servants, are allowed to lord it over us. Now one of the most essential branches of English liberty the freedom of one's hous. A man's house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses, when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and every thing in their way; and whether they break through malice or revenge, no man, no court, can inquire. Bare suspicion without oath is sufficient. This wanton exercise of this power is not a chimerical suggestion of a heated brain. I will mention some facts. Mr. Pew had one of these writs, and when Mr. Ware succeeded him, he endorsed this writ over to Mr. Ware so that these writs are negotiable from one officer to another; and so your Honors have no opportunity of judging the persons to whom this vast power is delegated. Another instance is this: Mr. Justice Walley had called this same Mr. Ware before him, by a constable, to answer for a breach of Sabbath-day acts, or that of profane swearing. As soon as he had finished, Mr. Ware asked him if he had done. He replied, Yes. Well then, said Mr. Ware, I will show you a little of my * power. I command you to permit me to search your house for ur customed goods. And went on to search his house from the garreand the cellar; and then served the constable in the same manned only to show another absurdity in this writ; if it should be en the same insist upon it every person by the 14 Charles II. has this of his power as custom-house officers. The words are, 'It shal for any

person or persons authorized,' &c. What a ne does this open! Every man, prompted by revenge, ill.hor, or wantonness, to inspect the inside of his neighbor's hor may get a writ of assistance. Others will ask it from self-defence ; e arbitrary exertion will provoke another, until society võlved in tumult and in blood.

gain, these its are not returned. Writs in their nature are temporary things. Who the purposes for which they are issued are answered, they exist no mor; but these live forever; no one can be called to account. Thus regon and the constitution are both against this writ. Let us see what authority there is for it. Not more than one instance can be found of it in all our law-books; and that was in the zenith of arbitrary power, namey, in the reign of Charles II., when star-chamber powers were pushed o extremity by some ignorant clerk of the exchequer. But had ths writ been in any book whatever, it would have

been illegal. All precedents are under the control of the principles of law. Lord Talbot says it is better to observe these than any precedents, though in the House of Lords, the last resort of the subject. No Acts of Parliament can establish such a writ; though it should be made in the very words of the petition, it would be void. An act against the constitution is void. (vid. Viner.) But these prove no more than what I before observed, that special writs may be granted on oath and probable suspicion. The act of 7 & 8 William III. that the officers of the plantations shall have the same powers, &c. is confined to this sense; that an officer should show probable ground; should take his oath of it; should do this before a magistrate; and that such magistrate, if he think proper, should issue a special warrant to a constable to search the places. That of 6 Anne can prove no more. John Adams, Works (edited by Charles Francis Adams, Boston, 1850), II, Appendix, 523-525.

132.

Opposition to Arbitrary Power (1763)

BY JOHN WILKES

goʊhese extracts are taken from the famous No. 45 of The North Briton, published by only arthen a member of Parliament. Wilkes was clever but profligate, and his paper 15; yet he stood for liberty of the subject and for parliamentary reform for in this he time when the treatment of the American colonies was under disthe liberty of ra, Fitzgerald, Life of Wilkes; May, Constitutional History of Engrand, 15 Un Lecky, England, III, 68–82, and ch. xi.

contempt of t

valuable conquests were k pany would have been info

i

cious and baneful negociation.

"ace were such as have drawn the negociators. All our most

this fallaI has been

as made

hened, and the East-India comused by ingle article No hireling of the hardy enough to dispute this; yet the minister: sovereign declare, the satisfaction which he felt u. proaching reestablishment of peace upon conditions so honourali to his crown, and so beneficial to his people. As to the entire approbation of parliament, which is so vainly boasted of, the world knows hy that was obtained. The large debt on the Civil List, already above jalf a year in arrear, shews pretty clear the transactions of the winter. is, however, remarkable, that the minister's speech dwells on the entire approbation given by parliament to the Preliminary Articles, which will venture to say, he

179

119 134

No. 132],3

35

22513

Wilkes's North Briton

419 (14

379 must by this time be ashamed of; for he has been brought to confess the total want of that knowledge, accuracy and precision, by which such immense advantages, both of trade and territory, were sacrificed to our inveterate enemies. These gross blunders, are, indeed, in some measure set right by the Definitive Treaty; yet the most important articles, relative to cession, commerce, and the FISHERY, remain as they were, with respect to the French. The proud and feeble Spaniard too does not RENOUNCE, but only DESISTS from all pretensions, which he may have formed, to the right of fishing — where? Only about the island of NEWFOUNDLAND till a favourable opportunity arises of insisting on it, there, as well as elsewhere.

