A website from the Massachusetts Historical Society; founded 1791.
close

Browsing: Legal Papers of John Adams, Volume 2


Docno: ADMS-05-02-02-0006-0002-0002

Author: Adams, John
Date: 1761-02-24

Adams' Minutes of the Argument1

Suffolk Superior Court, Boston, 24 February 1761

Writs of Assistance
Gridley. The Constables distraining for Rates.2 More inconsistent with English Rights and Liberties than Writts of assistance. And Necessity authorizes both.
Thatcher. I have searched, in all the ancient Repertories of Prece• { 124 } dents, in Fitzherberts Natura Brevium,3 and in the Register (Q. what the Register is) and have found no such Writt of assistance as this Petition prays. I have found two Writts of assistance in the Register but they are very different from the Writt pray'd for.4
In a Book, intituled the Modern Practice of the Court of Exchequer5 there is indeed one such Writt, and but one.
By the Act of Parliament any other private Person may as well as a Custom House Officer take an officer, a sherriff, or Constable &c. and go into any shop, store &c. and seize: any Person authorized by such a Writt, under the seal of the Court of Exchequer, may. Not Custom House officers only.6 Strange.7
Only a temporary Thing.
The most material Question is, whether the Practice of the Exchequer, will warrant this Court in granting the same.
The Act impowers all the officers of the Revenue to enter and seize in the Plantations, as well as in England. 7. & 8. Wm. 3, c. 22, §6. gives the same as 13. & 14. of C[harles] 8 gives in England. The Ground of Mr. Gridleys argument is this, that this Court has the { 125 } Power of the Court of Exchequer. But This Court has renounced the Chancery Jurisdiction, which the Exchequer has in Cases where either Party is the Kings Debtor. Q. into that Case.9
In England all Informations of uncust[om]ed or prohibited Importations, are in the Exchequer. So that the Custom House officers are the officers of that Court. Under the Eye and Direction of the Barons.
The Writ of Assistance is not returnable. If such seisure were brot before your Honours, youd often find a wanton Exercise of their Power.
At home, the officers seise at their Peril even with Probable Cause.10
Otis. This Writ is against the fundamental Principles of Law. The Priviledge of House. A Man, who is quiet, is as secure in his House, as a Prince in his Castle, not with standing all his Debts, and civil Prossesses of any kind.—But
For flagrant Crimes, and in Cases of great public Necessity, the { 126 } Priviledge may be [encroached?] 11 on. For Felonies an officer may break upon Prossess, and oath—i.e. by a Special Warrant to search such an House, sworn to be suspected, and good Grounds of suspicion appearing.
Make oath coram Ld. Treasurer, or Exchequer, in England or a Magistrate here, and get a special Warrant, for the public good, to infringe the Priviledge of House.12
General Warrant to search for Felonies, Hawk. Pleas Crown.13 Every petty officer from the highest to the lowest. And if some of em are <comm[issioned], others> uncom[missioned] others are uncomm[issioned].14 Gov[ernor and?] Justices used to issue such perpetual Edicts.15 (Q. with what particular Reference?)
But one Precedent, and that in the Reign of C. 2, when Star { 127 } Chamber Powers, and all Powers but lawful and useful Powers were pushd to Extremity.16
The Authority of this Modern Practice of the Court of Exchequer. It has an Imprimatur. But what may not have? It may be owing to some ignorant Clerk of the Exchequer.17
But all Precedents and this among the Rest are under the Control of the Principles of Law. Ld. Talbot. Better to observe the known Principles of Law than any one Precedent, tho in the House of Lords.18
As to Acts of Parliament. An Act against the Constitution is void: an Act against natural Equity is void: and if an Act of Parliament should be made, in the very Words of this Petition, it would be void.19 { 128 } The executive Courts must pass such Acts into disuse.20 8. Rep. 118. from Viner. Reason of the Common Law to control an Act of Parliament.21 Iron Manufacture. Noble Lord's Proposal, that we should send our Horses to England to be shod.22
If an officer will justify under a Writ he must return it. 12th. Mod. 396.23 Perpetual Writ.
{ 129 }
Stat. C. 2.24 We have all as good Right to inform as Custom House officers. And any Man may have a general, irreturnable <Writ> Commission to break Houses.
By 12. of C. on oath before Ld. Treasurer, Barons of Exchequer, or Chief Magistrate to break with an officer.25 14th. C. to issue a Warrant requiring sherriff &c. to assist the officers to search for Goods not enterd, or prohibited.26 7 & 8th. W. & M. gives officers in Plantation same Powers with officers in England.27
Continuance of Writts and Prossesses proves no more, nor so much as I grant a special Writ of assistance on special oath, for special Purpose.28
Pew indorsd Warrant to Ware. Justice Walley searchd House.29 Law Prov. Bill in Chancery. This Court confind their Chancery Power to Revenue, &c.30
Gridley. By the 7. & 8. of Wm. c. 22. §. 6th.31 This authority, of breaking and Entring ships, Warehouses Cellars &c. given to the Customs House officers in England by the statutes of the 12th. and 14th. of Charl. 2d.32 is extended to the Custom House officers in the Plantations: and by the statute of the 6th. of Anne,33 Writts of assistance { 130 } are continued, in Company with all other legal Proscesses for 6 months after the Demise of the Crown.—Now What this Writ of assistance is, we can know only by Books of Precedents. And We have producd, in a Book intituld the modern Practice of the Court of Exchequer,34 a form of such a Writ of assistance to the officers of the Customs. The Book has the Imprimatur of Wright, C.J. of the King's Bench which is as great a sanction as any Books of Precedents ever have, altho Books of Reports are usually approvd by all the Judges.35 And I take Brown the Author of this Book to have been a very good Collector of Precedents. I have two Volumes of Precedents of his Collection, which I look upon as good as any, except Coke and Rastal.36
And the Power given in this Writ is no greater Infringement of our Liberty, than the Method of collecting Taxes in this Province.37
Every Body knows that the subject has the Priviledge of House only against his fellow subjects, not vs. the King either in matters of Crime or fine.38
{ 131 }
Extracts from the Acts of Parliament.39
14. Car. 2nd.40 “And it shall be lawful to and for any Person or Persons authorized by Writ of assistants,41 under the seal of his Majesties Court of Exchequer, to take a Constable, Headborough, or other public officers 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 what soever prohibited and uncustomed and to put and secure the same in his Majesties store House, in the Port [next] to the Place where such seizure shall be made.”
7. & 8th. Willm. 3rd.42 “And that the officers for collecting and managing his Majesties Revenue and inspecting the Plantation Trade in any of the said Plantations shall have the same Powers and authorities &c.43 as are provided for the officers of his Majesties Customs in { 132 } England by the said last mentioned Act made in the 14th. Year of the Reign of K. Char. 2d. and also to enter Houses or Warehouses to search for and seize any such Goods.44 And that the like assistance shall be given to the said officers in the Execution of their office, as by the said last mentiond Act is provided, for the officers in England.”45
Prov. Law. Page 114.46 Be it enacted &c. that there shall be a Superiour Court of Judicature, Court of Assize and General Goal &c. over this whole Province &c. who shall have Cognizance of all Pleas Real, Personal or mixt, as well all Pleas of the Crown &c. and generally of all other matters as fully and amply to all Intents and Purposes whatsoever as the Courts of Kings Bench, Common Pleas, and Exchequer within his Majesties Kingdom of England, have or ought to have.
