.
But I
must return to Mr. Otis. The burden of his song was “writs of
assistance.” All these rigorous statutes were [322] now
to be carried into rigorous execution by the still more rigorous
instruments of arbitrary power, “writs of assistance.”
Here
arose a number of very important questions. What were writs of
assistance? Where were they to be found? When, where, and by what
authority had they been invented, created, and established? Nobody
could answer any of these questions. Neither Chief Justice
Hutchinson, nor any one of his four associate judges, pretended to
have ever read or seen in any book any such writ, or to know any
thing about it. The court had ordered or requested the bar to search
for precedents and authorities for it, but none were found. Otis
pronounced boldly that there were none, and neither judge nor
lawyer, bench or bar, pretended to confute him. He asserted farther,
that there was no color of authority for it, but one produced by Mr.
Gridley in a statute of the 13th and 14th of Charles II., which Mr.
Otis said was neither authority, precedent, or color of either in
America. Mr. Thacher said he had diligently searched all the books,
but could find no such writ. He had indeed found in Rastall’s
Entries a thing which in some of its features resembled this, but so
little like it on the whole, that it was not worth while to read it.
Mr.
Gridley, who, no doubt, was furnished upon this great and critical
occasion with all the information possessed by the governor,
lieutenant-governor, secretary, custom-house officers, and all other
crown officers, produced the statute of the 13th and 14th of Charles
II., chapter eleventh, entitled, “An act to prevent frauds, and
regulating abuses in his Majesty’s customs,” section fifth,
which I will quote verbatim.
“And
be it further enacted by the authority aforesaid, that in case,
after the clearing of any ship or vessel, by the person or persons
which are or shall be appointed by his Majesty for managing the
customs, or any their deputies, and discharging the watchmen and
tidesmen from attendance thereupon, there shall be found on board
such ship or vessel, any goods, wares, or merchandises, which have
been concealed from the knowledge of the said person or persons,
which are or shall be so appointed to manage the customs, and for
which the custom, subsidy, and other duties due upon the importation
thereof have not been paid; then the master, purser, or other person
taking charge of said ship or vessel, shall forfeit the sum of one
hundred pounds: and it shall be lawful to or for any person or
persons authorized by writ of assistance under the seal of his
Majesty’s court of exchequer, to take a constable,
headborough, or other public officer, inhabiting near unto the
place, and in the daytime to enter and go into any house, shop,
cellar, warehouse or room or other place; and in case [323] of
resistance, to break open doors, chests, trunks, and other packages,
there to seize, and from thence to bring any kind of goods or
merchandise whatsoever, prohibited and uncustomed, and to put and
secure the same, in his Majesty’s storehouse in the port, next to
the place where such seizures shall be made.”
John Adams
24 June, 1818
Quincy
William Tudor
Quincy
,
24 June, 1818
.
Mr.
Otis said, such a “writ of assistance” might become the reign of
Charles II. in England, and he would not dispute the taste of the
Parliament of England in passing such an act, nor of the people of
England in submitting to it; but it was not calculated for the
meridian of America. The court of exchequer had no jurisdiction
here. Her warrants and her writs were never seen here. Or if they
should be, they would be waste paper. He insisted, however, that
these warrants and writs were even in England inconsistent with the
fundamental law, the natural and constitutional rights of the
subjects. If, however, it would please the people of England, he
might admit that they were legal there, but not here.
Diligent
research had been made by Mr. Otis and Thacher, and by Gridley,
aided, as may well be supposed, by the officers of the customs, and
by all the conspirators against American liberty, on both sides the
water, for precedents and examples of any thing similar to this writ
of assistance, even in England. But nothing could be found, except
the following: An act of the 12th of Charles II., chapter 22. “An
act for the regulating the trade of Bay-making, in the Dutch
Bay-hall, in Colchester.” The fifth section of this statute, “for
the better discovering, finding out, and punishing of the frauds and
deceits, aforesaid, be it enacted, that it shall and may be lawful
for the governors of the Dutch Bay-hall, or their officers, or any
of them, from [324] time to time, in the daytime, to
search any cart, wagon, or pack, wherein they shall have notice, or
suspect any such deceitful bays to be; and also from time to time,
with a constable, who are hereby required to be aiding and assisting
them, to make search in any house, shop, or warehouse, where they
are informed any such deceitful bays to be, and to secure and seize
the same, and to carry them to the Dutch Bay-hall; and that such
bays so seized and carried to the said hall, shall be confiscate and
forfeit, to be disposed in such manner as the forfeitures herein
before mentioned, to be paid by the weavers and fullers, are herein
before limited and appointed.”
The
Dutch Bay-hall made sport for Otis and his audience; but was
acknowledged to have no authority here, unless by certain distant
analogies and constructions, which Mr. Gridley himself did not
pretend to urge. Another ridiculous statute was of the 22d and 23d
of Charles II., chapter 8th, “An act for the regulating the making
of Kidderminster Stuffs.”
By
the eleventh section of this important law, it is enacted, “That
the said president, wardens, and assistants of the said
Kidderminster weavers, or any two or more of them, shall have, and
hereby have power and authority to enter into and search the houses
and workhouses of any artificer under the regulation of the said
trade, at all times of the day, and usual times of opening shops and
working; and into the shops, houses, and warehouses of any common
buyer, dealer in, or retailer of any of the said cloths or stuffs,
and into the houses and workhouses of any dyer, shearman, and all
other workmen’s houses and places of sale, or dressing of the said
cloths or stuffs, and yarns, and may there view the said cloths,
stuffs, and yarns respectively; and if any cloth, stuff, or yarns
shall be found defective, to seize and carry away the same to be
tried by a jury.”
The
wit, the humor, the irony, the satire played off by Mr. Otis in his
observations on these acts of navigation, Dutch bays and
Kidderminster stuffs, it would be madness in me to pretend to
remember with any accuracy. But this I do say, that Horace’s
“Irritat, mulcet, veris terroribus implet,” was never
exemplified, in my hearing, with so great effect. With all his
drollery, he intermixed solid and sober observations upon the acts
of navigation, by Sir Joshua Child, and other English [325] writers
upon trade, which I shall produce together in another letter.
John Adams.
John Adams
9 July, 1818
Quincy
William Tudor
Quincy
,
9 July, 1818
.
In
the search for something in the history and statutes of England, in
any degree resembling this monstrum horrendum ingens, the
writ of assistance, the following examples were found.
In
the statute of the first year of King James the II., chapter 3d, “An
act for granting to his Majesty an imposition upon all wines and
vinegar,” &c., section 8, it is enacted, “That the officers
of his Majesty’s customs, &c., shall have power and authority
to enter on board ships and vessels, and make searches, and to do
all other matters and things, which may tend to secure the true
payment of the duties by this act imposed, and the due and orderly
collection thereof, which any customers, collectors, or other
officers of any of his Majesty’s ports can or may do, touching the
securing his Majesty’s customs of tonnage and poundage,” &c.,
&c., &c. I must refer to the statute for the rest.
In
the statute of King James II., chapter 4, “An act for granting to
his Majesty an imposition upon all tobacco and sugar imported,”
&c., section 5th, in certain cases, “the commissioners may
appoint one or more officer or officers to enter into all the
cellars, warehouses, store cellars, or other places whatsoever,
belonging to such importer, to search, see, and try,” &c.,
&c., &c. I must again refer to the statute for the rest,
which is indeed nothing to the present purpose.
Though
the portraits of Charles II. and James II. were blazing before his
eyes, their characters and reigns were sufficiently odious to all
but the conspirators against human liberty, to excite the highest
applause of Otis’s philippics against them and all the foregoing
acts of their reigns, which writs of assistance [326] were
now intended to enforce. Otis asserted and proved, that none of
these statutes extended to America, or were obligatory here, by any
rule of law ever acknowledged here, or ever before pretended in
England.
Another
species of statutes were introduced by the counsel for the crown,
which I shall state as they occur to me without any regard to the
order of time.
1st
of James II., chapter 17, “An act for the revival and continuance
of several acts of Parliament therein mentioned,” in which the
tobacco law, among others, is revived and continued.
13th
and 14th of Charles II., chapter 13, “An act for prohibiting the
importation of foreign bone-lace, cutwork, embroidery, fringe,
band-strings, buttons, and needlework.” Pray, Sir, do not laugh!
for something very serious comes in section third.
“Be
it further enacted, that for the preventing of the importing of the
said manufactures as aforesaid, upon complaint and information given
to the justices of the peace or any or either of them, within their
respective counties, cities, and towns corporate, at times
reasonable, he or they are hereby authorized and required to issue
forth his or their warrants to the constables of their respective
counties, cities, and towns corporate, to enter and search for such
manufactures in the shops being open, or warehouses and
dwelling-houses of such person or persons, as shall be suspected to
have any such foreign bone-laces, embroideries, cutwork, fringe,
band-strings, buttons, or needle-work within their respective
counties, cities, and towns corporate, and to seize the same, any
act, statute, or ordinance to the contrary thereof in any wise
notwithstanding.”
Another
curious act was produced, to prove the legality of writs of
assistance, though it was no more to the purpose than all the
others. I mean the statute of the 12th of Charles II., chapter 3d,
“An act for the continuance of process and judicial proceedings
continued.” In which it is enacted, section first, “That no
pleas, writs, bills, actions, suits, plaints, process,
precepts, or other thing or things, &c., shall be in any wise
discontinued,” &c.
But I
must refer to the act. I cannot transcribe. If any antiquarian
should hereafter ever wish to review this period, he will see with
compassion how such a genius as Otis was compelled to delve among
the rubbish of such statutes, to defend the country against the
gross sophistry of the crown and its officers.
Another
act of 12 C. II., ch. 12, “An act for confirmation of judicial
proceedings,” in which it is enacted, &c., “that nor
any [327] writs, or actions on, or returns of any
writs, orders, or other proceedings in law or equity, had, made,
given, taken, or done, or depending in the courts of chancery,
king’s bench, upper bench, common pleas, and court of exchequer,
and court of exchequer chamber, or any of them, &c., in the
kingdom of England, &c., shall be avoided, &c.” I must
refer to the statute.
