Amendment IV

Document 2

Writs of Assistance 1761--72

A. What are Writs of Assistance?

This term has been applied in the books of the law to many different processes, which may conveniently be classed under three heads.

I. Writs of assistance, more usually called "writs of aid," issuing from the Court of Exchequer, addressed to the sheriff, and commanding him to be in aid--"quod sit in auxilium"--of the King's tenants by knight service, or the King's collectors, debtors, or accountants, to enforce payment of their own dues, in order to enable them to pay their dues to the King. These writs are very ancient. A like writ, issued in 20 James I., to levy debts due to the Prince of Wales, is entitled on the record "breve de assistendo."

Under this head may conveniently be mentioned the writs issued by King Edward I. to the Barons of the Exchequer, commanding them to aid a particular creditor to obtain a preference over other creditors of the same debtor, out of a surplus of his goods remaining in the Exchequer, after paying a debt due to the King, or to some other creditor who had sued there.

2. Writs to the sheriff, to assist a receiver, sequestrator, or other 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. These writs, which issue from the equity side of the Court of Exchequer, or from any other Court of Chancery, are at least as old as the reign of James I., and are still in common use in England, Ireland, and some of the United States. But, whether from the odium attached to the name here, or from the practice in this Commonwealth to conform processes in equity to those at law, no instance is known of such a writ having been issued in Massachusetts.

3. Writs of assistance to seize uncustomed goods were introduced by a statute of Charles II., and were perhaps copied from the sheriff's patent of assistance. The book of precedents, quoted at the first argument here in 1761, is so rare, and the form therein given is so curious a justification of Otis's suggestion that it was framed "by some ignorant clerk of the Exchequer," that it is exactly reprinted in the margin. The same form, with very little change, is still followed in England, as appears by comparing the old writ with one issued in the first year of the present reign, for a copy of which the writer is indebted to Henry T. Parker, Esq., of London.

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B. Writs of Assistance granted in Massachusetts Bay in the Reign of George II.

Hutchinson says, that under the administration of Governor Shirley, (which ended in 1756,) "he, as the civil magistrate, gave out his warrants to the officers of the customs to enter;" and "these warrants were in use some years," until a dispute of their legality caused the Governor "to direct 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." The accuracy of this last statement is fully corroborated by the contemporaneous records. The foremost to apply to the Court was Charles Paxton.

"Humbly shews Charles Paxton Esqr: 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 & cannot fully Exercise said Office in such Manner as his Majestys 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 Writ of Assistants, he therefore prays he & his Deputys may be Aided in the Execution of said office within his District by a Writ of Assistants under the Seal of this Superiour Court in Legal form & according to Usage in his Majestys Court of Exchequer & in Great Britain, & your Petitioner &Ca:

"Chas Paxton"

This case first appears on the records of the Court at the ensuing August term in Suffolk, (which the docket shows to have been held by Sewall, C. J., Lynde, Cushing & Russell, JJ., and which was finally adjourned on the 30th of August,) in this form:

"Upon reading the petition of Charles Paxton Esquire wherein he shewed that he is lawfully authorized to execute the office of Surveyor of all Rates Duties and Impositions arising & growing due to his Majesty at Boston in this Province, and could not fully exercise said office in such manner as his Majestys Service and the Laws in such cases require, unless said Court who are vested with the power of a Court of Exchequer for this province would grant him a writ of Assistants, he therefore prayed that he and his Deputies might be aided in the Execution of said office with his District by a writ of Assistants under the Seal of said Court in Legal form and according to Usuage in his Majestys Court of Exchequer & in Great Britain. Allowed, and Tis Ordered by said Court that a writ be issued as prayed for."

The writ was afterwards issued in the following form:

"To all and singular Justices of the Peace, Sheriffs and Constables, and to all other our officers and Subjects within said Prov. & to each of you 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 ye said C. P. and his Deputies and Servants from Time to time at his or their Will 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 & there found to View & Search & strictly 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 and go into any Vaults, Cellars, Warehouses, Shops or other Places to search and see whether any Goods, Wares or Merchandises, in ye 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 appertain'g to the same Port; and to open any Trunks, Chests, Boxes, fardells or Packs made up or in Bulk, whatever in wh any Goods, Wares, or Merchandises are suspected to be packed or concealed and further to do all Things which of Rt 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 Deputies and Servants and every of them in the Execution of the Premises in all Things as becometh: Fail not at your Peril: Witness Stephen Sewall Esqr &c--"

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Case.

