Quincy August 31 1818
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 Esqr 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 Writts of Assistance. This is a fortunate Circumstance for me, because it relieves me from the trouble of Recollection, and the more painfull task of research in old Books.
“The publick 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 Univeral Reason, and of God, when a Nation takes Possession of a desert, 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, tho’ Separated from the principal Establishment, or Mother Country, naturally become part of the State with its ancient possessions, and intitled to all the essential Rights of the Mother Country. This is not only confirmed by the practice of the antients, but by the Moderns ever Since the discovery of America. Frenchman, Spaniards and Portugats are not 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 kings negative as in Ireland. This effectually secures the dependence of the Colonies on Great Britain. By the 13th: of George 2nd: Chapter 9th: 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 majestys natural born subjects of the kingdom<
s> 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 < or> of any nation or Country. And many foreigners and strangers, from the lenity of our < G>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 < C>colonies in America, if they were partakers of the advantages & 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 an 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 <
C>chiefly < C>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 & decision 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 parliaments, 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 uncontrolable in the colonies, as in England. The question is not upon the general < P>power or < R>right of the Parliament; but whether it is not circumscribed within some equitable and reasonable < B>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, & consequently void. The judges of England have declared in favour of these sentiments, when they expressly declare; that acts of < P>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, & to the conduct of the citizens. This is called the < L>legislative < P>power. The nation may entrust the exercise of it to the prince or to an assembly: or to an assembly and the < P>prince join< ed>tly, who have then a right of making new & 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, & 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; & 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, & gave the legislature for that purpose the power of abrogating the ancient civil & political laws, that were not fundamental, & of making new ones. But nothing leads us to thin< g>k that it was willing to submit the constitution itself to their pleasure.
When a nation takes possession of a distant country & settles a collony there that country though seperated 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 & 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 & true saying, that if an act of parliament should ordain the same person both party & judge, in his own case, it would be a void act of parliament, & an act of parliament can do no wrong tho’ it may do several things that look pretty odd, for it may discharge one from the allegiance he lives under & restore to the state of nature but it can not make one that lives under a government both party and judge per Holt C. J. 12 Mod. 687. 688 Hill 1. 3 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 & sometimes adjudge them to be utterly void for when an act of Parliament is against com-right & reason or repugnant & impossible to be performed the common law shall controul it & adjudge it to be void; & therefore 8 E 3. 30 Thomas Tregors Case upon the statute of W 2 Cap 38 & Art [sup] Chart 9 Herle said that sometimes statutes are made contrary to law & 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 & 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 & liberties have a ri<
e>ght 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 & 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 entrusted any body of men with a power to surrender theirs in exchange for slavery. But if the whole state be < C>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 & becoming humanity. The whole right of the conquerer proceeds from the just defence of himself which contains the support & 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 & require payment for the expence & 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 < in> 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 & 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 Sovreign in person have left a nation in the full enjoyment of its rights only setting a sovreign over it. But if the conquerer thinks pro< p>per to retain the sovreignty of the vanquished state & has such a right; the manner in which he is to treat the state still flows from the same principles If the sovreign 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 sovreign & 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 sovreign 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 & him. Mr: De Vattel B. 3. C. 10 Sec 201. R.
It is now near three hundred years Since the Continent of N America was 1st: discovered and that by British Subjects the Cabots discovered the Continent before the Spaniards. Ten Generations have passed away thro’ infinite toils and bloody Conflicts in Settling this Country. None of those ever dreamed but that they were intitled 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 dont see the immense value of our acquisitions in the late war and that tho’ 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 tis owing that our Colonies have flourished without diminishing the inhabitants <
the> 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 < a> remarkably the case of Spain. The subjects of a free and happy Constitution of Government have a thousand < A>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 Salvages to keep us back.—Their advantages over us is the West-Indies are, (1.) 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 enable 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> free men, because that of the 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 abovementioned. 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 clog 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 eights of this commerce would cease. The fishery is the center 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 woolen 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 persued. 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 manufacturers here; and it is the wish of every honest British American that they never may; ’tis 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. (1.) The northern Colonists must be content to go naked, and turn Savages. Or (2) Become manufacturers of linnen and woolen, to cloath 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 woolen for each inhabitant annually, which may be soon done, when necessity the Mother of invention shall opperate Great Britain & Ireland will loose two millions per annum, besides a diminution of the revenue to nearly the same amount. This may appear parodxical, 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 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 indebt<
te>ed, 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 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 intrusted with the administration of Government to see that every part of the British empire enjoys to th full the rights they are intitled 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 preceeding 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 foward the measures of their enemies, than sowing the seeds of jealously, animosity and dessention between the mother Country and the Colonies.
“A conviction of the truth and importance<
s> of these principles, induced Great Britain during the late War, to carry on so many glorious enterprizes 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. ’Tis to no purpose to higgle with such people, as you are sure to loose by them.—’Tis exactly so with a Nation, if the balance is against them, and they can possibly subsist without the Commodity—as they generally can in such cases, <
is like a Composition> a prohibition is the only remedy; for a duty in such 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 expence in travelling to get back your five shillings, and he is at the same expence 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 embarress 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 < the> a commodity of a foreign state, it is either upon the whole useful and gainful, and therefore necessary for the husbandmen, < and> manufacturer, mariner or merchant, as finally bringing a profit to the state by a balance against your State—There is no medium that we < no> 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 loose by—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 had been proved, nor can be; the < Country> 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 duty upon this trade will finally fall on the British husbandman, manufacturer, mariner & 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 granted> 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 untill 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 ever will be greater than they can possibly supply, so long as they 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 tryal of another Letter So long and dry. One or two more much Shorter, will close the Subject of Writts of Assistance, and relieve you from Ennui, do well as your / Friend