In
short, wherever the custom-house officers could find in any statute
the word “writs,” the word “continued,” and the words “court
of exchequer,” they had instructed their counsel to produce it,
though in express words restricted to “the realm.” Mr. Gridley
was incapable of prevarication or duplicity.
It
was a moral spectacle, more affecting to me than any I have since
seen upon any stage, to see a pupil treating his master with all the
deference, respect, esteem, and affection of a son to a father, and
that without the least affectation; while he baffled and confounded
all his authorities, and confuted all his arguments and reduced him
to silence.
Indeed,
upon the principle of construction, inference, analogy, or
corollary, by which they extended these acts to America, they might
have extended the jurisdiction of the court of king’s bench, and
court of common pleas, and all the sanguinary statutes against
crimes and misdemeanors, and all their church establishment of
archbishops and bishops, priests, deacons, deans, and chapters; and
all their acts of uniformity, and all their acts against
conventicles.
I
have no hesitation or scruple to say, that the commencement of the
reign of George III. was the commencement of another Stuart’s
reign; and if it had not been checked by James Otis and others
first, and by the great Chatham and others afterwards, it would have
been as arbitrary as any of the four. I will not say it would have
extinguished civil and religious liberty upon earth; but it would
have gone great lengths towards it, and would have cost mankind even
more than the French Revolution to preserve it. The most sublime,
profound, and prophetic expression of Chatham’s oratory that he
ever uttered was, “I rejoice that America has resisted. Two
millions of people reduced to servitude, would be fit instruments to
make slaves of the rest.”
[328]Another statute was produced, 12 C. 2, cap. 19.
“An act to prevent frauds and
concealments of his Majesty’s customs and subsidies.” “Be it
enacted,” &c., “that if any person or persons, &c.,
shall cause any goods, for which custom, subsidy, or other duties
are due or payable, &c., to be landed or conveyed away, without
due entry thereof first made and the customer or collector, or his
deputy agreed with; that then and in such case, upon oath
thereof made before the lord treasurer, or any of the barons of
the exchequer, or chief magistrate of the port or place where the
offence shall be committed, or the place next adjoining thereto, it
shall be lawful to and for the lord-treasurer, or any of the barons
of the exchequer, or the chief magistrate of the port or place, &c.,
to issue out a warrant to any person or persons, thereby enabling
him or them, with the assistance of a sheriff, justice of the peace,
or constable, to enter into any house in the daytime, where such
goods are suspected to be concealed, and in case of resistance to
break open such house, and to seize and secure the same goods so
concealed; and all officers and ministers of justice are hereby
required to be aiding and assisting thereunto.”
Such was the sophistry; such the
chicanery of the officers of the crown, and such their power of
face, as to apply these statutes to America and to the petition for
writs of assistance from the superior court.
John Adams
14 July, 1818
Quincy
William Tudor
Quincy
,
14 July, 1818
.
Mr.
Otis, to show the spirit of the acts of trade, those I have already
quoted, as well as of those I shall hereafter quote, and as the best
commentaries upon them, produced a number of authors upon trade, and
read passages from them, which I shall recite, without pretending to
remember the order in which he read them.
Sir Josiah Child, “A new Discourse
of Trade.” Let me recommend this old book to the perusal of my
inquisitive fellow-citizens. A discerning mind will find useful
observations on the interest of money, the price of labor, &c.,
&c., &c. I would quote them all, if I had time. But I will
select one. In page 15, of his preface, he says, “I understand not
the world so little as not to know, that he that will faithfully
serve his country, must be content to pass through good
report and evil report.” I cannot agree to that word, content. I
would substitute instead of it, the words, “as patient as he
can.” [329] Sir Josiah adds, “neither regard I which I
meet with.” This is too cavalierly spoken. It is not sound
philosophy. Sir Joshua proceeds: “Truth I am sure at last will
vindicate itself, and be found by my countrymen.” Amen! So be it!
I wish I could believe it.
But
it is high time for me to return from this ramble to Mr. Otis’s
quotations from Sir Josiah Child, whose chapter 4, page 105, is
“Concerning the Act of Navigation.” Probably this knight was one
of the most active and able inflamers of the national pride in their
navy and their commerce, and one of the principal promoters of that
enthusiasm for the act of navigation, which has prevailed to this
day. For this work was written about the year 1677, near the period
when the court of Charles II. began to urge and insist on the strict
execution of the act of navigation.
Such pride in that statute did not
become Charles, his court, or his nation of royalists and loyalists
at that time. For shall I blush, or shall I boast, when I remember,
that this act was not the invention of a Briton, but of an American.
George Downing, a native of New England, educated at Harvard
College, whose name, office, and title appear in their catalogue,
went to England in the time of Lord Clarendon’s civil wars, and
became such a favorite of Cromwell and the ruling powers, that he
was sent ambassador to Holland. He was not only not received, but
ill treated, which he resented on his return to England, by
proposing an act of navigation, which was adopted, and has ruined
Holland, and would have ruined America, if she had not resisted.
To
borrow the language of the great Dr. Johnson, this “dog” Downing
must have had a head and brains, or, in other words, genius and
address; but, if we may believe history, he was a scoundrel. To
ingratiate himself with Charles II., he probably not only pleaded
his merit in inventing the navigation act, but he betrayed to the
block some of his old republican and revolutionary friends.
George
Downing! Far from boasting of thee as my countryman, or of thy
statute as an American invention, if it were lawful to wish for any
thing past, that has not happened, I should wish that thou hadst
been hanged, drawn, and quartered, instead of Hugh Peters and Sir
Henry Vane. But no! This is too cruel for my nature! I rather wish,
that thou [330] hadst been obliged to fly with thy
project, and repent among the rocks and caves of the mountains in
New England.
But
where is Downing’s statute? British policy has suppressed all the
laws of England, from 1648 to 1660. The statute book contains not
one line. Such are records, and such is history!
The
nation, it seems, was not unanimous in its approbation of this
statute. The great knight himself informs us, page 105, “that some
wise and honest gentlemen and merchants doubted whether the
inconveniences it has brought with it be not greater than the
conveniences.” This chapter was, therefore, written to answer all
objections, and to vindicate and justify Downing’s statute.
Mr.
Otis cast an eye over this chapter, and adverted to such
observations in it, as tended to show the spirit of the writer, and
of the statute; which might be summed up in this comprehensive
Machiavelian principle, that earth, air, and seas, all colonies
and all nations were to be made subservient to the growth, grandeur,
and power of the British navy.
And
thus, truly, it happened. The two great knights, Sir George Downing
and Sir Josiah Child, must be acknowledged to have been great
politicians!
Mr.
Otis proceeded to chapter 10 of this work, page 166, “Concerning
Plantations.” And he paused at the 6th proposition, in page 167,
“That all colonies and plantations do endamage their mother
kingdoms, whereof the trades of such plantations are not confined by
severe laws, and good executions of those laws, to the mother
kingdom.”
Mr.
Otis then proceeded to seize the key to the whole riddle, in page
168, proposition eleventh, “that New England is the most
prejudicial plantation to the kingdom of England.” Sir George
Downing, no doubt, said the same to Charles II.
“We
must consider what kind of people they were and are that have and do
transport themselves to our foreign plantations.” New England, as
every one knows, was originally inhabited, and hath since been
successively replenished by a sort of people called Puritans, who
could not conform to the ecclesiastical laws of England; but being
wearied with church censures and persecutions, were forced to quit
their fathers’ land, to find out new habitations, as many of them
did in Germany and Holland, as well as at New England, and had there
not been a New England found for some of them, Germany and Holland,
probably, [331] had received the rest; but Old England, to
be sure, had lost them all.
“Virginia
and Barbadoes were first peopled by a sort of loose, vagrant people,
vicious, and destitute of means to live at home (being either unfit
for labor, or such as could find none to employ themselves about, or
had so misbehaved themselves by whoring, thieving, or other
debauchery, that none would set them on work), which merchants and
masters of ships, by their agents (or spirits, as they were called),
gathered up about the streets of London, and other places, clothed
and transported, to be employed upon plantations, and these, I say,
were such as, had there been no English foreign plantation in the
world, could probably never have lived at home, to do service for
their country, but must have come to be hanged, or starved, or died
untimely of some of those miserable diseases that proceed from want
and vice; or else have sold themselves for soldiers, to be knocked
on the head, or starved, in the quarrels of our neighbors, as many
thousands of brave Englishmen were in the low countries, as also in
the wars of Germany, France, and Sweden, &c., or else, if they
could, by begging or otherwise, arrive to the stock of 2s. 6d. to
waft them over to Holland, become servants to the Dutch, who refuse
none.
“But
the principal growth and increase of the aforesaid plantations of
Virginia and Barbadoes happened in, or immediately after, our late
civil wars, when the worsted party, by the fate of war, being
deprived of their estates, and having, some of them, never been bred
to labor, and others made unfit for it by the lazy habit of a
soldier’s life, there wanting means to maintain them all abroad
with his Majesty, many of them betook themselves to the aforesaid
plantations, and great numbers of Scotch soldiers of his Majesty’s
army, after Worcester fight, were by the then prevailing powers
voluntarily sent thither.
“Another
great swarm or accession of new inhabitants to the aforesaid
plantations, as also to New England, Jamaica, and all other his
Majesty’s plantations in the West Indies, ensued upon his
Majesty’s restoration, when the former prevailing party being by a
divine hand of Providence brought under, the army disbanded, many
officers displaced, and all the new purchasers of public titles
dispossessed of their pretended lands, estates, &c., many became
impoverished and destitute of employment, and, therefore, such as
could find no way of living at home, and some who feared the
reestablishment of the ecclesiastical laws, under which they could
not live, were forced to transport themselves, or sell themselves
for a few years to be transported by others, to the foreign English
plantations. The constant supply that the said plantations have
since had, hath been such vagrant, loose people as I have before
mentioned, picked up especially about the streets of London and
Westminster, and male-factors condemned for crimes, for which, by
the law, they deserved to die; and some of those people called
quakers, banished for meeting on pretence of religious worship.
