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 the first and Charles the first,

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, Hambden, 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 the second had learned

by dismal, doleful experience, that parliaments were not to be wholly

despised. He, therefore, endeavoured 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 the second

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

from your humble servant,

JOHN ADAMS.

TO THE HON. WM. TUDOR.

_Quincy_, _August_ 31, 1818.

DEAR SIR,

I have before mentioned the instructions of the city of Boston to

their representatives, in May 1764, printed in an appendix to Mr.

Otis's "Rights of the colonies." In obedience to those instructions,

or at least in consequence of them Mr. Otis prepared a memorial

to the house of representatives, which was by them voted to be

transmitted to Jasper Mauduit, Esq. agent for the province, only as

a statement drawn up by one of the house, to be improved as he may

judge proper.

In this memorial Mr. Otis has preserved and immortalized his own

arguments and authorities to prove the acts of trade null and

void, which he had advanced and produced three years before in his

oration against those acts and their formidable instrument, writs

of assistance. This is a fortunate circumstance for me, because it

relieves me from the trouble of recollection, and the more painful

task of research in old books.

"The public transactions", says Mr. Otis, "from William the first, to

the revolution, may be considered as one continued struggle, between

the prince and the people, all tending to that happy establishment,

which Great Britain has since enjoyed.

"The absolute rights of Englishmen, as frequently declared in

parliament, from Magna Charta, to this time, are the rights of

personal security, personal liberty and of private property.

"The allegiance of British subjects being natural, perpetual and

inseparable from their persons, let them be in what country they may;

their rights are also natural, inherent and perpetual.

"By the laws of nature and of nations; by the voice of universal

reason, and of God, when a nation takes possession of a desart,

uncultivated, uninhabited country, or purchases of savages, as was

the case with far the greatest part of the British settlements;

the colonists transplanting themselves and their posterity, though

separated from the principal establishment, or mother country,

naturally become part of the state with its ancient possessions, and

entitled to all the essential rights of the mother country. This

is not only confirmed by the practice of the ancients, but by the

moderns ever since the discovery of America. Frenchmen, Spaniards,

and Portuguese are no greater slaves abroad than at home; and

hitherto Britons have been as free on one side of the Atlantic as on

the other: and it is humbly hoped that his majesty and the parliament

will in their wisdom be graciously pleased to continue the colonies

in this happy state."

"It is presumed, that upon these principles, the colonists have been

by their several charters declared natural subjects, and entrusted

with the power of making their own local laws, not repugnant to the

laws of England, and with the power of taxing themselves."

"This legislative power is subject to the same charter to the king's

negative as in Ireland. This effectually secures the dependence

of the colonies on Great Britain. By the 13th of George 2. ch. 9.

even foreigners having lived seven years in any of the colonies

are deemed natives on taking the oaths of allegiance, &c. and are

declared by the said act to be his majesty's natural born subjects

of the kingdoms of Great Britain, to all intents, constructions and

purposes, as if any of them had been born within the kingdom. The

reasons given for this naturalization in the preamble of the act

are, that the increase of the people is the means of advancing the

wealth of any nation or country. And many foreigners and strangers,

from the lenity of our government, the purity of our religion, the

benefit of our laws, the advantages of our trade, and the security

of our property, might be induced to come and settle in some of

his majesty's colonies in America, if they were partakers of the

advantages and privileges, which the native born subjects there enjoy.

"The several acts of parliament and charters, declaratory of the

rights and liberties of the colonies, are but in affirmance of the

common law and law of nature in this point. There are, says my lord

Coke, regularly three incidents to subjects born; 1. Parents under

the actual obedience of the king; 2. That the place of his birth be

within the king's dominions; 3. The time of his birth to be chiefly

considered.

"For he cannot be a subject born of one kingdom, that was born under

the allegiance of a king of another kingdom. See Calvin's case and

the several acts and decisions on naturalization, from Edward the

third to this day. The common law is received and practised upon here

and in the rest of the colonies; and all ancient and modern acts of

parliament, that can be considered as part of or in amendment of the

common law, together with such acts of parliament, as expressly name

the plantations, so that the power of the British parliament is held

sacred and as uncontroulable in the colonies, as in England. The

question is not upon the general power or right of the parliament;

but whether it is not circumscribed within some equitable and

reasonable bounds? It is hoped it will not be considered as a new

doctrine, that even the authority of the parliament of Great Britain

is circumscribed by certain bounds, which, if exceeded, their acts

become those of mere power without right, and consequently void.