Petition. To the honorable &c.47
Humbly shews,
{ 132 } { 132 } { 133 }
That he is lawfully authorized to execute the office of surveyor of all Rates, Duties, and Impositions, arising and growing due to his Majesty, at Boston in this Province and cannot fully exercise said office in such manner as his majesties service and the Laws in such Cases require Unless your Honours, who are vested with the Power of a Court of Exchequer for this Province will please to grant him a Writt of assistants, he therefore prays he and his Deputties may be aided in the Execution of said office within his District by a Writ of assistants under the seal of this superior Court in legal Form and according to Usage in his Majestys Court of Exchequer and in Great Britain.
[signed] C.P.
Province of the Massachusetts Bay George the second by the Grace of God of Great Britain France and Ireland King, Defender of the Faith &c.48

[salute] To all and singular Justices of the Peace, sherriffs and Constables, and to all other our officers and subjects within said Province and to each of you

[salute] Greeting.

Whereas the Commissioners of our Customs have by their Deputation dated the 8th. day of Jany. 1752, assignd Charles Paxton Esqr. surveyor of all Rates, Duties, and Impositions arising and growing due within the Port of Boston in said Province as by said Deputation at large appears, We therefore command you and each of you that you permit the said C.P. and his Deputies and servants from Time to time at his or their Wi[ll] 49 as well in the day as in the Night to enter and go on board any ship, Boat or other Vessel riding lying or being within or coming to the said Port or any Places or Creeks appertaining to said Port, such ship, Boat or Vessell then and there found to View and search and strait to examine in the same, touching the Customs and subsidies to us due, and also in the day Time together with a Constable or other public officer inhabiting near unto the Place to enter { 134 } and go into any Vaults, Cellars, Warehouses, shops or other Places to search and see, whether any Goods, Wares or Merchandizes, in the same ships, Boats or Vessells, Vaults, Cellars, Warehouses, shops or other Places are or shall be there hid or concealed, having been imported, ship't or laden in order to be exported from or out of the said Port or any Creeks or Places appertaining to the same Port; and to open any Trunks, Chests, Boxes, fardells or Packs made up or in Bulk, whatever in which any Goods, Wares, or Merchandizes are suspected to be packed or concealed and further to do all Things which of Right and according to Law and the statutes in such Cases provided, is in this Part to be done: and We strictly command you and every of you that you, from Time to Time be aiding and assisting to the said C.P. his Deputties and servants and every of them in the Execution of the Premisses in all Things as becometh: Fail not at your Peril:
[signed] Witness Stephen Sewall Esqr.50 &c.
1. In JA 's hand, one large sheet folded three times to make a pocket-size gathering of sixteen pages; seven pages are blank. Adams Papers, Microfilms, Reel No. 185. Printed by CFA in 2 JA, Works 521–523, and, with extensive annotation, in Quincy, Reports (Appendix) 469–476. For the dating, see note 23 above.
2. That is, the procedure for taking and selling property for nonpayment of taxes authorized under Province Law. Act of 3 Oct. 1730, c. 1, §§12, 13, 2 A&R 552–553.
3. Anthony Fitzherbert, New Natura Brevium (various edns.: French, ca. 1531–1635; English, 1652–1793).
4. The Registrum Brevium, or Register of Writs, a semi-official compilation based on the medieval manuscript registers kept by clerks of Chancery and practitioners. See Percy H. Winfield, The Chief Sources of English Legal History 298–302 (Cambridge, Mass., 1925). The writs to which Thacher refers are found in Registrum Brevium tam Originalium quam Judicialium, Appendix 46–47 (London, 4th edn., 1687). Gray points out that they direct the sheriff to assist a “party to a suit in chancery to get possession, under a decree of the Court, of lands withheld from him by another party to the suit.” Quincy, Reports (Appendix) 396.
5. As the remarks of Otis and Gridley, notes 17 69 , 34 86 , below, indicate, the work referred to here is William Brown's Compendium of the Several Branches of Practice in the Court of Exchequer at Westminster (London, various edns., 1688–1725). The writ in question, found at p. 358–361 in the 1688 edition, is set out in full in Quincy, Reports (Appendix) 398–399. See an extract, note 17 69 below. See also notes 12 above, 16 68 below. A work entitled The Modern Practice of the Court of Exchequer (London, 1731) contains nothing even resembling a writ of assistance.
6. 13 & 14 Car. 2, c. 11, §5(2) (1662), extracted by JA , text at note 40 92 below. The section cited bears Thacher out, but it probably should be read with 13 & 14 Car. 2, c. 11, §15, providing that no goods “shall be seized as forfeited” except by persons authorized by the Customs Commissioners, the Treasury, or the Crown.
7. Presumably Horne v. Boosey, 2 Str. 952, 93 Eng. Rep. 963 (K.B. 1733): Trover held to lie against a tidesman (a minor official charged with searching vessels for prohibited goods), who had seized goods ashore and had them condemned in the Exchequer. The Court noted a distinction between a seizure by “a proper officer,” which could be attacked only in the Exchequer, and the seizure by this defendant, “who could not enter a house without a writ of assistance and a peace officer, the words of his warrant being so restrained.” See Quincy, Reports (Appendix) 470 note.
8. That is, 13 & 14 Car. 2, c. 11, note 6 58 above. For the Act of 7 & 8 Will. 3, see note 15 above.
9. Gray has identified this case as McNeal v. Brideoak, SCJ Rec. 1754, fol. 150 (Suffolk, Feb. 1754), in which the complainants, Ann and Mary McNeal of Dublin, proceeded as “Debtors and Accountants to his Majesty.” The action, described as a “Bill in Equity,” was dismissed and the complainants were allowed an appeal to the King in Council, of which no record has been found. Quincy, Reports (Appendix) 470–471 note. Compare Quincy, Reports 54. See Min. Bk. 67, SCJ Suffolk, Nov. 1752, N–137; Feb. 1754, C–26. The Exchequer jurisdiction in question, either legal or equitable, arose from a writ known as quominus, because the plaintiff made a fictional allegation that he was debtor to the King for the amount of his claim and was “by which less” able to meet his debt. The court acted by virtue of its power in matters affecting the royal purse. See 3 Blackstone, Commentaries *45–46; Plucknett, Concise History 160–161, 170. The Massachusetts court's refusal to act would seem to be a reflection more of its lack of equity powers than of any desire to disclaim the powers of Exchequer, conferred on it by statute. Act of 26 June, 1699, c. 3 §1, 1 A&R 370, set out, note 46 98 below. The writ of assistance was part of the Exchequer's common-law revenue jurisdiction, rather than an equitable process. See Quincy, Reports (Appendix) 538–539; Brown, Compendium 28–29; note 18 above; note 30 82 below.
10. Thacher here seems to be citing Leglise v. Champante, 2 Str. 820, 93 Eng. Rep. 871 (K.B. 1728) where in an action at law against a customs officer for the seizure of goods which the Exchequer had found not liable to forfeiture, “it was held, that in these cases the officer seizes at his peril, and that a probable cause is no defense.” The authority of this case is cast in doubt by the statute, 19 Geo. 2, c. 34, §16 (1746), continued to 29 Sept. 1764 by 32 Geo. 2, c. 18, §1 (1759), which made a court's certification of probable cause a bar to any suit against the seizing officer. See 12 Viner, Abridgment 173. It seems to have been well established in England, however, that in case of a wrongful search as distinct from a wrongful seizure, probable cause was not a defense to an action, even when the search had been carried out by virtue of a writ of assistance. See authorities cited in Quincy, Reports (Appendix) 533–534 note. These cases were all decided after 1761, but even if this had clearly been the rule when Thacher argued, it would seem to cut against his position, since it demonstrates that the power given by the writ could be curbed by the courts.
