174 The Declaration of Independence [1776 of independence. Accordingly, on July 4, 1776, Congress passed the resolution which made the colonies independent communities, issuing at the same time the well-known Declaration of Independence. If we regard the Declaration as the assertion of an abstract political theory, criticism and condemnation are easy. It sets out with a general proposition so vague as to be practically useless. The doctrine of equality of men, unless it be qualified and conditioned by full reference to special circumstance, is either a barren truism or a delusion. But, though this limitation is not explicitly stated, it is present. We must judge the opening sentence with reference to what follows and to the actual facts present in the minds of those who drafted it. That sentence is little more than a formal preamble to what follows, namely to the statement of the wrongs which the colonists had suffered from their sovereign. No one now would accept that statement as a fair historical account of what had happened. Of the eighteen heads of indictment, each beginning "he has," there is hardly one which does not demand some modification or admit of some palliative. That part of the Declaration must be looked on as a criminal indictment drawn by an advocate, with just that lack of scruple which advocacy is generally held to justify. And though the assertion of human equality may have no exact or scientific basis, yet it is a description roughly correct of the theory which underlay the political life of the colonies, and which had been gradually separating them from the mother-country. In the Declaration of Independence that democratic system which had gradually, through force of circumstances, established itself in the colonies. was blended with that element of sentiment, rhetorically expressed, which was needed if democracy was to be the quickening principle of a great popular movement. We may reverse this view, and say that the sentimental and rhetorical conception of democracy lost its dangers when it could embody itself in familiar and fully tested habits of action. When the teaching of Rousseau found its way to America, it was used, not in attempts to create a new heaven or a new earth, but to give the dignity of idealism and the attraction of romance to practical canons of conduct which had been slowly developing under the pressure of outward events. A little later we meet that principle in the Old World emancipated from these safeguards. Its expectations are no longer steadied by contact with historical facts, and it may at any moment become the stock-in-trade of charlatans or the ignis fatuus of dreamers. The ideal of liberty and equality recovers its value when it passes out of the area of abstract propositions and becomes a standard of perfection whereby to measure actual forms and institutions which have their origin not in theory but in history. CHAPTER VI THE DECLARATION OF INDEPENDENCE (1761-1776) THE struggle between Great Britain and her colonies in America, after it had become acute, and the struggle which followed, over the form of government of the American States, after the War of Independence, concerned one and the same thing, the theory, in public and private relations, of legal right; the popular name for which, both in England and America, was liberty or freedom. It is proper to put aside, as declamatory, the violence of the few on the one side who flouted the idea that the colonies or colonists had "rights" against the State which made them, and of the many on the other who profaned the name of liberty or used it in ignorance; and then it will be found that both sides to the struggle, and all sides, sooner or later, came to agree upon the question at issue. Every argument, finally, as the struggle went on, planted itself in legal right. Whether the question was of the issuance of "writs of assistance," or of the extension of admiralty jurisdiction, or of the general powers of Parliament over the colonies whether it was one of private or public right — it was in reality a question of legal right. Right according to English law is a train of light — running through the whole dark time of trouble and anxiety-by which both sides professed to be led. The general meaning too of legal right was agreed upon by most of the leaders and thinkers, on both sides of the Atlantic. Americans had learned from England that legal right exists where States and men have. and hold their own without unjust interruption, and where, in time of need, one must yield to another, but no further than need requires; which is but saying that legal right exists where equal rights prevail. This was the common law of England, which was the "birthright" of Americans. If the teaching that legal right imports equality before the law had not, by the middle of the eighteenth century, come to be universal in England, it was at any rate the general teaching of the Courts, of Parliament, and of jurists there. It had long been the prevailing idea in America, as doctrine; it became universal as law, from the War of Independence. Indeed the few Englishmen who 176 Legal right. Theory of equality [1761 declared that colonies had no "rights" against the parent-State, probably held that language, where it was not mere declamation or violence, upon the very footing that rights, in the English legal sense, imported equality; and the equality of the colonies with England was of the very substance of what they denied. And as for that, if rights in the sense of equality meant the equality just named, most Englishmen and many Americans, perhaps a majority of Americans, even at the time of the Declaration of Independence, held the same view. It was never contended in America that the colonies had equal rights, in the largest sense, with England. Such a contention would have been false and silly. It was legal right, as they understood the term, rather than equal rights with England, that they were contending for. There was however a plain sense in which the Whigs (if not the loyalists) of the colonies contended for equality with the mother-State, even in matters in which they admitted their subordination. Legal right, in the sense of equality, was consistent, they said, with a certain degree of subordination. Nothing was more familiar to lawyers and jurists, not to speak of philosophers, than the idea of subordination in equality, nay, of subordination as necessary to equality in the social organism of the State. Evil besets mankind; rights are constantly being invaded; and the breach must be made good, if equality is to be kept up. But the redress of broken rights may bring hardship upon innocent men; and so may the ordinary exercise of legal rights, as distinguished from the redress of broken rights; still innocent men must yield, they must suffer, just so much as in reason is necessary for redress of the wrong; otherwise there could be no equality, and legal right would be only a name. All this was familiar enough; and it was virtually applied by most of the Whigs to the relation of the