1761]

Objection to the writs

179

officer to have an eye over them; that would save the writ from objection.

Thacher, who was with Otis for the merchants of Boston, contended that the Superior Court had solemnly disclaimed the authority of the English Court of Exchequer. But assuming that the Court had the power of the English Exchequer, there were many circumstances which made the English practice an improper precedent for this case. There the officers were sworn in Court, and were accountable to it they were obliged to pass their accounts there weekly; that was not the case here. In the English Court too cases were tried and tried finally; which was another difference. Again, the officers of the customs in England were officers of the Exchequer, and could be punished corporally for misbehaviour. No such authority had been given to this Court by the statute under which alone the petition was drawn. On the merits of the question, Thacher said that it was either a case in which the judges must act, or it was one of discretion. The statutes did not support the first view; as for the second, it could not be within the power of a judge, at discretion, to determine whether a man's house should be broken open, any more than to determine, at discretion, whether a man should be hanged or not.

Thacher's argument did not touch the authority of Parliament; his contention was, that the writs desired by the Crown officers were not authorised by the statutes of England. Though such writs were good there, they were invalid in America; a distinction made also in Pennsylvania by John Dickinson.

Otis argued against the very writ itself. It was an unlawful thing in very substance; it was against the fundamental principles of law. A man's house was his castle, a place privileged from officers of government in matters of debt and civil process of any kind, including that of the Exchequer. Houses might, he admitted, be broken open to serve process of felony, as Gridley had said; but that could be done only by special (as distinguished from general, indefinite) warrant, granted on oath, naming the house to be searched as suspected, and alleging good grounds of suspicion. Let the officers now make oath. and get such special warrants, if they needed to break open houses; that was what the Acts of Parliament meant; they did not authorise these general writs prayed for by the petitioners.

Referring to the precedents, admitted to be few, Otis argued that all precedents were subject to the principles of law. He quoted Lord Talbot, who had said from the bench: "I think it much better to stick to the known general rules than to follow any one particular precedent which may be founded upon reasons unknown to us." The argument thus far was consistent with the idea that the statutes were sound; the statutes did not justify the writs in question; the writ might have been framed by "some ignorant clerk of the Exchequer." But Otis went

180

Grant of the writs

[1761

further; if the writ was authorised by Act of Parliament, then the Act of Parliament itself was unauthorised-it was against the constitution and was void. "An Act of Parliament . . . in the very words of this petition... would be void."

Otis did not deny the authority of Parliament over the general affairs of the colony. He had no occasion to do so now, even if he believed that Parliament had no such authority, for the question before the Court pertained to external trade, over which the authority of Parliament was not questioned. But even had it not been so, there would have been no difference; Otis held that Parliament had full authority to regulate the internal, as well as the external, affairs of the colonies. His denial here of the constitutionality of any Act of Parliament which really should authorise these writs of assistance, was a denial of the validity of such a statute over America.

The justices, four in number, or some of them, had doubts at the first hearing in regard to the practice in England; but having meantime satisfied themselves on that point, they were on the second hearing unanimously of opinion that the writ should be granted, and gave judgment accordingly. "The child Independence was born on that occasion," afterwards wrote an eager listener, who lived to be President of the United States.

How the matter was looked upon at the time may be seen in the heated columns of the newspapers, in pamphlets, and especially in the action of the legislature of Massachusetts in the February following the decision. At that time a bill was passed "for the better enabling the officers of his Majesty's customs to carry the Acts of trade into execution." After a short preamble, ironically expressing the desire of the colony to assist his Majesty's officers, the bill declared that upon application, on oath, to the Superior Court, or other Courts named, by an officer alleging that he had information of a breach of the revenue laws, and that he verily believed or knew such information to be true, it should be lawful for the Court, upon reducing such oath to writing, with the name of the person informing and the place informed against, and not otherwise, to issue a writ or warrant of assistance; the form of which followed. The governor rejected the bill; afterwards, in a letter to the Lords of Trade, saying that "the intention of it was to take away from the officers the writ of assistance granted in pursuance of the Act of William 3," and to substitute for it a writ "wholly inefficacious." The governor adds, that the bill "was very popular," and that he silenced all clamour by the manner in which he rejected it; that this "reduced the popular cry to a murmur only, which soon ceased," and he believed there was "now a total end to this troublesome altercation about the custom house officers." The business of issuing these writs now went on in Massachusetts, for some years, without effective resistance.

Writs of assistance, not before in use elsewhere in the thirteen

1762-74]

Interference with "assemblies"

181

colonies, now began to spread. They appear in New Hampshire in 1762, and in one or two other colonies after the passage of the Act of George III, 1767, specifically giving jurisdiction to the Superior Courts of the several colonies to grant writs of assistance. They were thus granted in New York, refused in Pennsylvania, refused in Virginia as general writs, but granted as special ones, and not granted or refused apparently in Connecticut, Rhode Island, Maryland, and other colonies.

After the Declaration of Independence, State after State put into its constitution provisions against the issuance of general search warrants, of whatever kind; and one of the ten amendments to the Constitution of the United States, brought forward and adopted at the beginning of the new government, followed the lead of the States. This was only in conformity with the general common law of England; to which the granting of writs of assistance in the English Exchequer itself was finally made comformable, in the year 1817.

