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Browsing: Legal Papers of John Adams, Volume 2


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

Petition of Lechmere

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(Argument on Writs of Assistance) 1761

Docno: ADMS-05-02-02-0006-0002-0001

Editorial Note

In February 1761 John Adams was present at an event which his later descriptions have firmly implanted in the mythology of the American Revolution. The arguments of James Otis before the Superior Court on the granting of writs of assistance to royal customs officials are generally known as one of the earliest statements of colonial opposition to parliamentary regulation. The scene itself, so vividly described by Adams in a letter to William Tudor nearly sixty years later, is surely part of the common vision of this period: In the Council Chamber of what is now the Old State House in Boston “near the Fire were seated five Judges, with Lieutenant Governor Hutchinson at their head, as Chief Justice, all in their new fresh Robes of Scarlet English Cloth in their Broad Bands, and immense judicial Wiggs. In this Chamber were seated at a long Table all the Barristers of Boston and its neighbouring County of Middlesex in their Gowns, Bands, and Tye Wiggs. They were not seated on ivory Chairs, but their dress was more solemn and more pompous than that of the Roman Senate, when the Gauls broke in upon them.”
There also sat Samuel Quincy and John Adams. “John was the youngest. He should be painted looking like a short, thick, fat Archbishop of Canterbury, seated at the Table with a pen in his hand, lost in Admiration, now and then minuting those despicable Notes which you know that Jonathan Williams Austin your fellow student in my office, stole from my desk and { 107 } printed in the Massachusetts Spy, with two or three bombastic expressions interpolated by himself; and which your Pupil, Judge Minot has printed in his history.”
Jeremiah Gridley, for the Crown, and Oxenbridge Thacher, for the merchants of Boston, argued well and eloquently, but it was Otis, also for the merchants, whom Adams hailed so many years later. “Otis was a flame of Fire! With the promptitude of Clasical Allusions, a depth of Research, a rapid Summary of Historical Events and dates, a profusion of legal Authorities, a prophetic glare [i.e. glance?] of his eyes into futurity, and a rapid Torrent of impetuous Eloquence, he hurried away all before him; American Independance was then and there born. The seeds of Patriots and Heroes to defend the non sine Diis animosus infans, to defend the vigorous Youth, were then and there sown. Every man of an [immense] crowded Audience appeared to me to go away, as I did, ready to take up Arms against Writts of Assistants. Then and there was the first scene of the first Act of Opposition to the arbitrary Claims of Great Britain. Then and there the child Independance was born. In fifteen years, i.e. in 1776, he grew up to manhood, declared himself free.”1
By this and other letters to his old student, Adams sought to recreate a great moment of his youth. In the course of his efforts he put into Otis' mouth the entire body of arguments against the power of Parliament developed over the whole of the next decade. The inaccuracies and exaggerations of these letters have been ably summarized elsewhere; further comment on them must await The Adams Papers edition of that portion of Adams' correspondence.2 Here we deal only with the legal situation as it can be recreated from Adams' original notes of the argument and other sources.
The arguments which Adams heard turned on the nature of the writ and the construction of three Acts of Parliament and a Province statute. The term “writ of assistance” had originally been applied to process in favor of a particular litigant in the Exchequer or in Chancery, enabling him to obtain the sheriff's help in collecting a debt or gaining possession of property to which he was entitled.3 The writs sought by the Crown officials { 108 } in Boston in 1761, however, were general standing warrants, good from the date of issue until six months after the death of the issuing sovereign, which permitted the holder to enter any house by day, with a constable or other officer, and there search for smuggled goods without special application to a court.4
The earliest relevant statute, an Act of Parliament passed in 1660, authorized the issuance “to any person or persons” of a warrant to enter any house to search for specific goods, upon oath made of their illegal entry before “the lord treasurer, or any of the barons of the Exchequer, or chief magistrate of the port or place where the offense shall be committed, or the place next adjoining thereto.”5 Both the language and the legislative history of this enactment make reasonably clear that its purpose was to authorize a special search warrant of limited extent, under control of a higher authority.6 The statute central to the controversy was the Act of 1662, which, in setting up a comprehensive scheme of customs administration for the British Isles, first used “writ of assistance” to describe a customs search warrant. The act provided that “any person or persons, authorized by writ of assistance under the seal of his majesty's court of exchequer,” might enter any premises in the day time, with a constable or other officer, using force if necessary, and there seize any contraband goods found.7 It has been argued on the basis of the language and legislative history of this and other contemporary acts, that the Act of 1662 was intended to incorporate no more than the special warrant embodied in the Act of 1660.8 The language of the two statutes is open { 109 } to the contrary construction, however, and, since the parliamentary debates contain no affirmative statement on the precise point in question, contrary inferences may also be drawn from the legislative history.9 The actual intent of Parliament in the Act of 1662 thus cannot be determined.
Whatever the legislative intent, a course of practice under the statute soon developed which was a surer guide to construction in the courts than ambiguous language and incomplete history.10 There are some indications { 110 } that in the years after 1662 searches were carried out under special warrant, probably as a result of an attempt to follow the former practice under the Act of 1660.11 Apparently, however, the view prevailed that the Act of 1662 had created a new process, limited neither by the earlier statute nor by practice under the ancient equitable writ. There is no reported decision on the point prior to the argument at Boston in 1761, but before 1685 a form of the writ granting unlimited powers of general search seems to have been in use in the Exchequer.12 Other evidence indicates that from some time in the first half of the 18th century, the writ was established as a general standing warrant issued by the Exchequer on the application of the Commissioners of Customs, to be held by the principal customs officers for use by them or their subordinates as the occasion demanded. Abuses of the instrument were probably avoided by virtue of the fact that ordinarily the principal officers required the same showing of information and probable cause that a justice would have required for the issue of a special search warrant.13 Furthermore, even with probable { 111 } cause, the officer who searched and found nothing was liable in damages for the trespass.14
The use of the writ in the colonies depended upon a third statute, the Act of 1696, by which colonial customs control was generally strengthened and reorganized, and colonial customs officials were given the powers of their English counterparts, whatever those might be.15 In Massachusetts, both before and after the passage of this act, the powers of search granted to customs officers by statute and inherent in their commissions were exercised, but there is little affirmative evidence that general warrants were issued in support of these powers.16 According to Thomas Hutchinson, however, Governor Shirley, in office from 1741 until 1757, issued what were apparently general warrants to the customs officers. When Hutchinson himself pointed out the illegality of this practice, the Governor directed “the officers to apply for warrants from the superior court; and from that time, writs issued, not exactly in the form, but of the nature of writs of assistance issued from the court of exchequer in England.”17
{ 112 }
This development brought a fourth act into play—a Province law of 1699 which conveyed to the Superior Court the powers of the Exchequer. In 1754 the court had expressly refused to exercise the equitable branch of this jurisdiction, but it seemed to find no objection to the issuance of a writ ancillary to the Exchequer's revenue powers.18 On the application of Charles Paxton a writ of assistance issued in August 1755, and the files of the court reflect that thereafter until 1760 general writs of assistance were granted to seven other officers.19
The death of George II in October 1760 touched off the controversy which led to the argument in 1761. Since the existing writs survived the sovereign's death by only six months, it was necessary for the customs officers to procure new ones.20 The absence of records obscures the procedure by which the case came up, but probably Paxton and several other { 113 } officers applied in the form followed in the prior reign. This time, however, there was opposition, apparently as part of a general attack then being mounted on the customs and the Admiralty under the guidance of Benjamin Barons, disaffected collector of the port, and James Otis.21 Thomas Greene and other Boston merchants petitioned to be heard on the question. Thomas Lechmere, Surveyor General of the Customs, then stepped into the case both for the Crown and his men, petitioning the court “to be heard on the same subject: And that Writs of Assistants may be granted to himself and his officers as usual.” The proceeding seems to have gone forward as a hearing on these petitions, rather than on the application of any single officer.22
{ 114 }
The argument actually began on 24 February 1761, and, according to later accounts, lasted for several days. Whether these recollections are accurate, and if they are, how many hours per day were spent in oratory, cannot now be determined.23 Adams' on-the-spot report indicates that Gridley spoke first for the Crown, but whether through enthrallment, inattention, or nonattendance, Adams took virtually no notes of this portion of the argument. Thacher and Otis then appeared and Gridley gave what was apparently a rebuttal. It is these last three arguments which Adams preserved, at least in part. How much else was said we can only speculate, perhaps more misled than guided by Adams' later recollections.
