Quincy June 17th. 1818
The next Statute produced & commented by Mr Otis was the 15th. of Charles the Second, i.e. 1663, Chapter 7. “An Act for the Encouragement of Trade.” Section 5.
“And in regard his Majesty’s Plantations beyond the Seas are inhabited and peopled by his Subjects of this his Kingdom of England.” for the maintaining a greater Correspondence and Kindness between them, and keeping them in a firmer dependance upon it, and rendering them yet more beneficial and Advantagious unto it, in the further Imploymnet and Increase of English Shipping and Seamen, Vent of English Woolen and other Manufactures and Commodities, rendering the Navigation to and from the same, more cheap and Safe, and making this Kingdom a Staple, not only of the Commodities of those Plantations but also of the Commodities of other Countries and Places, for the Supplying of them; and it bring the Usage of other Nations to keep their Plantations Trades to themselves.”
Section 6. Be it enacted, &c. that no Commodity of the Growth, Production or Manufacture of Europe, Shall be imported into any Land, Island Plantation, Colony, Territory or Place to his Majesty belonging, or which Shall hereafter belong unto or be in possession of his Majesty, his Heirs and Successors, in Asia, Africa or America, (Tangier only excepted) but what Shall be bona fide, and without fraud, laden and Shipped in England, Wales, or the Town of Berwick upon Tweed, and in English built Shipping or which were bona fide bought before the 1st. of October 1662, and had Such Certificate there of as is directed in one Act passed the last Session of the present Parliament intitiiled ‘An Act for preventing Frauds, and regulating Abuses in his Majesty’s Customs;’ and where of the Master, and three fourths of the Mariners at least are English, and which Shall be carried directly thence, to the Said Lands Islands, Plantations, Colonies, Territories or Places, and from no other Place or Places Whatsoever; any Law Statute or Usage to the contrary notwithstanding; Under the Penalty of the Loss of all Such Commodities of the Growth, Production or Manufacture of Europe, as Shall be imported <
for> into any of them, from any other place whatsoever by Land or Water; and if by Water, of the Ship or Vessell also, in which they were imported, with all her Guns, Tackle Furniture Ammunition and Aparel; one third part to his Majesty, his Heirs and Successors; one third Part to the Governor of Such Land, Island, Plantation, Colony, Territory, or Place, into which Such Goods were imported, if the Said Ship Vessell or Goods be there Seized or informed against and sued for; or otherwise, that third part also to his Majesty his Heirs and Successors; and the other Third Part to him or them who shall Seize inform or Sue for the Same in any of his Majesty’s Courts in such of the said Lands, Islands, Colonies, Plantations, Territories, or Places where the Offence was committed, or in any Court of Record in England, by Bill, Information, Plaint, or other Section, wherein no Essoin Protection or Wager of Law Shall be allowed.”
Sections 7. 8. 9 and 10. of this odious Instrument of Mischief and Misery to Mankind, all calculated to fortify by Oaths and Penalties, the tyrannical ordinances of the preceeding Sections.
Mr Otis’s Observations on these Statutes were numerous and Some of them appeared to me at the time young as I was, bitter. But as I cannot pretend to recollect those Observations with precision, I will recommend to you and others to make your own Remarks upon them.
You must remember, Mr Tudor, that you and I had much Trouble with these Statutes after You came into my Office, in 1770. And I had been tormented with them for nine Years before, i.e. from 1761.
I have no Scruple in making a Confession with all the Symplicity of Jean Jake Rousseau, that I never turned over the Leaves of these Statutes or any Section of them, without pronouncing a hearty Curse upon them.
I felt them, as an humiliation, a degradation a disgrace to my Country and to myself as a Native of it.
Let me respectfully recommend to the future Orators on the fourth of July, to peruse these Statutes in pursuit of Principles and Feelings that produced the Revolution.
Oh! Mr Tudor, when will France, Spain, England, and Holland renounce their Selfish, contracted, exclusive Systems of Religion, Government, and Commerce? I fear, never.
But they may depend upon it their present Systems of Colonisation cannot endure. Colonies universally, ardently breathe for Independence. No Man, who has a Soul will ever live in a Colony, under the present Establishments, one moment longer than Necessity compells him.
But I must return to Mr Otis. The Burthen of his Song was “Writts of Assistance.” All these rigorous Statutes were now to be carried into rigorous execution by the Still more rigorous Instruments of arbitrary Power “Writs of Assistance”
Here arose a number of very important Questions. What were Writts of Assistance? Where were they to be found? When, Where, and by What Authority had they been invented, created, and established? Nobody could answer any of these Questions. Neither Chief Justice Hutchinson, nor any One of his four Associate Judges, pretended to have ever read or Seen in any Book any Such Writt, or to know any thing about it. The Court had ordered or requested the Bar to Search for Precedents and Authorities for it but none were found. Otis pronounced boldly that there were none, and neither Judge nor Lawyer, Bench or Bar pretended to confute him. He asserted farther that there was no Colour of Authority for it, but one produced by Mr Gridley in a Statute of the 13. and 14th of Charles the Second, which Mr Otis Said was neither Authority, Precedent or Colour of either, in America. Mr Thatcher Said he had diligently Searched all the Books but could find no Such Writt. He had instead found in Rastall’s Entries a Thing which in some of its Features resembling this, but So little like it in the whole that it was not worth while to read it.
Mr Gridley, who, no doubt, was furnished, upon this great and critical Occasion with all the Information possessed by the Governor, Lt. Governor, Secretary, Custom House Officers, and all other Crown Officers, produced, the Statute of the thirteenth and fourteenth of Charles the Second Chapter Eleventh, intitled, “An Act to prevent Frauds, and regulating Abuses in his Majesty’s Customs.” Section fifth which I will quote, Verbatim. “And be it further enacted by the Authority aforesaid, that in case, after the Clearing of any Ship or Vessel, by the Person or Persons which are or Shall be appointed by his Majesty for managing the Customs or any their Deputies, and discharging the Watchmen and Tidesmen from Attendance thereupon, there Shall be found on board Such Ship or Vessel, any Goods Wares or Merchandizes, which have been concealed from the Knowledge of the Said Person or Persons, which are or Shall be So appointed to manage the Customs, and for which the Custom Subsidy and other Duties due upon the importation thereof have not been paid; then the Master, Purser, or other Person taking Charge of Said Ship or Vessel, Shall forfeit the Sum of one hundred Pounds: And it Shall be lawful, to or for any Person or Persons authorized by Writ of Assistance under the Seal of his Majesty’s Court of Exchequer, to take a Constable, Headborough, or other public Officer, inhabiting near unto the place, and in the day time to enter, and go into any House Shop, Cellar, Warehouse or Room or other place, and in case of Resistance to break open Doors, Chests, Trunks, and other Package, there to Seize, and from thence to bring, any kind of Goods or Merchandize whatsoever prohibited and uncustomed and to put and Secure the same, in his Majesty’s Storehouse in the Port, next to the place where Such Seisure Shall be made.”
Here is all the Colour for “Writs of Assistance,” which the Officers of the Crown aided by the Researches of their Learned Counsel Mr Gridley, could produce.
Where, exclaimed Otis, is your Seal of His Majesty’s Court of Exchequer? And what has the Court of Exchequer to do here? But my Sheet is full and my patience exhausted for the present.