The minister cannot forbear, even in the King's Speech, insulting us with a dull repetition of the word economy. I did not expect so soon to hear that word again, after it had been so lately exploded, and more than once by a most numerous audience, hissed off the stage of our English theatres. It is held in derision by the voice of the people, and every tongue loudly proclaims the universal contempt, in which these empty professions are held by this nation. Let the public be informed of a single instance of economy, except indeed in the houshold. . . . Lord Ligonier is now no longer at the head of the army; but lord Bute in effect is; I mean that every preferment given by the crown will be found still to be obtained by his enormous influence, and to be bestowed only on the creatures of the Scottish faction. The nation is still in the same deplorable state, while he governs, and can make the tools of his power pursue the same odious measures. Such a retreat, as he intends, can only mean the personal indemnity, which, I hope, guilt will never find from an injured nation. The negociations of the late inglorious peace and the excise, will haunt him wherever he goes, and the terrors of the just resentment which he must be sure to meet from a brave and insulted people, and which must finally crush him, will be for ever before his eyes.

In vain will such a minister, or the foul dregs of his power, the tools of corruption and despotism, preach up in the speech that spirit of concord, and that obedience to the laws, which is essential to good order. They have sent the spirit of discord through the land, and I will prophecy, that it will never be extinguished, but by the extinction of their power. Is the spirit of concord to go hand in hand with the PEACE and EXCISE, through this nation? Is it to be expected between an insolent EXCISEMAN, and a peer, gentleman, freeholder, or farmer, whose private

houses are now made liable to be entered and searched at pleasure? Gloucestershire, Herefordshire, and in general all the cyder counties, are not surely the several counties which are alluded to in the speech. The spirit of concord hath not gone forth among them, but the spirit of liberty has, and a noble opposition has been given to the wicked instruments of oppression. A nation as sensible as the English, will see that a spirit of concord when they are oppressed, means a tame submission to injury, and that a spirit of liberty ought then to arise, and I am sure ever will, in proportion to the weight of the grievance they feel. Every legal attempt of a contrary tendency to the spirit of concord will be deemed a justifiable resistance, warranted by the spirit of the English constitution.

A despotic minister will always endeavour to dazzle his prince with high-flown ideas of the prerogative and honour of the crown, which the minister will make a parade of firmly maintaining. I wish as much as any man in the kingdom to see the honour of the crown maintained in a manner truly becoming Royalty.

The Stuart line has ever been intoxicated with the slavish doctrines of the absolute, independent, unlimited power of the crown. Some of that line were so weakly advised, as to endeavour to reduce them into practice but the English nation was too spirited to suffer the least encroachment on the antient liberties of this kingdom. The King of England is only the first magistrate of this country; but is invested by the law with the whole executive power. He is, however, responsible to his people for the due execution of the royal functions, in the choice of ministers, &c. equal with the meanest of his subjects in his particular duty. The personal character of our present amiable sovereign makes us easy and happy that so great a power is lodged in such hands; but the favourite has given too just cause for him to escape the general odium. The prerogative of the crown is to exert the constitutional powers entrusted to it in a way not of blind favour and partiality, but of wisdom and judgment. This is the spirit of our constitution. The people too have their prerogative, and I hope the fine words of DRYDEN will be engraven on our hearts:

Freedom is the English Subject's Prerogative.

John Wilkes, Charles Churchill, and others, editors, The North Briton, from No. I to No. XLVI inclusive (London, 1769), No. XLV, [156 a-b] passim.

133. Grenville's Scheme of Taxation (1763–1764)

BY COMMISSIONER BENJAMIN FRANKLIN (1778)

Grenville was at this time the English prime minister. — Bibliography on his scheme: Winsor, Narrative and Critical History, VI, 62-68; Channing and Hart, Guide, § 134. - For Franklin, see No. 68 above.

DEAR

PASSY, 12 March, 1778.

EAR SIR: :- In the pamphlets you were so kind as to lend me there is one important fact misstated, apparently from the writers not having been furnished with good information. It is the transaction between Mr. Grenville and the colonies, wherein he understands that Mr. Grenville demanded of them a specific sum, that they refused to grant any thing, and that it was on their refusal only that he made the motion for the Stamp Act. No one of the particulars was true. The fact was this:

Some time in the winter of 1763-4 Mr. Grenville called together the agents of the several colonies, and told them that he purposed to draw a revenue from America; and to that end his intention was to levy a stamp duty on the colonies by act of Parliament in the ensuing session, of which he thought it fit that they should be immediately acquainted, that they might have time to consider; and if any other duty equally productive would be more agreeable to them, they might let him know it. The agents were therefore directed to write this to their respective Assemblies, and communicate to him the answers they should receive : the agents wrote accordingly.

I was a member in the Assembly of Pennsylvania when this notification came to hand. The observations there made upon it were, that the ancient, established, and regular method of drawing aid from the colonies was this: The occasion was always first considered by their sovereign in his Privy Council, by whose sage advice he directed his Secretary of State to write circular-letters to the several governors, who were directed to lay them before their Assemblies. In those letters the occasion was explained to their satisfaction, with gracious expressions of his Majesty's confidence in their known duty and affection, on which he relied that they would grant such sums as should be suitable to their abilities, loyalty, and zeal for his service; that the colonies had always granted liberally on such requisitions, and so liberally during the late war, that the king, sensible they had granted much more than their proportion, had recommended it to Parliament five years successively to