Gridley's position was clear-cut. Parliament, he argued, had empowered the Exchequer to issue “writs of assistance”; authority showed these to be general writs. Parliament had given colonial customs officers the powers of the English customs; and the Superior Court had the powers of the Exchequer; thus the writ could issue. If the practice seemed to infringe upon individual liberties, there were ample English and colonial precedents for such infringement in the name of the exigencies of collecting the revenue. Thacher cast doubt upon the existence of a proper precedent for the writ and contended that the powers given by the Act of Parliament were too broad to be exercised under a general warrant. The bulk of his argument as recorded by Adams was addressed to the power of the Superior Court to act as the Court of Exchequer. Not only had this jurisdiction been renounced in a prior case, but the Massachusetts court lacked many of the powers with which the Exchequer could control English customs officers.
Otis alone seems to have raised broader questions. After a bombastic introduction, which may be a subsequent contribution by Adams,24 he insisted that, while special writs might be allowed by necessity, a general writ violated the fundamental principle that a man should be secure in { 115 } his own house. He disparaged the source of Gridley's authority, then argued that if it were valid, the courts did not have to follow a precedent offensive to fundamental principles. In an often-cited passage he urged that an Act of Parliament which sought to make the courts act in violation of these principles was void. He then went on to show various flaws in the writ contended for and to argue that on a proper construction the statutes cited authorized only special warrants. He closed with a reiteration of Thacher's attack on the Exchequer powers of the Superior Court.
The only question about which the court seems to have been in doubt was that of the nature of the warrants actually used in England. Accordingly, judgment was suspended pending an inquiry by Hutchinson into the Exchequer practice. The reply was that general writs were granted freely upon the application of the Commissioners of Customs to the clerk of the Exchequer,25 but the whole matter was reargued at Boston in November 1761 at an adjournment of the August term. After the second hearing, the court decided unanimously in favor of the writ.26 No record or minute book entry has been found. The decision seems to have been not an order allowing the issuance of a writ to a specific officer, but a kind of declaratory ruling, in effect granting the prayer of Lechmere's petition, that the writ might thereafter issue upon due application in accordance with the English practice. Thus, the first writ granted after the argument was given to Paxton on 2 December 1761, upon the application of the Surveyor General in his behalf. Similar procedure was followed for each writ subsequently issued in Massachusetts.27
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The importance which Adams attached to this case has been disputed. It has been suggested that oral argument delivered before a relatively small audience could not of itself have had the inspirational effects attributed to it.28 Certainly the efforts of Otis and Thacher did not change the orthodox view of what the law was. Writs were allowed to issue, and the practice was continued thereafter. Moreover, when in 1767 Parliament came to revise the statutes to effect the issuance of writs of assistance in all the colonies, the problem with which it was concerned was not the constitutionality of a general warrant, nor the power of the courts to deal with an unconstitutional Act, nor even the nature of the practice in the Exchequer, but merely an assurance to the high courts of judicature in the colonies that they could exercise Exchequer powers.29
The role of Otis' argument in the larger political and constitutional developments that were to follow is less easily dismissed. It is true that questions of Exchequer practice and Superior Court powers are not the stuff of revolution. As to the validity of general warrants, it is probably also true, as modern historians contend, that continuing colonial opposition to writs of assistance was not a direct response to Otis' oratory at Boston in 1761. Presumably the renewed efforts of customs officers to obtain writs after 1767 produced the widespread resistance to general warrants which led ultimately to the prohibition against unreasonable searches and seizures in the Fourth Amendment to the United States Constitution.30 { 117 } Nevertheless, in this struggle Otis' ideas, published in the newspapers and circulated by the bar, continued to stimulate resistance.31
Otis' argument had its greatest significance in questions of legislative and judicial power. By 1761 the doctrine of absolute parliamentary sovereignty, which is today the foundation of the British constitution, had become generally accepted in England. As Blackstone said in 1765, “if the parliament will positively enact a thing to be done which is unreasonable, I know of no power that can control it.”32 In the latter year the doctrine was applied to writs of assistance. Litigation arising out of the problems of John Wilkes and the North Briton had led to a series of rulings in which the English courts held that general warrants were invalid as an intrusion on rights guaranteed by the common law. There had been no statutory authority for the warrants in those cases, however, and in the leading formulation of the position, Lord Mansfield was careful to distinguish writs of assistance as authorized by act of Parliament.33
In the 1761 argument, the theory of parliamentary sovereignty was implicit in the Crown's position.34 Otis, however, urged that acts of Parlia• { 118 } ment “against the Constitution” and “against natural Equity” were void, and that “the executive courts must pass such Acts into disuse.” Adams' notes show that in support of this position Otis cited the well-known language of Coke's opinion in Bonham's Case: “When an Act of Parliament is against Common Right and Reason, or repugnant, or impossible to be performed, the Common Law will controll it, and adjudge such Act to be Void.”35
Modern scholars have concluded that in context this passage states a familiar common law canon of construction, rather than a constitutional theory.36 Coke's view of the constitution was that a supreme Parliament (the “High Court”) and the courts of justice both participated in the process of declaring and applying the same body of unchangeable, preexisting law; a kind of sovereignty, the prerogative, resided in the Crown, subject to the limitations of that law. The issue to which constitutional arguments were directed was the clash between the powers of the Crown on the one hand and the powers of Parliament and the courts on the other.37 Since the power of the Crown was not in question in Bonham's Case, the issue there raised was procedural, not constitutional.
For Coke, Bonham's Case was thus a conflict between private interests regulated by a statute which had to be interpreted, rather than a direct challenge to the power of Parliament to make the statute.38 The standard by which the statute was to be measured was the basic reasonableness, the common sense, of the common law. This quality was not a “higher law” by which Parliament was to be kept in check, but a guide by which statutes, presumably intended by the makers to conform to the reason of the common law, were to be construed. If, in the process of construction, an act was adjudged “void,” the court was not acting as a separate branch of government with a power to control Parliament by declaring acts unconstitutional, but was only applying the law of Parliament, necessarily { 119 } general in effect, so as to do justice in the circumstances of a particular case.
