Chapter XIX: Section 12: "Charge of prosecution to be borne out of the king's part

of seizures, forfeitures and penalties."

George 2d. was represented and believed in America to be an honest, well meaning man; and although he consented to this statute and others which he thought sanctioned by his predecessors, especially king William, yet it was reported and understood, that he had uniformly resisted the importunities of ministers, governors, planters, and projectors, to induce him to extend the system of taxation and revenue in America, by saying, that "he did not understand the colonies; he wished their prosperity. They appeared to be happy at present; and he would not consent to any innovations; the consequences of which he could not foresee."

Solomon, in all his glory, could not have said a wiser thing. If George 3d. had adopted this sentiment, what would now be the state of the world? Who can tell? or who can conjecture?

The question now was concerning the designs of a new reign, and of a young prince. This young king had now adopted the whole system of his predecessors, Stuarts, Oranges, and Hanoverians, and determined to carry it into execution, right or wrong; and that, by the most tyrannical instruments, that ever were invented; writs of assistance. What hope remained for an American, who knew, or imagined he knew, the character of the English nation, and the character of the American people? To borrow a French word, so many _reminiscences_ rush upon me, that I know not which to select, and must return for the present to Mr. Otis. By what means this young inexperienced king was first tempted by his ministers, to enter with so much spirit into this system, may be hereafter explained.

Mr. Otis analyzed this statute, 6. George 3d. c. 13, with great accuracy. His calculations may be made by any modern mathematician who will take the pains. How much molasses, for example, was then subject to this tax; suppose a million gallons, which is far less than the truth. Six pence a gallon was full one half of the value of the article. It was sold at market for one shilling; and I have known a cargo purchased at a pistareen. The duties on a million gallons, would then be twenty five thousand pounds sterling a year; a fund amply sufficient, with the duties on sugars, &c. and more than sufficient, at that time, to pay all the salaries of all the governors upon the continent, and all judges of admiralty too.

Mr. King, formerly of Massachusetts, now of New-York, in a late, luminous and masterly speech, in senate, page 18, informs us, from sure sources, that "we import annually upwards of six million gallons of West India rum." The Lord have mercy on us! "More than half of which comes from the English colonies. We also import every year, nearly seven millions of gallons of molasses; and as every gallon of molasses yields, by distillation, a gallon of rum, the rum imported, added to that distilled from molasses, is probably equal to twelve millions of gallons, which enormous quantity is chiefly consumed, besides whiskey, by citizens of the United States." Again, I devoutly pray, the Lord have mercy on us!

But calculate the revenue, at this day, from this single act of George 2d. It would be sufficient to bribe any nation, less knowing and less virtuous, than the people of America, to the voluntary surrender of all their liberties.

Mr. Otis asserted this to be a revenue law; a taxation law; an unconstitutional law; a law subversive of every end of society and government; it was null and void. It was a violation of all the rights of nature, of the English constitution, and of all the charters and compacts with the colonies; and if carried into execution by writs of assistance, and courts of admiralty, would destroy all security of life, liberty, and property. Subjecting all these laws to the jurisdiction of judges of admiralty, poor dependent creatures; to the forms and course of the civil law, without juries, or any of the open, noble examination of witnesses, or publicity of proceedings, of the common law, was capping the climax, it was clenching the nail of American slavery.

Mr. Otis roundly asserted, that this statute, and the preceding statutes, never could be executed. The whole power of Great Britain would be ineffectual; and by a bold figure, which will now be thought exaggeration, he declared, that if the king of Great Britain in person were encamped on Boston common, at the head of twenty thousand men, with all his navy on our coast, he would not be able to execute these laws. They would be resisted or eluded.

JOHN ADAMS.

TO THE HON. WM. TUDOR.

_Quincy_, _August_ 21, 1818.

DEAR SIR,

Mr. Otis quoted another author, "The political and commercial works of Charles D'Avenant, L.L. D. vol. 2. discourse 3 On the plantation trade." I cannot transcribe seventy six pages, but wish that Americans of all classes would read them. They are in the same strain with Downing, Child, Gee, Ashley, Charles 2, James 2, William and Mary, William 3, Ann, George 2, and George 3; all conspiring to make the people of North America hewers of wood and drawers of water, to plantation governors, custom house officers, judges of admiralty, common informers, West India planters, naval commanders, in the first place; and, after all these worthy people should be amply supported, nourished, encouraged and pampered, if any thing more could be squeezed from the hard earnings of the farmers, the merchants, the tradesmen and labourers in America, it was to be drawn into the exchequer in England, to aggrandize the British navy.