The complaint that gatherings or assemblies of the people to consider supposed grievances against Great Britain had been prohibited and broken up by the government, and that legislation of the colonies had been suspended and denied assent, may be shortly disposed of. The complaint generally was of the abuse, not of the want, of authority; enough that it was abuse it was therefore an invasion of legal right. Little if any attempt was made to find the boundary of authority. Indeed no bounds could be laid down; all that could be done was to declare that Great Britain was invading the rights of her colonies. The Continental Congress at Philadelphia, in the autumn of 1774, referring particularly to the troubles in Massachusetts, acute as they were, could only say that assemblies had been frequently dissolved, contrary to the rights of the people, when they were attempting to deliberate upon their grievances, and resolve that the people have a right peaceably to assemble, consider their grievances, and petition the King for redress, and that all prosecutions, prohibitory proclamations, and commitments in such cases were illegal. The subject passed into the constitutions of the various States and into the first amendment to the Federal Constitution; but, so far as gatherings of the people were concerned, it was still impossible to use terms of definition of authority. The most that could be said was that "The people have a right, in an orderly and peaceable manner, to assemble to consult upon the public good," as the Massachusetts Declaration of Rights put it. As for suspending legislation, that of course could be dealt with effectually, at a single blow. "The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it," said the same Declaration of Rights; and so in effect the constitutions of the States generally. The division of powers between the federal and the State governments prevented, it was thought, after much debate in the Constitutional Convention, the need or propriety of any declaration in

182

External trade

[1774

the Federal Constitution in regard to suspending State legislation; and the powers of the departments of federal government were so laid down as to make it unnecessary to declare that Congress alone could suspend federal laws. A single exception was made with regard to State legislation, such as there had been under the previous state of things, laying duties on imports; duties were declared thereafter to be for the use of the United States, and the laws themselves to be subject to the control of Congress. As for the exercise of the power of veto, that was given to the governors by various, but not all, State constitutions, and to the President by the Constitution of the United States, under particular restrictions.

The right of Great Britain to regulate the external trade of the colonies was admitted. "The sea is yours," said Franklin to the House of Commons during the troubles over the Stamp Act; "you make it safe for navigation; you keep it clear of pirates. You are therefore entitled to some toll or duty on merchandise carried through the seas, towards the expense." "There are many things beyond the reach of our legislatures," said Governor Hopkins; one was the commerce of the whole British empire collectively, and of each kingdom and colony as parts of it. The Continental Congress of 1774, putting it broadly, said, "From the necessity of the case and a regard to the mutual interests of Great Britain and the colonies, we cheerfully consent to the operation of such Acts of the British Parliament as are bona fide restrained to the regulation of our external commerce." The power of Parliament to regulate trade was the only bond, as Dickinson admitted, that could have held the colonies together.

No American attempted to define the bounds of the right of Great Britain; general theory was all that was urged. What this theory was, was expressed in one of the resolutions of the Stamp Act Congress, in 1765. Assuming that the increase, prosperity, and happiness of the colonies were desired by Great Britain as well as by themselves, the Congress resolved that such things depended upon the full and free enjoyment of the rights and liberties of the colonies, "and an intercourse with Great Britain mutually affectionate and advantageous." On that footing, recent legislation in Parliament restricting the foreign trade of the colonies had infringed the rights of Americans; the effect of it was to prevent "an intercourse with Great Britain mutually affectionate and advantageous." The colonies were now obliged to take from Great Britain alone the manufactures which they required from abroad. The British manufacturer accordingly set his own price; and the colonists must pay more than they would have had to pay in other markets. So complained Samuel Adams, for the Massachusetts House of Representatives, to Lord Sherburne. It amounted to "a tax, though indirect, on the colonies," the plainest sort of invasion of legal right.

The pecuniary condition of the country added sorely to the grievance; the people were borne down with debt in some of the greatest of the

1765]

The American theory

183

colonies. "The restraints imposed by several late Acts of Parliament on the trade of this province," declared the General Assembly of Pennsylvania, in 1765, "must of necessity be attended with the most fatal consequences. The balance of trade between Great Britain and the colonies was much against the colonies. Formerly the trade with foreign countries enabled them to keep up their credit with Great Britain, by applying the balance they had gained against foreigners; now the trade was so fettered that it could not be carried on with profit. The supply of coin in the country was small; and, such was the effect of the legislation in question, it could not be much increased. Once exhausted, as soon it must be, it could not well be replaced; no gold or silver mines had been discovered. How was the balance against them to be discharged? And what of the future? To go on was ruin. So in effect Dulaney wrote and lamented.

Moderate men and houses of legislature in the colonies could not believe that Parliament had had accurate knowledge; what reason, said Governor Hopkins, could be given for a law to cramp trade and ruin the colonies, which must at the same time lessen the consumption of British goods? Perhaps, as Hamilton later thought, it was punishment; if it was, the Massachusetts House of Representatives feared that the colonies had been misrepresented as undutiful and disaffected, and so stated to the ministry. But feeling ran high, and England persisted after hearing. The issue then was this-the English theory was that the colonies should be of advantage to the mother-country; their prosperity was desired, but desired to that end; the colonies must trade with the mother-country, and, with trifling exceptions, not elsewhere. The American theory was that the colonies should indeed be of advantage to Great Britain, but not to their own disadvantage; intercourse should be "mutually advantageous." Settled American theory did not reach the point afterwards reached in England, that the government of the colonies should be for the benefit of the colonies alone, though Hamilton, Dulaney, and others fell little if at all short of it.

The subject was peculiar to the colonial relation, and could find no place in the State or Federal constitutions; there was no territorial separation of the federal government from that of the States; all commerce was necessarily carried on with or through the States. The Constitution therefore needed only to declare for uniformity of duties, imposts, and excises, and against preferences in commerce of the ports of one State over those of another.

There were a few other complaints falling under the head of abuse of authority; complaints that private citizens were unnecessarily disarmed, that armies were kept in the colonies, without consent, in time of peace, and that soldiers were wrongfully quartered in private houses. These things, with some variation, found their way into State and Federal constitutions. But the Federal Constitution recognises the right of the