Opinion of Attorney General De Grey upon Writs of Assistance.

By this Act of Parliament, after reciting 'That by an Act of Parliament made in the 14th Cha. 2d, intitled an Act for preventing Frauds and regulating Abuses in His Majesty's Customs, and several other Acts now in Force, it is lawful for any Officer of His Majesty's Customs, authorized by Writ of Assistants under the Seal of His Majesty's Court of Exchequer, to take a Constable, Headborough, or any other public 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 thence to bring any kinds of Goods or Merchandize whatsoever, prohibited or uncustomed; and to put and secure the same in His Majesty's Storehouse, next to the Place where the Seizure shall be made. And further reciting, That by an Act made in the 7th and 8th of William the 3d, intitled an Act for preventing Frauds and regulating Abuses in the Plantation Trade, it was amongst other Things enacted, That the Officers for collecting and managing His Majesty's Revenue, and inspecting the Plantation Trade in America, should have the same Powers and Authorities to enter Houses or Warehouses, to search for and seize Goods prohibited to be imported or exported into, or out of, any of the said Plantations, or for which any Duties were payable, or ought to have been paid, and that the like Assistance should be given to the said Officers in the Execution of their Office, as by the said recited Act of the 14th Cha. 2d, is provided for the Officers in England, but no Authority being expressly given by the said Act of 7th and 8th of William 3d, to any particular Court to grant such Writs of Assistants for the Officers of the Customs in the said Plantations, it was doubted whether such Officers could legally enter Houses and other Places on Land to search for and seize Goods in the Manner directed by the said Acts; to obviate which Doubts for the future, and in order to carry the intention of the said Acts into effectual Execution.

"It is enacted, 'That after the 20th of November, 1767, such Writs of Assistants to authorize and empower the Officers of His Majesty's Customs to enter and go into any House, Warehouse, Shop, Cellar or other Place, in the British Colonies or Plantations in America, to search for and seize prohibited or uncustomed Goods in the Manner directed by the said recited Acts, shall and may be granted by the Superior or Supreme Court of Justice having Jurisdiction within such Colony or Plantation respectively.'

"In pursuance of this Act of Parliament, the Officers of the Customs in America, have applied to the Judges of the Superior Courts of Judicature in the respective Provinces, for Writs of Assistants, but most of them have refused to grant such Writs, seemingly for this Reason, that no informations had been made to them of any special Occasion for such Writ, and that it will be unconstitutional to lodge such Writ in the Hands of the Officer, as it will give him a discretionary Power to act under it in such Manner as he shall think necessary.

"But it must be observed, that if such a General Writ of Assistants is not granted to the Officer, the true Intent of the Act may in almost every Case be evaded, for if he is obliged, every Time he knows, or has received information of prohibited or uncustomed Goods being concealed, to apply to the Supreme Court of Judicature for a Writ of Assistants, such concealed Goods may be conveyed away before the Writ can be obtained. Inquiry has been made into the Manner of granting Writs of Assistants in England, and it appears that such Writs are issued out of the Court of Exchequer whenever the Commissioners of the Customs apply for them. Every Officer of the Customs here, is armed with such a Writ, and whenever a new Officer is appointed, the Commissioners direct their Sollicitor to procure a Writ of Assistants, which is issued as a matter of Course by the Clerks of the Exchequer without any Application to the Court. This Writ is directed to all Officers and Ministers who have any Office, Power or Authority from or under the Jurisdiction of the Lord High Admiral of England, to all and every Vice Admirals, Justices of the Peace, Mayors, Sheriffs, Constables, Bailiffs, Headboroughs, and all other the King's Officers, Ministers and Subjects, commanding them to be aiding, assisting and helping the Commissioners of the Customs and their Deputies, Ministers, Servants, and other Officers in the Execution of their Duty.