Mr. Otis proceeded to another species of statutes, relative to our internal policy, even our domestic manufactures and fireside comforts; I might say, our homespun blankets and woollen sheets, so necessary to cover some of us, if not all of us, in our slumbers in the long nights of our frozen winters. I shall refer to these statutes as they occur, without any regard to order, and shall not pretend to transcribe any of them.

"Furs of the plantations to be brought to Great Britain. 8 Geo. 1. c. 15. ss. 24."

"Hats, not to be exported from one plantation to another. 5 Geo. 2. c. 22."

"Hatters in America, not to have more than two apprentices. 5 Geo. 2. c. 22. ss. 7."

"Slitting mills, steel furnaces, &c. not to be erected in the plantations. 23 Geo. 2. c. 29. ss. 9."

"No wool, or woollen manufacture of the plantations shall be exported. 10 & 11 Wm. 3. c. 10. ss. 19."

"Exporting wool, contrary to the regulations, forfeiture of the ship, &c. 12 Geo. 2. c. 21. ss. 11."

I cannot search for any more of these mincing laws. Mr. Otis alternately laughed and raged against them all. He said one member of parliament had said, that a hobnail should not be manufactured in America; and another had moved that Americans should be compelled by act of parliament, to send their horses to England to be shod. He believed, however, that this last was a man of sense, and meant, by this admirable irony, to cast a ridicule on the whole selfish, partial, arbitrary and contracted system of parliamentary regulations in America.

Another statute there is, and was quoted by Mr. Otis, by which wool was prohibited to be water-borne in America; in consequence of which, a fleece of wool could not be conveyed in a canoe across a river or brook, without seizure and forfeiture.

But I am wearied to death by digging in this mud; with searching among this trash, chaff, rubbish of acts of parliament; of that parliament which declared it had a right to legislate for us, as sovereign, absolute and supreme, in all cases whatsoever. But I deny that they ever had any right to legislate for us, in any case whatsoever. And on this point we are and were at issue, before God and the world. These righteous judges have decided the question; and it is melancholy that any Americans should still doubt the equity and wisdom of the decision.

Such were the bowels of compassion, such the tender mercies of our pious, virtuous, our moral and religious mother country, towards her most dutiful and affectionate children! Such they are still; and such they will be, till the United States shall compel that country to _respect_ this. To this end, poor and destitute as I am, I would cheerfully contribute double my proportion of the expense of building and equipping thirty ships of the line, before the year 1820.

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.

"If the spirit of commerce was attended to, perhaps duties would be every where decreased, if not annihilated, and prohibitions multiplied. Every branch of trade, that hurts a community, should be prohibited for the same reason, that a private gentleman would break off commerce with a sharper, or an extensive usurer. It is to no purpose to higgle with such people; you are sure to loose by them. It is exactly so with a nation, if the balance is against them; and they can possibly subsist without the commodities as they generally can in such cases, a prohibition is the only remedy; for a duty in such a case, is like a composition with a thief, that for five shillings in the pound returned, he shall rob you at pleasure; when, if the thing is examined to the bottom, you are at five shillings expense in travelling to get back your five shillings; and he is at the same expense in coming to pay it. So he robs you of but ten shillings in the pound, that you thus wisely compound for. To apply this to trade, I believe every duty, that was ever imposed on commerce, or in the nature of things can be, will be found to be divided between the state imposing the duty, and the country exported from. This, if between the several parts of the same kingdom or dominions of the same prince, can only tend to embarrass trade, and raise the price of labour above other states, which is of very pernicious consequence to the husbandman, manufacturer, mariner and merchant, the four tribes that support the whole hive. If your duty is upon a commodity of a foreign state, it is either upon the whole useful and gainful; and therefore necessary for the husbandman, manufacturer, mariner or merchant, as finally bringing a profit to the state, by a balance against your state. There is no medium that we know of. If the commodity is of the former kind, it should be prohibited; but if the latter, imported duty free, unless you would raise the price of labour by a duty on necessaries, or make the above wise composition for the importation of commodities, you are sure to lose by it.

