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.