Otis' argument in 1761, by contrast, was a constitutional one, addressed directly to the questions of the limits of legislative power and the power of the judiciary to enforce those limits. In the latter half of the 17th century, as Parliament increasingly acquired the sovereignty formerly attributed to the Crown, Bonham's Case, taken out of its private law context, had often been relied upon in political and constitutional argument to support the proposition that there was a higher law to which Parliament must bow.39 Other authorities cited by Otis indicate that he quoted Coke's words in this constitutional sense, rather than as a canon of construction. The contrast between construction and constitution is emphasized by the fact that Otis also argued in conventional fashion that the statute should be read narrowly to permit only the special search warrant known at common law. If, however, the court insisted on treating the act as “made in the very words of this petition,” that is, as embodying the language of the writ of assistance itself, then he argued that the act would be void not only under Bonham's Case, but by virtue of “natural equity” and “the Constitution.”40
These terms do not denote the “reason of the common law,” but instead refer to fundamental principles of equity and justice embodied in a British constitution that a century and a half of political development had made into a formal, if still invisible, instrument of government. They are thus “higher law” in something like the sense used by modern constitutional theorists. Otis drew these ideas from sources which demonstrate the breadth of his argument. His pamphlet, Rights of the British Colonies, published in 1764, invoked Locke's description of a government in which legislative sovereignty ultimately was a grant from the people and so could not be absolute. In a passage strongly reminiscent of his writs of assistance argument, Otis cited the Swiss publicist Emmerich de Vattel, as well as Bonham's Case and other common law precedents, for the proposition that Parliament could not make a statute against natural equity or the British constitution. In all probability he cited the same authorities and made the same appeal to higher law before the Superior Court in 1761.41
{ 120 }
Both the writs argument and Rights of the British Colonies also suggest that Otis saw the courts in a constitutional role not envisioned in Bonham's Case. The phrase, “the executive courts must pass such acts into disuse,” reported by Adams, contains a hint of a power that went beyond Coke's words. This hint is borne out by a passage in the pamphlet. Otis there argued the existence of two remedies when an act of Parliament clashed with equity and justice. Repeal might be sought, or, “If the reasons that can be given against an act plainly demonstrate that it is against natural equity, the executive courts will adjudge such act void. It may be questioned by some, though I make no doubt of it, whether they are not obliged by their oaths to adjudge such act void. If there is not a right of private judgment to be exercised, so far at least as to petition for a repeal, or to determine the expediency of risking a trial at law, the parliament might make itself arbitrary, which it is conceived it cannot by the constitution.”42 In voiding acts of Parliament, the courts were not merely interpreting statutes incident to the decision of private disputes. They were obligated by the nature of their office to pass judgment on legislation, and this function was itself a vital element of the constitution.
The power which Otis urged for the courts fell short of the later American doctrine of judicial review. His pamphlets show that he still saw Parliament as supreme, and so not bound to yield to a court's decision adverse to a statute. The point was that, although Parliament might err, it was benevolent and sought to act within the constitution; it would therefore accept the judicial determination, even though not compelled to.43 The courts thus did not occupy their modern position as a separate governmental branch of coordinate authority with the legislature, having express power to declare the law. Lacking this power, a court could not { 121 } totally annul an act, but could only decide the case before it. The modern court does no more in form, but its constitutional eminence gives its decisions an effective force beyond the confines of a particular case. Nevertheless, Otis' notion that the courts have some kind of constitutional function in controlling Parliament was surely one source of the modern concept of their power.44
In his argument, Otis was far from proclaiming revolution, and he did not singlehandedly create American constitutional law. He was, however, ahead of the revolutionary pamphleteers in confronting the orthodox idea of Parliamentary sovereignty with the notion that there might be a rule of law superior to Parliament;45 and he did suggest that it might be a function of the courts to enforce compliance with that rule. These ideas appeared in his later writings, but other problems, theoretical, political, and emotional, so obscured them, that Otis undoubtedly did not realize their full import, and certainly did little to argue them in a consistent and coherent manner.46 Nevertheless, he had put them into play. Other writers, more aware of political realities, carried his ideas to their logical extreme—the justification of the overthrow of parliamentary authority and the subsequent establishment of a new government in which the legislature was limited by an express fundamental law.47
The argument of 1761 did not of itself lead to these great ends, but if it marked for Otis a first opportunity to formulate and express ideas which were later to circulate throughout the colonies in his pamphlets, then it { 122 } cannot be said that his words stopped at the door of the Council Chamber. And if, when John Adams said sixty years later that “Then and there the child Independence was born,” he really meant that the suggestion that Parliament's power was not absolute started the intellectual process which was to lead him to the forefront of the revolutionary movement, then surely the argument of 1761 was a vital predecessor of those of 1776.48
The documentary history of the materials which follow is nearly as tortuous as their intellectual history. Document I is the booklet of “despicable notes” which Adams actually took down at the argument. They are hastily written and certainly do not touch all points covered in the course of a hearing of at least several hours' duration. Appended to them are Adams' extracts of the statutes involved and copies of the petition and writ issued to Paxton in 1755. These were apparently made by him for use in the more elaborate abstract of the argument which is reproduced as Document II.
It is this document which creates problems, since no copy of it in Adams' hand has been found. In his diary for 3 April 1761, he reported showing to Colonel Josiah Quincy “an Abstract of the Argument for and against Writts of Assistance.” Quincy cried, “did you take this from those Gentlemen as they delivered it? You can do any Thing! You can do as you please! Gridley did not use that Language. He never was Master of such a style! It is not in him—&c.”49 This description is ambiguous, the more so because it occurs in a passage in which Adams is dubious of the sincerity of the Colonel's flattery on this and other points. It seems, on balance, to refer not to the rough notes made in court but to a more careful treatment written out at a later date. Description of the piece as an “Abstract” seems to imply work of more finished quality than that of notes made on the spot; moreover, praise such as that given by Quincy would have seemed extravagant and suspect in the extreme if applied to the fragmentary jottings that are the notes.50
In his Autobiography, and in the passage from his letter to Tudor quoted at the beginning of this note, Adams spoke of his notes of the argument as having been printed in the Massachusetts Spy and in Minot's History of Massachusetts Bay.51 The material printed is not the rough notes, but a comparison of the texts shows that it was drawn from those notes. Other versions of the arguments, in virtually identical language, exist in { 123 } circumstances linking them to Adams. It therefore may be concluded that Adams composed a longer version of his notes and that it was this work which circulated among the bar and was preserved in the Spy and in Minot's History. On the basis of these conclusions, Document II is offered as the first collation of all known versions of Adams' “Abstract of the Argument.”52
In the “Abstract” Adams has made the remarks of Gridley the opening argument, although from their position in his notes they would seem to have been a rebuttal. This argument and that of Thacher, which follows it, are taken with almost literal exactness from the rough notes. It is in Otis' often reprinted argument that Adams seems to have exercised artistic license. No doubt Otis said all that is attributed to him and much more; but the “Abstract” seems to be a combination of Adams' notes and his impressions of the larger questions that is peculiarly his own. The bones of the legal arguments which appear in the notes are there, but in pruning legal complexities and in adding fervor, Adams created a minor work of political propaganda. Perhaps the inspiration that produced this epitome of a famous address is the best evidence we have of the birth of “the child Independence” in 1761.
Document III is Hutchinson's draft of the writ issued after the November argument.
1. JA to William Tudor, 29 March 1817. LbC, Adams Papers. Printed with some variations and omissions in 10 JA, Works 244–249. The letter had first appeared in 14 Niles' Weekly Register 137–140 (25 March 1818), and was printed again in Novanglus and Massachusettensis 244–247 (Boston, 1819). JA, in a contemporaneous report of the proceedings in Congress on the Declaration of Independence, referred to “the Argument concerning Writs of Assistance, in the Superiour Court, which I have hitherto considered as the Commencement of the Controversy, between Great Britain and America.” JA to AA, 3 July 1776, 2 Adams Family Correspondence 28.
2. As to the inaccuracies, see notes 20, 22, below; they are fully discussed in Horace Gray's appendix to Quincy's Reports [hereinafter to be cited as Quincy, Reports (Appendix)] at p. 408–411, 416–417, 469. See also Joseph R. Frese, Writs of Assistance in the American Colonies, 1660–1776, p. 1–19 (Harvard Univ. doctoral dissertation, 1951). The principal letters are in 10 JA, Works 244–362; see also id. at 362 note.
3. See Quincy, Reports (Appendix) 395–396. The examples cited by Thacher, note 456 below, are writs of this kind, in aid of Chancery decrees. The process is still known in England. See 16 Halsbury's Laws of England, tit. Execution, §100 (London, 3d edn., 1956). In the United States the equitable writ of assistance is found in a number of states and, under Federal Rule of Civil Procedure 70, is available after an order for the delivery of possession. See Note, 8 Arkansas Law Review 92–100 (1954); James W. Moore, Federal Practice, 7:2503 (Albany and N.Y., 2d edn., 1955).