“Now,
if from the premises it be duly considered what kind of persons
those have been, by whom our plantations have at all times been
replenished, I suppose it will appear, that such they have been, and
under such circumstances, that if his Majesty had had no foreign
plantations, to which they might have resorted, England, however,
must have lost them.”
Any
man, who will consider with attention these passages from Sir Josiah
Child, may conjecture what Mr. Otis’s observations upon them were.
As I cannot pretend to remember them verbatim and with precision, I
can only say that they struck me very forcibly. They were short,
rapid; he had not time to be long; but Tacitus himself could not
express more in fewer words. My only fear is, that I cannot do him
justice.
In
the first place, there is a great deal of true history in this
passage, which manifestly proves, that the emigrants to America, in
general, were not only as good as the people in general, whom they
left in England, but much better, more courageous, more
enterprising, more temperate, more discreet, and more industrious,
frugal, and conscientious. I mean the royalists as well as the
republicans.
In
the second place, there is a great deal of uncandid, ungenerous
misrepresentation, and scurrilous exaggeration in this passage of
the great knight, which proves him to have been a fit tool of
Charles II., and a suitable companion, associate, and friend of the
great knight, Sir George Downing, the second scholar in Harvard
College catalogue.
But I
will leave you, Mr. Tudor, to make your own observations and
reflections upon these pages of Sir Josiah Child.
Mr.
Otis read them with great reluctance; but he felt it his duty to
read them, in order to show the spirit of the author, and the spirit
of Sir George Downing’s navigation act.
John Adams
17 July, 1818
Quincy
William Tudor
Quincy
,
17 July, 1818
.
“I
am now to write of a people whose frugality, industry, and
temperance, and the happiness of whose laws and institutions, do
promise to themselves long life, with a wonderful increase of
people, riches, and power; and although no [333] men ought
to envy that virtue and wisdom in others, which themselves either
cannot or will not practise, but rather to commend and admire it,
yet I think it is the duty of every good man primarily to respect
the welfare of his native country. And, therefore, though I may
offend some whom I would not willingly displease, I cannot omit, in
the progress of this discourse, to take notice of some particulars,
wherein Old England suffers diminution by the growth of those
colonies settled in New England, and how that plantation differs
from those more southerly, with respect to the gain or loss of this
kingdom,—namely,
“1.
All our American plantations, except that of New England, produce
commodities of different natures from those of this kingdom, as
sugar, tobacco cocoa, wool, ginger, sundry sorts of dying woods,
&c., whereas. New England produces generally the same we have
here, namely, corn and cattle. Some quantity of fish they do
likewise kill, but that is taken and saved altogether by their own
inhabitants, which prejudiceth our Newfoundland trade; where, as
hath been said, very few are, or ought according to prudence to be
employed in those fisheries but the inhabitants of Old England. The
other commodities we have from them are some few great masts, furs,
and train oil, whereof the yearly value amounts to very little; the
much greater value of returns from thence being made in sugar,
cotton, wool, tobacco, and such like commodities, which they first
receive from some other of his Majesty’s plantations in barter for
dry codfish, salt mackerel beef, pork, bread, beer, flour, peas,
&c., which they supply Barbadoes, Jamaica, &c., with, to the
diminution of the vent of those commodities from this kingdom; the
great expense whereof in our West India plantations would soon be
found in the advance of the value of our lands in England, were it
not for the vast and almost incredible supplies those colonies have
from New England.
“2.
The people of New England, by virtue of their primitive charters,
being not so strictly tied to the observation of the laws of this
kingdom, do sometimes assume a liberty of trading contrary to the
act of navigation, by reason whereof many of our American
commodities, especially tobacco and sugar, are transported, in New
England shipping, directly into Spain and other foreign countries,
without being landed in England, or paying any duty to his Majesty,
which is not only loss to the king, and a prejudice to the
navigation of Old England, but also a total exclusion of the old
English merchant from the vent of those commodities in those ports
where the new English vessels trade, because there being no custom
paid on those commodities in New England, and a great custom paid
upon them in Old England, it must necessarily follow that the New
English merchant will be able to afford his commodity much cheaper
at the market than the Old English merchant: and those that can sell
cheapest, will infallibly engross the whole trade, sooner or later.
“3.
Of all the American plantations, his Majesty hath none so apt for
the building of shipping as New England, nor none comparably so
qualified for breeding of seamen, not only by reason of the natural
industry of that people, but principally by reason of their cod and
mackerel fisheries, and, in my poor opinion, there is nothing more
prejudicial, and in prospect more dangerous to any mother kingdom,
than the increase of shipping in her colonies, plantations, and
provinces.”
“4.
The people that evacuate from us to Barbadoes, and the other
West [334] India plantations, as was before hinted, do
commonly work one Englishman to ten or eight blacks; and, if we kept
the trade of our said plantations entirely to England, England would
have no less inhabitants, but rather an increase of people by such
evacuation; because that one Englishman, with the ten blacks that
work with him, accounting what they eat, use, and wear, would make
employment for four men in England, as was said before; whereas,
peradventure, of ten men that issue from us to New England and
Ireland, what we send to, or receive from them, doth not employ one
man in England.
“To
conclude this chapter, and to do right to that most industrious
English colony, I must confess, that though we lose by their
unlimited trade with our foreign plantations, yet we are very great
gainers by their direct trade to and from Old England; our yearly
exportations of English manufactures, malt, and other goods, from
hence thither, amounting, in my opinion, to ten times the value of
what is imported from thence; which calculation I do not make at
random, but upon mature consideration, and, peradventure, upon as
much experience in this very trade as any other person will pretend
to: and, therefore, whenever a reformation of our correspondency in
trade with that people shall be thought on, it will, in my poor
judgment, require great tenderness and very serious circumspection.”
Mr.
Otis’s humor and satire were not idle upon this occasion, but his
wit served only to increase the effect of a subsequent, very grave,
and serious remonstrance and invective against the detestable
principles of the foregoing passages, which he read with regret, but
which it was his duty to read, in order to show the temper, the
views, and the objects of the knight, which were the same with those
of all the acts of trade, anterior and posterior to the writing of
this book. And those views, designs, and objects were, to annul all
the New England charters, and they were but three, Massachusetts,
Rhode Island, and Connecticut; to reduce all the colonies to royal
governments, to subject them all to the supreme domination of
parliament, who were to tax us, without limitation, who would tax us
whenever the crown would recommend it, which crown would recommend
it, whenever the ministry for the time being should please, and
which ministry would please as often as the West India planters and
North American governors, crown officers and naval commanders,
should solicit more fees, salaries, penalties, and forfeitures.
Mr.
Otis had no thanks for the knight for his pharisaical compliment to
New England, at the expense of Virginia and other colonies, who, for
any thing he knew, were equally meritorious. It was certain, the
first settlers of New England were not all godly. But he reprobated
in the strongest terms that [335]language can command, the
machiavelian, the jesuitical, the diabolical, and infernal principle
that men, colonies, and nations were to be sacrificed, because they
were industrious and frugal, wise and virtuous; while others were to
be encouraged, fostered, and cherished, because they were pretended
to be profligate, vicious, and lazy.
John Adams
27 July, 1818
Quincy
William Tudor
Quincy
,
27 July, 1818
.
Another
author, produced by Mr. Otis, was, “The Trade and Navigation of
Great Britain Considered,” by Joshua Gee, “a new edition, with
many interesting notes and additions, by a merchant,” printed in
1767. This new edition, which was printed, no doubt, to justify the
ministry in the system they were then pursuing, could not be the
edition that Mr. Otis produced in 1761.
The advertisement of the editor
informs us, that “this valuable treatise has for many years been
very scarce, though strongly recommended by the best judges and
writers on trade, and universally allowed to be one of the most
interesting books on that subject.” “The principles upon which
it was written, continue, with little variation.” But I am
fatigued with quotations, and must refer you to the advertisement in
the book, which will show, past a doubt, that this was a ministerial
republication.
The “feelings, the manners and
principles, which produced the revolution,” will be excited and
renovated by the perusal of this book, as much as by that of Sir
Josiah Child. I wish I could fill sheets of paper with quotations
from it; but this is impossible. If I recommend it to the research,
and perusal, and patient thinking of the present generation, it is
in despair of being regarded. For who will engage in this dry, dull
study? Yet, Mr. Otis labored in it. He asserted and proved, that it
was only a reenforcement of the system of Sir Josiah Child, which
Gee approved in all things, and even quoted with approbation the
most offensive passage in his book, the scurrilous reflections on
Virginia and Barbadoes.
Another writer, produced by Mr. Otis, was, “Memoirs and Considerations concerning the Trade and Revenues of the British Colonies in America; with Proposals for rendering those Colonies more beneficial to Great Britain. By John Ashley, Esq.”
This book is in the same spirit and
system of Josiah Child and Joshua Gee.
Mr. Otis also quoted Postlethwait. But
I can quote no more.
If any man of the present age can read
these authors and not feel his “feelings, manners, and principles”
shocked and insulted, I know not of what stuff he is made. All I can
say is, that I read them all in my youth, and that I never read them
without being set on fire.
I will, however, transcribe one
passage from Ashley, painful as it is. In page 41 he says,
“The laws now in being for the
regulation of the plantation trade, namely the 14th of Charles II.
ch. 2, sec. 2, 3, 9, 10; 7 and 8 William III. ch. 22, sec. 5, 6; 6
George II. ch. 13, are very well calculated, and, were they put in
execution as they ought to be, would in a great measure put an end
to the mischiets here complained of. If the several officers of the
customs would see that all entries of sugar, rum and molasses were
made conformable to the directions of those laws; and let every
entry of such goods distinguish expressly, what are of British
growth and produce, and what are of foreign growth and produce; and
let the whole cargo of sugar, penneles, rum, spirits, molasses and
syrup be inserted at large in the manifest and clearance of every
ship or vessel, under office seal, or be liable to the same duties
and penalties as such goods of foreign growth are hable to, this
would very much balk the progress of those who carry on this illicit
trade, and be agreeable and advantageous to all fair traders.
