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A Constitutional History of the United States
Chapter IV - The Writs of Assistance and the Revenue Act
by McLaughlin, Andrew C.
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Let us now take up the course of events in the years beginning about the
end of the French war. In giving this chronological narrative, we shall be
concerned chiefly with detecting the statement of principles of government. We
shall find some confusion and some inconsistency; we shall find a shifting from
one position to another, and we should err if we assumed that the Americans had
at the beginning a perfectly clear line of thought which was finally
triumphant. But we shall see from the experiences of the fifteen years before
independence was declared some fairly definite ideas emerging; and we shall
have in mind, amid the confusion, those principles that finally became
domesticated and firmly seated in our institutional system; especially we shall
look for two essentials of American constitutionalism: (1) that governments
have only limited power; (2) that governmental power may be distributed among
governments; in other words, we shall find the two most salient ideas of the
American system: the written Constitution, binding on governments, and the
American federal system.
In 1761 an event took place that John Adams declared marked the birth of
the American Revolution — "Then and there", he said of the famous speech
of James Otis against writs of assistance, "the child Independence was born."
The circumstances were these. Massachusetts merchants had been in the habit of
treating with a lofty disdain the navigation act burdening their trade with the
foreign colonies in the West Indies. Just how common and grave was this habit
of disobedience (vulgarly known as smuggling) is of no considerable Importance.
Soon after the death of George II (1760), an application was made to the
superior court of Massachusetts for the issuance of writs of assistance; for it
appears that old writs ceased to be good six months after the death of a
monarch. The writ in question gave to the persons to whom it was issued general
authority to search for smuggled goods, and its terms were very comprehensive
and sweeping. In opposition to the granting of such authority by the issuing of
the writ, James Otis appeared before the court. He and his associates were
faced by able lawyers on the other side. The subject of dispute was
significant. The brilliant oratory of Otis was called into being to denounce a
process which, he contended, threatened the sanctity of one's dwelling and the
security of property.
We do not know very much of what Otis said. John Adams, then a young
lawyer, present at the argument, wrote in later years an extended account; but
that account was written nearly sixty years after the speech; and, quite
plainly, Adams included in his statement a sort of summary of the Revolutionary
argument; it probably differs in many ways from the line Otis followed. However
that may be, Adams did put down at the very moment, certainly practically
contemporaneously, a brief outline of what Otis did say; and that brief outline
is full of significance. Otis denounced the dangerous character of the writ as
an infringement of an Englishman's right of "House"; he dwelt upon the
extensive authority given by the writ and declared it to be "against the
fundamental Principles of Law." "... all Precedents," he declared, were "under
the Control of the Principles of Law." He had in mind, presumably, the
fundamental principles of British freedom, and he probably used the word
"Constitution" as that word was and is used in Britain; but he went further,
declaring that Parliament was incapable of enacting legislation providing for
such a writ. As the question before the court was the lawfulness of the writ,
he would not stop by endeavoring to discover whether parliamentary authority
sanctioned it; for not even Parliament could lawfully go beyond the
constitution. Furthermore, the court must uphold the constitution even against
Parliament itself; the court must "pass such acts into disuse." [1]
We find here, therefore, more than fervid eloquence appealing to the
sacred rights of Englishmen; we find American doctrines, startling probably to
the solemn judges who heard them. Even an act of Parliament might be no law,
and if so, it was the duty of the court so to declare. It seems almost
incredible that Otis comprehended the full import of his own words; for in
after years such an elementary principle in American law was not clearly seen
by even keen-minded men.