11. Illegible in the MS . Gray's reading is “incroached.” Quincy, Reports (Appendix) 471 note. It is textually more likely, but hardly more satisfactory than CFA 's reading of “infringed.” 2 JA, Works 521.
12. For the powers of customs officers to enter on special warrant see 12 Car. 2, c. 19 (1660) quoted, note 5 above. In a number of situations the General Court granted provincial customs and other officers power to obtain a special search warrant to search specific premises upon giving information to a justice of the peace. See for example, Act of 13 Feb. 1760, c. 28, §25, 4 A&R 311 (Collector of excise to search for liquors sold without permit); Act of 3 Feb. 1764, c. 28, §5, 4 A&R 684 (Sheriff or constable to have warrant to search for flesh or skins of moose and deer killed out of season). Prior to the Import Act of 20 April 1756, c. 47, §§18–20, 3 A&R 936, province customs officers had the right to search in all suspected places “for illegally imported goods.” In the 1756 act and thereafter the general provision was retained, but officers with a warrant on oath of information could force an entry to search. Compare Act of 27 June 1755, c. 1, §§18, 19, 3 A&R 845. See Frese, Writs of Assistance (dissertation) 179 note, 181 note.
13. Hawkins, Pleas of the Crown 82.
“But it seems to be very questionable whether a Constable can justify the Execution of a general Warrant to search for Felons or stolen Goods, because such Warrant seems to be illegal in the very face of it; for that it would be extremely hard to leave it to the discretion of a common Officer to arrest what Persons, and search what Houses he thinks fit. And if a Justice cannot legally grant a blank Warrant for the Arrest of a single Person, leaving it to the Party to fill it up, surely he cannot grant such a general Warrant, which might have the effect of an Hundred blank Warrants.”
14. Gray's suggestion that JA meant to write, “If some of em are commissioned others are uncommissioned,” seems sound in context, although the MS also supports CFA 's reading of “common” and “uncommon.” Quincy, Reports (Appendix) 472 note; 2 JA, Works 522.
15. This is apparently a reference to the prior practice in Massachusetts. See text and note 17 above. Gray reads the passage as “Government Justices” and suggests that it is a reference to the 17th-century English practice under which justices of the peace would issue warrants authorizing a general search for stolen goods upon the complaint of one who had been robbed. Quincy, Reports (Appendix) 472 note. See also 2 JA, Works 522. There is a passage in JA 's “Abstract,” at note 33 135 below, in which Otis goes on at some length about the former powers of Justices of the Peace to issue general warrants. The use of the phrase “perpetual Edicts” in the present text, however, surely indicates a writ giving a general power of search, rather than the more limited Justice's warrant.
16. Probably a reference to the form of a writ in Brown's Compendium. See note 5 57 above, note 34 86 below. Although this work was not published until 1688, the form recites that the customs officers therein given writs were commissioned by virtue of Letters Patent dated “anno regni nostri vicesimo septimo” (in the twenty-seventh year of our reign), which could refer to no English monarch ruling between Elizabeth I and George II except Charles II. The date of the form would thus be between 1676 and 1685, the year of Charles II's death.
17. Gray notes that the language of the writ is “so curious a justification of Otis's suggestion” that he reprints it in full. Quincy, Reports (Appendix) 398–399. As the following extract may suggest, it is certainly an interesting example of the degeneration of Latin:
“Ac etiam in tempore diurno unacum Constabular' Praeposito Anglice Headborough aut alio publico officiario prope inhabitan” intrare & ire in aliquas Cellas Anglice Vaults Cellur' Repositor' Anglice Warehouses Shopas vel alia loca scrutare & videre utrum aliqua bon' res vel merchandizas. . . . Ac aperire aliquos riscos Anglice Truncks cistas pixid' fardell' Packs fatt' vel de la Bulke quecunque in quibus aliqua bona res vel merchandiz' erint suspect' fore paccat' vel concelat.'” Id. at 399.
The translated form, issued to Charles Paxton in Massachusetts in 1756, is printed in text at note 48 100 below.
18. See Clare v. Clare, Talb. 21, 26–27, 25 Eng. Rep. 638, 640 (Ch. 1734) (Talbot, Lord Chancellor):
“The case of Higgins versus Dowler is very imperfectly reported; and was upon a Demurrer, where Things are not argued with that Nicety which they are upon arguing the Merits of a Cause. That of Stanley and Lee has not been particularly mentioned; so that what we have of it is only upon memory: And I think it much better to stick to the known general rules, than to follow any one particular precedent which may be founded on reasons unknown to us: Such a proceeding would confound all Property. . . . The Case of Lady Lanesborough versus Fox is the strongest authority that can be; and even, had it not been in the House of Lords, I should have thought myself bound to go according to the general and known Rules of Law.”
Compare Quincy, Reports (Appendix) 473 note 17. Otis here makes use of two of the loopholes available in the 18th century to ensure that precedent did not stifle the orderly growth of the law. These were the inadequacy of the source of the asserted precedent and an appeal to principles variously described as those of common law, natural law, reason, and common sense. See 12 Holdsworth, History of English Law 150–158; C. H. S. Fifoot, Lord Mansfield 214–218 (Oxford, 1936).
19. Probably an inadvertence for the writ itself. A statute in the language of the petitions upon which the case came up would have been neither unconstitutional nor effective. See text at note 22 above. The petition of Charles Paxton for a writ in 1755, printed at note 47 99 below, even if it had been urged in this case, is scarcely less neutral in tone. But compare Quincy, Reports (Appendix) 474 note. Gray suggests that the phrase “natural equity” means that Otis cited Lord Hobart's language in Day v. Savadge, Hobart 85, 87, 80 Eng. Rep. 235, 237 (C.P. 1615): “Even an act of Parliament, made against naturall equitie, as to make a man judge in his owne case, is void in it selfe, for Jura naturae sunt immutabilia, and they are leges legum.” See Quincy, Reports (Appendix) 521–524. See note 41 above.
20. That is, the courts of justice, which “execute” the law. See Quincy, Reports (Appendix) 474 note; No. 46, text at note 15 92 . Compare Hutchinson's Charge to the Grand Jury, March Term, Suffolk, 1769:
“We, Gentlemen, who are to execute the Law, are not to enquire into the Reason and Policy of it, or whether it is constitutional or not. . . . We, and you, Gentlemen, as the Executive Body, are to enquire what is Law, and see that the Laws are inforced. If we step over this Line, and judge of the Propriety or Impropriety, the Justice or Injustice of the Laws, we introduce the worst sort of Tyranny:—the most absolute Despotism being formed by a Union of the Legislative and Executive Power.” Quincy, Reports 307–308.
21. Bonham's Case, 8 Co. Rep. 113b, 118, 77 Eng. Rep. 646, 652–653 (C.P. 1610), here cited by Otis from the extract of it in 19 Viner, Abridgment 512–513, tit. Statutes (E. 6, p. 15), which is as follows (variations in Coke's text being indicated in brackets):
“It appears in our Books, That in several [many] Cases the Common Law shall [will] controul Acts of Parliament, and sometimes adjudge them to be utterly void; For when an Act of Parliament is against Common Right and Reason, or repugnant, or impossible to be performed, the Common Law shall[will] controul it, and adjudge it[such act] to be void, and therefore in 8 E. 3. 30. a. b. Thomas Tregor's Case upon the Statute of Westm. 2. cap. 38 & Artic. super Cartas cap. 9 Herle said, that Sometimes [some] Statutes are made contrary to [against] Law and Right which the Makers of [those who made] them perceiving will not put them in Execution.”