“And all masters and skippers of
boats in all the plantations should give some reasonable security,
not to take in any such goods of foreign growth from any vessel not
duly entered at the custom-house, in order to land the same, or put
the same on board any other ship or vessel, without a warrant or
sufference from a proper officer.”
But you will be fatigued with
quotations, and so is your friend,
John Adams.
John Adams
30 July, 1818
Quincy
William Tudor
Quincy
,
30 July, 1818
.
Another
passage, which Mr. Otis read from Ashley, gave occasion, as I
suppose, to another memorable and very curious event, which your
esteemed pupil and my beloved friend, Judge Minot, has recorded. The
passage is in the 42d page.
“In
fine, I would humbly propose that the duties on foreign sugar and
rum imposed by the before-mentioned act of the 6th of King George
II. remain as they are, and also the duty on molasses, so far as
concerns the importations into the sugar colonies, but that there be
an abatement of the duty on molasses imported into the northern
colonies, so far as to give the British planters a reasonable
advantage over foreigners, and what may bear some proportion to the
charge, risk, and inconvemence of running it in the manner they now
do, or after the proposed regulation shall be put in execution.
Whether this duty shall be one, two, or three pence, sterling money
of Great Britain, per gallon, may be matter of consideration.”
Gracious
and merciful indeed! The tax might be reduced and made supportable,
but not abolished. Oh, no! by no means.
Mr. Hutchinson, however, seized this idea of Ashley, of reducing the
tax on molasses from sixpence to threepence, or twopence, or a
penny; and the use he made of it you shall learn from your own pupil
and my amiable friend, Judge Minot.1
“About
this time there was a pause in the opposition to the measures of the
crown and parliament, which might have given some appearance of the
conciliation of parties, but which was more probably owing to the
uncertainty of the eventual plan of the ministry, and the proper
ground to be chosen for counteracting it. The suppressing of the
proposed instructions to the agent by a committee of the House of
Representatives indicated that this balance of power there was
unsettled. Several circumstances showed a less inflexible spirit
than had existed among the leaders. The governor appointed the elder
Mr. Otis a justice of the court of common pleas, and judge of
probate for the county of Barnstable. The younger wrote a pamphlet
on the rights of the British colonies, in which he acknowledged the
sovereignty of Parliament, as well as the obligations of the
colonies to submit to such burdens as it might lay upon them, until
it should be pleased to relieve them, and put the question of taxing
America on the footing of the common good.”
I beg
your attention to Mr. Minot’s history, vol. ii., from page 140 to
the end of the chapter in page 152. Mr. Minot has [338] endeavored
to preserve the dignity, the impartiality, and the delicacy of
history. But it was a period of mingled glory and disgrace. But as
it is a digression from the subject of Mr. Otis’s speech against
writs of assistance, I can pursue it no further at present. Mr.
Hutchinson seized the idea of reducing the duties. Mr. Otis and his
associates seemed to despair of any thing more.
Hutchinson was chosen agent, to the
utter astonishment of every American out of doors. This was
committing the lamb to the kind guardianship of the wolf. The public
opinion of all the friends of their country was decided. The public
voice was pronounced in accents so terrible, that Mr. Otis fell into
a disgrace, from which nothing but Jemmibullero saved him.
Mr. Hutchinson was politely excused from his embassy, and the storm
blew over. Otis, upon whose zeal, energy, and exertions the whole
great cause seemed to depend, returned to his duty, and gave entire
satisfaction to the end of his political career.
Thus
ended the piddling project of reducing the duty on molasses from
sixpence a gallon to fivepence, fourpence, threepence, twopence, or
a penny. And one half penny a gallon would have abandoned the great
principle as much as one pound.
This
is another digression from the account of Mr. Otis’s argument
against writs of assistance and the acts of trade. I have heretofore
written you on this subject. The truth, the whole truth, must and
will and ought to come out; and nothing but the truth shall appear
with the consent of your humble servant,
John Adams.
John Adams
6 August, 1818
Quincy
William Tudor
Quincy
,
6 August, 1818
.
“Mid
the low murmurs of submission, fear and mingled rage, my Hampden
raised his voice, and to the laws appealed.”
Mr.
Otis had reasoned like a philosopher upon the navigation acts, and
all the tyrannical acts of Charles II.; but when he came to the
revenue laws, the orator blazed out. Poor King William! If thy
spirit, whether in heaven or elsewhere, heard James Otis, it must
have blushed. A stadtholder of Holland, [339] by accident
or by miracle vested with a little brief authority in England,
cordially adopting the system of George Downing, Josiah Child, and
Charles II., for the total destruction of that country to which he
owed his existence, and all his power and importance in the world;
and, what was still worse, joining in the conspiracy with such
worthy characters to enslave all the colonies in Europe, Asia, and
America, and, indeed, all nations, to the omnipotence of the British
Parliament and its royal navy!
[337]
The act of Parliament of the 7th and 8th of King William III. was
produced, chapter 22d: “An act for preventing frauds, and
regulating abuses in the plantation trade.” I wish I could
transcribe this whole statute, and that which precedes it: “An act
for the encouragement of seamen.” But who would read them? Yet it
behoves our young and old yeomen, mechanics, and laborers,
philosophers, politicians, legislators, and merchants to read them.
However tedious and painful it may be for you to read, or me to
transcribe any part of these dull statutes, we must endure the task,
or we shall never understand the American Revolution. Recollect and
listen to the preamble of this statute, of the 7th and 8th of William
III. chapter 22d.
“Whereas, notwithstanding divers acts made for the
encouragement of the navigation of this kingdom, and for the
better securing and regulating the plantation trade, more especially
one act of Parliament made in the 12th year of the reign of the late
King Charles II., intituled an act for the increasing of shipping
and navigation; another act, made in the 15th year of the reign of
his said late Majesty, intituled an act for the encouragement of
trade, another act, made in the 22d and 23d years of his said late
Majesty’s reign, intituled an act to prevent the planting of
tobacco in England, and for regulation of the plantation trade;
another act, made in the 25th year of the reign of his said late
Majesty, intituled an act for the encouragement of the Greenland and
Eastland fisheries, and for the better securing the plantation trade
great abuses are daily committed, to the prejudice of the English
navigation and the loss of a great part of the plantation trade to
this kingdom by the artifice and cunning of ill-disposed persons;
for remedy whereof for the future,” &c.
Will
you be so good, Sir, as to pause a moment on this preamble? To what
will you liken it? Does it resemble a great, rich, powerful West
India planter, Alderman Beckford, for example, preparing and
calculating and writing instructions for his overseers? “You are
to have no regard to the health, strength, comfort, natural
affections, or moral feelings, or intellectual endowments of my
negroes. You are only to consider what subsistence to allow them,
and what labor to exact of them [340] will subserve my
interest. According to the most accurate calculation I can make, the
proportion of subsistence and labor, which will work them up, in six
years upon an average, is the most profitable to the planter. And
this allowance, surely, is very humane; for we estimate here the
lives of our coal-heavers upon an average at only two years, and our
fifty thousand girls of the town at three years at most. And our
soldiers and seamen no matter what.”
Is
there, Mr. Tudor, in this preamble, or in any statute of Great
Britain, in the whole book, the smallest consideration of the
health, the comfort, the happiness, the wealth, the growth, the
population, the agriculture, the manufactures, the commerce, the
fisheries of the American people? All these things are to be
sacrificed to British wealth, British commerce, British domination,
and the British navy, as the great engine and instrument to
accomplish all. To be sure, they were apt scholars of their master,
Tacitus, whose fundamental and
universal principle of philosophy, religion, morality, and policy
was, that all nations and all things were to be sacrificed to the
grandeur of Rome. Oh! my fellow-citizens, that I had the voice of an
archangel to warn you against these detestable principles. The world
was not made for you; you were made for the world. Be content with
your own rights. Never usurp those of others. What would be the
merit and the fortune of a nation that should never do or suffer
wrong?
The
purview of this statute was in the same spirit with the preamble.
Pray read it! Old as you are, you are not so old as I am, and I
assure you I have conquered my natural impatience so far as to read
it again, after almost sixty years acquaintance with it, in all its
horrid deformity.
Every
artifice is employed to ensure a rigorous, a severe, a cruel
execution of this system of tyranny. The religion, the morality, of
all plantation governors, of all naval commanders, of all
custom-house officers, if they had any, and all men have some, were
put in requisition by the most solemn oaths. Their ambition was
enlisted by the forfeiture of their offices; their avarice was
secured by the most tempting penalties and forfeitures, to be
divided among them. Fine picking, to be sure! Even the lowest, the
basest informers were to be made gentlemen of fortune!
I must transcribe one section of this detestable statute, and leave you to read the rest; I can transcribe no more.
The sixth section of this benign law
of our glorious deliverer, King William, is as follows:
Section 6. “And
for the more effectual preventing of frauds and regulating abuses in
the plantation trade in America, be it further enacted by the
authority aforesaid, that all ships coming into, or going out of any
of the said plantations, and lading, or unlading any goods or
commodities, whether the same be his Majesty’s ships of war or
merchant ships, and the masters and commanders thereof, and their
ladings, shall be subject and liable to the same rules, visitations,
searches, penalties, and forfeitures, as to the entering, landing,
and discharging their respective ships and ladings, as ships and
their ladings, and the commanders and masters of ships, are subject
and liable unto in this kingdom by virtue of an act of Parliament
made in the fourteenth vear of the reign of King Charles II,
intituled an act for preventing frauds and regulating abuses in his
Majesty’s customs. And that the officers for collecting and
managing his Majesty’s revenue, and inspecting the plantation
trade, and in any of the said plantations, shall have the same
powers and authorities, for visiting and searching of ships, and
taking their entries, and for seizing and securing, or bringing on
shore any of the goods prohibited to be imported or exported into or
out of any the said plantations, or for which any duties are
payable, or ought to have been paid, by any of the before mentioned
acts, as are provided for the officers of the customs in England by
the said last mentioned act, made in the fourteenth year of the
reign of King Charles II.; and also to enter houses or warehouses,
to search for and seize any such goods, and that all the
wharfingers, and owners of keys and wharves, or any lightermen,
bargemen, watermen, porters, or other persons assisting in the
conveyance, concealment, or rescue of any of the said goods, or in
the hindering or resistance of any of the said officers in the
performance of their duty, and the boats, barges, lighters, or other
vessels employed in the conveyance of such goods, shall be subject
to the like pains and penalties, as are provided by the same act,
made in the fourteenth year of the reign of King Charles II., in
relation to prohibited or unaccustomed goods in this kingdom: and
that “the like assistance” shall be given to the said officers
in the execution of their office, as by the said last mentioned act
is provided for the officers in England; and, also, that the said
officers shall be subject to the same penalties and forfeitures, for
any corruptions, frauds, connivances, or concealments, in violation
of any the before mentioned laws, as any officers of the customs in
England are liable to, by virtue of the last mentioned act, and,
also, that in case any officer or officers in the plantations shall
be seized or molested for any thing done in the execution of their
office, the said officer shall and may plead the general issue, and
shall give this or other custom-acts in evidence, and the judge to
allow thereof, have and enjoy the like privileges and advantages, as
are allowed by law to the officers of his Majesty’s customs in
England.”