But there stands his assertion. So, to Otis at least, the British
constitution must have been something real and tangible, fairly direct and
conclusive in its limitations. The logical conclusion from his statement is
that an unconstitutional law is not necessarily a bad law, or an inappropriate
law, or even a law running counter to endeared traditions; an unconstitutional
law is not a law at all; it is void; and a court must so declare. One
inevitable result of this reasoning he did not state and, as far as we know,
perhaps he did not see; if the act in question was no law, no one was under
obligation to obey it. He did, however, say that the court must not treat the
act as law and thus aid in enforcing obedience.[2]
Otis's argument is so impressive and so prophetic of the constitutional
system which was to come that we are in danger of overestimating its actual
effect or of thinking of him as the creator of a fundamental American doctrine.
We can well believe, however, that the doctrine was as precocious as it was
prophetic, though it was by no means altogether without historical background.
It was for the moment ahead of its time, but the days were soon to come when
the refuge of Americans was to be found in the declaration that some things
were beyond the power of Parliament, and if Parliament exceeded its power, it
acted illegally. We should not overstress the appeal to judicial authority as a
relief from unconstitutional enactment, but notice the thought on which that
appeal rested: there are limits, constitutional limits, to power. That was the
staff on which developing revolution was to rest, and that was the foundation
on which American constitutionalism was to be reared. In light of what went on
and of what men said in succeeding years, it is not so much judicial duty as
this fundamental idea of limited as over against unlimited power that is of
chiefest significance. Judicial authority must wait upon the developing
principle that limited government is possible and that unlimited government is
tyranny.
This belief that there were legal limits, beyond which Parliament must
not go, was associated with the belief in natural law and the unchanging
principles of reason and justice; "natural equity" were Otis's words. And of
similar import were "Reason of the common law" — those fundamental
principles were supposed to be established in English constitutionalism. In
this connection he referred to Coke,[3] having in mind Coke's dictum
in the famous Doctor Bonham case.[4] It thus appears that Otis, and
others that thought like him, believed their position was founded on revered
legal authority; for had not Lord Coke himself plainly spoken? "... it appears
in our books, that in many cases, the common law will control Acts of
Parliament, and sometimes adjudge them to be utterly void: for when an Act of
Parliament is against common right and reason, or repugnant, or impossible to
be performed, the common law will control it, and adjudge such Act to be void."
Had not other British judges announced the same doctrines? But withal —
and this is important — Otis was asserting that Britain had a fixed
constitution and its limits were applicable, indeed must be observed, in
the empire. Thus he was announcing that there already existed what in reality
the Americans were to create as a tangible fact. This tendency to assert the
undeniable existence of principles, which were to find institutional
expression, is a significant quality of the American Revolutionary process, of
which we shall find other proof.
We do not and cannot know just how much effect these declarations of
Otis had on the popular mind, though we do know that the mind of the average
New Englander was prepared for them. The writs were issued after some delay,
and we need not follow their history. Other events were in progress which
brought in new objections and similar doctrines concerning the exercise of
British authority. These events now claim attention.
In 1764 Parliament passed, at the suggestion of George Grenville, First
Lord of the Treasury and Chancellor of the Exchequer, the Sugar Act, part of a
general plan for enforcing the acts of trade and navigation and for obtaining
some revenue from the colonies.[5] It is not our business to look
into Grenville's purposes minutely. However great the temptation to obtain
relief for the financial burdens of Britain by getting money from America,
whatever justification there might appear to be in compelling America to pay at
least a portion of the expense incurred for her defense, the means and method
proposed by Grenville proved to be obnoxious. They were, furthermore,
innovations upon long-established practices. That the sums received from
certain duties in the colonies had fallen far short of meeting the cost of
collection, producing, it was said, about one-fourth of the cost,[6]
was not necessarily a reason for attempting to make the customs remunerative.
The acts of navigation were not for revenue, but for regulation, restriction,
or prevention of trade.
The purposes for which such acts were passed might have been obtained,
even if no revenue at all reached the public coffers. It is not our affair to
scrutinize the violation of law or to examine the ineptitude or corruption of
certain officials, though the story is an interesting, if rather sordid, tale.
