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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.


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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