VIII. CHAP In the next place it is perpetual; there is no return. A man is accountable to no person for his doings. Every 1761. man may reign secure in his petty tyranny, and spread terror and desolation around him, until the trump of the archangel shall excite different emotions in his soul. In the third place, a person with this writ, in the day time, may enter all houses, shops, &c., at will, and command all to assist him. Fourthly, by this writ not only deputies, but even their menial servants, are allowed to lord it over us. What is this but to have the curse of Canaan with a witness on us; to be the servant of servants, the most despicable of God's creation? Now one of the most essential branches of English liberty is the freedom of one's house. 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 everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient. Thus reason 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, viz: in the reign of Charles II, when star chamber powers were pushed to extremity by some ignorant clerk of the exchequer. But had this writ been in any book whatever, it would have been illegal; and," continued he, "I am determined to sacrifice estate, ease, health, applause, and even life, to the sacred calls of my country in opposition to a kind of power which cost one king of England his head and another his throne; and to my dying day I will oppose, with all the power and faculties that God has given me, all such instruments of slavery on the one hand, and villainy on the other." * * * The opinion of the court was given at the close of the VIII. term by the subservient Hutchinson. "The court," said CHAP. he, "has considered the subject of writs of assistance, and can see no foundation for such a writ; but as the practice 1761. in England is not known, it has been thought best to continue the question to the next term, that in the meantime opportunity may be given to know the result." At the next term, the writ of assistance was granted, but such was the feeling of the people, that the custom house officers, although having the writs in their pockets, dared not in a single instance carry them into execution. But although the arguments of Otis failed to procure a decision in favor of the people, yet they did not die within the walls of the court house. Caught up by his hearers, they were borne, as if on the wind, throughout the length and breadth of the land. "I do say in the most solemn manner," writes Mr. Adams, "that Mr. Otis's oration against writs of assistance, breathed into this nation the breath of life." With these stirring appeals of James Otis ringing in. their ears, it may readily be supposed, that the people of New York were in no mood for this farther encroachment upon their liberties. "To make the king's will," said they, "the term of office, is to make the bench of judges the instrument of the royal prerogative. Chambers, Horsmanden and Jones, refused to act longer, unless they could hold their commissions during good behavior. Champions at once arose to do battle for the people. Conspicuous among these were William Livingston, John Morin Scott and William Smith, all prominent lawyers, and vigorous thinkers and writers; and they protested, through the public prints, against this attempt to render the judiciary dependent upon the crown. Nor were their efforts entirely fruitless; for in the answer of the assembly, on the seventeenth of December, to the request of Doctor Colden that the usual salary of three hundred pounds to the chief jus-, tice might be increased, it was resolved, "that as the salaries usually allowed for the judges of the supreme court 1 Minot-who gives as his authority the supreme court records. VIII. CHAP. have been, and still appear to be sufficient to engage gentlemen of the first figure both as to capacity and fortune in 1761. this colony, to accept of these offices, it would be highly improper to augment the salary of chief justice on this occasion;" nor would they allow even this, unless the commissioners of the chief justice and the other judges were granted during good behavior. To this, Colden refused to accede; and Chief Justice Pratt, having served several terms without a salary, was finally reimbursed out of his majesty's quit rents of the province. 1 1 Thus were the people of New York slowly following in the wake of their Puritan neighbors. Colden, himself, as if he had some glimmerings of the future, began to doubt the result. "For some years past," he wrote to the board of trade, "three popular lawyers, educated in Connecticut, who have strongly imbibed the independent principles of that country, calumniate the administration in every exercise of the prerogative, and get the applause of the mob by propagating the doctrine that all authority is derived from the people." An act, which was passed during the winter session, deserves a passing notice from the agency that Sir William Johnson had in it. The act, to which allusion is here made, was "for the more effectual collecting of his majesty's quit rents in the colony of New York; and for partition of lands in order thereto." This latter clause was chiefly designed, by the originators of the bill, for the partition of those lands that had remained long uncultivated, on account of the difficulties and expense to which the patentees or their assigns had been subject in making partition among themselves according to the tedious forms of the common law. The "uncultivated lands" referred principally to those immense tracts of land granted before the year 1708,-of which the vast patent of the Kaiaderaseras furnishes an illustration. As the exact quantity of land granted, was not generally mentioned in these grants, and 1 Colden to the lords of trade, 8th July, 1763. VIII. the boundaries were consequently in many cases uncertain, CHAP. it was considered by the crown lawyers that the grants were void in law; and Governor Monckton, in his forty- 1761. sixth instruction, had been directed to annul by every legitimate method, all "such exorbitant, irregular and unconditional grants." But insuperable difficulties, it was at once perceived, would arise, should this instruction be carried into execution, as many of the patentees were persons of great wealth and influence in the Province, who would resort to every method in their power to circumvent the efforts of the governor. Owing, moreover, to the indefiniteness of the boundaries, the patentees had largely infringed upon the king's lands, or in other words, the land owned and occupied by the Indians. This, as we have seen, was the source of numerous contentions between the whites and the Indians, especially the Mohawks; and Sir William Johnson, after his return from Detroit, held a correspondence with Lieutenant Governor Colden upon the subject; suggesting that the only way in which these disputes could be permanently settled, would be to have the lands thoroughly and accurately surveyed by the king's surveyor general, with correct instruments, from whose survey there could be no appeal. "Let the survey," wrote Johnson, "be done in the most plain and intelligible manner, so that every patent or tract, with the patentees' names, the quantity of each, and the year patented, may easily be known." In consequence of these suggestions, the lieutenant governor had a clause inserted in the act under consideration, "whereby the outlines of every tract were to be run by the king's surveyor general of the lands before partition was made." By this clause, two ends were accomplished: first, the king's lands were guarded against the farther encroachments of the patentees; and secondly, the ill feelings of the Indians were in a great measure removed. Although hostilities had ceased in the American provinces, the war was not yet ended. Spain had long watched with CHAP jealousy the English settlements in the Bay of Honduras, VIII. and regarding the present time as favorable for redressing 1761. these grievances, formed a secret alliance with France. Before Pitt resigned his office, he had shown to the king and his ministers the hostile intentions of the Spanish cabinet, and strongly urged the withdrawal of the British minister from Madrid, and a declaration of war against Spain. But the English cabinet, blinded by the solemn avowal of the Spanish minister of his pacific intentions, heeded not this wise counsel; and while Egremont and Bute were congratulating the king upon the near prospect of peace, Spain had declared war. In this emergency, the British cabinet, confident in the strength of their resources, which under the administration of the great commoner had been rendered so effective, determined to strike a blow at the French and Spanish possessions in the West Indies; and while a powerful armament was fitting out at home for the capture of Havana, the troops in America received orders to sail against Martinico. The charge of this latter expedition was entrusted to Brigadier General Monckton, who, preferring the excitement of arms to the cares and troubles of office, had requested and obtained the command. Accordingly, having produced his commission to the council and taken the oaths of office, he sailed from New York on the last day of November, 1761, leaving the government in the hands of Doctor Colden. The forces placed under his command consisted of two ships of the line, the Alcide and Devonshire, and a hundred sail carrying twelve thousand regulars and provincial troops. General Lyman, the second in command of the forces at Lake George in 1755, commanded the Provincials, seventeen hundred and eightyseven of whom had been raised by New York. Gates and Montgomery, both of whom were destined to become so distinguished in later years—the one by his victory over Burgoyne, and the other by his glorious death at Quebecaccompanied the expedition. The fleet appeared off |