The facts are that the plan of enforcing the acts of navigation and at the same
time using them or parts of them for revenue was a most serious innovation; and
it was an innovation likely, not only to affect seriously the commercial
practices of the colonies, but also to arouse colonial opposition because it
involved new principles. At a later date Burke put the thing in a nutshell:
"Whether you were right or wrong in establishing the colonies on the principles
of commercial monopoly, rather than on that of revenue, is at this day a
problem of mere speculation. You cannot have both by the same authority. To
join together the restraints of an universal internal and external monopoly
with an universal internal and external taxation is an unnatural union, —
perfect, uncompensated slavery." [7] Men had borne the burdens of
trade regulations, "Because men do bear the inevitable constitution of their
original nature with all its infirmities. The Act of Navigation attended the
colonies from their infancy, grew with their growth, and strengthened with
their strength. They were confirmed in obedience to it even more by usage than
by law." [8] Burke thus saw not only what he called "uncompensated
slavery" in the joining of taxation and burdensome restriction, but that the
colonies were used to the regulations of trade but not used to the imposition
for revenue.[9] An examination of the West India Act — the
Molasses Act of 1733 — shows that its purpose was to compel the colonies
to forego trade in certain commodities with the French and Spanish colonies in
the Caribbean. The Sugar Act lowered the duties, plainly to get revenue.
This act of 1764, adding in some respects rather grievous restrictions
on colonial trade and onerous red tape for their enforcement, provided that
trials might be instituted in any colonial court, or in any vice-admiralty
court which might be appointed over all America, as the informer or prosecutor
might elect. This provision was naturally unwelcome to the colonial mind, for
it might involve a trial in a distant court with all the accompanying burdens
and inconveniences. But objectionable as such new regulations were, they were
not more ominous than the announcement in the act that the purpose was to
improve the revenue, that "the commons of Great Britain, ... being desirous to
make some provision ... towards raising the said revenue in America, have
resolved to give and grant unto your Majesty the several rates and duties
herein after-mentioned...." [10]
We can pass over the outcries against the burdensome character of the
act as a restriction on trade, and against the unwisdom of interfering with a
commerce beneficial to the colonies and to Britain herself, significant though
those outcries were as indications of colonial feeling or provocative as they
might be of later rebellion. There appeared little or no opposition, as far as
I am aware, to the general right of Parliament to regulate the trade of the
empire. There was opposition to the revenue plan as well as combative argument
breaking out into open violence when the proposals for raising revenue were
further carried out in the Stamp Act the next year (1765). The opposition to
the revenue-raising feature of the Sugar Bill was especially presented by Otis
in his Rights of the British Colonies Asserted and
Proved,[11] a pamphlet of such popularity that it deserves
special examination.
The author begins in the orthodox fashion of those questioning the
authority of government; he considers the origin of government, and finds its
"everlasting foundation in the unchangeable will of God, the author of nature,
whose laws never vary." [12] There must be in every society a
sovereign, absolute, and uncontrollable power, "from whose final decisions
there can be no appeal but directly to Heaven." [13] This power was
originally and ultimately in the people, who did not make nor can they
rightfully make an absolute unlimited renunciation of their essential right. As
people are the origin of power, and as government obtains such authority as it
has from the people, "There is no one act which a government can have a
right to make, that does not tend to the advancement of the security,
tranquility and prosperity of the people." There remains still in the people a
supreme power to remove, or alter the legislative, when they find the
legislative act contrary to the trust reposed in them.[14] But
though the reasoning will support revolution and though it contains the essence
of democratic thinking as far as the ultimate authority in the state is
concerned, this pamphlet was not intended to preach revolution. Otis probably
believed that Britain would accept its fundamentals without alarm. He pointed
out that the colonists, having endured the hardships of settling a new country,
did not renounce their natural liberty, for the gift of God cannot be
annihilated.