"The only test of a useful commodity is the gain upon the whole to the state; such should be free; the only test of a pernicious trade is the loss upon the whole or to the community; this should be prohibited. If therefore it can be demonstrated, that the sugar and molasses trade from the northern colonies to the foreign plantations, is, upon the whole, a loss to the community, by which term is here meant, the three kingdoms and the British dominions taken collectively, then, and not till then, should this trade be prohibited. This never has been proved, nor can be; the contrary being certain, to wit: that the nation upon the whole hath been a vast gainer by this trade, in the vend of and pay for its manufactures; and a great loss by a study upon this trade will finally fall on the British husbandman, manufacturer, mariner and merchant; and consequently the trade of the nation be wounded, and in constant danger of being eat out by those who can undersell her.

"The art of underselling, or rather of finding means to undersell, is the grand secret of thrift among commercial states, as well as among individuals of the same state. Should the British sugar islands ever be able to supply Great Britain, and her northern colonies with those articles, it will be time enough to think of a total prohibition; but until that time, both prohibition and duty will be found to be diametrically opposite to the first principles of policy. Such is the extent of this continent, and the increase of its inhabitants, that if every inch of the British sugar islands was as well cultivated as any part of Jamaica or Barbadoes, they would not now be able to supply Great Britain, and the colonies on this continent. But before such further improvements can be supposed to take place in our islands, the demands will be proportionably increased by the increase of the inhabitants on the continent. Hence the reason is plain, why the British sugar planters are growing rich, and demands on them, ever will be greater than they can possibly supply, so long as the English hold this continent, and are unrivalled in the fishery.

"We have every thing good and great to hope from our gracious sovereign, his ministry and his parliament; and trust, that when the services and sufferings of the British American colonies are fully known to the mother country, and the nature and importance of the plantation trade more perfectly understood at home, that the most effectual measures will be taken for perpetuating the British empire in all parts of the world. An empire built upon the principles of justice, moderation and equity, the only principles that can make a state flourishing, and enable it to elude the machinations of its secret and inveterate enemies."

Excuse errors, for I cannot revise and correct. I hope your patience will never be put to the trial of another letter so long and dry. One or two more, much shorter, will close the subject of writs of assistance, and relieve you from _ennui_, as well as your friend,

JOHN ADAMS.

TO THE HON. WM. TUDOR.

_Quincy_, _September_ 10, 1818.

DEAR SIR,

The charters were quoted or alluded to by Mr. Otis frequently in the whole course of his argument: but he made them also a more destined and more solemn head of his discourse. And here, these charters ought to be copied verbatim. But an immense verbiage renders it impossible. Bishop Butler somewhere complains of this enormous abuse of words in public transactions, and John Reed and Theophilus Parsons of Massachusetts have attempted to reform it. So did James Otis; all with little success. I hope, however, that their examples will be followed, and that common sense in common language will, in time, become fashionable. But the hope must be faint as long as clerks are paid by the line and the number of syllables in a line.

Some passages of these charters must however, be quoted; and I will endeavour to strip them as well as I can, of their useless words. They are recited in the charter of king William and queen Mary, dated the seventh day of October, in the third year of their reign, _i. e._ in 1691.

"Whereas king James the first, in the 18th year of his reign, did grant to the council at Plymouth, for the planting and governing New England, all that part of America, from the 40th to the 48th degree of latitude, and from sea to sea, together with all sands, waters, fishings, and all and singular other commodities, _jurisdictions_, royalties, privileges, franchises and pre-eminences, both within the said tract of land upon the main, and also within the islands and seas adjoining: to have and hold, all, unto the said council, their heirs and successors and assigns forever: to be holden of his said majesty as of his manor of East Greenwich, in free and common socage, and not in capite, or by knights' service.--Yielding to the king a fifth part of the ore of gold and silver. _For and in respect of all and all manner of duties, demands and services whatsoever._"

But I cannot pursue to the end this infinite series of words.--You must read the charter again. For although you and I have read it fifty times, I believe you will find it, as I do, much stronger in favour of Mr. Otis's argument than I expected or you will expect. I doubt whether you will take the pains to read it again; but your son will, and to him I recommend it.

The council of Plymouth, on the 19th of March, in the 3d year of the reign of Charles the first, granted to sir Henry Roswell and others, part of New England by certain boundaries, with all the prerogatives and privileges.

King Charles the first, on the 4th of March, in the fourth year of his reign confirmed to sir Henry Roswell and others, all those lands before granted to them by the council of Plymouth. King Charles the first, created sir Henry Roswell and others, a body corporate and politick. And said body politick, did settle a colony which became very populous.

