After a century and a quarter of discussion, the American Revolution is today clearly emerging as an event of first-rate importance in social as well as political history. In that discussion, the wrong point of view has often been taken. On the one hand, the struggle has been looked upon as a war of liberation from a despotism imposed on the colonies as if through conscious malice; on the other, as a needless revolt inspired mainly by a few hot-headed demagogues taking advantage of a blundering royal policy.
The second error, which some American and many British writers have committed, is not less grave than the first; for the Revolution was indeed a movement for liberation, not from a consciously planned tyranny, but from a regime, economic and political, which was hampering the social growth of the colonies.
According to the usual definition, the American Revolution, unlike the French Revolution, is political and not social in character. It is not regarded as a struggle against class privilege. Yet in a very real sense, the old colonial regime treated the provincials as an inferior class. As dominions, the colonies were, in theory, subjected to the rigor of the royal prerogative while the favored people who remained in England were being freed from it; as communities, they were valued chiefly as feeders of British trade. A system so artificial and so humiliating could not long prevail with a proud and self-respecting people becoming aware of their strength. If the American Revolution was not a conscious social revolution, it was at any rate a struggle for free social expansion. "Of all events of English history," declares Seeley, "it is perhaps the American Revolution which has suffered most from the application of these wrong tests." It "is an event not only of greater importance, but on an altogether higher level of importance than almost any other in modern English history," for "it ... called into existence a new state."
The American Revolution is unique, not only for its significance, but also in its form and progress. Like the French Revolution, it is dramatic. The action unfolds with epic precision: at each shifting of the scene, the right actor takes his place. But no other revolution has from the start produced leaders so thoroughly disciplined by experience for its guidance: each action is explained by learned and skilful argument; more than twelve years are given up to debate before the first blow is struck.
No other revolution is so instructive to the student of political science: the entire process of state-building goes on before his eyes, and the reason for each step is clearly and exhaustively expounded by the builders as they proceed. For enduring quality, the forensic and constitutional literature of our Revolutionary epoch is not matched in the entire history of political struggle.
The speech of James Otis against the writs of assistance, if not the opening, was at any rate the prelude of the Revolutionary drama. Previous to the close of the French war in America, the acts of trade had brought no profit to the British treasury. The cost of maintaining the commercial system was enormous. During the sixty years between 1714 and 1774, on this account, including probably the support of the American fleet, the exchequer had paid out not less than £34,697,142 sterling, a sum greater, it is alleged, "than the estimated value of the whole real and personal property in the colonies." Grenville discovered that the entire "revenue derived by England from the custom-houses in America amounted to between 1,000L. And 2,000L. a year; that for the purpose of collecting this revenue, the English exchequer paid annually between 7,000L. and 8,000L.; and that the chief custom-house officers appointed by the crown had treated their offices as sinecures, and by leave of the treasury resided habitually in England." A vast amount of dutiable goods, both from Europe and the foreign West Indies, was continually being smuggled into the country, and the local officers either connived at the illicit traffic or were helpless to prevent it.
From the beginning of the French War, there were ominous signs that a more rigid execution of the laws was resolved upon. Governor Shirley of Massachusetts is believed to have been influential in suggesting the new policy. In particular, he led the clamor, elsewhere referred to, for raising a revenue on the colonies by act of Parliament. During the war, the colonial merchants, sometimes with French or Dutch passports or under flags of truce granted by the American governors, had kept up an active trade with the enemy in the sugar islands and even on the mainland. At the suggestion of Halifax in 1756, and again in 1760 through Pitt's instructions, the governors were commanded to put a stop to the practice.
If this conduct of the colonial merchants was unpatriotic, it must be confessed that necessity afforded a plausible excuse. How else were they to contribute their share to the support of the war without the money gained from the West India trade? They were willing to tax themselves heavily for that purpose, but when also, suggests an English critic of the British policy, they "were required to desist absolutely from all commercial dealings with their best customers, their good friends, the enemy, the sacrifice seemed too great even for their simple loyalty." Indeed, the alleged purpose of "starving" the French out of the West Indies is regarded by the same writer as a cause of the American rebellion.
The machinery for the rigid administration of the commercial code was ample if zealously employed. In England, since 1696, the Board of Trade and Plantations had exercised general authority under the Privy Council. This body worked mainly through the governors, who in their respective provinces were sworn to a faithful execution of the laws of trade and navigation. Below the governor were the naval officer, the collector of customs, and the surveyor-general, besides the collectors and the surveyors and searchers for each port. Originally, prosecutions for breach of the trade laws were tried in the ordinary colonial courts of record, but juries were slow to convict. Hence, in 1697, separate admiralty courts for the colonies were created, and these could act without a jury. In England, revenue cases were tried, not in the courts of admiralty, but in the court of the exchequer, where juries were employed.