For discussion of this passage, see text at notes 35–44 above.
22. The reference has not been identified, but it is presumably to the debates in Parliament on 23 Geo. 2, c. 29 (1750) prohibiting iron manufacture in the colonies. See Quincy, Reports (Appendix) 474 note. This is the only mention of the statutes regulating colonial trade and manufacture in either of JA 's contemporary accounts. In his later letters, however, JA described Otis' massive attack of “four or five hours” on these Acts. See 10 JA, Works 315–350. He also told Tudor in a letter of 21 Aug. 1818 that “Mr. Otis asserted all these acts to be null and void by the law of nature, by the English constitution, and by the American charters, because America was not represented in Parliament.” Id. at 351. This statement would not seem to be justified by the bare reference here.
23. Freeman v. Bluet, 12 Mod. 394, 396, 88 Eng. Rep. 1403, 1404 (K.B. 1700), an action against a court officer who had seized goods in replevin under a precept from the sheriff directing a return. In upholding a demurrer to a plea of justification, on the ground that it did not allege a return, Holt, C.J., said,
“in all Capias's ad Respondend, or other mean Process to [the] Sheriff [or other immediate officer], if Trespass or false Imprisonment be brought against him for executing them, he cannot justify without showing a Return . . . for, he that has not shewed to the Court that he has done his Duty in what the Process of the Court required him, shall not be justified by the Process.”
Otis seems to be arguing that since the writ of assistance does not require a return the court has no control over its use. See his argument, text at note 35 137 below. Compare Thacher's argument, text at notes 9–10 61–62 above.
24. That is, the statutes of Charles II referred to in the next paragraph. Compare Thacher's remark, text at note 6 58 above.
25. 12 Car. 2, c. 19, §1 (1660), discussed, note 5 above.
26. 13 & 14 Car. 2, c. 11, §5(2) (1662), text at note 40 92 below.
27. 7 & 8 Will. 3, c. 22, §6 (1696), text at notes 42–45 94–97 below.
28. That is, 1 Anne, stat. 1, c. 8, §5 (1702), providing for continuation of the writ of assistance and other processes after the death of the sovereign. JA 's notes may be somewhat garbled, but Otis seems to be saying that this statute is of equal force whether the writs are special or general in nature. See his remarks in JA 's “Abstract,” text at notes 32–34 134–136 , and following note 46 148 below.
29. These incidents are more fully described in JA 's “Abstract,” text at notes 38–42 140–144 below.
30. Otis is here apparently rehearsing Thacher's arguments, text at note 9 61 above, that the Superior Court had renounced the Exchequer powers given it by province law (note 46 98 below). The last sentence, which may be inaccurately reported by JA , seems to mean that the only Exchequer powers which the court retained were those given it by provincial and parliamentary Acts of Trade and Revenue over violations of their provisions. See note 18 above. If this is the argument, it may prove too much. For, while the provincial statutes contained sharply limited search provisions (see note 12 64 above), in cases under English statutes it could well be argued that the power to issue writs of assistance was a power incident to the revenue jurisdiction, rather than an inherent chancery power which the court had renounced.
31. At notes 42–45 94–97 below.
32. The 12th of Charles II is quoted, note 5 above. For the “14th” (i.e. 13th & 14th) of Charles II, see text at note 40 92 below.
33. Apparently an inadvertence for 1 Anne, stat. 1, c. 8, §5 (1702). The confusion, whether in Gridley's argument or JA 's reporting, may perhaps be explained by the fact that the duration of Parliament and the Privy Council and the tenure of all Crown officers was extended for six months after the death of the sovereign by 6 Anne, c. 7, §§4, 8 (1707).
34. That is, Brown's Compendium, cited in note 5 57 above.
35. Under the various Licensing Acts which controlled the British press during the greater part of the 17th century, the imprimatur was a required proof that permission to publish had been granted. See 6 Holdsworth, History of English Law 367–378. Upon occasion, however, the judges used it to convey some opinion of a book's value. See John William Wallace, The Reporters 34 note (Boston, 1882). The Compendium bears no such judgment, but only the statement, “Imprimatur, R. Wright, May 1st, 1688.” This was Sir Robert Wright, Chief Justice of the King's Bench, 1687–1688. Gray suggests that Wright's incompetence weakens the value of his imprimatur, relying largely on the judgment of Roger North, whose brother, Baron Guilford, was Wright's personal enemy. Quincy, Reports (Appendix) 477 note. See 6 Holdsworth, History of English Law 507–508, 530, 534. Both Wright's rise to judicial eminence and his conduct upon the Bench under the Stuarts were politically tainted, as was his end, which came in Newgate in 1689 while under indictment for high treason and bribery. He was nevertheless a lawyer of long experience, having entered Lincoln's Inn in 1654, been made serjeant in 1679, and been appointed a Baron of the Exchequer in 1684. DNB .
36. That is, Sir Edward Coke, Booke of Entries; containing perfect and approved Presidents of Counts, Declarations, etc. (London, 1614), and William Rastell, Colleccion of entrees, of declaracions, of barres, replications, rejoinders, issues, verdits, and divers other matters and fyrst an Epistle, with certayne instructions (London, 1566). As to these two basic works on common law pleading, see 5 Holdsworth, History of English Law 384, 461. The volumes of Brown which Gridley owned were probably his Formula bene placitandi; a Book of Entries, containing Precedents (London, 1671), and Methodus Novissima intrandi Placita Generalia (London, 1699). See 5 Holdsworth, History of English Law 385–386; 6 id. at 600, 683, 686.
37. See note 2 54 above.
38. See Dalton, Country Justice 404: “The Officer, upon any Warrant from a Justice, either for the Peace or Good Behaviour, or in any other Case where the King is a Party, may by Force break open a Man's House to arrest the Offender.” Compare 2 Hale, Pleas of the Crown 82, 92, to the effect that an officer may break a house to arrest a suspect felon, “for it is a proceeding for the king by persons by law authorized”; but that a private person does so at his peril. But see 2 Hawkins, Pleas of the Crown 86–87: “But where one lies under a probable suspicion only, and is not indicted, it seems the better Opinion at this Day, That no one can justify the Breaking open Doors in Order to apprehend him.”
39. The material following is in a more careful hand and was evidently added to the foregoing by JA at some time after the argument.