In 1684, in the 36th year of king William and queen Mary's _dearest uncle_, Charles the second, a judgment was given in the court of chancery, that the letters patent of Charles the first, should be cancelled, vacated and annihilated.

The agents petitioned to be re-incorporated; I can easily conceive their perplexity, their timidity, their uncertainty, their choice of difficulties, their necessary preference of the least of a multitude of evils: for I have felt them all, as keenly as they did.

William and Mary unite Massachusetts, New Plymouth, the Province of Maine and Nova Scotia, into one province, to be holden in fee of the manor of East Greenwich, paying one fifth of gold and silver ore.

Liberty of conscience to be granted to all Christians, except papists. Good God! A grant from a king of liberty of conscience. Is it not a grant of the King of Kings, which no puppet or royalist upon earth can give or take away?

The general court impowered to erect judicatories and courts of record. The general court impowered to make laws, "_not repugnant to the laws of England_." Here was an unfathomable gulf of controversy. The grant itself, _of liberty of conscience_, was repugnant to the laws of England. Every thing was repugnant to the laws of England. The whole system of colonization was beyond the limits of the laws of England, and beyond the jurisdiction of their national legislature. The general court is authorized to impose fines, &c. and taxes.

But the fell paragraph of all, is the proviso in these words:--"Provided always, and it is hereby declared that nothing herein shall extend or be taken to erect or grant, or allow the exercise of any admiralty court jurisdiction, power, or authority, but that the same shall be, and is hereby reserved to us and our successors, and shall from time to time, be erected, granted and exercised by virtue of commissions to be issued under the great seal of England, or under the seal of the high admiral, or the commissioners for executing the office of high admiral of England."

The history of this court of admiralty would require volumes. Where are its records and its files? Its libels and answers? Its interrogatories and cross interrogatories? All hurried away to England, as I suppose never to be seen again in America, nor probably to be inspected in Europe.

The records and files of the court of probate in Boston were transported to Halifax. Judge Foster Hutchinson had the honour to return them after the peace of 1783. But admiralty records have never been restored as I have heard.

The subject may be pursued hereafter by your servant,

JOHN ADAMS.

TO THE HON. WM. TUDOR.

_Quincy_, _September_ 13, 1818.

DEAR SIR,

It is some consolation to find in the paragraph of the charter, next following the court of admiralty, that nothing in it "shall in any manner enure, or be taken to abridge, bar, or hinder any of our loving subjects whatsoever, to use and exercise the trade of fishing upon the coasts of New England, but that they and every of them shall have full and free power and liberty to continue and use their said trade of fishing upon the said coast, in any of the seas thereunto adjoining, or any arms of the said seas, or salt water rivers, where they have been wont to fish; and to build and sett, upon the lands within our said province or colony, lying waste, and not then possessed by particular proprietors, such wharfs, stages, and work-houses, as shall be necessary for the salting, drying, keeping and packing of their fish, to be taken and gotten upon that coast; and to cut down and take such trees and other materials there growing or being upon any parts or places lying waste, and not then in possession of particular proprietors, as shall be needful for that purpose, and for all other necessary easments, helps and advantages, concerning the trade of fishing there, in such manner and form, as they have been heretofore at any time accustomed to do, without making any willful waste or spoil, any thing in these presents to the contrary notwithstanding."

Fellow citizens! Recollect that "This our province or colony" contained the whole of Nova Scotia as well as the "Province of Maine, Massachusetts bay and New Plymouth." Will you ever surrender one particle, one iota of this sacred charter right, and still more sacred right of nature, purchase, acquisition, possession, usage, habit and conquest? Let the thunder of British cannon say what it will, I know you will not. I know you cannot. And if you could be base enough to surrender it, which I know you cannot and never will be, your sons will reclaim it, and redemand it, at the price of whatever blood or treasure it may cost, and will obtain it, secure it, and command it, forever. This pretended _grant_ is but an acknowledgment of your antecedent right by nature, and by English liberty. You have no power or authority to alienate it. It was granted, or rather acknowledged to your successors and posterity as well as to you, and any cessions you could make would be null and void in the sight of God and all reasonable men.

