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billeting of soldiers and, also, to the supersession of colonial military officers by those holding commissions direct from the Crown. That these disputes led to no graver results must be attributed to the laissez-faire administrative policy of Sir Robert Walpole and his immediate successors. Had that policy been maintained after 1760, there is little reason to believe that the conquest of Canada and the existence of the Navigation Laws and Acts of Trade would have led to rebellion. Lord Mahon was undoubtedly right in saying that, had not some new cause of complaint arisen, the colonial agents, even in his day, might still have been debating at Whitehall. It was not so to be. The wise counsels of the earlier time were thrown to the winds. The British government, by enforcing the Acts of Trade and by levying taxes on the colonies by acts of Parliament, compelled the colonists to combine in defence what they considered to be their rights, and thus prepared the way to revolution and independence.

CHAPTER II.

CONSTITUTIONAL OPPOSITION, 1760–74.

The new

The campaigns of the Seven Years' War in Europe and in America were sustained at great cost by the British government and the American colonists.

policy begun. The Imperial public debt, if such an expression may be permitted, increased by leaps and bounds. Seeking to augment the revenue by all reasonable means, the British government examined the administration of the Acts of Trade, and discovered, to its amazement, that those acts in some colonies were not enforced at all. It also seemed plain that many New England merchants, unmindful of their duty to their country, had supplied the French posts on the seaboard with provisions. Orders were at once issued to enforce the Acts of Trade, and a stimulus was thus given to the customs officers in Massachusetts, who seem to have been very corrupt, to endeavour to conceal their past misconduct by a display of unwonted energy.

Evasion of the Acts of Trade prevailed to such an extent and was practised so openly that it seems a misnomer to term it smuggling. No one had ever thought much about the constitutionality of the acts because, with the collusion of

Writs of As. sistance, 1761.

the customs officers, it had been easy to evade them. The enforcement of the acts at once showed the difficulty of carrying out laws opposed by a whole people. Arming the

customs officers with special search-warrants proved to be of little use. Such warrants con

tained the name of the informer, and were returnable. In this way the informer became known to the community, and in a time of excitement he and other informers were almost certain to be intimidated into silence. The search-warrant also contained a description of the place where the un-customed goods were deposited, and covered only the seizure of merchandise in the designated place. When an officer, supplied with one of these warrants, reached the designated place, it might well happen that the last barrel of un-customed sugar was being rolled through the door of a warehouse on the opposite side of the street, or even through a door into a store beside the one he was authorized to search. Under these circumstances, the customs officials were practically powerless. They had recourse to general search-warrants or Writs of Assistance, as they were usually termed. These were first issued, in this connection, by Governor Shirley of Massachusetts, who certainly had no legal power to issue them. The officers, therefore, were directed to apply to the Superior Court for new writs. This they did in 1761. James Otis, the king's Advocate, resigned his office to argue against their issuance. Hutchinson, the historian of Massachusetts, who was then Chief-Justice, asserts that Otis took this course from pique because his father had not been appointed to the chief-justiceship. There is absolutely no proof of this. Hutchinson had the misfortune to be on bad terms with both James Otis and Samuel ms, but there is no more reason for attributing evil motives to them than to him. It is no doubt true that Otis rejoiced in this, and in other opportunities, to heap unpopularity on a personal enemy. Otis on

11.]

Writs of Assistance, 1761.

43

this occasion made an epoch-marking speec, which is conveniently regarded as the first act in the American Revolution. Unfortunately it has come down to us only in the fragmentary form of notes taken by John Adams, then a young Boston lawyer.

Conscious that the law was against him, Otis based his argument on the broader ground of the rights of the colonists as Englishmen. He declared that

James Otis's

argument. the use of writs of assistance was an act of tyranny, similar to the abuse of power which had “cost one king of England his head, another his throne.” He concluded with the assertion, based on a reading of Coke and the other earlier law writers, that Parliament could not legalize the exercise of an act of tyranny such as must be the every-day consequence of the use of writs of assistance, for “an act of Parliament against the constitution is void.” This idea was a favourite one with Otis. He elaborated it a few years later (1764) in his essay entitled The Rights of the Colonies Asserted and Proved. In that paper he uses these words: “Parliament cannot make two and two, five...... Parliaments are in all cases to declare what is for the good of the whole; but it is not the declaration of Parliament that makes it so. There must be in every instance a higher authority, God. Should an act of Parliament be against any of His natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity, and justice, and consequently void." The writs of assistance were granted by the Court some months later, and were declared legal by Parliament in one of the Townshend Acts (1767). Otis's argument, however, even in the imperfect form in which it was reported, penetrated ere long to the hearts of the American people. Such writs are forbidden in every State constitution of the revolutionary period, and in one of the first amendments to the Constitution of the United States. Nevertheless, it must be admitted that

Otis was wrong and that Hutchinson and the other judges were legally right; that Parliament had the legal and constitutional right to provide for the issuance of such writs; and that the only remedy then in the hands of the colonists was revolution. This dispute had hardly subsided when Otis involved him

self in another as the champion of the constituDispute as to the “ control tional power of the House of Representatives of the purse."

against the encroachments of the executive. Toward the end of 1761, Governor Bernard of Massachusetts, acting with the advice of his Council, and for what seems to have been a good reason, expended a small sum of money in fitting out the provincial armed sloop for the protection of vessels on the northern coasts against French privateers. The money so expended was then in the colonial treasury, but had not been appropriated to this purpose by vote of the House of Representatives. This action, unimportant in itself, was regarded as a most dangerous precedent, as it was argued that if the Governor could legally arm one soldier or sailor he could arm one thousand or ten thousand. Led by Otis, the House remonstrated against the act as depriving them of “their most darling privilege, the right of originating all taxes.” The Governor, aware of the impropriety of his act, was not disposed to stand by it, and the matter would have stopped at that point had not Otis, in the remonstrance voted by the House, made the further statement“ that it would be of little consequence to the people whether they were subject to George or Louis, the king of Great Britain or the French king, if both were arbitrary, as both would be, if both could levy taxes without parliament." To this Bernard objected most strenuously, and the phrase was erased by order of the House. In justification of his action, Otis wrote the earliest political pamphlet of the Revolution, entitled A Vindication of the House of Representatives. The political theories adduced in this tract may

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