40. That is, 13 & 14 Car. 2, c. 11, §5(2) (1662). Quotation marks supplied; italics are JA 's.
41. There was considerable confusion between this spelling and “assistance.” In the Nov. 1761 argument Gridley urged that “assistants” was correct, and that it signified the controlling power which a constable could exercise in the search. Quincy, Reports 56–57. Contemporary sources indicate that the original spelling was “assistance.” See, for example, Thomas Manley, ed., A Collection of the Statutes Made in the Reigns of King Charles I and King Charles II 131 (London, 1667); J. Keble, ed., Statutes at Large 1216 (London, 1676); compare 5 Statutes of the Realm 394 (London, 1819). Although this spelling was followed in the index to the 1688 edition of Brown's work on Exchequer practice (note 5 57 above), “assistants” is found in all editions of the Statutes at Large published between 1681 and 1758. See, for example, Keble, ed., Statutes at Large 1218 (London, 2d edn., 1681); William Hawkins, ed., Statutes at Large, 2:583 (London, 1735). In editions of 1758 and after, however, the spelling is once again “assistance.” See John Cay, Statutes at Large, 2:708 (London, 1758); Owen Ruffhead, Statutes at Large, 3:237 (London, 1763). It seems probable that the confusion was due to an error in Keble's 1681 edition of the Statutes at Large. According to R. C. Jarvis, present Intelligence Officer and Librarian, H.M. Customs and Excise, “assistance” is merely an archaic form of “assistants,” meaning a body of official helpers. Letter of 8 Nov. 1963 and memorandum in Adams Papers editorial files. Compare OED . If this interpretation is correct, Gridley's view is sound, regardless of the spelling adopted.
42. That is, 7 & 8 Will. 3, c. 22, §6(2) (1696). Quotation marks supplied. Passages omitted by JA are set out in notes 43 95 and 44 96 below from Hawkins, Statutes at Large.
43. JA has here omitted the following: “for visiting and searching of ships, and taking their entries, and for seizing and bringing on Shoar any of the Goods prohibited to be imported or exported into or out of any of the said Plantations or for which any Duties are payable or ought to have been paid, by any of the aforementioned Acts.”
44. JA has here omitted the following:
“And that all the Wharfingers, and Owners of Keys and Wharfs, or any Lightermen, Bargemen, Watermen, Porters, or other Persons assisting in the Conveyance, Concealment or Rescue of any of the said Goods, or in the hindring or Resistance of any of the said Officers in the Performance of their Duty, and the Boats, Barges, Lighters or other Vessels, employed in the Conveyance of such Goods shall be subject to the like Pains and Penalties as are provided by the same Act made in the Fourteenth Year of King Charles the Second, in relation to prohibited or uncustomed Goods in this Kingdom.”
45. The section continues with provisions for penalties upon officers who violate the Act and for special pleading on their behalf in actions brought against them for performance of their duties. See note 10 62 above.
46. That is, Act of 26 June 1699, c. 3, §1, 1 A&R 370. JA 's reference here may be to the text of the Act in Acts and Laws of His Majesties Province of Massachusetts Bay 114 (Boston, 1726), where it appears as 11 Will. 3, c. 3. The relevant section is as follows:
“[T]here shall be a Superiour Court of Judicature, Court of Assize and General Goal Delivery, over this whole Province, to be Held and Kept Annually at the respective Times and Places in this Act hereafter mentioned and expressed, by One Chief Justice, and Four other Justices to be Appointed and Commissionated for the same. Any Three of whom to be a Quorum, who shall have Cognizance of all Pleas, Real, Personal or Mixt, as well all Pleas of the Crown, and all matters relating to the Conservation of the Peace, and Punishment of Offenders; as Civil Causes or Actions between party and party; and between His Majesty and any of His Subjects, whether the same do concern the Realty, and relate to any Right of Freehold and Inheritance; or whether the same do concern the personalty, and relate to matter of Debt, Contract, Damage or personal Injury; and also all mixt Actions which concern both realty and personalty brought before them by Appeal, Review, Writ of Error, or otherwise as the Law directs. And generally of all other Matters as fully and amply to all intents and purposes whatsoever, as the Courts of Kings Bench, Common Pleas and Exchequer within His Majesty's Kingdom of England, have, or ought to have. And are hereby Impowred to give Judgment therein, and award Execution thereupon.”
47. JA has here copied the form of petition used by Charles Paxton in applying for a writ in 1755. The original, printed by Gray, was captioned, “To the Honourable his Majestys Justices of his Superior Court for said Province to be held at York in and for the County of York on the third Tuesday of June 1755.” The writ was issued by order of the Superior Court in August 1755. See Quincy, Reports (Appendix) 402–403 and notes. The document is now in MHi:Misc. MSS .
48. JA has here copied the form of the writ issued to Paxton. The original has not been found. As Gray, who printed JA 's copy, notes, it is a translation of the form in Brown's Compendium, note 5 57 above. Quincy, Reports (Appendix) 404 note.
49. Missing in worn margin of the MS . This is Gray's reading. The Latin is “volunt'.” Quincy, Reports (Appendix) 399, 404.
50. As to Sewall, see note 20 above.

Docno: ADMS-05-02-02-0006-0002-0003

Author: Adams, John
Date: 1761-04

Adams' “Abstract of the Argument”1

Ca. April 1761

Boston Superior Court February 1761.2
On the second Tuesday of the Court's sitting, appointed by the rule of the Court for argument of special matters, came on the dispute on { 135 } the petition of Mr. Cockle3 and others on the one side, and the Inhabitants of Boston on the other, concerning Writs of Assistance. Mr. Gridley appeared for the former, Mr. Otis for the latter. Mr. Thacher was joined with him at the desire of the Court.
{ 136 }
Mr. Gridley. 4 I appear on the behalf of Mr. Cockle and others, who pray “that as they cannot fully exercise their Offices in such a manner as his Majesty's Service and their Laws in such cases require, unless your Honors who are vested with the power of a Court of Exchequer for this Province will please to grant them Writs of Assistance. They therefore pray that they and their Deputies may be aided in the Execution of their Offices by Writs of Assistance under the Seal of this Court and in legal form, and according to the Usage of his Majesty's Court of Exchequer in Great Britain.”
May it please your Honors, it is certain it has been the practice of the Court of Exchequer in England,5 and of this Court in this Province, to grant Writs of Assistance to Custom House Officers. Such Writs are mentioned in several Acts of Parliament, in several Books of Reports; and in a Book called the Modern Practice of the Court of Exchequer, We have a Precedent, a form of a Writ, called a Writ of Assistance for Custom house Officers, of which the following6 a few years past to Mr. Paxton under the Seal of this Court, and tested by the late Chief Justice Sewall is a literal Translation.7
The first Question therefore for your Honors to determine is, whether this practice of the Court of Exchequer in England (which it is certain, has taken place heretofore, how long or short a time soever it continued) is legal or illegal. And the second is, whether the practice of the8 Exchequer (admitting it to be legal) can warrant this Court in the same practice.
In answer to the first, I cannot indeed find the Original of this Writ of Assistance. It may be of very antient, to which I am inclined, or it may be of modern date. This however is certain, that the Stat. of the 14th. Char. 2nd. has established this Writ almost in the words of the Writ itself. “And it shall be lawful to and for any person or persons authorised 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, room, or any other { 137 } place, and in case of Resistance, to break open doors, Chests, Trunks and other Package, and there to seize any kind of Goods or Merchandize whatever prohibited, and to put the same into his Majesty's Warehouse in the Port where Seisure is made.”9
By this act and that of 12 Char. 2nd.10 all the powers in the Writ of Assistance mentioned are given, and it is expressly said, the persons shall be authorised by Writs of Assistance under the seal of the Exchequer. Now the Books in which we should expect to find these Writs, and all that relates to them are Books of Precedents, and Reports in the Exchequer, which are extremely scarce in this Country;11 we have one, and but one that treats of Exchequer matters, and that is called the “Modern practice of the Court of Exchequer,” and in this Book we find one Writ of Assistance, translated above. Books of Reports have commonly the Sanction of all the Judges, but books of Precedents never have more than that of the Chief Justice. Now this Book has the Imprimatur of Wright, who was Chief Justice of the King's Bench,12 and it was wrote by Brown, whom I esteem the best Collector of Precedents; I have Two Volumes of them by him, which I esteem the best except Rastall and Coke. But we have a further proof of the legality of these Writs, and of the settled practice at home of allowing them; because by the Stat. 6th Anne which continues all Processes and Writs after the Demise of the Crown, Writs of Assistance are continued among the Rest.