4. See the examples, text at note 48100 below, and Doc. III.
5. 12 Car. 2, c. 19, §1 (1660). The warrant so issued enabled the holder
“with the assistance of a sheriff, justice of peace or constable, to enter into any house in the day-time where such goods are suspected to be concealed, and in case of resistance to break open such houses, and to seize and secure the same goods so concealed; and all officers and ministers of Justice are hereby required to be aiding and assisting thereunto.”
The Act limited entries under it to one month after the offense was supposed to have been committed and gave any party injured by a false information an action of trespass against the informer. Id. §§2, 4.
6. See Frese, “Early Parliamentary Legislation on Writs of Assistance,” 38 Col. Soc. Mass., Pubns. 318–326 (1959); Frese, Writs of Assistance (dissertation) 41–56.
7. 13 & 14 Car. 2, c. 11, §5(2) (1662), set out in text at note 4092 below as JA copied it. For confusion introduced by variant spellings of “assistance,” see note 4093 below. §4 of the Act provided for search of vessels at any time without a warrant.
8. See Frese, “Legislation on Writs of Assistance,” 38 Col. Soc. Mass., Pubns. 327–352; Frese, Writs of Assistance (dissertation) 97–106. See also Quincy, Reports (Appendix) 530–532.
9. The language of 13 & 14 Car. 2, c. 11, §5(2) (1662), standing alone seems to envision a general warrant, if the term “writ of assistance” is not held to incorporate the ancient process. See note 12 below. The statute, 12 Car. 2, c. 19 (1660), was continued and confirmed long after 1662, however, leading to the conclusion that the Act of 1662 included only the special warrant of the 1660 Act. Frese, “Legislation on Writs of Assistance,” 38 Col. Soc. Mass., Pubns. 335; compare Quincy, Reports (Appendix) 531–532. It could nevertheless be argued that the Act of 1660, which provided for the issuance of warrants by officers other than the Barons of the Exchequer (who had the sole power under the 1662 Act), was retained as an additional weapon in the battle against illicit trade. The other Acts chiefly relied upon to support the special warrant theory are 13 & 14 Car. 2, c. 3, §14 (1662), a provision of the Militia Act that general warrants might issue to search for illegal arms; and 13 & 14 Car. 2, c. 33, §§15, 19 (1662), which provided such warrants for searches for unlicensed printed matter. See Frese, “Legislation on Writs of Assistance,” 38 Col. Soc. Mass., Pubns. 336–351. Father Frese points to the contrast between the battle required to pass even these measures, which were limited by numerous exclusions, and the ease with which the less limited writs of assistance provision was passed, as evidence that the latter embodied only special warrants. Id. at 351–352. This difference might also be accounted for by a difference in the nature of the evils sought to be remedied by the various acts. Insurrection and sedition are political crimes; measures designed to control them may affect the liberties of the entire populace. Smuggling is a crime with a financial motive; its suppression is more likely to be localized in effect, harming only those who habitually live close to or beyond a rule of law accepted by the majority. Other legislation of the same Parliament provided for search without special warrant. See 13 & 14 Car. 2, c. 7, §§7, 14 (Search of London leather workers' shops for prohibited leather); 13 & 14 Car. 2, c. 5, §8 (Search of Norfolk and Norwich shops and other locations for defective yarns); 13 & 14 Car. 2, c. 32, §9 (Search of WestRiding shops and other locations for illegally imported cloth). Father Frese argues that the matters involved in these acts are too minor and local to be analogous to the Customs Act; moreover, they do not authorize use of force. Frese, Writs of Assistance (dissertation) 99–104. Although the latter objection has some merit, it could be argued that a customs measure bears greater resemblance to this last class of statutes than to the Militia and Printing Acts, thus accounting for a uniform silence as to the general search powers. In any event, it is clear that the 1662 Parliament did not hesitate to convey such powers when the occasion required.
10. For the general proposition that long-continued usage can control the construction of a statute, see Sir Peter B. Maxwell, The Interpretation of Statutes 308–314 (London, 9th edn., Sir G. H. B. Jackson, 1946). The printed Journals of the House of Commons and House of Lords, upon which Father Frese's legislative history (notes 8–9 above) is chiefly based were published in about 1742, but there is no evidence that they were known in Massachusetts. See L. A. Abraham and S. C. Hawtrey, A Parliamentary Dictionary 104 (London, 1956). Even if the Journals had been available, it is possible that the Massachusetts court might have refused to consider them in construing the statute. The familiar English doctrine barring legislative history as an aid in this process was not clearly formulated until 1769, however, and legislative materials were so used by Lord Camden in Entick v. Carrington, 2 Wils. K.B. 275, 95 Eng. Rep. 807 (C.P. 1765), a famous decision against general warrants, handed down in the course of the Wilkes controversy (text at note 33 below), cited in Plucknett, Concise History 335–336; see also Maxwell, Interpretation of Statutes 27–30.
11. Frese, Writs of Assistance (dissertation) 160–161 note.
12. See the form of a writ dating from between 1676 and 1685, published in William Brown, Compendium of the Several Branches of Practice in the Court of the Exchequer 358–361 (London, 1688). It is more fully discussed in notes 557, 1668, below. This form bears little or no resemblance to the ancient writs of assistance (note 3 above). It has been suggested that the source may have been either the sheriff's “Patent of Assistance” (a general command to others to aid this officer), or, by analogy, the general warrants authorized by 13 & 14 Car. 2, c. 33, §15 (note 9 above), which gave the bearers power, “with a constable, to take unto them such assistance as they shall think needful.” See Quincy, Reports (Appendix) 397–398, 530–531 note. “Writs of assistance” were known in the colonies before the Act of 1696 (note 15 below), but these were apparently special warrants. Frese, Writs of Assistance (dissertation) 127–177. In England, however, the evidence is ambiguous. The materials cited by Frese (note 11 above) indicate the use of special warrants, but there was a second edition of Brown's Compendium in 1699, containing the form of the general writ. Reissues of the first edition in 1689 and 1692 presumably were likewise unchanged. See 1 Sweet and Maxwell, Legal Bibliography 319. Since special warrants could still be obtained under 12 Car. 2, c. 19 (1660), note 5 above, it is possible that warrants of both kinds were used during this period.
13. See Hoon, English Customs 63, 272–273; Quincy, Reports (Appendix) 532 note; note 25 below. Writs of assistance were among those processes which would survive the death of the sovereign by six months under 1 Anne, stat. 1, c. 8, §5 (1702), cited in notes 2880, 3385, below. No English case has been found in which the validity of the writs was directly raised, but their existence as general warrants was recognized and seemingly approved in a series of cases after 1765. See text and note 33 below; Quincy, Reports (Appendix) 533–534 note. Gray suggests that the writ first came to the notice of the English judges through Hutchinson's application to the ministry in 1761. Ibid. See also cases cited, notes 759, 1062, below. The writ remained in use in England throughout the 19th century in substantially its earlier form. Wolkins, “Writs of Assistance in England,” 66 MHS, Procs. 357–360 (1936–1941). It is today authorized by the Customs and Excise Act of 1952, 15 & 16 Geo. 6 & 1 Eliz. 2, c. 44, §296, which permits entry with a writ by day or night on “reasonable grounds to suspect that anything liable to forfeiture under the customs or excise Acts” is concealed on the premises. The presence of a constable is required only when the entry is at night. The special search warrant is clearly distinguished, being covered in a separate paragraph. For an account of the practice in 1930, when writs were in the custody of principal customs officers for use when circumstances did not permit a special warrant, see Wolkins, “Writs of Assistance in England,” 66 MHS, Procs. 362; Ham's Year Book 1930 180 (London, 1930). In Canada the writ is still issued to officers charged with the enforcement of customs, excise, food and drug, and narcotics control acts. See Trasewick, “Search Warrants and Writs of Assistance,” 5 Crim. Law Quart. 341, 345–349, 356–363 (1962).