The powers of Parliament, the supreme legislature of the kingdom and its
dominions, Otis expressly acknowledges. Parliament has the right to make acts
for the general good and by naming the colonies to bind them as well as the
subjects within the realm.[15] No authority, however, has a right to
make itself arbitrary nor can any supreme power "take from any man any part of
his property, without his consent in person, or by representation."
[16] In other words, the principles of representation must apply in
the empire.
To solve this problem, or as a partial solution, he commits himself to
the idea of representation in Parliament, a proposal never taken very seriously
by any number of persons on either side of the ocean; the proposal,
nevertheless, is in itself proof beyond cavil that Otis was not then merely a
revolutionary firebrand, and in succeeding portions of his paper he gives us
visions of a really free and glorious empire.[17] We mistake the
whole character of the work if we see in it only a pamphlet making for
rebellion. Doubtless he is at times vague; he was as a matter of fact troubled
by the same perplexing problem that vexed Locke and others presenting the idea
of natural law as a restraint upon governmental authority. Could order be based
on the right to disobey? So Otis acknowledges openly the authority of
Parliament, for "There would be an end of all government, if one or a number of
subjects or subordinate provinces should take upon them so far to judge of the
justice of an act of parliament, as to refuse obedience to it." What then is to
be done, if on the one hand government has no right to exceed certain limits
and, on the other, people have no right to disobey? [18] This is his
answer; this is the peaceful solution: "If the reasons that can be given
against an act, are such as plainly demonstrate that it is against natural
equity, the executive courts will adjudge such acts void." [19]
Thus, for unauthorized acts of government, Otis finds a remedy in the organs of
government itself.
The appendix to this Rights of the British Colonies Asserted and
Proved[20] contains the substance of a memorial presented to the
Massachusetts house in pursuance of the instructions of the town of Boston to
its representatives, and by the house ordered to be sent to the colony's agent
in London. " 'Tis hoped," said these men of Boston, "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 meer power without right, and consequently void. The judges of England have
declared in favour of these sentiments, when they expresly declare; that acts
of parliament against natural equity are void. That acts against the
fundamental principles of the British constitution are void." [21]
In a footnote to this memorial, quotations are made from English judicial
decisions to the effect that acts against natural equity are void.
Concerning natural rights Otis of course refers to Locke and makes
incidental reference to certain writers of continental Europe. Connected with
the memorial there appears a striking passage from Vattel, the influence of
which is easily discerned in the later developments of American law: "It is
here demanded whether, if their power [legislative 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...." [22] In the same passage from which
these words are taken, Vattel says that the legislators cannot change the
constitution without thereby destroying their own foundation.
In this pamphlet Otis does not let loose his thunderbolts against the
acts of trade, as Adams many years later asserted that Otis did in the writs of
assistance case. On the contrary, he accepts the navigation act as "a good
act...." He admits that Parliament has the right as well as the power to bind
both Ireland and America, but "whether this can be extended to an indefinite
taxation of both, is the greater question." He asserts that Parliament has on
the whole not taxed; for the Molasses Act was intended as a prohibition, "and
'tis pity it had not beem [sic] so expressed, as there is not the least
doubt of the just and equitable right of the parliament to lay prohibitions
thro' the dominions, when they think the good of the whole requires it. But as
has been said, there is an infinite difference between that and the exercise of
unlimited power of 'taxation [sic], over the dominions, without allowing
them a representation...." [23]
[1] "As to Acts of Parliament. An act against the
Constitution is void; an act against natural equity is void; and if an act of
Parliament should be made, in the very words of this petition, it would be
void. The executive Courts must pass such acts into disuse. 8 Rep. 118 from
Viner. Reason of the common law to control an act of Parliament." The words
"executive Courts" distinguish the judicial tribunals from the General Court,
which was the legislature of the province.
[2] Logically of course, if an act is not a law, no
one is legally bound by it; he can simply refuse to obey the lawbreaker.