It being clear therefore that the Court of Exchequer at home has a power by Law of granting these Writs, I think there can be but little doubt, whether this Court as a Court of Exchequer for this Province has this power. By the Statute of the 7th. & 8th. W. 3d., it is enacted “that all the Officers for collecting and managing his Majesty's Revenue, and inspecting the Plantation Trade in any of the said Plantations, shall have the same powers &c. as are provided for the Officers of the Revenue in England; also to enter Houses, or Warehouses, to search for and seize any such Goods, and that the like Assistance shall be given to the said Officers as is the Custom in England.”13
Now what is the Assistance which the Officers of the Revenue are to have here, which is like that they have in England?14 Writs of { 138 } Assistance under the Seal of his Majesty's Court of Exchequer at home will not run here. They must therefore be under the Seal of this Court. For by the law of this Province 2 W. 3d. Ch. 315 “there shall be a Superior Court &c. over the whole Province &c. who shall have cognizance of all pleas &c. and generally of all other matters, as fully and [amply] 16 to all intents and purposes as the Courts of King's Bench, Common Pleas and Exchequer within his Majesty's Kingdom of England have or ought to have.”
It is true the common privileges of Englishmen are taken away in this Case, but even their privileges are not so in cases of Crime and fine. 'Tis the necessity of the Case and the benefit of the Revenue that justifies this Writ. Is not the Revenue the sole support of Fleets and Armies abroad, and Ministers at home? without which the Nation could neither be preserved from the Invasions of her foes, nor the Tumults of her own Subjects. Is not this I say infinitely more important, than the imprisonment of Thieves, or even Murderers? yet in these Cases 'tis agreed Houses may be broke open.
In fine the power now under consideration is the same with that given by the Law of this Province to Treasurers towards Collectors, and to them towards the subject. A Collector may when he pleases distrain my goods and Chattels, and in want of them arrest my person, and throw me instantly into Goal. What! shall my property be wrested from me!—shall my Liberty be destroyed by a Collector, for a debt, unadjudged, without the common Indulgence and Lenity of the Law? So it is established, and the necessity of having public taxes effectually and speedily collected is of infinitely greater moment to the whole, than the Liberty of any Individual.
Thacher. In obedience to the Order of this Court I have searched with a good deal of attention all the antient Reports of Precedents, Fitz. N. Brev.17 and the Register, but have not found any such Writ as this Petition prays. In the latter indeed I have found Two Writs which bear the Title of Brev. Assistentice, but these are only to give possession of Houses &c. in cases of Injunctions and Sequestration in Chancery. By the Act of Parliament any private Person as well as { 139 } Custom House Officer may take a Sheriff or Constable and go into any Shop &c. and seize &c. (here Mr. Thacher quoted an Authority from Strange which intended to shew that Writs of Assistance were only temporary things).18
The most material question is whether the practice of the Exchequer is good ground for this Court. But this Court has upon a solemn Argument, which lasted a whole day, renounc'd the Chance of [Chancery] 19 Jurisdiction which the Exchequer has in Cases where either party is the King's Debtor.
In England all Informations of uncustomed or prohibited Goods are in the Exchequer, so that the Custom House Officers are the Officers of that Court under the Eye and Direction of the Barons and so accountable for any wanton exercise of power.
The Writ now prayed for is not returnable. If the Seizures were so, before your Honors, and this Court should enquire into them you'd often find a wanton exercise of power. At home they seize at their peril, even with probable Cause.
[Otis:] 20
May it please your Honours,
I was desired by one of the court to look into the books, and consider the question now before the court,21 concerning Writs of Assistance. I have accordingly considered it, and now appear not only in obedience to your order, but also in behalf of the inhabitants of this town, who have presented another petition, and out of regard to the liberties of the subject. And I take this opportunity to declare, that whether under a fee or not, (for in such a cause as this I despise a fee) I will to my { 140 } dying day oppose, with all the powers and faculties God22 has given me, all such instruments of slavery on the one hand, and villainy on the other, as this writ of assistance is. It appears to me (may it please your honours) the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of the constitution,23 that ever was found in an English law-book. I must therefore beg your honours patience and attention to the whole range of an argument, that may perhaps appear uncommon in many things, as well as points of learning, that are more remote and unusual, that the whole tendency of my design may the more easily be perceived, the conclusions better descend,24 and the force of them better felt.
I shall not think much of my pains in this cause as I engaged in it from principle. I was sollicited to engage on the other side.25 I was sollicited to argue this cause as Advocate-General, and because I would not, I have been charged with a desertion of my office; to this charge I can give a very sufficient answer, I renounced that office,26 and I argue this cause from the same principle; and I argue it with the greater pleasure as it is in favour 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.27 And as it is in opposition to a kind of power, the exercise { 141 } of which in former periods of English history, cost one King of England his head and another his throne. I have taken more pains in this cause, than I ever will take again: Although my engaging in this and another popular cause28 has raised much resentment; but I think I can sincerely declare, that I cheerfully submit myself to every odious name for conscience sake; and from my soul I despise all those whose guilt, malice or folly has made my foes.29 Let the consequences be what they will, I am determined to proceed. The only principles of public conduct that are worthy a gentleman, or a man are, to sacrifice estate, ease, health and applause,30 and even life itself to the sacred calls of his country. These manly sentiments in private life make the good citizen, in public life, the patriot31 and the hero.—I do not say, when brought to the test, I shall be invincible; I pray GOD I may never be brought to the melancholy trial; but if ever I should, it would be then known, how far I can reduce to practice principles I know founded in truth.—In the mean time I will proceed to the subject of the writ. In the first,32 may it please your Honours, I will admit, that writs of one kind, may be legal, that is, special writs, directed to special officers, and to search certain houses, &c. especially set forth in the writ, may be granted by the Court of Exchequer at home, upon oath made before the Lord Treasurer by the person, who asks, that he suspects such goods to be concealed in those very places he desires to search. The Act of 14th Car. II. which Mr. Gridley mentions proves this. And in this light the writ appears like a warrant from a justice of peace to search for stolen goods. Your Honours will find in the old book, concerning the office of a justice of peace, precedents of general warrants to search suspected houses.33 But in more modern books you will find only special warrants to search such and such houses specially named, in which the complainant has before sworn he suspects his goods are concealed; and you will find it adjudged that special warrants only are legal. In the same manner I rely on it, that the writ prayed for in this petition being general is illegal. It is a power { 142 } that places the liberty of every man in the hands of every petty officer. I say I admit that special writs of assistance to search special houses,34 may be granted to certain persons on oath; but I deny that the writ now prayed for can be granted, for I beg leave to make some observations on the writ itself before I proceed to other Acts of Parliament.
In the first place the writ is universal, being directed “to all and singular justices, sheriffs, constables and all other officers and subjects, &c.” So that in short it is directed to every subject in the king's dominions; every one with this writ may be a tyrant: If this commission is legal, a tyrant may, in a legal manner also, controul, imprison or murder any one within the realm.
