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 colour of authority for it, but one produced by

Mr. Gridley in a statute of the 13th and 14th of Charles the second,

which Mr. Otis said was neither authority, precedent or colour of

either, in America. Mr. Thatcher said he had diligently searched

all the books, but could find no such writ. He had indeed found in

Rastalls Entries, a thing which in some of its features resembling

this, but so little like it in 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 thirteenth and

fourteenth of Charles the second, 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 merchandizes, 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 day time to enter, and go into any

house, shop, cellar, warehouse or room, or other place; and in

case of resistance, to break open doors, chests, trunks, and other

package, there to seize, and from thence to bring any kind of goods

or merchandize 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 seizure shall be made."

Here is all the colour for "Writs of assistance," which the officers

of the crown aided by the researches of their learned counsel, Mr.

Gridley, could produce.

Where, exclaimed Otis, is your seal of his majesty's court of

exchequer? And what has the court of exchequer to do here? But my

sheet is full, and my patience exhausted for the present.

JOHN ADAMS.

TO THE HON. WM. TUDOR.

_Quincy_, _June_ 24, 1818.

DEAR SIR,

Mr. Otis said such a "writ of assistance" might become the reign

of Charles 2d. in England, and he would not dispute the taste of

the parliament of England, in passing such an act, nor 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 laws, 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 Otis and Thatcher, 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 2d. 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 time to time, in the day time, to search any cart, waggon 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 2d. 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, sheerman, 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 humour, 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 writers upon trade, which I

shall produce together in another letter.

It is hard to be called upon, at my age, to such a service as this.

But it is the duty of

JOHN ADAMS.

TO THE HON. WM. TUDOR.

_Quincy_, _July_ 9, 1818.

DEAR SIR,

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 second, chapter

third, "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 the second, chapter four, "An act for

granting to his majesty an imposition upon all tobacco and sugar

imported," &c. Section fifth, 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 the second and James the second

were blazing before his eyes, their characters and reigns were

sufficiently odious to all but the conspirators against human

liberty, to excite the highest applauses of Otis's philippics against

them and all the foregoing acts of their reigns, which writs of

assistance 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. 1. of James the second, 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 2nd, chapter 13. "An act for prohibiting

the importation of foreign bone-lace, cutwork, embroidery, fringe,

band-strings, buttons and needle work." 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, cut-work, 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 the second, chapter third,

"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 continued," &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. 2d, ch. 12, "An act for confirmation of judicial

proceedings," in which it is enacted, &c. "that nor any 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 prevaricating 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 the third 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."

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 next adjoining thereto, it shall be lawfull, 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 day time where such goods are suspected to be

concealed, and in case of resistance, to break open such houses, 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.

TO THE HON. WM. TUDOR.

_Quincy_, _July_ 14, 1818.

DEAR SIR,

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.

1. 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 labour, &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." 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 Joshua Child, whose chapter four, 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 2d. 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 favourite 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 2d. 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 hadst been obliged to fly with thy project, and report 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 1618 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 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 2d.

Otis proceeded to page 170, near the bottom, "_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 had

received the rest: but Old England, to be sure, would have lost them

all.

"Virginia and Barbadoes were first peopled by a sort of loose,

vagrant people, vicious, and destitute of the means to live at

home, (being either unfit for labour, 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

at 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 neighbours, 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 labour, and others of them made unfit for it by the lazy habit of

a soldier's life, their 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 the 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

re-establishment 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 malefactors condemned for crimes, for which by 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."

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