The judges of England have declared in favour of these sentiments,

when they expressly declare, that acts of parliament against natural

equity are void. That acts against the fundamental principles of

the British constitution are void. A very important question here

presents itself. It essentially belongs to the society, both in

relation to the manner, in which it desires to be governed, and

to the conduct of the citizens. This is called the legislative

power.--The nation may entrust the exercise of it to the prince or to

an assembly; or to an assembly and the prince jointly; who have then

a right of making new and abrogating old laws. It is here demanded

whether, if their power extends so far, as to the fundamental laws,

they may change the constitution of the state? The principles we

have laid down lead us to decide this point with certainty, that the

authority of these legislators does not extend so far, and that they

ought to consider the fundamental laws as sacred, if the nation has

not in very express terms given them the power to change them. For

the constitution of the state ought to be fixed; and since that was

first established by the nation, which afterwards trusted certain

persons with the legislative power, the fundamental laws are excepted

from their commission. It appears that the society had only resolved

to make provision for the state's being always furnished with laws,

suited to particular conjunctures, and gave the legislature for that

purpose, the power of abrogating the ancient civil and political

laws, that were not fundamental, and of making new ones. But nothing

leads us to think that it was willing to submit the constitution

itself to their pleasure.

"When a nation takes possession of a distant country and settles

a colony there, that country though separated from the principle

establishment or mother country, naturally becomes a part of the

state equally with its ancient possessions. Whenever the political

laws or treaties make no distinction between them every thing said

of the territory of a nation ought also to extend to its colonies.

An act of parliament made against natural equity, as to make a man

judge in his own cause, would be void, Hob. 87. Trin. 12. Jac. Day

_v._ Savage, S. C. & P. cited Arg. 10. Mod. 115. Hill 11. Ann C.

B. in case of Thornby & Fleetwood, "but says that this must be a

clear case, and judges will strain hard rather than interpret an act

void, _ab initio_." This is granted, but still their authority is

not boundless, if subject to the controul of the judges in any case.

Holt, chief justice, thought what lord Coke says in Dr. Bonham's

case a very reasonable and true saying, that if an act of parliament

should ordain the same person both party and judge, in his own case,

it would be a void act of parliament, and an act of parliament can

do no wrong, though it may do several things that look pretty odd;

for it may discharge one from the allegiance he lives under, and

restore to the state of nature, but it cannot make one that lives

under a government both party and judge, per Holt C. J. 12 Mod. 687.

688. Hill 13. W. 3. B. R. in the case of the city of London _v._

Wood. It appears in our books, that in several cases, the common law

should controul acts of parliament, and sometimes adjudge them to be

utterly void; for when an act of parliament against common right and

reason, or repugnant and impossible to be performed, the common law

shall controul it, and adjudge it to be void, and therefore, 8 E.

3., 30. Thomas Tregor's case upon the statute of W. 2. cap. 38. and

Art. Chart. 9. Herle said that sometimes statutes are made contrary

to law and right, which the maker of them perceiving will not put

them into execution. This doctrine is agreeable to the law of nature

and nations. and to the divine dictates of natural and revealed

religion. It is contrary to reason that the supreme power should

have a right to alter the constitution. This would imply that those

who are intrusted with sovereignty by the people, have a right to do

as they please. In other words, that those, who are invested with

power to protect the people and support their rights and liberties,

have a right to make slaves of them. This is not very remote from a

flat contradiction. Should the parliament of Great Britain follow

the example of some other foreign states, Sweden, Denmark, France,

&c. and vote the king absolute and despotic; would such an act of

parliament make him so? Would any minister in his senses advise a

prince to accept of such an offer of power? It would be unsafe to

accept of such a donation because the parliament or donors would

grant more than it was in their power lawfully to give, the law of

nature never invested them with a power of surrendering their own

liberty, and the people certainly never intrusted any body of men

with a power to surrender theirs in exchange for slavery. But if the

whole state be conquered if the nation be subdued, in what manner

can a victor treat it without transgressing the bounds of justice?