Mr. Otis descanted largely on these charters. His observations carried irresistible conviction to the minds and hearts of many others as well as to mine, that every one of those statutes from the navigation act, to the last act of trade, was a violation of all the charters and compacts between the two countries, was a fundamental invasion of our essential rights, and was consequently null and void; that the legislatures of the colonies, and especially of Massachusetts, had the sole and exclusive authority of legislation and especially of taxation in America.

The indecision and inconsistency which appear in some of Mr. Otis's subsequent writings is greatly to be regretted and lamented. They resemble those of colonel Bland, as represented by Mr. Wirt. I wish I had Col. Bland's pamphlet, that I might compare it with some of Mr. Otis's.

I have too many daily proofs of the infirmity of my memory to pretend to recollect Mr. Otis's reasoning in detail. If, indeed, I had a general recollection of any of his positions, I could not express them in that close, concise, nervous and energetic language, which was peculiar to him, and which I never possessed.

I must leave you, sir, to make your own observations and reflections upon these charters. But you may indulge me in throwing out a few hints, rather as queries or topicks of speculation, than as positive opinions. And here, though I see a wide field, I must make it narrow.

1. Mr. Bollan was a kind of learned man, and of indefatigable research, and a faithful friend to America; though he lost all his influence when his father-in-law governor and general Shirley went out of circulation. This Mr. Bollan, printed a book very early on the "rights of the colonies." I scarcely ever knew a book so deeply despised. The English reviews would not allow it to be the production of a rational creature. In America itself it was held in no esteem. Otis himself, expressed in the house of representatives, in a public speech, his contempt of it in these words: "Mr. Bollan's book is the strangest thing I ever read; under the title of 'Rights of Colonies,' he has employed one third of his work to prove that the world is round; and another, that it turns round; and the last, that the pope was a devil for pretending to give it to whom he pleased."

All this I regretted. I wished that Bollan had not only been permitted, but encouraged to proceed. There was no doubt he would have produced much in illustration of the ecclesiastical and political superstition and despotism of the ages when colonization commenced and proceeded. But Bollan was discouraged and ceased from his labours.

What is the idea, Mr. Tudor, of British allegiance? And of European allegiance? Can you, or rather will you analize it? At present, I have demands upon me, which compel me to close abruptly, with the usual regard of your friend,

JOHN ADAMS.

TO THE HON. WM. TUDOR.

_Quincy_, _September_ 18, 1818.

DEAR SIR,

The English doctrine of allegiance is so mysterious, fabulous and enigmatical, that it is difficult to decompose the elements of which it is compounded. The priests, under the Hebrew economy, especially the sovereign pontiffs, were anointed with consecrated oil, which was poured upon their heads in such profusion, that it ran down their beards, and they were thence called "the Lord's anointed." When kings were permitted to be introduced, they were anointed in the same manner by the sovereign pontiff; and they too were called "the Lord's anointed." When the pontiffs of Rome assumed the customs, pomps and ceremonies of the Jewish priesthood, they assumed the power of consecrating things, by the same ceremony of "holy oil." The pope, who, as vicar of God, possessed the whole globe of earth in supreme dominion and absolute property, possessed also the power of sending the holy ghost wherever he pleased. To France it pleased his holiness to send him in a phial of oil; to Rheims in the beak of a dove. I have not heard, that my friend, Louis 18th. has been consecrated at Rheims by the pouring on of this holy oil; but his worthy elder brother, Louis 16th. was so consecrated at a vast expense of treasure and ridicule. How the holy bottle was conveyed to England, is worth inquiry. But there it is, and is used at every coronation; and is demurely, if not devoutly shewn to every traveller who visits the tower. These ideas were once as firmly established in England, as they were in Rome; and no small quantity of the _relicks_ of them remain to this day. Hence the doctrines of the divine right of kings, and the duties in subjects of unlimited submission, passive obedience and non-resistance, on pain (Oh, how can I write it) of eternal damnation. These doctrines have been openly and boldly asserted and defended, since my memory, in the town of Boston, and in the town of Quincy, by persons of no small consideration in the world, whom I could name, but I will not, because their posterity are much softened from this severity.

This indelible character of sovereignty in kings, and obedience in subjects, still remains. The rights and duties are inherent, unalienable, indefeasible, indestructible and immortal. Hence the right of a lieutenant or midshipman of a British man of war, to search all American ships, impress every seaman his judgeship shall decree by law, and in fact to be a subject of his king, and compel him to fight, though it may be against his father, brother or son. My countrymen! will you submit to these miserable remnants of priestcraft and despotism?