14. See note 1062 below.
15. 7 & 8 Will. 3, c. 22, §6(2), set out as JA copied it in text at note 4294 below. The legislative history of this provision, while inconclusive, offers no affirmative evidence that Parliament intended to establish warrants in the colonies. See Frese, “Legislation on Writs of Assistance,” 38 Col. Soc. Mass., Pubns. 352–359. There were, however, several measures in the same Parliament which provided general search powers in commercial situations like those in note 9 above. Frese, Writs of Assistance (dissertation) 117–125.
16. See Frese, Writs of Assistance (dissertation) 127–179. It was later argued that the power to search was actually conveyed by 13 & 14 Car. 2, c. 11, §5(2) (1662), note 7 above, and that the writs were merely for identification purposes. Opinion of Attorney General DeGrey, 20 Aug. 1768, Quincy, Reports (Appendix) 454; compare Frese, Writs of Assistance (dissertation) 171 note. This theory is borne out by the fact that the form of the writ used after 1676 contained authority for searches aboard ship as well as ashore, although the 1662 Act did not require a writ for cases of the former class. See the writ at note 48100 below; compare Doc. III. For a copy of a commission, see Commission of Benjamin Hallowell as Comptroller of Boston, 9 March 1764, Quincy, Reports (Appendix) 433 note. One 18th-century colonial law book contains only a special search warrant for customs officers. Frese, Writs of Assistance (dissertation) 179 note; see Conductor Generalis: or the Office, Duty and Authority of Justices of the Peace 91–92 (Phila., 2d edn., 1749). The latter work, intended for justices of the peace, would not contain the form of the writ of assistance, which could issue only from the Exchequer or an equivalent.
17. 3 Hutchinson, Massachusetts Bay, ed. Mayo, 67. That the writs were general appears from Hutchinson's description of the event. This conclusion is supported by a phrase in Otis' argument at note 1567 below, as well as by Hutchinson's remarks in the second writs of assistance argument in Nov. 1761. Quincy, Reports 52. Shirley was probably acting under the authority given to the governor, or one delegated by him, to seize illegally entered goods under 6 Geo. 2, c. 13, §3 (1733). He may also have relied, as “chief magistrate,” on the provisions of 12 Car. 2, c. 19, §1 (1660), which permitted search of any premises for specific goods. See text at note 5 above.
18. The Province law was the Act of 26 June 1699, c. 3, § 1, 1 A&R 370, set out in note 4698 below. For the 1754 refusal to act, see note 961 below. The Superior Court could be said to have had a jurisdiction equivalent to that of the Exchequer over breaches of the Acts of Trade in England, because the acts applicable to the colonies gave concurrent jurisdiction of breaches there to the Courts of Vice Admiralty and the common-law courts. The Superior Court also had jurisdiction of breaches of provincial revenue acts. See 15 Car. 2, c. 7, §§6, 8 (1663); Act of 31 Jan. 1761, c. 20, §§14, 15, 20, 4 A&R 407. No evidence of a significant exercise of the jurisdiction under the English statutes has been found in the records or files of the Superior Court, however, and there seem to have been few actions under the Province acts. See p. 99, note 9, above; note 3082 below. For Parliament's later efforts to meet the problem of a general colonial lack of Exchequer jurisdiction, see note 29 below.
19. See Paxton's petition and writ in text at notes 4799, 48100, below. For the record references to the allowance of his and the other petitions, see Quincy, Reports (Appendix) 402–406. See also the petition of Francis Waldo, April 1758, SF 78370, and that of James Nevin, Jan. 1759, SF 79409.
20. By virtue of 1 Anne, stat. 1, c. 8, §5 (1702), note 13 above. Hutchinson stated that the argument which followed had been called for in part because Samuel Sewall, “the late chief justice, who was in high esteem, had doubts of the legality of such writs.” 3 Hutchinson, Massachusetts Bay, ed. Mayo, 68. JA later concurred as to Sewall's doubts and further stated that the February argument was before that Justice. JA to Tudor, 29 March 1817, 10 JA, Works 247. There is some question whether Sewall in fact had doubts. See Malcolm Freiberg, Prelude to Purgatory: Thomas Hutchinson in Provincial Massachusetts Politics, 1760–1770, p. 13 note (Brown Univ. doctoral dissertation, 1950). Whatever his views, he had died in Sept. 1760, so that he could not have heard the Feb. 1761 argument. See Whitmore, Mass. Civil List 70; Quincy, Reports (Appendix) 409. Since Hutchinson was commissioned as chief justice on 13 Nov. 1760 and took his seat on the bench on 30 Dec., only three days after George II's death was known in Boston, it would seem that JA was also in error in stating that Hutchinson was appointed expressly to decide the writs question in the Crown's favor. See Quincy, Reports (Appendix) 408–411 note.
21. Barons, appointed in 1759, had immediately begun to cause trouble, apparently because of a long-standing vendetta with Charles Paxton, surveyor and searcher at Boston. Barrow, Colonial Customs 261–262, 352–353. According to Paxton, Barons was behind not only the opposition to writs of assistance but also the efforts of the merchants to alter the practice whereby the charges of the informer in condemnations in the Court of Admiralty were paid out of the Province share of the proceeds. Quincy, Reports (Appendix) 425–426, 542. In the latter controversy James Otis represented the merchants at legislative hearings in Dec. 1760, which led the General Court to authorize Province Treasurer Harrison Gray to sue Paxton for specific sums he allegedly received in this fashion. Id. at 541–543. See note 28130 below. Gray, with Otis as counsel, first lost on a plea in abatement upheld because he had sued in his own person. See id. at 541–547; 1 JA, Diary and Autobiography210–212; SF 172289, 172353. In a new action in the name of the Province, Paxton obtained verdict and judgment at the Feb. 1762 term of the Superior Court. Quincy, Reports (Appendix) 548–552; SF 100183. At the Aug. 1761 Superior Court, John Erving, a Boston merchant and councilor, had obtained judgment against Collector George Cradock for money paid under a composition (consent decree) of a libel brought in Admiralty for duties—despite the court's instructions that the Admiralty decree was binding. Id. at 553–557. In the meantime, Barons had finally been removed from his post, in June 1761. See No. 45, note 644. Since he had brought three actions against those responsible for his removal which, with Gray v. Paxton and Erving v. Cradock, were all pending in the Suffolk Inferior Court in July 1761, it is little wonder that Governor Bernard saw the entire problem as the result of a plot fomented by Barons, Erving, and Otis. Bernard to Lords of Trade, 6 Aug. 1761, quoted in Quincy, Reports (Appendix) 426, 545, 555. It is more likely, however, that the opposition derived strong support from all the merchants because of their resentment toward a tightening of customs control insisted on by Pitt in Aug. 1760 as a means of halting illicit trade with the enemy. See id. at 407–408; Lawrence H. Gipson, The British Empire before the American Revolution, 10:111–131 (N.Y., 1961); King, “Judicial Flotsam in Massachusetts Bay,” 27 NEQ 366, 371–374 (1954); Freiberg, Prelude to Purgatory 9 note. Otis was allegedly involved against the Crown because of wrath at the appointment of Hutchinson to the Superior Court in lieu of Otis' father. See 11 Sibley-Shipton, Harvard Graduates 252; note 20 above; note 26128 below.