In the next place, it is perpetual; there's no return, a man is accountable to no person for his doings, every man may reign secure in his petty tyranny, and spread terror and desolation around him, until the trump of the arch angel shall excite35 different emotions in his soul.36
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.
Fourth, by this not only deputies, &c. 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.37 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 while 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 no chimerical suggestion of a heated Brain—I will mention some facts. Mr. Pew had one { 143 } 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 Honours have no opportunity of judging the persons to whom this vast power is delegated. Another instance is38 this.—Mr. Justice Wally had called this same Mr. Ware before him by a constable, to answer for a breach of the Sabbath day acts, or that of profane swearing. As soon as he had done,39 Mr. Ware asked him if he had done, he replied, yes. Well then, says he,40 I will shew you a little of my power—I command you to permit me to search your house for unaccustomed41 goods; and went on to search his house from the garret to the cellar, and then served the constable in the same manner.42 But to shew another absurdity in this writ, if it should be established, I insist upon it every person by 14th of Car. II. has this power as well as Custom-house officers; the words are, “it shall be lawful for any person or persons authorized, &c.” What a scene does this open! Every man prompted by revenge, ill humour or wantonness to inspect the inside of his neighbour's house, may get a writ of assistance; others will ask it from self defence; one arbitrary exertion will provoke another, until society will be involved in tumult and in blood. Again these writs are not returned. Writs in their nature are temporary things; when the purposes for which they are issued are answered, they exist no more; but these monsters in the law43 live forever, no one can be called to account. Thus reason and the constitution are both against this writ. Let us see what authority there is for it. No 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 Car. II. when Star-chamber powers were pushed in extremity by { 144 } some ignorant clerk of the Exchequer. But had this writ been in any book whatever it would have been illegal. All precedents are under the controul of the principles of the 44 law. Lord Talbot Says, it is better to observe these45 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.46 But these prove no more than what I before observed, that special writs may be granted on oath and probable suspicion. The Act of 7th and 8th of 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 grounds, should take his oath on it, should do this before a magistrate, and that such magistrate, if he thinks proper should issue a special warrant to a constable to search the places. That of 6th of Anne can prove no more.47
It is the business of this court to demolish this monster of oppression, and to tear into rags this remnant of Starchamber tyranny—&c.
The court suspended the absolute determination of this matter. I have omitted many authorities; also many fine touches in the order of reasoning, and numberless Rhetorical and popular flourishes.48
1. The text that follows is the most complete rendition possible today of JA 's “Abstract of the Argument for and against the Writts of Assistance,” probably made by him sometime in the spring of 1761. See text at note 49 above. Five versions of this famous document are here brought together: (1) The text of the Gridley and Thacher arguments from Israel Keith's Common Place Book, as printed in Quincy, Reports (Appendix) 479–482, from a document then (1864) in the possession of John Newell of Pittsford, Vt., and Boston, which recent extensive search has not located; (2) the text of the Gridley and Otis arguments from the Joseph Hawley Common Place Book now in NN:Hawley Papers; (3) the text of the Otis argument as printed in the Massachusetts Spy, 29 April 1773, p. 3, cols. 1–3; (4) the text of the Otis argument as printed in George Richards Minot, Continuation of the History of the Province of Massachusetts Bay, 2:91–99 (Boston, 1803), with paraphrases of the arguments of Gridley and Thacher; (5) Minot's text of the Otis argument as reprinted by CFA with some further minor corrections and the elimination of phrases which JA had described as interpolations, in 2 JA, Works 523–525. All five versions are closely related. The Spy and Minot texts of Otis differ only in corrections of grammar and style, apparently made by Minot, and CFA follows the latter, except for the interpolations. The Hawley version of Otis and that in the Spy are identical, with the exception of material apparently omitted in copying by Hawley and certain touches of style omitted, perhaps for editorial reasons, from the Spy. Gray did not print Keith's text of Otis, but we have his testimony that it closely followed Minot. Quincy, Reports (Appendix) 482. A similar identity prevails among the various texts of the Gridley and Thacher arguments, including Minot's paraphrase.
Although no copy in JA 's hand has been found, the evidence that his was the common parent of these five versions seems overwhelming. The similarity in content and phraseology to JA 's rough notes has already been pointed out, as have his later recollections that it was his notes which appeared first in the Spy, then in Minot's History of Massachusetts Bay. See text and note 51 above. For other circulation of the “Abstract,” see note 52 above. The best independent evidence of JA 's authorship is the Keith Common Place Book. Keith, Harvard 1771, served in the Continental Army and was admitted an attorney in the Superior Court for Suffolk County in March 1780. No record of his clerkship has been found, but he undoubtedly studied law in Boston both before and after his military service. His Common Place Book was said to contain not only the argument on the writs, but other legal notes known to have come from JA . Quincy, Reports (Appendix) 478. On the basis of this evidence it seems a fair conclusion that Keith copied both the argument and the other materials either from JA 's own papers, or from a copy by someone who had clerked for him. The history of the Hawley version cannot be so readily traced, but since Joseph Hawley was JA 's friend and contemporary at the bar, it seems likely that he too copied the arguments from JA . The only other reasonable hypothesis would seem to be that the Keith and Hawley texts were copied from a summary of the argument which another (perhaps Jonathan Williams Austin, whom JA accused of the 1773 “theft” of the materials, text at note 1 above) had made on the basis of JA 's on-the-spot notes, which are indubitably the source of the longer version. This theory seems refuted by the evidence of the diary entry, note 49 above, and by JA 's later taking credit for the Spy and Minot texts.
The basic texts followed here are Gray's rendition of the Keith version of Gridley's and Thacher's arguments, and the Massachusetts Spy version of the Otis argument. These are textually the most complete versions and are probably also closest to the missing original. In the footnotes, variations with the other versions have been noted where they seem significant, either as touches of style that might have been JA 's, or as examples of later editorial practice.
2. The following text of Gridley's and Thacher's arguments is from Quincy, Reports (Appendix) 479–482. See note 1 103 above. Gray pointed to the first paragraph, placing the argument on the second Tuesday of the term, as corroboration of the Keith document's “antiquity and authenticity,” since an order of court at the August term 1759 had provided that “the special pleadings shall come on the second Tuesday in each term.” Id. at 479; see Min. Bk. 71, SCJ Suffolk, Aug. 1759, following N–73. The Massachusetts Spy's version of the Otis argument began with the first sentence of this introduction (erroneously dated Feb. term, 1771), and added that Gridley “endeavoured to support the legality of Writs of Assistance by force of several statutes and precedents in England, but his chief stay he acknowledged was the necessity of the case, and in the course of his arguments he discovered himself to be an ingenious lawyer.” Massachusetts Spy, 29 April 1773, p. 3, col. 1.
3. James Cockle, Collector of Customs at Salem from 1760 to 1764. See Quincy, Reports (Appendix) 422–424. That Cockle was one of the officers who sought writs seems certain from the fact that one was granted to him shortly after the second argument in Nov. 1761. Id. at 422. Paxton was probably the first to apply, however, and the matter was actually heard on the petitions of the merchants and the Surveyor General. See notes 22, 27, above.
4. The Hawley MS is headed “Substance of Mr. Gridley's Argument Before the Superior Court in favor of Writs of Assistance.” The argument begins: “May it please your honors.”
5. Hawley: “Great Britain” for “England.”
6. Hawley here supplies the inadvertent omission of “given.”
7. Hawley omits the writ. According to Gray, who also omitted it from his rendition of the Keith MS , it was the writ granted to Paxton in 1755, printed in text at note 48 100 above, which JA had apparently copied from the court files. See Quincy, Reports (Appendix) 480.