There is no principle of law or government, that has been more deliberately or more solemnly adjudged in Great Britain, than that allegiance is not due to the king in his official capacity or political capacity, but merely to his personal capacity. Allegiance to parliament is no where found in English, Scottish or British laws. What, then, had our ancestors to do with parliament? Nothing more than with the Jewish Sanhedrim, or Napoleon's literary and scientific Institute at Grand Cairo. They owed no allegiance to parliament as a whole, or in part. None to the house of lords, as a branch of the legislature, nor to any individual peer or number of individuals. None to the house of commons, as another branch, nor to any individual commoner or group of commoners. They owed no allegiance to the nation, any more than the nation owed to them; and they had as good and clear a right to make laws for England, as the people of England had to make laws for them.

What right, then, had king James 1st. to the sovereignty, dominion, or property of North America? No more than king George 3d. has to the Georgium Sidus, because Mr. Herschell discovered that planet in his reign. His only colour, pretension or pretext is this. The pope, as head of the church, was sovereign of the world. Henry 8th. deposed him, became head of the church in England; and consequently became sovereign master and proprietor of as much of the globe as he could grasp. A group of his nobles hungered for immense landed estates in America, and obtained from his _quasi holiness_ a large tract. But it was useless and unprofitable to them. They must have planters and settlers. The sincere and conscientious protestants had been driven from England into Holland, Germany, Switzerland, &c. by the terrors of stocks, pillories, croppings, scourges, imprisonments, roastings and burnings, under Henry 8th. Elizabeth, Mary, James 1st. and Charles 1st. The noblemen and gentlemen of the council of Plymouth wanted settlers for their lands in America, and set on foot a negotiation with the persecuted fugitive religionists abroad, promised them liberty of conscience, exemption from all jurisdiction, ecclesiastical, civil and political, except allegiance to the king, and the tribute, moderate surely, of one fifth of gold and silver ore. This charter was procured by the council at Plymouth, and displayed off as a lure to the persecuted, fugitive Englishmen abroad; and they were completely taken into the snare, as Charles 2d. convinced them in the first year of his actual, and the twelfth of his imaginary reign. Sir Josiah Child, enemy as he was, has stated, in the paragraphs quoted from him in a former letter fairly and candidly the substance of these facts.

Our ancestors had been so long abroad, that they had acquired comfortable establishments, especially in Holland, that singular region of toleration, that glorious asylum for persecuted Hugunots and Puritans; that country where priests have been enternally worrying one another; and alternately teazing the government to persecute their antagonists, but where enlightened statesmen have constantly and intrepidly resisted their wild fanaticism.

The first charter, the charter of James 1st. is more like a treaty between independent sovereigns, than like a charter of grant of privileges from a sovereign to his subjects. Our ancestors were tempted by the prospect and promise of a government of their own, independent in religion, government, commerce, manufactures, and every thing else, excepting one or two articles of trifling importance.

Independence of English church and state, was the fundamental principle of the first colonization, has been its general principle for two hundred years, and now I hope is past dispute.

Who then was the author, inventor, discoverer of independence? The only true answer must be the first emigrants; and the proof of it is the charter of James 1st. When we say, that Otis, Adams, Mayhew, Henry, Lee, Jefferson, &c. were authors of independence, we ought to say they were only awakeners and revivers of the original fundamental principle of colonization.

I hope soon to relieve you from the trouble of this tedious correspondence with your humble servant,

JOHN ADAMS.

TO THE HON. WM. TUDOR.

_Quincy_, _September_ 23, 1818.

DEAR SIR,

If, in our search of principles, we have not been able to investigate any moral, philosophical or rational foundation for any claim of dominion or property in America, in the English nation, their parliament or even of their king; if the whole appears a mere usurpation of fiction, fancy and superstition; what was the right to dominion or property in the native Indians?

Shall we say, that a few handfulls of scattering tribes of savages have a right to dominion and property over a quarter of the globe, capable of nourishing hundreds of happy human beings? Why had not Europeans a right to come and hunt and fish with them?

The Indians had a right to life, liberty and property in common with all men; but what right to dominion or property beyond these? Every Indian had a right to his wigwam, his armour, his utensils; when he had burned the woods about him, and planted his corn and beans, his squashes and pompions, all these were his undoubted right: but will you infer from this, that he had right of exclusive dominion and property, over immense regions of uncultivated wilderness, that he never saw, that he might have the exclusive privilege of hunting and fishing in them, which he himself never expected or hoped to enjoy?