22. JA's “Abstract,” at note 3105 below, reports that the case came up on the petition of James Cockle, Collector at Salem, at the Nov. 1760 term of the Essex Superior Court, an assertion which JA repeated in later writings. See, for example, JA to Tudor, 29 March 1817, 10 JA, Works 246–247. Cockle's petition has not been found, and there is no indication in the appropriate Minute Book that he, or any other officer, had applied for a writ in Nov. 1760. Quincy, Reports (Appendix) 409. Moreover, since the news of George II's death was not received in Boston until 27 Dec. 1760 (Id. at 411), the application certainly was made at a later date. That Paxton was first to apply is indicated by the facts that his was the first writ granted, and that Quincy's account is entitled “Paxton's Case.” See note 27 below. Hutchinson also says that an officer applied first. 3 Hutchinson, Massachusetts Bay, ed. Mayo, 68. There are no Minute Books for the 1761 terms of the Suffolk Superior Court, but the files and records support the conclusion that the petitions of Greene et al. and Lechmere were filed at the Feb. term 1761, and that the final decision reached at the Nov. adjournment of the Aug. term was on these petitions. See Petition of Greene et al., Petition of Lechmere, SF 100515b, printed in Quincy, Reports (Appendix) 412–414. See entries, “Greene et al. Petn.,” and “Lechmere, Survr. Genl. his petition,” on otherwise blank leaves, SCJ Rec. 1760–1761, fols. 225–226; and see, generally, Quincy, Reports (Appendix) 412–418.
23. Francis Bernard in 1765 said that the argument lasted three days, but it is unclear whether he referred to the Feb. or Nov. argument. Quincy, Reports (Appendix) 416. JA, in his Autobiography, characterized the argument as “several days” and in a letter in 1818 said that Otis' speech against the Acts of Trade alone lasted four or five hours. 3 JA, Diary and Autobiography276; JA to William Tudor, 1 June 1818, 2 JA, Works 314. The argument has been dated by virtue of the fact that it was held on the second Tuesday of the term. See note 2104 below. The term began on the third Tuesday of the month, 17 Feb. 1761.
24. This portion of Otis' remarks does not appear in JA's actual minutes (Doc. I), but is part of his later “Abstract” (Doc. II).
25. 3 Hutchinson, Massachusetts Bay, ed. Mayo, 68; Quincy, Reports (Appendix) 414–416; Freiberg, Prelude to Purgatory 15 note. The inquiry was apparently directed by Hutchinson to William Bollan, former Massachusetts agent in London. According to Bollan's memorial of 1766, seeking preferment from the Duke of Newcastle, Hutchinson desired “to know whether such writs of assistance ever issue from the exchequer, except upon special information, and confined either to particular houses, or to particular goods of which information is made.” Bollan replied by sending him a copy of the writ from the Exchequer, which was similar to that used in Massachusetts in 1755, reproduced in text at note 48100 below. Bollan also noted that “These writs upon any application of the commissioners of the customs to the proper officer of the court of Exchequer are made out of course by him, without any affidavit or order of the court.” Wolkins, “Bollan on Writs of Assistance,” 59 MHS, Procs. 415, 420 (1925–1926). See, as to the English practice, note 13 above.
26. See Quincy, Reports 51–57; compare Boston Gazette, 23 Nov. 1761, reprinted in Quincy, Reports (Appendix) 486–487. A summary of the arguments, apparently by Otis, appeared in the Boston Gazette for 4 Jan. 1762. It is reprinted in Quincy, Reports (Appendix) 488–494.
27. See the applications (1762–1769) in SF 1005150, printed in Quincy, Reports (Appendix) 416–434. Quincy styled the second argument “Paxton's Case of the Writs of Assistance,” but the evidence of the court records suggests that he, like JA in the first argument, simplified the nature of the proceedings. See Quincy, Reports 51; note 22 above. Hutchinson's draft of the writ which issued is printed as Doc. III. For the reaction and subsequent history of the writ in Massachusetts, see Quincy, Reports (Appendix) 416–468, 495–499; Wolkins, “Malcom and Writs of Assistance,” 58 MHS, Procs. 5 (1924–1925); Frese, “James Otis and Writs of Assistance,” 30 NEQ 496, 499–508 (1957); Frese, Writs of Assistance (dissertation) 202–235, 251–257, 273; Freiberg, Prelude to Purgatory 19–22. See also note 30 below.
28. See Dickerson, “Writs of Assistance as a Cause of Revolution,” in R.B. Morris, ed., The Era of the American Revolution 40 (N.Y., 1939). Compare Frese, Writs of Assistance (dissertation) 21–26; Frese, “Otis and Writs of Assistance,” 30 NEQ 496 (1957).
29. The Townshend Act, 7 Geo. 3, c. 46, §10 (1767), provided that, doubts having arisen about the legality of the use of writs of assistance in the colonies through the failure of the Act of 7 & 8 Will. 3, c. 22, to authorize any particular court to issue them, “such writs of assistance . . . shall and may be granted by the said superior or supreme court of justice having jurisdiction within such colony or plantation respectively.” The doubts had been expressed in a series of opinions of the Attorney General in England, which did not squarely face the question presented by the Exchequer jurisdiction of the Massachusetts superior court. See Wolkins, “Malcom and Writs of Assistance,” 58 MHS, Procs. 5 (1924–1925); Frese, “Otis and Writs of Assistance,” 30 NEQ 496, 503–505. Compare Opinion of Attorney General DeGrey, 20 Aug. 1768, Quincy, Reports (Appendix) 452–454.
30. The passage of 7 Geo. 3, c. 46, note 29 above, and the creation of a new board of American Customs Commissioners to enforce it (No. 45, notes 10–14), marked the beginning of a concerted effort by the customs officials in all colonies to obtain and enforce writs of assistance. For the difficulties which they encountered, even with the new enactments, see Dickerson, “Writs of Assistance,” Era of the Revolution 49–75; Frese, Writs of Assistance (dissertation) 225–293. For earlier problems in Massachusetts, see sources and authorities cited in note 27 above. The 14th Article of the Declaration of Rights in the Massachusetts Constitution of 1780, substantially drafted by JA, is an early and explicit demonstration of the reaction:
“Every subject has a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation, and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure; and no warrant ought to be issued but in cases and with the formalities prescribed by the laws.” 4 JA, Works 226–227.
As to JA's role in the framing, see id. at 215–217; 2 JA, Diary and Autobiography401 note. The Fourth Amendment to the United States Constitution is of similar purport:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The first United States Customs Act provided that officers might search vessels upon reasonable suspicion at any time without warrant, but that premises ashore could be searched only with a warrant obtained on representation of suspicion to a Justice of the Peace. Act of 31 July 1789, c. 5, §24, 1 Stat. 43.
31. For newspaper publication in Boston after the Nov. 1761 argument and reaction there, see notes 26, 27, above. In many other colonies arguments similar to those of Otis were used; in 1773 JA's version of his argument as printed in the Massachusetts Spy (Doc. II and notes 1103, 20122, below) was sent to the Connecticut Committee of Correspondence. Frese, “Otis and Writs of Assistance,” 30 NEQ 506–508.
32. 1 Blackstone, Commentaries *91. As to the 18th-century position generally, see J. W. Gough, Fundamental Law in English Constitutional History 174–191 (Oxford, rev. edn., 1961); Plucknett, “Bonham's Case and Judicial Review,” 40 Harv. L. Rev. 58–60 (1926). Even Lord Camden, a friend to America, took the same position in 1768. Quincy, Reports (Appendix) 516–517. For the modern British view, see Edward McWhinney, Judicial Review in the English-Speaking World 31–48 (Toronto, 2d edn., 1960).
33. Money v. Leach, 3 Burr. 1742, 1766, 97 Eng. Rep. 1075, 1088 (K.B. 1765). See generally, 10 Holdsworth, History of English Law 659–672. The existence of the writ in England today (note 13 above) emphasizes the continuing force of the constitutional doctrine.