But the most effective instrument in the prevention of illicit trade was the "writ of assistance" created during the reign of Charles II. According to the late Justice Horace Gray — whose critical essay should be used with John Adams's report of Otis's speech — this warrant for the seizure of uncustomed goods appears to be derived from the ancient "writ of assistance" or "writ of aid" addressed to the sheriff from the court of exchequer; and it is "perhaps copied from the sheriff's patent of assistance." By statute, the writ is issued from the court of exchequer. It is general in form, authorizing the official in the daytime to search any vaults, cellars, warehouses, or other suspected places where he may suppose dutiable goods to be hidden, while ships lying in or near the port may thus be entered either by day or night. It is valid for an indefinite time, or until six months after the demise of the crown, and no "return" to the court of issue is required. In England, this warrant was then in use; and there, in practically the same form as under William III, it continued to be enforced for many years after the Revolution. Yet it is easy to see that so dangerous a power, especially in the hands of petty officials, was capable of serious abuse.
A statute of William III had expressly enjoined that the same aid should be given to the customhouse officers in America as was required by law to be rendered in England. But for more than half a century, such writs were not used in the colonies. According to Hutchinson, "the collectors and inferior officers of the customs, merely by the authority derived from their commissions, had forcibly entered warehouses, and even dwelling houses, upon information that contraband goods were concealed in them. The people grew uneasy under the exercise of this assumed authority, and some stood upon their defence against such entries, whilst others were bringing their actions in the law against the officers, for past illegal entries, or attempts to enter."
Governor Shirley put himself for a time equally in the wrong: as civil magistrate he "gave out his warrants to enter"; but learning that such a course was illegal, he directed the "officers to apply for warrants from the superior court; and, from that time, writs issued, not exactly in the form, but of the nature, of writs of assistance issued from the court of exchequer in England." The truth of this statement is confirmed by the documentary evidence. In June 1755, the superior court, Chief-Justice Sewall presiding, issued the first of these memorable writs to Charles Paxton, surveyor of the port of Boston. Similar authority was presently conferred upon other officers. Many seizures were made. "The third part of the forfeiture of molasses which belonged to the province amounted before 1761 to nearly five hundred pounds in money." Informers were rewarded for secret information, and popular feeling was kept in a state of continual irritation.
The death of George II, October 25, 1760, brought matters to a crisis, for in six months the validity of all existing writs would cease. Chief Justice Stephen Sewall, who doubted the legality of the writs, died just after the new governor, Francis Bernard, arrived in Boston (August 2), bringing instructions to "be aiding and assisting to the collectors and other officers of our admiralty and customs in putting in execution" the laws of trade. George III was proclaimed in Massachusetts on December 30. On the same day, Thomas Hutchinson, who already held the posts of councillor, judge of probate, and lieutenant-governor, was commissioned as chief justice of the superior court, and on January 27, 1761, he took his seat on the bench in Middlesex.
James Otis, the elder, had been promised the first vacancy on the bench by both Shirley and Pownall; but, according to John Adams, Hutchinson was appointed by Bernard "for the very purpose of deciding the fate of the writs of assistance, and all other causes in which the claims of Great Britain might be implicated." This statement is scarcely sustained by the evidence. Hutchinson was brought forward for the place by his friends, and at the time of his commission application for a renewal of the writs had not yet been made, as Adams alleges. Yet it can hardly be doubted that the question of their legality was already a matter of earnest discussion. The petition of the Boston merchants for a hearing against the writs, and the memorial of Lechmere, the surveyor-general, to be heard in reply, were filed in February 1761. On the 24th, the case of Charles Paxton, who sought a new warrant, came before the superior court sitting under the presidency of Chief Justice Hutchinson, in the council chamber of the old Town House in Boston. For the writs appeared the attorney-general, Jeremiah Gridley, and the merchants were represented by Oxenbridge Thacher and James Otis.
No full report of this famous trial exists. Our knowledge of it is derived almost wholly from John Adams's notes taken at the first hearing, together with his later and more extended report, and the letters addressed by him to William Tudor fifty-seven years after the event. Gridley, the foremost lawyer of Massachusetts, confined himself closely to proving the technical validity of the writs and the legality of their issue by the superior court, not touching upon the broader aspects of the case. He "argued," says Adams, "with his characteristic learning, ingenuity, and dignity," all depending, however, on the "if the Parliament of Great Britain is the sovereign legislature of all the British empire." It is true, Gridley admitted, that the "common privileges of Englishmen are taken away in this case"; but it is justified by necessity — the "benefit of the revenue," just as necessity justifies the distraint of goods and chattels by a local officer in the recovery of taxes.
Thacher followed on the other side, speaking "with the softness of manners, the ingenuity and cool reasoning, which were remarkable in his amiable character. But Otis was a flame of fire! With a promptitude of classical allusions, a depth of research, a rapid summary of historical events and dates, a profusion of legal authorities, a prophetic glance of his eye into futurity, and a torrent of impetuous eloquence, he hurried away everything before him. American independence was then and there born; the seeds of patriots and heroes were then and there sown ... every man of a crowded audience appeared to go away, as I did, ready to take arms against writs of assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there, the child's independence was born. In fifteen years, namely in 1776, he grew up to manhood and declared himself free."