What are his rights over the conquest? Some have dared to advance

this monstrous principle, that the conqueror is absolute master over

this conquest, that he may dispose of it as his property, treat it as

he pleases, according to the common expression of treating a state

as a conquered country, and hence they derive one of the sources of

despotic government.--But enough of those that reduce men to the

state of transferable goods, or use them like beasts of burden, who

deliver them up as the property or patrimony of another man. Let us

argue upon principles countenanced by reason, and becoming humanity.

The whole right of the conqueror proceeds from the just defence of

himself, which contains the support and prosecution of his rights.

Thus when he has totally subdued a nation with whom he had been at

war, he may without dispute cause justice to be done him, with regard

to what gave rise to the war, and require payment for the expense and

damage he has sustained; he may, according to the exigency of the

place, impose penalties on it as an example; he may, should prudence

so dictate, disable it from undertaking any pernicious design for the

future. But in securing all these views the mildest means are to be

preferred. We are always to remember, that the law of nature permits

no injury to be done to an enemy, unless in taking measures necessary

for a just defence and a reasonable security. Some princes have only

imposed a tribute on it; others have been satisfied in stripping it

of some of its privileges, dismembering it of a province, or keeping

it in awe by fortresses; others, as their quarrel was only with the

sovereign in person, have left a nation in the full enjoyment of

its rights, only setting a sovereign over it. But if the conqueror

thinks proper to retain the sovereignty of the vanquished state,

and has such a right; the manner in which he is to treat the state

still flows from the same principles. If the sovereign be only the

just object of his complaint, reason declares, that by his conquest

he acquires only such rights as actually belonged to the dethroned

sovereign; and on the submission of his people he is to govern it

according to the laws of the state. If the people do not voluntarily

submit, the state of war subsists. When a sovereign, as pretending to

have the absolute disposal of a people whom he has conquered, is for

enslaving them, he causes the state of war to subsist between this

people and him. M. De Vattel, B. 3. c. 10. sec. 201.

"It is now near three hundred years since the continent of North

America was first discovered, and that by British subjects; the

Cabots discovered the continent before the Spaniards. Ten generations

have passed away, through infinite toils and bloody conflicts, in

settling this country. None of those ever dreamed, but that they were

entitled at least to equal privileges with those of the same rank

born within the realm.

"British America has been hitherto distinguished from the slavish

colonies round about it, as the fortunate Britons have been from

most of their neighbours on the continent of Europe. It is for

the interest of Great-Britain that her Colonies be ever thus

distinguished. Every man must wilfully blind himself that does not

see the immense value of our acquisitions in the late war; and that

though we did not retain all at the conclusion of peace, that we

obtained by the sword, yet our gracious sovereign, at the same time

that he has given a divine lesson of equitable moderation to the

princes of the earth, has retained sufficient to make the British

arms the dread of the universe, and his name dear to all posterity.

"To the freedom of the British constitution, and to their increase

of commerce, it is owing, that our colonies have flourished without

diminishing the inhabitants of our mother country, quite contrary to

the effects of plantations, made by most other nations which have

suffered at home, in order to aggrandize themselves abroad. This

is remarkably the case of Spain. The subjects of a free and happy

constitution of government, have a thousand advantages to colonize

above those who live under despotic princes.

"We see how the British colonies on the continent have outgrown those

of the French; notwithstanding, they have ever engaged the savages

to keep us back. Their advantages over us in the West Indies, are,

1st. A capital neglect in former reigns, in suffering them to have

a firm possession of so many valuable islands, that we had a better

title to than they. 2. The French, unable to push their settlements

effectually on the continent, have bent their views to islands, and

poured vast numbers into them. 3. The climate and business of these

islands is by nature much better adapted to Frenchmen and to Negroes,

than to Britons. 4. The labour of slaves, black or white, will be

ever cheaper than that of freemen, because that of individuals among

the former, will never be worth so much as with the latter; but this

difference is more than supplied, by numbers under the advantages

above mentioned. The French will ever be able to sell their West

India produce cheaper, than our own islanders; and yet, while our own

islanders can have such a price for theirs, as to grow much richer

than the French, or any other of the king's subjects in America, as

is the case; and what the northern colonies take from the French, and

other foreign islands, centers finally in return to Great Britain for

her manufactures, to an immense value, and with a vast profit to her.