Could it be pretended, that the
superior court of judicature, court of assize, and general gaol
delivery in the province of [342] Massachusetts Bay, had
all the powers of the court of exchequer in England, and
consequently could issue warrants like his Majesty’s court of
exchequer in England? No custom-house officer dared to say this, or
to instruct his counsel to say it. It is true, this court was
invested with all the powers of the courts of king’s bench, common
pleas, and exchequer in England. But this was by a law of the
province, made by the provincial legislature, by virtue of the
powers vested in them by the charter.
Otis called and called in vain for
their warrant from “his Majesty’s court of exchequer.” They
had none, and they could have none from England, and they dared not
say, that Hutchinson’s court was “his Majesty’s court of
exchequer.” Hutchinson himself dared not say it. The principle
would have been fatal to parliamentary pretensions.
This is the second and the last time,
I believe, that the word “assistance” is employed in any of
these statutes. But the words, “writs of assistance,” were
nowhere to be found; in no statute, no law-book, no volume of
entries; neither in Rastell, Coke, or Fitzherbert, nor even in
Instructor Clericalis, or Burn’s Justice. Where, then, was it to
be found? Nowhere but in the imagination or invention of Boston
custom-house officers, royal governors, West India planters, or
naval commanders.
It was indeed a farce. The crown, by
its agents, accumulated construction upon construction, and
inference upon inference, as the giants heaped Pelion upon Ossa. I
hope it is not impious or profane to compare Otis to Ovid’s
Jupiter. But
- misso perfregit Olympum
- Fulmine, et excussit subjecto Pelion Ossæ
He dashed this whole building to
pieces, and scattered the pulverized atoms to the four winds; and no
judge, lawyer, or crown officer dared to say, why do you so? They
were all reduced to total silence.
In plain English, by cool, patient
comparison of phraseology of these statutes, their several
provisions, the dates of their enactments, the privileges of our
charters, the merits of the colonists, &c., he showed the
pretensions to introduce the revenue acts, and this arbitrary and
mechanical writ of assistance, as an instrument for the execution of
them, to be so irrational; by his wit he represented the attempt as
so ludicrous and ridiculous, and by his dignified reprobation of so
impudent [343] an attempt to impose on the people of
America, he raised such a storm of indignation, that even
Hutchinson, who had been appointed on purpose to sanction this writ,
dared not utter a word in its favor; and Mr. Gridley himself seemed
to me to exult inwardly at the glory and triumph of his pupil.
John Adams
11 August, 1818
Quincy
William Tudor
Quincy
,
11 August, 1818
.
The
“Defence of the New England Charters” by Jer. Dummer, is both
for style and matter one of our most classical American productions.
“The feelings, the manners, and principles which produced the
Revolution,” appear in as vast abundance in this work as in any
that I have read. This beautiful composition ought to be reprinted,
and read by every American who has learned to read.
In pages 30 and 31, this statute of
7th and 8th of King William, chapter 22, section 9th, is quoted,
“All laws, by-laws, usages, or customs, at this time, or which
hereafter shall be in practice, or endeavored or pretended to be in
force or practice in any of the plantations, which are in any wise
repugnant to the before mentioned laws or any of them, so far as
they do relate to the said plantations, or any of them, or which are
any wise repugnant to this present act, or any other law hereafter
to be made in this kingdom, so far as such law shall relate to and
mention the plantations, are illegal, null and void to all intents
and purposes whatsoever.”
This passage Mr. Otis quoted, with a
very handsome eulogium of the author and his book. He quoted it for
the sake of the rule established in it by Parliament itself for the
construction of his own statutes. And he contended that by this rule
there could be no pretence for extending writs of assistance to this
country. He also alluded to many other passages in this work, very
applicable to his purpose, which any man who reads it must perceive,
but which I have not time to transcribe.
If you, or your inquisitive and ingenious son, or either of my sons
or grandsons or great-grandsons, should ever think of these things,
it may not be improper to transcribe from a marginal [344] note
at the end of this statute, an enumeration of the “Further
provisions concerning plantations.”1
The
vigilance of the crown officers and their learned counsel on one
side, and that of merchants, patriots, and their counsel on the
other, produced every thing in any of these statutes which could
favor their respective arguments. It would not only be ridiculous in
me, but culpable to pretend to recollect all that were produced.
Such as I distinctly remember, I will endeavour to introduce to your
remembrance and reflections.
Molasses,
or melasses, or molosses, for by all these names they are designated
in the statutes. By the statute of the second year of our glorious
deliverers, King William and Queen Mary, session second, chapter
four, section 35. “For every hundred weight of molosses,
containing one hundred and twelve pounds, imported from any other
place than the English plantations in America, eight shillings over
and above what the same is charged with in the book of rates.”
The
next statute that I recollect at present to have been introduced
upon that occasion, was the 6th of George II., chapter 13, “An act
for the better securing and encouraging the trade of his Majesty’s
sugar colonies in America.”
Cost
what it will, I must transcribe the first section of this statute,
with all its parliamentary verbiage. I hope some of my
fellow-citizens of the present or some future age will ponder it.
“Whereas, the welfare and prosperity of your Majesty’s sugar
colonies in America are of the greatest consequence and importance
to the trade, navigation, and strength of this kingdom; and whereas,
the planters of the said sugar colonies have of late years fallen
under such great discouragements, that they are unable to improve or
carry on the sugar trade upon an equal footing with the foreign
sugar colonies, without some advantage and relief be given to them
from Great Britain. For remedy whereof, and for the good and welfare
of your Majesty’s subjects, we, your Majesty’s most dutiful and
loyal subjects, the commons of Great Britain, assembled in
Parliament, have given and granted unto your Majesty the
several and respective rates and duties hereinafter mentioned, and
in such manner and form as is hereinafter expressed; and do most
humbly [345] beseech your Majesty that it may be enacted,
and be it enacted by the king’s most excellent Majesty, by and
with the consent of the lords spiritual and temporal, and commons in
this present Parliament assembled, and by the authority of the same,
that from and after the twenty-fifth day of December, one thousand
seven hundred and thirty-three, there shall be raised, levied,
collected, and paid, unto and for the use of his Majesty, his heirs
and successors, upon all rum or spirits of the produce or
manufacture of any of the colonies or plantations in America, not in
the possession or under the dominion of his Majesty, his heirs and
successors, which at any time or times, within or during the
continuance of this act, shall be imported or brought into any of
the colonies or plantations in America, which now are or hereafter
may be, in the possession or under the dominion of his Majesty, his
heirs or successors, the sum of ninepence, money of Great Britain,
to be paid according to the proportion and value of five shillings
and sixpence the ounce in silver, for every gallon thereof, and
after that rate for any greater or lesser quantity, and upon all
molasses or syrups of such foreign produce or manufacture, as
aforesaid, which shall be imported or brought into any of the said
colonies of or belonging to his Majesty the sum of sixpence of like
money for every gallon thereof, and after that rate for any greater
or lesser quantity; and upon all sugars and paneles of such foreign
growth, produce, or manufacture, as aforesaid, which shall be
imported into any of the said colonies or plantations of or
belonging to his Majesty, a duty after the rate of five shillings of
like money for every hundred weight avoirdupois of the said sugar
and paneles, and after that rate for a greater or lesser quantity.”
Now,
Sir, will you be pleased to read Judge Minot’s History, vol. ii.,
from page 137 to 140, ending with these words; “But the strongest
apprehensions arose from the publication of the orders for the
strict execution of the molasses act, which is said to have caused a
greater alarm in the country, than the taking of Fort William Henry
did in the year 1757.”
This I fully believe, and certainly
know to be true; for I was an eye and an ear witness to both of
these alarms. Wits may laugh at our fondness for molasses, and we
ought all to join in the laugh with as much good humor as General
Lincoln did. General Washington, however, always asserted and
proved, that Virginians loved molasses as well as New Englandmen
did. I know not why we should blush to confess that molasses was an
essential ingredient in American independence. Many great events
have proceeded from much smaller causes.
Mr.
Otis demonstrated how these articles of molasses and sugar,
especially the former, entered into all and every branch of our
commerce, fisheries, even manufactures and agriculture. He asserted
this act to be a revenue law, a taxation law, made by a foreign
legislature without our consent, and by a legislature [346] who
had no feeling for us, and whose interest prompted them to tax us to
the quick.
Pray, Mr. Tudor, calculate the amount
of these duties upon molasses and sugar. What an enormous revenue
for that age! Mr. Otis made a calculation, and showed it to be more
than sufficient to support all the crown officers.
John Adams
16 August, 1818
Quincy
William Tudor
Quincy
,
16 August, 1818
.
The
second section I must abridge, for I cannot transcribe much more. It
enacts, that all the duties imposed by the first section, shall be
paid down in ready money by the importer before landing.
The
third section must be transcribed by me or some other person,
because it is the most arbitrary among statutes that were all
arbitrary, the most unconstitutional among laws which were all
unconstitutional.