34. See Gridley's arguments, text following note 3183 below; compare his position in Nov. 1761. Quincy, Reports 56–57. Hutchinson expressly adopted this position at a later date. See his charge to the Grand Jury, March 1769, quoted in note 2072 below; Hutchinson to Richard Jackson, 12 Sept. 1765, 26 Mass. Arch. 153, quoted in Quincy, Reports (Appendix) 441 note.
35. Bonham's Case, 8 Co. Rep. 113b, 118a, 77 Eng. Rep. 646, 652 (C.P. 1610), quoted more fully, note 2173 below. For Otis' citation of the case and the other phrases quoted here, see text at notes 19-2171-73 below.
36. See Thorne, “Dr. Bonham's Case,” 54 L.Q. Rev. 543 (1938); MacKay, “Coke Parliamentary Sovereignty or the Supremacy of Law,” 22 Mich. L. Rev. 222–231 (1924); Gough, Fundamental Law 10–11, 31–40. It has also been argued that Coke intended to state a broader proposition of fundamental law. See Plucknett, “Bonham's Case,” 40 Harv. L. Rev. 31–48; Corwin, “The 'Higher Law' Background of American Constitutional Law,” 42 Harv. L. Rev. 373 (1929).
37. See Gough, Fundamental Law 40–65.
38. In a sense, Bonham's Case involved the public interest, since it concerned the statutory powers of the London College of Physicians to license practitioners. However, the form of the proceeding was an action of trespass for false imprisonment brought by Dr. Bonham against the members of the Board of Censors of the College, who had imprisoned him for contempt of their orders; such actions were considered as ordinary civil actions, the concept of review of administrative action by certiorari not having been developed. See Jaffe and Henderson, “Judicial Review and the Rule of Law: Historical Origins,” 72 L.Q. Rev. 350–352 (1956); compare Gough, Fundamental Law 49. See also No. 24, note 4; No. 27, notes 4–9.
39. See Gough, Fundamental Law 104–105, 111; Plucknett, “Bonham's Case,” 40 Harv. L. Rev. 61–63.
40. See text at notes 19–2171–73 below. Compare Adams' “Abstract,” text at note 46148 below.
41. See James Otis, The Rights of the British Colonies Asserted and Proved 72–73 (Boston, 1764), reprinted with the original pagination in Bernard Bailyn, Pamphlets of the American Revolution, 1:419–482 (Cambridge, Mass., 1965):
“Tis hoped it will not be considered as a new doctrine that even the authority of the Parliament of Great Britain is circumscribed by certain bounds which if exceeded their acts become those of mere power without right, and consequently void. The judges of England have declared in favor of these sentiments when they expressly declare that acts of Parliament against natural equity are void. That acts against the fundamental principles of the British constitution are void. This doctrine is agreeable to the law of nature and nations, and to the divine dictates of natural and revealed religion.”
(See also id. at 1870.) In a footnote at the dagger Otis quoted a long passage on legislative power from Emmerich de Vattel, Law of Nations, bk. 1, c. 3, §34 (London, 1760), to the effect that the legislature could not change “the constitution of the state.” The footnote also cited Bonham's Case; Day v. Savadge, Hobart 85, 80 Eng. Rep. 235 (C.P. 1615) (possibly cited in argument; see note 1971 below); Thornby v. Fleetwood, 10 Mod. 113, 88 Eng. Rep. 651 (C.P. 1713); and City of London v. Wood, 12 Mod. 669, 88 Eng. Rep. 1592 (K.B. 1701). The last three were all cases which repeated the Bonham principle. For Otis' reliance on Locke, see, for example, Rights of the British Colonies 22–23; see also Corwin, “Higher Law,” 42 Harv. L. Rev. 399. JA, years later, asserted that Rights of the British Colonies did contain the authorities cited in the writs argument. JA to Tudor, 21 Aug. 1818, 10 JA, Works 351.
42. Otis, Rights of the British Colonies 41. For a passage in JA's “Abstract” which may also convey this idea, see text at note 47149. In a newspaper statement of the arguments, attributed to Otis, Bonham's Case was not cited, and it was merely argued that the English construction of the Act should not be followed in Massachusetts. Boston Gazette, 4 Jan. 1762, printed in Quincy, Reports (Appendix) 491–492.
43. See Otis, Rights of the British Colonies 60, citing Jeremiah Dummer, A Defence of the New England Charters 41 (Boston, 1745). See generally 1 Bailyn, Pamphlets 415–417. Otis' concept of a supreme Parliament complying with law of its own volition is related to Coke's ideas. Id. at 412–413; Gough, Fundamental Law 40–50. For Otis, however, it was the necessity for maintaining the constitution, rather than undefined moral obligation, which enjoined compliance.
44. See Charles G. Haines, The American Doctrine of Judicial Supremacy 22–25 (Berkeley, 1932); Henry Rottschaefer, Handbook of American Constitutional Law 32–36 (St. Paul, Minn., 1939); Andrew C. McLaughlin, A Constitutional History of the United States 26–27 (N.Y., 1935); Corwin, “Higher Law,” 42 Harv. L. Rev. 375, 379, 408–409. Corwin seems to read too much into Adams' report of Otis' words when he says, “Then and there American constitutional law was born, for Otis' contention goes far beyond Coke's: an ordinary court may traverse the specifically enacted will of Parliament, and its condemnation is final.” Id. at 398. The history of judicial review in the colonies suggests many roots, including the activities of the colonial courts and the judicial functions of the Privy Council. See Haines, Judicial Supremacy 44–66; Smith, Appeals to the Privy Council 522–653. For references to the idea in Massachusetts, see Quincy, Reports (Appendix) 527–528 note; note 42 above; note 48 below. JA spoke of “telling the jury the nullity of acts of Parliament,” but this was after the British had left Boston. JA to William Cushing, 9 June 1776, 9 JA, Works 390–391.
45. 1 Bailyn, Pamphlets 121; Charles F. Mullet, Fundamental Law and the American Revolution 80–81 (N.Y., 1933).
46. Otis' writings contained much ambiguity, which gave rise to the correspondingly ambiguous reactions among his contemporaries. See 1 Bailyn, Pamphlets 121–123, 409–417. In Rights of the British Colonies 22–23, he quoted, apparently with approval, Locke's theory that revolution was justified when the sovereign arbitrarily assumed absolute power. He expressly rejected revolution as a solution to the existing problems of the colonies, however. Id. at 50–51. Later he retreated even further. 1 Bailyn, Pamphlets 122, 546–552.
47. See Corwin, “Higher Law,” 42 Harv. L. Rev. 394–409. The power of the courts to enforce the supremacy of the United States Constitution was not express, but was established by Chief Justice Marshall in Marbury v. Madison, 1 Cranch (5 U.S.) 137, 173–180 (1803). See also 1 Bailyn, Pamphlets 102–105.
48. See JA's comment of 3 July 1776 in note 1 above. For an example of his use of the fundamental law principle, see his argument before the Governor and Council on the closing of the courts during the Stamp Act crisis. Quincy, Reports 200–202. JA's own notes for this argument suggest that he was citing Bonham's Case in a narrow sense. 2 JA, Works 159 note. In another well-known case where the validity of an act denying jury trial was in question, JA argued for strict construction only. No. 46, text at notes 65–66.
50. See 1 JA, Diary and Autobiography 211 note; 10 Gipson, British Empire 122–123 note.
51. For the letter, see text at note 1 above. The passage in the Autobiography is in 3 JA, Diary and Autobiography276.
52. Details of the provenance of the materials printed are in note 1103 below. For one example of the “Abstract's” circulation, see note 31 above. Further evidence is provided by the existence of the Hawley and Keith versions, note 1103 below. It is worth noting that the brief accounts of the argument in 3 Hutchinson, Massachusetts Bay, ed. Mayo, 68, and 1 Gordon, History of Independence 141–142, suggest that their authors may have at least read the “Abstract,” probably in the Massachusetts Spy.