It is contrary to the first principles of policy to cloy such a trade

with duties; much more to prohibit it, to the risque, if not certain

destruction of the fishery.

"It is allowed by the most accurate British writers on commerce, Mr.

Postlethwait in particular, who seems to favour the cause of the

sugar islands, that one half of the immense commerce of Great Britain

is with her colonies. It is very certain, that without the fishery,

seven eighths of this commerce would cease. The fishery is the

centre of motion, upon which the wheel of all the British commerce

in America turns. Without the American trade, would Britain, as a

commercial state, make any great figure at this day in Europe?

"Her trade in woollen and other manufactures is said to be lessening,

in all parts of the world, but America, where it is increasing,

and capable of infinite increase, from a concurrence of every

circumstance in its favour. Here is an extensive territory of

different climates, which, in time, will consume, and be able to pay

for as much manufactures as Great Britain and Ireland can make, if

true maxims are pursued. The French, for reasons already mentioned,

can underwork, and consequently undersell the English manufactures

of Great Britain, in every market in Europe. But they can send none

of their manufactures here; and it is the wish of every honest

British American, that they never may; it is best they never should.

We can do better without the manufactures of Europe, save those of

Great Britain, than with them. But without the West India produce

we cannot; without it our fishery must infallibly be ruined. When

that is gone, our own islands will very poorly subsist. No British

manufactures can be paid for by the colonists. What will follow?

One of these two things, both of which it is the interest of Great

Britain to prevent. 1st. The northern colonists must be content to

go naked, and turn savages. Or 2d. become manufacturers of linnens

and woollens, to clothe themselves; which, if they cannot carry to

the perfection of Europe, will be very destructive to the interests

of Great Britain. The computation has been made, and that within

bounds; and it can be demonstrated, that if North America is only

driven to the fatal necessity of manufacturing a suit of the most

ordinary linnen or woollen, for each inhabitant, annually, which may

be soon done, when necessity, the mother of invention shall operate,

Great Britain and Ireland will lose two millions per annum, besides a

diminution of the revenue to nearly the same amount. This may appear

paradoxical; but a few years experience of the execution of the

sugar act, will sufficiently convince the parliament, not only of the

inutility, but destructive tendency of it, while calculations may be

little attended to. That the trade with the colonies has been of a

surprising advantage to Great Britain, notwithstanding the want of a

good regulation, is past all doubt. Great Britain is well known to

have increased prodigiously, both in numbers and in wealth, since she

began to colonize. To the growth of the plantations, Britain is, in a

great measure, indebted for her present riches and strength. As the

wild wastes of America have been turned into pleasant habitations and

flourishing trading towns; so many of the little villages and obscure

boroughs in Great Britain, have put on a new face, and all suddenly

started up and become fair markets and manufacturing towns, and

opulent cities. London itself, which bids fair to be the metropolis

of the world, is five times more populous than it was in the days of

queen Elizabeth. Such are the fruits of the spirit of commerce and

liberty. Hence it is manifested how much we all owe to that beautiful

form of civil government, under which we have the happiness to live.

"It is evidently the interest, and ought to be the care of all those

entrusted with the administration of government, to see that every

part of the British empire enjoys to the full, the rights they are

entitled to by the laws, and the advantages which result from their

being maintained with impartiality and vigour. This we have seen

reduced to practice in the present and preceding reigns; and have

the highest reason, from the paternal care and goodness that his

majesty, and the British parliament, have hitherto been graciously

pleased to discover to all his majesty's dutiful and loyal subjects,

and to the colonists in particular, to rest satisfied, that our

privileges will remain sacred and inviolate. The connection between

Great Britain and her colonies is so natural and strong, as to make

their mutual happiness depend upon their mutual support. Nothing can

tend more to the destruction of both, and to forward the measures

of their enemies, than sowing the seeds of jealousy, animosity, and

dissention, between the mother country and the colonies.

"A conviction of the truth and importance of these principles,

induced Great Britain, during the late war, to carry on so many

glorious enterprises for the defence of the colonies; and those on

their part to exert themselves beyond their ability to pay, as is

evident, from the parliamentary reimbursements.

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