Section 3d. “And be it further enacted, that in case any of the
said commodities shall be landed, or put on shore in any of his
Majesty’s said colonies or plantations in America, out of any ship
or vessel before due entry be made thereof, at the port or place
where the same shall be imported, and before the duties by this act
charged or chargeable thereupon, shall be duly paid, or without a
warrant for the landing and delivering the same, first signed by the
collector or impost officer, or other proper officer or officers of
the custom or excise, belonging to such port or place respectively,
all such goods as shall be so landed or put on shore, or the value
of the same, shall be forfeited; and all and every such goods as
shall be so landed or put on shore, contrary to the true intent and
meaning of this act, shall, and may be seized by the governor or
commander-in-chief, for the time being, of the colonies or
plantations, where the same shall be so landed or put on shore, or
any person or persons by them authorized in that behalf, or by
warrant of any justice of the peace or other magistrate, (which
warrant such justice or magistrate is hereby empowered and required
to give upon request,) or by any custom-house officer, impost, or
excise officer or any person or persons him or them accompanying,
aiding, and assisting; and all and every such offence and
forfeitures shall, and may be prosecuted for and recovered in any
court of admiralty in his Majesty’s colonies or plantations in
America, (which court of admiralty is hereby authorized,
impowered, and required to proceed to hear, and finally determine
the same,) or in any court of [347] record in the
said colonies or plantations, where such offence is committed, at
the election of the informer or prosecutor, according to the course
and method used and practised there in prosecutions for offences
against penal laws relating to customs or excise, and such
penalties and forfeitures so recovered there shall be divided as
follows,—namely, one third part for the use of his Majesty, his
heirs and successors, to be applied for the support of the
government of the colony or plantation, where the same shall be
recovered, one third part to the governor or commander-in-chief of
the said colony or plantation, and the other third part to the
informer or prosecutor, who shall sue for the same.”
Section
6th. “Fifty pound penalty on molesting an officer on his duty.
Officer, if sued, may plead the general issue. Fifty pound penalty,
an officer conniving at such fraudulent importation.
Section
12th. “Charge of prosecution to be borne out of the king’s part
of seizures, forfeitures, and penalties.”
George
II. was represented and believed in America to be an honest,
well-meaning man; and although he consented to this statute and
others which he thought sanctioned by his predecessors, especially
King William, yet it was reported and understood that he had
uniformly resisted the importunities of ministers, governors,
planters, and projectors, to induce him to extend the system of
taxation and revenue in America, by saying, that “he did not
understand the colonies; he wished their prosperity. They appeared
to be happy at present; and he would not consent to any innovations,
the consequences of which he could not foresee.”
Solomon,
in all his glory, could not have said a wiser thing. If George III.
had adopted this sentiment, what would now be the state of the
world? Who can tell, or who can conjecture?
The
question now was concerning the designs of a new reign and of a new
prince. This young king had now adopted the whole system of his
predecessors, Stuarts, Oranges, and Hanoverians, and determined to
carry it into execution, right or wrong; and that, by the most
tyrannical instruments that ever were invented—writs of
assistance.
What hope remained for an American who
knew, or imagined he knew, the character of the English nation and
the character of the American people? To borrow a French word, so
many reminiscences rush upon [348] me, that I know not
which to select, and must return for the present to Mr. Otis. By
what means this young inexperienced king was first tempted by his
ministers to enter with so much spirit into this system, may be
hereafter explained.
Mr.
Otis analyzed this statute, 6 George II. c. 13, with great accuracy.
His calculations may be made by any modern mathematician who will
take the pains. How much molasses, for example, was then subject to
this tax? Suppose a million gallons, which is far less than the
truth. Sixpence a gallon was full one half of the value of the
article. It was sold at market for one shilling; and I have known a
cargo purchased at a pistareen. The duties on a million gallons
would then be twenty-five thousand pounds sterling a year; a fund
amply sufficient with the duties on sugars, &c., and more than
sufficient, at that time, to pay all the salaries of all the
governors upon the continent, and all judges of admiralty too.
Mr.
King, formerly of Massachusetts, now of New York, in a late luminous
and masterly speech in Senate, page 18, informs us, from sure
sources, that “we import annually upwards of six million gallons
of West India rum.” The Lord have mercy on us! “More than half
of which comes from the English colonies. We also import every year
nearly seven millions of gallons of molasses; and as every gallon of
molasses yields, by distillation, a gallon of rum, the rum imported,
added to that distilled from molasses, is probably equal to twelve
millions of gallons, which enormous quantity is chiefly consumed,
besides whiskey, by citizens of the United States.” Again, I
devoutly pray, the Lord have mercy on us!
But
calculate the revenue, at this day, from this single act of George
II. It would be sufficient to bribe any nation less knowing and less
virtuous than the people of America, to the voluntary surrender of
all their liberties.
Mr.
Otis asserted this to be a revenue law; a taxation law; an
unconstitutional law; a law subversive of every end of society and
government; it was null and void. It was a violation of all the
rights of nature, of the English Constitution, and of all the
charters and compacts with the colonies; and if carried into
execution by writs of assistance and courts of admiralty, would
destroy all security of life, liberty, and property. Subjecting all
these laws to the jurisdiction of judges of [349] admiralty,
poor dependent creatures, to the forms and course of the civil law,
without juries, or any of the open, noble examination of witnesses
or publicity of proceedings of the common law, was capping the
climax, it was clenching the nail of American slavery.
Mr.
Otis roundly asserted, that this statute, and the preceding statute,
never could be executed. The whole power of Great Britain would be
ineffectual; and by a bold figure, which will now be thought
exaggeration, he declared that if the King of Great Britain in
person were encamped on Boston common, at the head of twenty
thousand men, with all his navy on our coast, he would not be able
to execute these laws. They would be resisted or eluded.
John Adams
21 August, 1818
Quincy
William Tudor
Quincy
,
21 August, 1818
.
Mr.
Otis quoted another author, “The Political and Commercial Works of
Charles Davenant, LL. D.” vol. ii. Discourse 3. “On the
Plantation Trade.” I cannot transcribe seventy-six pages, but wish
that Americans of all classes would read them. They are in the same
strain with Downing, Child, Gee, Ashley, Charles II., James II.,
William and Mary, William III., Anne, George II., and George III.;
all conspiring to make the people of North America hewers of wood
and drawers of water to plantation governors, custom-house officers,
judges of admiralty, common informers, West India planters, naval
commanders, in the first place; and, after all these worthy people
should be amply supported, nourished, encouraged, and pampered, if
any thing more could be squeezed from the hard earnings of the
farmers, the merchants, the tradesmen, and laborers in America, it
was to be drawn into the exchequer in England, to aggrandize the
British navy.
Mr. Otis proceeded to another species of statutes, relative to our
internal policy, even our domestic manufactures and fireside
comforts; I might say, our homespun blankets and woollen sheets, so
necessary to cover some, if not all of us, in our slumbers in the
long nights of our frozen winters. I shall refer to [350] these
statutes as they occur, without any regard to order, and shall not
pretend to transcribe any of them.1
I
cannot search for any more of these mincing laws. Mr. Otis
alternately laughed and raged against them all. He said one member
of Parliament had said, that a hobnail should not be manufactured in
America; and another had moved that Americans should be compelled by
act of Parliament to send their horses to England to be shod. He
believed, however, that this last was a man of sense, and meant, by
this admirable irony, to cast a ridicule on the whole selfish,
partial, arbitrary, and contracted system of parliamentary
regulations in America.
Another
statute there is, and was quoted by Mr. Otis, by which wool was
prohibited to be water-borne in America; in consequence of which a
fleece of wool could not be conveyed in a canoe across a river or
brook, without seizure and forfeiture. But I am wearied to death by
digging in this mud; with searching among this trash, chaff, rubbish
of acts of Parliament; of that Parliament which declared it had a
right to legislate for us, as sovereign, absolute, and supreme, in
all cases whatsoever. But I deny that they ever had any right to
legislate for us in any case whatsoever. And on this point we are
and were at issue before God and the world. These righteous judges
have decided the question; and it is melancholy that any Americans
should still doubt the equity and wisdom of the decision.
Such
were the bowels of compassion, such the tender mercies of our pious,
virtuous, our moral and religious mother country towards her most
dutiful and affectionate children! Such they are still, and such
they will be till the United States shall compel that country to
respect this. To this end, poor and destitute as I am, I would
cheerfully contribute double my proportion of the expense of
building and equipping thirty ships of the line, before the year
1820.
Mr.
Otis asserted all these acts to be null and void by the law of
nature, by the English constitution, and by the American charters,
because America was not represented in Parliament.
He entered into the history of the
charters. James I. and Charles I. could not be supposed to have ever
intended that Parliament, more hated by them both than the Pope or
the French King, should share with them in the government of
colonies and corporations which they had instituted by their royal
prerogatives. “Tom, Dick, and Harry were not to censure them and
their council.”
Pym, Hampden, Sir Harry Vane, and
Oliver Cromwell did not surely wish to subject a country, which they
sought as an asylum, to the arbitrary jurisdiction of a country from
which they wished to fly. Charles II. had learned by dismal, doleful
experience, that Parliaments were not to be wholly despised. He,
therefore, endeavored to associate Parliament with himself in his
navigation act, and many others of his despotic projects, even in
that of destroying, by his unlimited licentiousness and debauchery,
the moral character of the nation. Charles II. courted Parliament as
a mistress; his successors embraced her as a wife, at least for the
purpose of enslaving America.
Mr.
Otis roundly asserted this whole system of parliamentary
regulations, and every act of Parliament before quoted, to be
illegal, unconstitutional, tyrannical, null, and void. Nevertheless,
with all my admiration of Mr. Otis, and enthusiasm for his
character, I must acknowledge he was not always consistent in
drawing or admitting the necessary consequences from his principles,
one of which comprehended them all. to wit, that Parliament had
no authority over America in any case whatsoever.
