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. Cockle
3 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 following
6 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 the
8 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. 3
15 “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.
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 God
22 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 cause
28 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 patriot
31 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 excite
35 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 is
38 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 unaccustomed
41 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 law
43 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 these
45 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