colonies to Great Britain. The colonies, consistently with having legal rights against Great Britain, must yield to demands for redress of one colony for instance, against another; they must yield to Great Britain, where it was reasonably necessary to do so to enable Great Britain to maintain her rights. All this was considered sound theory; but most Americans, who opposed the English Ministry, took their stand there. Further they would not go; there legal right on the one side met legal right on the other; there, at the line of meeting, the colonies stood upon equality with the mother-State. "The theory is just, and time will establish it," said the Maryland jurist Dulaney, a man of ability and moderation. The real question therefore was whether the English and American doctrine of legal right, in the sense of equality in subordination, should be applied to the relation of England to the colonies. America held that it should; England denied and refused, and separation followed. Three classes of complaint were made against Great Britain by the colonies, namely: 1. Abuse of authority; the authority of government admitted, that 1761] Paxton's case. Writs of assistance 177 authority had been unduly exercised in the issuance of general "writs of assistance," in prohibiting and breaking up "assemblies," in suspending and refusing assent to acts of legislation, in laying unduly burdensome restrictions upon trade, and in other things. 2. Discriminating legislation; passing by the question of the general powers of Parliament over the colonies, Parliament had lately extended admiralty jurisdiction in America over matters not within it in England, and had proposed to deprive Americans accused of treason of the right to be tried by a jury of the vicinage. 3. Interference in the affairs of the colonies under claim of universal authority, "in all cases whatsoever." These topics cover the American theory, at the time, of the true relation of the colonies to the mother-State. Let us take them in order. The acute stage in the troubles between England and the colonies began, it may fairly enough for the present purpose be said, with a cause in Court touching private right. In the February term, 1761, of the Superior Court of. Massachusetts Bay, application was made by Charles Paxton, Surveyor and Searcher of the Port of Boston, and by other officers of the customs, for a renewal of certain revenue process called the writ of assistance or "assistants." This was King's debtor process of the Court of Exchequer in England. The writ had been. framed under statutes of the reign of Charles II, passed in aid of the officers of revenue; which legislation had by statute of the reign of William III been extended to America. The writ was addressed to all justices of the peace, sheriffs, constables, and other officers and subjects of the King. Reciting the statutes and the jurisdiction of the Superior Court, the writs now asked for declared, in substance, that the officer serving the process had power to enter any ship, bottom boat, or other vessel, and any shop, house, warehouse, hostelry, or other place whatsoever, to make diligent search into any trunk, chest, pack, case, truss, or any other parcel or package whatsoever, for any goods, wares, or merchandise prohibited to be imported or exported, or whereof the customs or other duties had not been duly paid, and to seize the same to his Majesty's use. It then commanded. the persons addressed to permit the revenue officers, by night and by day, to enter any ship, boat, or other vessel, within or coming to the port of Boston or places pertaining thereto, to search and oversee, and strictly to examine, the persons therein touching the premises, and also, in the daytime, to enter the vaults, cellars, warehouses, shops, and other places where any prohibited goods, wares and merchandise, or any goods, wares and merchandise for which the customs or other duties had not been duly paid, lay concealed or were suspected to be concealed; that C. M. H. VII. 12 178 Defence of the writs [1761 they inspect and oversee and search for the said goods, wares, and merchandise: and that they, from time to time, be aiding, assisting, and helping the revenue officers in the execution of the process. The process (which was against goods alone; it did not authorise arrest of men) ran through the particular reign in which it was granted, and for six months afterwards. Writs of the kind had been granted by Crown judges or governors before in Massachusetts, as the statement above made, that the application was for a renewal of process, implies; but former applications had not created excitement. Still the use made, or to be made, of the writs had not passed unnoticed; and now that, at the outset of the reign of George III, the old writs were about to expire, and new ones were asked for, to run of course indefinitely in time, the whole situation was at once changed. The public was aroused; it seemed indeed as if all the people of Massachusetts had become parties to the cause. The merchants of Boston formally asked and obtained leave to be heard by counsel on the question whether the Crown really had the right, by law, to invade private premises, and to seize property, under process, not based on oath, which was not to name the premises or the property, or to allege any ground for supposing that an offence against the revenue laws had been committed. The case was argued twice. The ground taken for the petitioners is shown in the opening words of the petition; "they cannot," they allege, "fully exercise their offices in such a manner as his Majesty's service and the laws in such cases require, unless your Honours, who are vested with the power of a Court of Exchequer for this province, will please to grant them writs of assistants." Gridley, who appeared for the petitioners, admitted that the writ of assistance took away the common privileges of Englishmen ; but so did process in cases of crime; officers might break and enter houses to serve process in common law cases of felony. The necessity of the case justified the writ. Smugglers would elude the law if they had notice, and government would lose its means of support. Was not the revenue the sole support of fleets and armies abroad and ministers at home? Could the nation be preserved without such help? Was not this a matter infinitely more important than the punishment of thieves or even murderers? Indeed the power in question was the same as that given by law of the province to treasurers for collecting taxes. Individuals must yield in such cases; the necessity of having public taxes and public revenues speedily collected was of much greater moment than the liberty of individuals. In the course of the second hearing Gridley further argued that the writ in question was a writ of assistants, not of assistance; it was not intended to give greater power to officers, but to provide a check upon them; they were to have assistants to watch them. They could not enter a house without the presence of the sheriff or some other civil |