But at present we must confine ourselves to his principles and
authorities in opposition to the acts of trade and writs of
assistance. These principles I perfectly remember. The authorities
in detail I could not be supposed to retain; though with
recollecting the names, Vattel, Coke, and Holt, I might have found
them again by a diligent search. But Mr. Otis himself has saved that
trouble, by a publication of his own, which must be the subject of
another letter.1
John Adams
10 September, 1818
Quincy
William Tudor
Quincy
,
10 September, 1818
.
The
charters were quoted or alluded to by Mr. Otis frequently in the
whole course of his argument; but he made them also a more distinct
and more solemn head of his discourse. And here, these charters
ought to be copied verbatim. But an immense verbiage renders it
impossible. Bishop Butler somewhere complains of this enormous abuse
of words in public transactions, and John Read and Theophilus
Parsons, of Massachusetts, have attempted to reform it. So did James
Otis. All with little success. I hope, however, that their examples
will be followed, and that common sense in common language will, in
time, become fashionable. But the hope must be faint as long as
clerks are paid by the line and the number of syllables in a line.
Some
passages of these charters must, however, be quoted; and I will
endeavor to strip them, as well as I can, of their useless words.
They are recited in the charter of King William and Queen Mary,
dated the seventh day of October, in the third year of their reign,
that is, in 1691.
“Whereas King James I., in the eighteenth year of his reign, did
grant to the Council at Plymouth, for the planting and governing New
England, all that part of America, from the 40th to the 48th degree
of latitude, and from sea to sea together with all lands, waters,
fishings, and all and singular other
commodities, jurisdictions, royalties, privileges,
tranchises, and preeminences, both within the said tract of land
upon the main, and also within the islands and seas adjoining, to
have and hold all, unto the said council, their heirs and successors
and assigns forever, to be holden of his said Majesty as of his
manor of East Greenwich, in free and common socage, and not in
capite, or by knights’ service; yielding to the king a fifth part
of the ore of gold and silver, for and in respect of all and
all manner of duties, demands, and services whatsoever.”
But I
cannot pursue to the end this infinite series of words. You must
read the charter again. For although you have and I have read it
fifty times, I believe you will find it, as I do, much stronger in
favor of Mr. Otis’s argument than I expected or you will expect. I
doubt whether you will take the pains to read it again; but your son
will, and to him I recommend it.
The
Council of Plymouth, on the 19th of March, in the third year of the
reign of Charles I., granted to Sir Henry Rosewell [353] and
others, part of New England by certain boundaries, with all the
prerogatives and privileges.
King
Charles I., on the 4th of March, in the fourth year of his reign,
confirmed to Sir Henry Rosewell and others, all those lands before
granted to them by the Council of Plymouth. King Charles I. created
Sir Henry Rosewell and others, a body corporate and politic. And
said body politic did settle a colony, which became very populous.
In 1684, in the 36th year of King William and Queen Mary’s dearest
uncle, Charles II., a judgment was given in the court of chancery,
that the letters-patent of Charles I. should be cancelled, vacated,
and annihilated. The agents petitioned to be reincorporated. I can
easily conceive their perplexity, their timidity, their uncertainty,
their choice of difficulties, their necessary preference of the
least of a multitude of evils, for I have felt them all as keenly as
they did.William and Mary unite Massachusetts, New Plymouth, the
Province of Maine and Nova Scotia into one province, to be holden in
fee of the manor of East Greenwich, paying one fifth of gold and
silver ore.
Liberty
of conscience to be granted to all Christians, except papists. Good
God! A grant from a king of liberty of conscience! Is it not a grant
of the King of kings, which no puppet or roitelet upon
earth can give or take away?
The
general court empowered to erect judicatories and courts of record.
The general court empowered to make laws, “not repugnant to the
laws of England.” Here was an unfathomable gulf of controversy.
The grant itself, of liberty of conscience, was repugnant
to the laws of England. Every thing was repugnant to the laws of
England. The whole system of colonization was beyond the limits of
the laws of England, and beyond the jurisdiction of their national
legislature. The general court is authorized to impose fines, &c.,
and taxes.
“Provided
always, and it is hereby declared, that nothing herein shall extend
or to be taken to erect or grant, or allow the exercise of any
admiralty court jurisdiction, power, or authority; but that the same
shall be, and is hereby reserved to us and our successors, and shall
from time to time be erected, granted, and exercised by virtue of
commissions to be issued under the great seal of England, or under
the seal of the high admiral, or the commissioners for executing the
office of high admiral of England”
The
history of this court of admiralty would require volumes. Where are
its records and its files? Its libels and answers? Its
interrogatories and cross-interrogatories? All hurried away to
England, as I suppose, never to be seen again in America, nor
probably to be inspected in Europe.
The
records and files of the court of probate in Boston were transported
to Halifax. Judge Foster Hutchinson had the honor to return them
after the peace of 1783. But admiralty records have never been
restored, as I have heard.
John Adams.
John Adams
13 September, 1818
Quincy
William Tudor
Quincy
,
13 September, 1818
.
It is
some consolation to find in the paragraph of the charter, next
following the court of admiralty, that nothing in it
“shall
in any manner enure, or be taken to abridge, bar, or hinder any of
our loving subjects whatsoever to use and exercise the trade of
fishing upon the coasts of New England, but that they and every of
them shall have full and free power and liberty to continue and use
their said trade of fishing upon the said coast, in any of the seas
thereunto adjoining, or any arms of the said seas, or salt water
rivers, where they have been wont to fish, and to build and set upon
the lands within our said province or colony, lying waste, and not
then possessed by particular proprietors, such wharfs, stages, and
work-houses, as shall be necessary for the salting, drying, keeping,
and packing of their fish, to be taken and gotten upon that coast;
and to cut down and take such trees and other materials there
growing or being upon any parts or places lying waste, and not then
in possession of particular proprietors, as shall be needful for
that purpose, and for all other necessary easements, helps, and
advantages, concerning the trade of fishing there, in such manner
and form as they have been heretofore at any time accustomed to do,
without making any wilful waste or spoil, any thing in these
presents to the contrary notwithstanding.”
Fellow-citizens!
Recollect that “this our province or colony” contained the whole
of Nova Scotia as well as the “Province of Maine, Massachusetts
Bay, and New Plymouth.” Will you ever surrender one particle, one
iota of this sacred charter right, and still more sacred right of
nature, purchase, acquisition, possession, usage, habit, and
conquest, let the thunder of British cannon say what it will? I know
you will not. I know you [355] cannot. And if you could be
base enough to surrender it, which I know you cannot and never will
be, your sons will reclaim it and redemand it at the price of
whatever blood or treasure it may cost, and will obtain it, secure
it, and command it forever. This pretended grant is but an
acknowledgment of your antecedent right by nature and by English
liberty. You have no power or authority to alienate it. It was
granted, or rather acknowledged to your successors and posterity as
well as to you, and any cessions you could make would be null and
void in the sight of God and all reasonable men.
Mr.
Otis descanted largely on these charters. His observations carried
irresistible conviction to the minds and hearts of many others as
well as to mine, that every one of those statutes from the
navigation act to the last act of trade, was a violation of all the
charters and compacts between the two countries, was a fundamental
invasion of our essential rights, and was consequently null and
void; that the legislatures of the colonies, and especially of
Massachusetts, had the sole and exclusive authority of legislation
and especially of taxation in America.
The
indecision and inconsistency, which appears in some of Mr. Otis’s
subsequent writings is greatly to be regretted and lamented. They
resemble those of Colonel Bland, as represented by Mr. Wirt. I wish
I had Colonel Bland’s pamphlet that I might compare it with some
of Mr. Otis’s.
I
have too many daily proofs of the infirmity of my memory to pretend
to recollect Mr. Otis’s reasoning in detail. If, indeed, I had a
general recollection of any of his positions, I could not express
them in that close, concise, nervous, and energetic language, which
was peculiar to him, and which I never possessed.
I
must leave you, Sir, to make your own observations and reflections
upon these charters. But you may indulge me in throwing out a few
hints, rather as queries or topics of speculation than as positive
opinions. And here, though I see a wide field, I must make it
narrow.
Mr. Bollan was a kind of learned man,
of indefatigable research, and a faithful friend to America; though
he lost all his influence when his father-in-law, Governor and
General Shirley, went out of circulation. This Mr. Bollan printed a
book very early on the “Rights of the Colonies.” I scarcely ever
knew a book so deeply despised. The English reviewers [356] would
not allow it to be the production of a rational creature. In America
itself it was held in no esteem. Otis himself expressed in the House
of Representatives, in a public speech, his contempt of it in these
words: “Mr. Bollan’s book is the strangest thing I ever read.
Under the title of ‘Rights of the Colonies,’ he has employed one
third of his work to prove that the world is round; and another,
that it turns round; and the last, that the Pope was a devil for
pretending to give it to whom he pleased.”
All
this I regretted. I wished that Bollan had not only been permitted,
but encouraged to proceed. There is no doubt he would have produced
much in illustration of the ecclesiastical and political
superstition and despotism of the ages when colonization commenced
and proceeded. But Bollan was discouraged, and ceased from his
labors.
John Adams
18 September, 1818
Quincy
William Tudor
Quincy
,
18 September, 1818
.
The
English doctrine of allegiance is so mysterious, fabulous, and
enigmatical, that it is difficult to decompose the elements of which
it is compounded. The priests, under the Hebrew economy, especially
the sovereign pontiffs, were anointed with consecrated oil, which
was poured upon their heads in such profusion that it ran down their
beards, and they were thence called “the Lord’s anointed.”