Perhaps Otis saw it all, though later words from him make doubtful his full
grasp of it. But it is to be noticed that he did summon judicial support to the
constitution, and did announce a judicial power; and thus he helped to bring in
the American conception of the Constitution as a law to be recognized by
courts. And still, the fact is not so much the extent of Otis's influence as
the inference we are entitled to make concerning a condition of affairs or an
attitude of mind which would account for the doctrine. Possibly we should also
take into account the fact that in this case Otis was a lawyer arguing for his
client. It is by no means impossible for a lawyer to announce as undoubted law
principles which he scarcely hopes the court will accept, and to which under
less demanding conditions he would scarcely adhere himself.
[3] That is the significance of his reference to "8 Rep. 118
from Viner."
[4] All this is elaborately treated by Horace Gray,
afterwards Justice Gray of the federal Supreme Court, in an appendix to Quincy
(Mass.) Reports (1761-1772).
[5] "It was the first statute distinctly taxing the colonies,
and marked a radically new departure in colonial policy." G. L. Beer,
British Colonial Policy 1754-1765, p. 277.
[6] George Grenville, The Regulations Lately Made
concerning the Colonies (London, 1765), p. 57.
[7] Edmund Burke, Works (revised ed.), II, p. 35.
[8] Ibid., II, p. 33.
[9] It is no answer to say that the colonists would have
objected to furnishing revenue, even if the whole navigation system had been
abolished. Nor is it an answer to say that some acts, the West India or
Molasses Act chiefly, had been in reality sedulously disobeyed. The principles
of the act were essentially new.
[10] Italics and capitalization of the original omitted. For
the details of this act, see The Statutes at Large, 4 Geo. III, c. 15.
[11] This pamphlet was mentioned in Parliament in the debates
on the repeal of the Stamp Act.
[12] "It is by no means an arbitrary thing, depending merely
on compact or human will for its existence." But he resorts to compact as the
formal method of setting up human authority. "... the form and mode of
government is to be settled by compact, as it was rightfully done by the
convention after the abdication of James II...." Italics of the original
omitted.
[13] The distinction here between Locke and Otis is
noteworthy. Otis emphasizes the power of a people before government is set up;
he seems to see a people as a real preexisting authority.
[14] Cf. John Locke, Two Treatises on Civil Government
(Henry Morley, ed.), bk. II, sec. 149.
[15] He asserted that to his personal knowledge this
principle had been held to for twenty years in Massachusetts. "The act of
navigation is a good act, so are all that exclude foreign manufactures from the
plantations, and every honest man will readily subscribe to them." In the years
after the war a number of changes and additions were made to the system for the
regulation of trade; these were in part aimed to encourage certain branches of
colonial industry. There was some indication of an appreciation of the fact of
the unity of imperial interests. See G. L. Beer, The Commercial Policy of
England Toward the American Colonies (Columbia University Studies in
History, etc., III, no. 2), p. 145.
[16] Italics of the original omitted.
[17] The whole argument through this portion of the pamphlet
is enough to show that Otis in those days was not a mere declamatory malcontent
or mischief-maker. His main idea after all was the liberty of Englishmen and
the building up of a free empire based on the lasting foundations of unchanging
law.
[18] I am not at all sure I should say that people, according
to Otis, have no right to disobey. But he was here, after flatly announcing
popular right, showing that there was a remedy short of revolution and
disorder, short of an "appeal ... to Heaven." He was putting forth a
constructive argument.
[19] Italics of the original omitted.
[20] I cannot be absolutely sure that this appendix appeared
in the original edition. There were several editions or reprints. The one I
have had access to is the Boston edition, 1764.
[21] Italics of the original omitted.
[22] Emeric de Vattel, born in Neuchâtel, 1714. His
Droit des gens was published in 1758, and published in English in 1760.
The edition to which I have had access is dated 1811, where the reading is the
constitution of the state "ought to possess stability...." The Law of
Nations, bk. I, p. 11.
[23] Otis here distinguished between taxation and regulation,
but the idea was not as yet brought out distinctly.
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