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 year of the reign of king Charles 2d.
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 2d.; 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 2d. 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 goal delivery in the province of 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 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 no where to be found; in no statute,
no law book, no volume of entries; neither in Rastall, Coke, or
Fitzherbert, nor even in Instructor Clericalis, or Burns's Justice.
Where, then, was it to be found? No where, 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 fulmine perfregit
Olympum, et excussit Subjecto Pelio Ossam_." 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 shewed the pretensions to introduce the revenue acts, and these
arbitrary and mechanical writs 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 an impudent 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 favour; and Mr. Gridley himself seemed to me to
exult inwardly at the glory and triumph of his pupil.
This, I am sure, must be enough, at this time, and from this text to
fatigue you, as it is more than enough to satisfy your most obedient,
&c.
JOHN ADAMS.
TO THE HON. WM. TUDOR.
_Quincy_, _August_ 11, 1818.
DEAR SIR,
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, ch. 22. sec. 9th, is
quoted, "All laws, by-laws, usages or customs, at this time, or which
hereafter shall be in practice, or endeavoured or pretended to be in
force or practice in any of the plantations, which are in 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 its 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 grand sons, should ever think of these things,
it may not be improper to transcribe from a marginal note at the end
of this statute, an enumeration of the "Further provisions concerning
plantations." II. W. 3, c. 12; 3, 4 of An. c. 5 and 10; 6 of An. c.
30; 8 of An. c. 13; 9th of An. c. 17; 10 An. c. 22 and 26; 4 Geo. 1,
c. 11; 5 Geo. 1, c. 12 and 15; 13 Geo. 1, c. 5; 3 Geo. 2, c. 12 and
28; 4 Geo. 2, c. 15; 5 Geo. 2, c. 7 and 9; 6 Geo. 2, c. 15; 8 Geo. 2,
c. 13; 8 Geo. 2, c. 19; 12 Geo. 2, c. 30; 15 Geo. 2, c. 31 and 33; 24
Geo. 2, c. 51 and 53; 29 Geo. 2, c. 5 and 35; and 30 Geo. 2, 9.
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 112 pounds, imported from any other place than the English
plantations in America, eight shillings over and above what the same
is charged within the book of rates."
The next statute that I recollect, at present, to have been
introduced upon that occasion, was the sixth of George the second,
ch. thirteen, "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
G. 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 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 nine pence, money of
Great Britain, to be paid according to the proportion and value of
five shillings and six pence 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 six pence 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. 2d,
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 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 shewed it to be more than sufficient to
support all the crown officers.
JOHN ADAMS.
TO THE HON. WM. TUDOR.
_Quincy_, _August_ 16, 1818.
DEAR SIR,
We cannot yet dismiss this precious statute of the 6th of George 2d.
chapter 13.
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 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, viz: 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 thesame 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 five contains the penalties on persons assisting in such
unlawful importation.
Section 6th. "Fifty pound penalty on molesting an officer on his
duty. Officer, if sued, may plead the general issue. Fifty pound
penalty, on officer conniving at such fraudulent importation."
Section 7th. "One hundred pound penalty, on master of ship, &c.
permitting such importation."
Section 8th. "The _onus probandi_ in suits to lie on the owners."
Section 12. "Charge of prosecution to be borne out of the king's part
of seizures, forfeitures and penalties."
George 2d. 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 3d. 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 young 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 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 3d. 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. Six pence 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 2d. 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 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
statutes, 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.
TO THE HON. WM. TUDOR.
_Quincy_, _August_ 21, 1818.
DEAR SIR,
Mr. Otis quoted another author, "The political and commercial works
of Charles D'Avenant, L.L. D. vol. 2. 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 2, James 2, William and
Mary, William 3, Ann, George 2, and George 3; 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 labourers 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 of us, if not all of us, in our slumbers
in the long nights of our frozen winters. I shall refer to these
statutes as they occur, without any regard to order, and shall not
pretend to transcribe any of them.
"Furs of the plantations to be brought to Great Britain. 8 Geo. 1. c.
15. ss. 24."
"Hats, not to be exported from one plantation to another. 5 Geo. 2.
c. 22."
"Hatters in America, not to have more than two apprentices. 5 Geo. 2.
c. 22. ss. 7."
"Slitting mills, steel furnaces, &c. not to be erected in the
plantations. 23 Geo. 2. c. 29. ss. 9."
"No wool, or woollen manufacture of the plantations shall be
exported. 10 & 11 Wm. 3. c. 10. ss. 19."
"Exporting wool, contrary to the regulations, forfeiture of the ship,
&c. 12 Geo. 2. c. 21. ss. 11."
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.