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,
{ [facing 132] } { [facing 133] } { 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 BayGeorge 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 1769, 3486, 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 1769 below. See also notes 12 above, 1668 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 4092 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 658 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 4698 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 3082 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 33135 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 557 above, note 3486 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 48100 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 4799 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 1592. 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 35137 below. Compare Thacher's argument, text at notes 9–1061–62 above.
24. That is, the statutes of Charles II referred to in the next paragraph. Compare Thacher's remark, text at note 658 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 4092 below.
27. 7 & 8 Will. 3, c. 22, §6 (1696), text at notes 42–4594–97 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 32–34134–136, and following note 46148 below.
29. These incidents are more fully described in JA's “Abstract,” text at notes 38–42140–144 below.
30. Otis is here apparently rehearsing Thacher's arguments, text at note 961 above, that the Superior Court had renounced the Exchequer powers given it by province law (note 4698 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 1264 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 42–4594–97 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 4092 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 557 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 254 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 557 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 4395 and 4496 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 1062 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 557 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 inthose 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 the44law. 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 1103 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 48100 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 4092 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 42–4594–97 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 4698 above.
16. Apparently supplied by Gray. See Quincy, Reports (Appendix) 481.
18. Horne v. Boosey, note 759 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 961 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 47149 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 2104 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 Autobiography200–201.
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 1365 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 37139 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 36138 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 1103 above. It may be an elaboration of the well-known passage, “the executive courts must pass such acts into disuse.” See notes 42, 2072, 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 1103above.

Docno: ADMS-05-02-02-0006-0002-0004

Author: Hutchinson, Thomas
Date: 1761-12

Thomas Hutchinson's Draft of a Writ of Assistance1

December 1761

Prov. of Mass. BayGeorge the third by the grace of God of Great Britain France and Ireland King Defender of the faith &c.sealTo all and singular our Justices of the Peace Sheriffs Constables and to all other our Officers and Subjects within our said Province and to each of you Greeting.
{ 145 }
Know ye that whereas in and by an Act of Parliament made in the <thir> fourteenth year of the reign of the late King Charles the second <it is declared> the Officers of our Customs and their Deputies are authorized and impowered to go and enter aboard any Ship or Vessel outward or inward bound and for the Purposes in the said Act mentioned and it is <also> in and by the said Act further enacted and declared that it shall be lawful to or for any person or persons authorized by Writ of assistants under the seal of our Court of Exchequer to take a Constable Headborough or other Publick Officer 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 them to bring any kind of goods or merchandize whatsoever prohibited and uncustomed and to put and secure the same in <his Majestys> our Store house in the port next to the place where such seizure shall be made.2
And where as in and by an Act of Parliament made in the seventh and eighth year of the reign of the late King William the third there is granted to the Officers for collecting and managing our Revenue and inspecting the Plantation trade in any of our Plantations the same powers, and authority for visiting and searching of Ships and also to enter houses or warehouses to search for and seize any Prohibited or uncustomed goods as are provided for the Officers of our Customs in England by the said last mentioned Act made in the fourteenth year of the reign of King Charles the second, and the like assistance is required to be given to the said Officers in the execution of their office as by the said last mentioned Act is provided for the Officers in England.3
And where as in and by an Act of our said Province of Massachusetts bay made in the eleventh year of the reign of the late King William the third it is enacted and declared that our Superior Court of Judicature Court of Assize and General Goal delivery for our said Province shall have cognizance of all matters and things within our said Prov• { 146 } ince as fully and amply to all intents and purposes as our Courts of King's Bench Common Pleas and Exchequer within our Kingdom of England have or ought to have.4
And whereas our Commissioners for managing and causing to be levied and collected our customs subsidies and other duties have by Commission or Deputation under their hands and seal dated at London the 22d. day of May in the first year of our Reign deputed and impowered Charles Paxton Esqr. to be Surveyor and Searcher of all the rates and duties arising and growing due to us at Boston in our Province aforesaid and in and by said Commission or Deputation have given him power to enter into any Ship Bottom Boat or other Vessel and also into any Shop House Warehouse Hostery or other Place whatsoever to make diligent search into any trunk chest pack case truss or any other parcell or package whatsoever for any goods wares or merchandizes prohibited to be imported or exported or whereof the Customs or other Duties have not been duly paid and the same to seize to our use In all things proceeding as the Law directs.5
Therefore we strictly Injoin and Command you and every one of you that, all excuses apart, you and every one of you permit the said Charles Paxton according to the true intent and form of the said commission or deputation and the laws and statutes in that behalf made and provided, as well by night as by day from time to time to enter and go on board any Ship Boat or other Vessel riding lying or being within or coming to the said Port of Boston or any Places or Creeks thereunto appertaining such Ship Boat or Vessel then and there found to search and oversee and the persons therein being strictly to examine touching the Premises aforesaid and also <according to the form effect and true intent of the said commission or deputation> in the day time to enter and go into the vaults cellars warehouses shops and other places where any prohibited goods wares or merchandizes or any goods wares or merchandizes for which the customs or other duties shall not have been duly and truly satisfied and paid lye concealed or are suspected to be concealed, according to the true intent of the law to inspect and oversee and search for the said goods wares and merchandizes, And further to do and execute all things which of right and according to the laws and statutes in this behalf shall be to be done. And we further strictly Injoin and Command you and every one of you that to the said Charles Paxton Esqr. you and every one of you from time to time be aiding assisting and helping in the execution of { 147 } the premises as is meet. And this you or any of you in no wise omit at your Perils. Witness Thomas Hutchinson Esq. at Boston the day of December in the Second year of our Reign Annoque Dom. 1761.6
[signed] By order of Court
N.H. Cler.7
1. In Hutchinson's hand, Dec. 1761. Adams Papers, Microfilms, Reel No. 185. It is unclear how this document found its way into the Adams Papers. Gray printed it, identifying it as from the court files. Notations on the back of the writ as to the issuance of writs to individuals between 1763 and 1769, in the hand of Superior Court Clerk Samuel Winthrop, not printed here, confirm this suggestion. Perhaps Gray, who had access both to the court files and to the Adams Papers, inadvertently effected a transfer. See Quincy, Reports (Appendix) 418–421, 434. It is photographically reproduced in Wolkins, “Writs of Assistance in England,” 66 MHS, Procs. 362 (1936–1941). See Freiberg, Prelude to Purgatory 18 note. Hutchinson's draft was undoubtedly used as the basis for all subsequent writs issued. Compare the writ issued to Nathaniel Hatch, 3 June 1762, in SF 100515b.
2. 13 & 14 Car. 2, c. 11, §5(2), text at note 4092 above.
3. 7 & 8 Will. 3, c. 22, §6(2), text at notes 42–4594–97 above.
4. Act of 26 June 1699, 1 A&R 370, text at note 4698 above.
5. As to Paxton's commission, see Quincy, Reports (Appendix) 421 note.
6. The last three words are in another hand, perhaps that of Nathaniel Hatch, a clerk of the Superior Court. See Quincy, Reports (Appendix) 418.
7. The initials (standing for Nathaniel Hatch) are in Hutchinson's hand, but “Cler.” (for Clerk) is not; Gray suggests it is in Samuel Winthrop's hand. See Quincy, Reports (Appendix) 418.
Cite web page as: Founding Families: Digital Editions of the Papers of the Winthrops and the Adamses, ed.C. James Taylor. Boston: Massachusetts Historical Society, 2014.
http://www.masshist.org/apde2/