The fervid rhetoric of the venerable patriot who, in his twenty-fifth year, had been inspired by his hero's words may be accepted with some grain of allowance. Yet, although Otis's speech belongs to the epoch-making utterances, there is little reason to doubt. It was a strong and a timely protest against a dangerous system, but its power was not due wholly to its quality as a discourse, for Otis's style of speaking and writing was rugged, with small claim to elegance of diction. It struck a responsive chord in the breasts of his countrymen. He gave voice to that which was moving their spirits, and is not that often the secret of the highest eloquence?
Before the trial, Otis had resigned his office of advocate-general because he was not willing to appear in support of the writs, which he believed to be illegal and tyrannical. This sacrifice, his enemies explained as the result of pique because of his father's disappointment. But when has time-serving cynicism ever failed to sneer at the idealism which rebukes it or passes its ken? Justice Gray has well said that the "charge commonly made by the supporters of prerogative against James Otis, that his subsequent public course was dictated solely by revenge ..., may be classed with D'Israeli's insinuation that John Hampden's refusal to pay ship money was occasioned by an ancient grudge against the sheriff who levied it."
In the argument, which took up several hours, Otis first referred to his resignation. "I renounced that office, and I argue this cause from the same principle; and I argue it with the greater pleasure, as it is in favor of British liberty, at a time when we hear the greatest monarch upon earth declaring from his throne that he glories in the name of Briton, and that the privileges of his people are dearer to him than the most valuable prerogatives of his crown; and as it is in opposition to a kind of power, the exercise of which, in former periods of English history, cost one king of England his head, and another his throne."
Having delivered this telling and daring blow at George III, he next exposed the dangerous character of the writs. Admitting that special writs directed to special officers to search certain places were legal, he denounced the general warrant in use as "the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book"; as a weapon "that places the liberty of every man in the hands of every petty officer."
He then boldly appealed to guarantees of civil liberty, to principles of right, higher than statutory authority. "No act of parliament can establish such a writ"; for "an act against the constitution is void; an act against natural equity is void"; and "the executive courts must pass such acts into disuse." This principle, destined to become so vital in our national life, is powerfully supported even by English authorities. Legalism may, indeed, deny that a court can, in practice, actually nullify an act of Parliament as contrary to the constitution; but Otis proclaimed a doctrine which British statesmen might well have heeded. He was simply going one step further than Brougham, many years later, who affirms that "things may be legal and yet unconstitutional."
Departing from the immediate question before the court — according to Adams's later recollection — Otis next arraigned the whole mercantile colonial system as contrary to natural equity. But it is highly probable that in Adams's failing memory, the arguments of more advanced stages in the great revolutionary debate were blended with those brought forward in the case of the writs.
Apparently, the majority of the judges were with Otis, and the judgment would have been against the writs had it been then given. The decision, however, was suspended so that Hutchinson might obtain "information of the practice in England." At the November hearing, "it appeared that such writs issued from the exchequer, of course, when applied for; and this was judged sufficient to warrant the like practice in the province." From that time until after the Stamp Act, writs of assistance were freely issued. If strict legalism were to prevail, the decree of the court in this case was probably just. As a result of his careful inquiry, Justice Gray concludes that the "decision of Hutchinson and his associates has been too strongly condemned as illegal: and that there was at least reasonable ground for holding, as matter of mere law, that the British parliament had power to bind the colonies; that even a statute contrary to the constitution could not be declared void by the judicial courts; that by the English statutes, as practically construed by the courts in England, writs of assistance might be general in form; that the superior court ... had the power of the English court of exchequer; and that the writs of assistance prayed for, though contrary to the spirit of the English constitution, could hardly be refused by a provincial court, before general warrants had been condemned in England, and before the revolution had actually begun in America." Yet in none of the other provinces, except in New Hampshire and New York, does it appear that such writs were ever actually issued by the courts, although they were sometimes applied for.
Otis's argument aided powerfully in the formation of public opinion. In the next year, he was rewarded with a seat in the assembly, and for several years, he dominated the revolutionary scene in Massachusetts. A great writer refers to his speech as "incendiary." It did, indeed, set fire to the tinder which British policy was amply providing. Yet if historical truth is violated by exaggerating the importance of Otis's argument, there is equal danger in minimizing it. With increasing knowledge, it is becoming easier to see that its meaning was very great. The validity of the writs of assistance involved a vital change in a long-standing policy. Strict enforcement of the acts of trade meant commercial ruin to New England. To the northern merchant, the illicit trade with the French West Indies and in the Spanish Main alone was virtually the bread of life. If, from the time of its enactment, the Molasses Act had been rigorously enforced by writs of assistance, it is not unlikely that the Revolutionary contest would have been hastened by thirty years. Otis and his associates were but opening the struggle for constitutional liberty, which was already at hand in the mother country. For the writs of assistance were similar in their arbitrary character to those "general warrants" whose use two years later in the case of Wilkes stirred the resentment of patriots on both sides of the sea.
Furthermore, in 1817, the British Board of Customs forbade the issue of a writ of assistance to any officer, "unless he should previously make oath before a magistrate of his belief and grounds of belief that smuggled goods were lodged in a certain house." Henceforth, in harmony with Otis's interpretation of the original law, only "special" writs were to be issued in England, and "thus the reasonableness of the position of the colonies was finally vindicated in the mother-country."