These reflections appear to have occurred to our ancestors; and their general conduct was regulated by them. They do not seem to have had any confidence in their charter, as conveying any right, except against the king, who signed it. They considered the right to be in the native Indians. And in truth all the right there was in the case, lay there. They accordingly respected the Indian wigwams and poor plantations; their clambanks and musclebanks and oysterbanks, and all their property.

Property in land, antecedent to civil society, or the social compact, seems to have been confined to actual possession and power of commanding it. It is the creature of convention; of social laws and artificial order. Our ancestors, however, did not amuse themselves, nor puzzle themselves with these refinements. They considered the Indians as having rights; and they entered into negotiations with them, purchased and paid for their rights and claims, whatever they were, and procured deeds, grants, and quit claims of all their lands, leaving them their habitations, arms, utensils, fishings, huntings and plantations. There is scarcely a litigation at law concerning a title to land, that may not be traced to an Indian deed. I have in my possession, somewhere, a parchment copy of a deed of Massasoit of the township of Braintree, incorporated by the legislature in one thousand six hundred and thirty nine. And this was the general practice through the country, and has been to this day through the continent. In short, I see not how the Indians could have been treated with more equity or humanity, than they have been in general in North America. The histories of Indian wars have not been sufficiently regarded.

When Mr. Hutchinson's history of Massachusetts bay first appeared, one of the most common criticisms upon it, was the slight, cold and unfeeling manner in which he passed over the Indian wars. I have heard gentlemen the best informed in the history of the country, say, "he had no sympathy for the sufferings of his ancestors," "otherwise he could not have winked out of sight, one of the most important, most affecting, afflicting and distressing branches of the history of his country."

There is somewhere in existence, as I hope and believe, a manuscript history of Indian wars, written by the Rev. Samuel Niles of Braintree. Almost sixty years ago, I was an humble acquaintance of this venerable clergyman, then, as I believe more than four score years of age. He asked me many questions, and informed me, in his own house, that he was endeavouring to recollect and commit to writing an history of Indian wars, in his own time, and before it, as far as he could collect information. This history he completed and prepared for the press: but no printer would undertake it, or venture to propose a subscription for its publication. Since my return from Europe, I enquired of his oldest son, the Hon. Samuel Niles of Braintree, on a visit he made me at my own house, what was become of that manuscript? He laughed, and said it was still safe in the till of a certain trunk; but no encouragement had ever appeared for its publication. Ye liberal christians! Laugh not at me, nor frown upon me, for thus reviving the memory of your once formidable enemy. I was then no more of a disciple of his theological science than ye are now. But I then revered and still revere the honest, virtuous and pious man. _Fas est et ab hoste doceri._ And his memorial of facts might be of great value to this country.

What infinite pains have been taken and expenses incurred in treaties, presents, stipulated sums of money, instruments of agriculture, education? What dangerous and unwearied labours to convert the poor ignorant savages to christianity? And alas! with how little success? The Indians are as bigotted to their religion as the Mahometans are to their Koran, the Hindoos to their Shaster, the Chinese to Confucius, the Romans to their Saints and Angels, or the Jews to Moses and the Prophets. It is a principle of religion, at bottom, which inspires the Indians with such an invincible aversion both to civilization and Christianity. The same principle has excited their perpetual hostilities against the colonists and the independent Americans.

If the English nation, their parliaments and all their kings have appeared to be totally ignorant of all these things, or at least to have vouchsafed no consideration upon them; if we, good patriotic Americans have forgotten them, Mr. Otis had not. He enlarged on the merit of our ancestors in undertaking so perilous, arduous, and almost desperate an enterprize, in disforresting bare creation; in conciliating and necessarily contending with Indian natives; in purchasing rather than conquering a quarter of the globe at their own expense, at the sweat of their own brows; at the hazard and sacrifice of their own lives; without the smallest aid, assistance or comfort from the government of England, or from England itself as a nation. On the contrary, constant jealousy, envy, intrigue against their charter, their religion and all their privileges. Laud, the pious tyrant dreaded them, as he foresaw they would overthrow his religion.

Mr. Otis reproached the nation, parliaments and kings with injustice, ungenerosity, ingratitude, cruelty and perfidy in all their conduct towards this country, in a style of oratory that I never heard equalled in this or any other country.

JOHN ADAMS.