8. Hawley here supplies “Court of.”
9. 13 & 14 Car. 2, c. 11, §5(2). See JA 's copy, text at note 40 92 above. The text of the statute is omitted by Hawley.
10. 12 Car. 2, c. 19, note 5 above.
11. Hawley: “Province” for “country.”
12. Hawley here adds “&c.” and omits the remainder of the present sentence.
13. 7 & 8 Will. 3, c. 22, §6. See JA 's copy, text and notes 42–45 94–97 above. Hawley omits some portions quoted here.
14. It has been suggested that “like assistance” in 7 & 8 Will. 3, c. 22, §6, may be a reference to 13 & 14 Car. 2, c. 11, §32, providing that royal officers and others concerned were to “be aiding and assisting” the customs officers in performance of their duties. Frese, “Early Parliamentary Legislation on Writs of Assistance,” 38 Col. Soc. Mass., Pubns. 318, 354 note (1959). While “like assistance” certainly does not literally refer to the writ of assistance, the phrase is broad enough to include it as well as the aid and assistance of other officers.
15. That is, 11 Will. 3, c. 3, 1 A&R 370. See JA 's copy, text at note 46 98 above.
16. Apparently supplied by Gray. See Quincy, Reports (Appendix) 481.
17. Fitzherbert's New Natura Brevium . See note 3 55 above.
18. Horne v. Boosey, note 7 59 above. This helps to establish that the “Abstract” is from JA 's rough notes, although the case may not have been cited for this proposition.
19. Correction apparently by Gray. See Quincy, Reports (Appendix) 482. Compare JA 's rough notes at note 9 61 above. Interestingly enough, the same error appears in Minot's paraphrase. 2 Minot, History of Massachusetts Bay 90.
20. The text of Otis' argument, up to the sentence at note 47 149 below, is from the Massachusetts Spy, 29 April 1773, p. 3, cols. 1–3. The argument was introduced as follows:
“For the massachusetts spy. mr. thomas, As the public have been lately alarmed with the evil and wicked effects of the power lodged in custom-house officers, by virtue of that most execrable of all precepts, a Writ of Assistance: And as I conceive it to be more immediately destructive of the liberty of the subject, than any other innovation of power: The following is offered to the public, being taken from the mouth of that great American oracle of law, James Otis, Esq; in the meridian of his life.”
Then follows the material quoted in note 2 104 above, concluding with “Mr. Otis appearing for the inhabitants of Boston, with his usual zeal for the common liberties of mankind, spoke as follows, viz.”
21. Minot substitutes “them” for “the court,” a change typical of his minor improvements of style, most of which will not be noted herein.
22. Hawley here adds “almighty.”
23. Minot: “law” for “the constitution.”
24. This word apparently is illegible in the original. Hawley read it as “answered.” CFA has changed Minot's reading of “descend” to “discerned,” which is probably correct.
25. Minot omits this sentence.
26. In 1769, Otis published in the Boston Gazette a deposition alleged to be Paxton's, dated 28 Feb. 1761, which indicates that a more direct cause of his resignation as Advocate General of Admiralty was the attack upon the Vice Admiralty Court that resulted in the case of Gray v. Paxton, note 21 above. See Quincy, Reports (Appendix) 542 note. Robert Auchmuty was shortly thereafter appointed to the position. See the latter's biography in 12 Sibley-Shipton, Harvard Graduates 12–16.
27. George III, in his accession speech on 18 Nov. 1760, had actually said:
“Born and educated in this country, I glory in the name of Briton; and the peculiar happiness of my life will ever consist in promoting the welfare of a people, whose loyalty and warm affection to me, I consider as the greatest and most permanent security of my throne; and I doubt not, but their steadiness in those principles will equal the firmness of my invariable resolution to adhere to, and strengthen, this excellent constitution in church and state; and to maintain the toleration inviolable. The civil and religious rights of my loving subjects are equally dear to me with the most valuable prerogatives of my crown: and, as the surest foundation of the whole, and the best means to draw down the divine favour on my reign, it is my fixed purpose to countenance and encourage the practice of true religion and virtue.”
This speech was reprinted in its entirety in the Boston News-Letter, 15 Jan. 1761, p. 1, cols. 2–4. In his diary for 9 Feb. 1761, JA set down his favorable reaction to the speech, concluding “These are sentiments worthy of a King—a Patriot King.” 1 JA, Diary and Autobiography 200–201.
28. As Gray points out, this “popular cause” was probably Gray v. Paxton. Quincy, Reports (Appendix) 482. See note 21 above.
29. This clause was rendered by Hawley, “whom guilt, malice or folly has made my foes,” and by Minot, “whose guilt, malice or folly has made them my foes.”
30. Hawley: “worthy a gentleman, a man of sense, or a Christian, are, to sacrifice estate, ease, health, honor, applause.”
31. Hawley: “the patriot, the man and the hero.”
32. Hawley and Minot supply “place.”
33. See text at note 13 65 above.
34. Minot: “places” for “houses.”
35. Hawley: “raise” for “excite.”
36. The preceding clause, beginning “until the trump,” is one omitted by CFA , on the basis of JA 's comments. The presence of both this and the other omitted passage (note 37 139 below) in the Keith and Hawley MSS supports Gray's suggestion that in repudiating them JA “was guided by his taste rather than his notes or his memory.” Quincy, Reports (Appendix) 479. JA 's notation that these passages were interpolations may be seen in his copy of Minot's History of Massachusetts Bay at p. 95–96, now among his books in the Boston Public Library.
37. This sentence, beginning “What is this,” is the second passage omitted by CFA because disclaimed by JA . See note 36 138 above.
38. Hawley telescopes this entire episode into “where the same Mr. Ware from a principle of revenge went on to search a number of houses from Garret to Cellar.”
39. Minot: “finished.”
40. Minot: “said Mr. Ware.”
41. Minot: “uncustomed” — no doubt a proper correction.
42. Compare the account in the version of the argument in the Boston Gazette for 4 Jan. 1762, attributed to Otis. Quincy, Reports (Appendix) 490. Jonathan Pew (or Pue) (d. 1760) was Searcher and Surveyor of the Port of Boston from 1735 until he was succeeded by Paxton in 1752. At the latter date he entered into the same office at Salem, where he served until his death. Book of Charters, Commissions, Proclamations, &c., fols. 80, 173–175, M-Ar; Wolkins, ed., “The Boston Customs District in 1768,” 58 MHS, Procs. 418, 430 (1924–1925). Nathaniel Ware was Comptroller of Customs for the Port of Boston from 1750 until 1764. Book of Charters, &c., fols. 79–80; Wolkins, “Boston Customs District,” 58 MHS, Procs. 418, 430. Abiel Walley was appointed a Justice of the Quorum in Suffolk County, 5 Nov. 1740. Whitmore, Mass. Civil List 128. No documentation of these incidents has been found.
43. Minot omits “monsters in the law.”
44. Minot omits “THE.”
45. Hawley adds “principles of law.”
46. Hawley omits the remainder of this paragraph.
47. The next sentence appears only in the Hawley MS . See note 1 103 above. It may be an elaboration of the well-known passage, “the executive courts must pass such acts into disuse.” See notes 42, 20 72 , above.
48. This paragraph appears in the Hawley MS . At least the first sentence of it also appears in the Keith MS . Quincy, Reports (Appendix) 482. See note 1 103 above.