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
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.
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
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
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]
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.
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
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]
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.
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
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
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
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
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
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
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
. 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