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."