When kings were permitted to be introduced, they were anointed in
the same manner by the sovereign pontiff; and they, too, were called
“the Lord’s anointed.” When the pontiffs of Rome assumed the
customs, pomps, and ceremonies of the Jewish priesthood, they
assumed the power of consecrating things by the same ceremony of
“holy oil.” The Pope who, as vicar of God, possessed the whole
globe of earth in supreme dominion and absolute property, possessed
also the power of sending the Holy Ghost [357] wherever he
pleased. To France it pleased his holiness to send him in a phial of
oil to Rheims, in the beak of a dove. I have not heard, that my
friend, Louis XVIII. has been consecrated at Rheims, by the pouring
on of this holy oil; but his worthy elder brother, Louis XVI., was
so consecrated at a vast expense of treasure and ridicule. How the
holy bottle was conveyed to England, is worth inquiry. But there it
is, and is used at every coronation; and is demurely, if not
devoutly, shown to every traveller who visits the tower. These ideas
were once as firmly established in England as they were in Rome; and
no small quantity of the relics of them remain to this
day. Hence the doctrine of the divine right of kings, and the
duties, in subjects, of unlimited submission, passive obedience, and
non-resistance, on pain (oh, how can I write it?) of eternal
damnation. These doctrines have been openly and boldly asserted and
defended, since my memory, in the town of Boston and in the town of
Quincy, by persons of no small consideration in the world, whom I
could name, but I will not, because their posterity are much
softened from this severity.
This
indelible character of sovereignty in kings and obedience in
subjects still remains. The rights and duties are inherent,
unalienable, indefeasible, indestructible, and immortal. Hence the
right of a lieutenant or midshipman of a British man-of-war to
search all American ships, impress every seaman his judgeship shall
decree, by law, and in fact, to be a subject of his king, and compel
him to fight, though it may be against his father, brother, or son.
My countrymen! Will you submit to those miserable remnants of
priestcraft and despotism?
There
is no principle of law or government, that has been more
deliberately or more solemnly adjudged in Great Britain than that
allegiance is not due to the king in his official capacity or
political capacity, but merely in his personal capacity. Allegiance
to Parliament is nowhere found in English, Scottish, or British
laws. What, then, had our ancestors to do with Parliament? Nothing
more than with the Jewish Sanhedrim, or Napoleon’s literary and
scientific Institute at Grand Cairo. They owed no allegiance to
Parliament, as a whole or in parts; none to the House of Lords, as a
branch of the legislature, nor to any individual peer or number of
individuals; none to the House of Commons, as another branch, nor to
any individual [358] commoner or group of commoners. They
owed no allegiance to the nation, any more than the nation owed to
them; and they had as good and clear a right to make laws for
England, as the people of England had to make laws for them.
What
right, then, had King James I. to the sovereignty, dominion, or
property of North America? No more than King George III. has to
Georgium sidus, because Mr. Herschell discovered that planet in his
reign. His only color, pretension, or pretext is this. The Pope, as
head of the church, was sovereign of the world. Henry VIII. deposed
him, became head of the church in England, and consequently became
sovereign master and proprietor of as much of the globe as he could
grasp. A group of his nobles hungered for immense landed estates in
America, and obtained from his quasi holiness a large
tract. But it was useless and unprofitable to them. They must have
planters and settlers. The sincere and conscientious Protestants had
been driven from England into Holland, Germany, Switzerland, &c.,
by the terrors of stocks, pillories, croppings, scourges,
imprisonments, roastings, and burnings, under Henry VIII.,
Elizabeth, Mary, James I., and Charles I. The noblemen and gentlemen
of the council of Plymouth wanted settlers for their lands in
America, set on foot a negotiation with the persecuted fugitive
religionists abroad, promised them liberty of conscience, exemption
from all jurisdiction, ecclesiastic, civil, and political, except
allegiance to the king, and the tribute, moderate, surely, of one
fifth of gold and silver ore. This charter was procured by the
council at Plymouth, and displayed off as a lure to the persecuted,
fugitive Englishmen abroad; and they were completely taken into the
snare, as Charles II. convinced them in the first year of his
actual, and the twelfth of his imaginary reign. Sir Josiah Child,
enemy as he was, has stated, in the paragraphs quoted from him in a
former letter, fairly and candidly the substance of these facts.
Our
ancestors had been so long abroad, that they had acquired
comfortable establishments, especially in Holland, that singular
region of toleration, that glorious asylum for persecuted Huguenots
and Puritans, that country where priests have been eternally
worrying one another, and alternately teasing the government to
persecute their antagonists, but where enlightened statesmen have
constantly and intrepidly resisted their wild fanaticism.
The
first charter, the charter of James I., is more like a treaty
between independent sovereigns than like a charter or grant of
privileges from a sovereign to his subjects. Our ancestors were
tempted by the prospect and promise of a government of their own,
independent in religion, government, commerce, manufactures, and
every thing else, excepting one or two articles of trifling
importance.
Independence
of English church and state, was the fundamental principle of the
first colonization, has been its general principle for two hundred
years, and now, I hope, is past dispute.
Who,
then, was the author, inventor, discoverer of independence? The only
true answer must be the first emigrants, and the proof of it is the
charter of James I. When we say, that Otis, Adams, Mayhew, Henry,
Lee, Jefferson, &c., were authors of independence, we ought to
say they were only awakeners and revivers of the original
fundamental principle of colonization.
John Adams
23 September, 1818
Quincy
William Tudor
Quincy
,
23 September, 1818
.
If,
in our search of principles, we have not been able to investigate
any moral, philosophical, or rational foundation for any claim of
dominion or property in America, in the English nation, their
Parliament, or even in their king; if the whole appears a mere
usurpation of fiction, fancy, and superstition, what was the right
to dominion or property in the native Indians?
Shall
we say that a few handfuls of scattering tribes of savages have a
right of dominion and property over a quarter of this globe capable
of nourishing hundreds of millions of happy human beings? Why had
not Europeans a right to come and hunt and fish with them?
The
Indians had a right to life, liberty, and property in common with
all men; but what right to dominion or property beyond these? Every
Indian had a right to his wigwam, his armor, his utensils; when he
had burned the woods about him, [360] and planted his corn
and beans, his squashes and pompions, all these were his undoubted
right; but will you infer from this, that he had right of exclusive
dominion and property over immense regions of uncultivated
wilderness that he never saw, that he might have the exclusive
privilege of hunting and fishing in them, which he himself never
expected or hoped to enjoy?
These
reflections appear to have occurred to our ancestors, and their
general conduct was regulated by them. They do not seem to have had
any confidence in their charter, as conveying any right, except
against the king who signed it. They considered the right to be in
the native Indians. And, in truth, all the right there was in the
case lay there. They accordingly respected the Indian wigwams and
poor plantations, their clam-banks and muscle-banks and
oyster-banks, and all their property.
Property in land, antecedent to civil society, or the social
compact, seems to have been confined to actual possession and power
of commanding it. It is the creature of convention, of social laws
and artificial order. Our ancestors, however, did not amuse, nor
puzzle themselves with these refinements. They considered the
Indians as having rights; and they entered into negotiations with
them, purchased and paid for their rights and claims, whatever they
were, and procured deeds, grants, and quitclaims of all their lands,
leaving them their habitations, arms, utensils, fishings, huntings,
and plantations. There is scarcely a litigation at law concerning a
title to land that may not be traced to an Indian deed. I have in my
possession, somewhere, a parchment copy of a deed of Massasoit,1 of
the township of Braintree incorporated by the legislature in one
thousand six hundred and thirty-nine. And this was the general
practice through the country, and has been to this day through the
continent. In short, I see not how the Indians could have been
treated with more equity or humanity than they have been in general
in North America. The histories of Indian wars have not been
sufficiently regarded.
When
Mr. Hutchinson’s History of Massachusetts Bay
first [361] appeared, one of the most common criticisms
upon it was the slight, cold, and unfeeling manner in which he
passed over the Indian wars. I have heard gentlemen the best
informed in the history of the country say, “he had no sympathy
for the sufferings of his ancestors. Otherwise he could not have
winked out of sight one of the most important, most affecting,
afflicting, and distressing branches of the history of his country.”
There is somewhere in existence, as I hope and believe, a manuscript
history of Indian wars, written by the Reverend Samuel Niles, of
Braintree. Almost sixty years ago, I was an humble acquaintance of
this venerable clergyman, then, as I believe, more than fourscore
years of age. He asked me many questions, and informed me, in his
own house, that he was endeavoring to recollect and commit to
writing a history of Indian wars, in his own time, and before it, as
far as he could collect information. This history he completed and
prepared for the press; but no printer would undertake it, or
venture to propose a subscription for its publication. Since my
return from Europe, I inquired of his oldest son, the Honorable
Samuel Niles, of Braintree, on a visit he made me at my own house,
what was become of that manuscript. He laughed, and said it was
still safe in the till of a certain trunk; but no encouragement had
ever appeared for its publication. Ye liberal Christians! Laugh not
at me, nor frown upon me, for thus reviving the memory of your once
formidable enemy. I was then no more of a disciple of his
theological science than ye are now. But I then revered and still
revere the honest, virtuous, and pious man. Fas est et ab hoste
doceri. And his memorial of facts might be of great value to
this country.1
What
infinite pains have been taken and expenses incurred in treaties,
presents, stipulated sums of money, instruments of agriculture,
education, what dangerous and unwearied labors, to convert these
poor, ignorant savages to Christianity! And, alas! with how little
success! The Indians are as bigoted to their religion as the
Mahometans are to their Koran, the Hindoos to their Shaster, the
Chinese to Confucius, the Romans to their saints and angels, or the
Jews to Moses and the Prophets. It is a principle of religion, at
bottom, which inspires the Indians [362] with such an
invincible aversion both to civilization and Christianity. The same
principle has excited their perpetual hostilities against the
colonists and the independent Americans.
If
the English nation, their Parliaments, and all their kings, have
appeared to be totally ignorant of all these things, or at least to
have vouchsafed no consideration upon them; if we, good, patriotic
Americans, have forgotten them, Mr. Otis had not. He enlarged on the
merits of our ancestors in undertaking so perilous, arduous, and
almost desperate an enterprise, in disforesting bare creation, in
conciliating and necessarily contending with Indian natives, in
purchasing rather than conquering a quarter of the globe at their
own expense, at the sweat of their own brows, at the hazard and
sacrifice of their own lives, without the smallest aid, assistance,
or comfort from the government of England, or from England itself as
a nation; on the contrary, constant jealousy, envy, intrigue against
their charter, their religion, and all their privileges. Laud, the
pious tyrant, dreaded them, as if he foresaw they would overthrow
his religion.
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