"Quest. Whether the Superior Courts of Justice in the British Colonies or Plantations in America, ought not upon Application, to issue Writs of Assistants in the same Manner as is practised in the Court of Exchequer in England, and what steps should be taken by Government in Order to Enforce the Issuing of these Writs for the Protection of the Officers of the Customs abroad?

"There can be no doubt, but that the Superior Courts of Justice in America are bound by the 7th Geo. 3d. to issue such Writs of Assistants, as the Court of Exchequer in England issues in similar Cases, to the Officers of the Customs.

"As this Process was probably new to many of the Judges there, and they seem to have had no Opportunity of informing themselves about it, it is perhaps in some measure excusable, that they wished to have time to consider of it, and to inquire into the Practice of the Court of Exchequer and of other Colonies; and I think it can only be because the Subject was entirely misunderstood, and the Practice in England unknown, that the Chief Justice of Pennsylvania, who is generally well spoken of, could imagine, that 'He was not Warranted by Law' to issue a Writ commanded by the Legislature; which Writ was founded upon the Common Law, enforced by Acts of Parliament and in daily use in England, and which from the general import of the 7th Will. 3d. ought to have been set on foot from that time in America, and which Statute the late Act only meant to Explain. And it appears accordingly that in Boston where a very able Judge presides and some Experience had been had upon the Subject, no Difficulty was made in granting it.

"I think therefore it is advisable that the Form of the Writ issued by the Court of Exchequer in England, should be sent over to the several Colonies in America, together with the Manner of applying for it and of granting it, by which they will see, that the power of the Custom House Officers is given by Act of Parliament and not by this Writ, which does nothing more than facilitate the Execution of his Power by making the Disobedience of the Writ a Contempt of the Court: The Writ only requiring all Subjects to permit the exercise of it and to Aid it. The Writ is a Notification of the Character of the Bearer to the Constable and others to whom he applies, and a Security to the Subject against others who might pretend to such Authority. No Body has it but a Custom House Officer armed with such a Writ. The Writ is not granted upon a previous Information, nor to any particular Person, nor on a special Occasion. The inconvenience of that was experienced upon the Act of 12th Cha. 2d, C. 19. and the present Method of proceeding adopted in lieu of what that Statute had prescribed.

"Wm DeGrey.

"20th August, 1768."

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Jonathan Sewal vs. John Hancock.

Advocate General v. Hancock. Information.

"Prov. &c. Before the Honl. Robert Auchmuty Esqr

"Be it remembered, that on the 29 day of October in the Ninth Year of the Reign of his Majesty George the Third, Jonathan Sewall Esqr Advocate General for the said Lord the King, in his proper Person comes and as well on behalf of the said Lord the King, as of the Governor of this Province, gives the said Court to understand and be informed, that on the ninth day of May last, a certain Sloop called the Liberty, arrived at the Port of Boston in said Province, from the Islands of Madeira, having on Board, one hundred and twenty seven Pipes of Wine of the Growth of the Madeira's; of which said Sloop, one Nathaniel Barnard was then Master, and that in the Night Time of the same day the said Nathaniel Barnard with Intent to defraud the said Lord the King of his lawfull Customs, did unlawfully and clandestinely unship and land on Shore in Boston aforesaid one hundred of the aforesaid Pipes of Wine of the Value of Thirty Pounds Sterling Money of Great Britain, each Pipe, the Duties thereon not having been first paid, or secured to be paid, agreeable to Law. And that John Hancock of Boston aforesaid Esqr was then and there willfully and unlawfully aiding and assisting in unshiping & landing the same one hundred Pipes of Wine, he the said John Hancock, at the same time well knowing, that the Duties thereon were not paid or secured and that the unshipping and landing the same, as aforesaid, was with Intent to defraud the said Lord the King as aforesaid, and contrary to Law; against the Peace of the said Lord the King and the Form of the Statute in such Case made and provided, whereby and by Force of the same Statute, the said John has forfeited Treble the Value of the said Goods, so unshipped and landed as aforesaid, amounting in the whole to the Sum of Nine Thousand Pounds Sterling Money of Great Britain, to be divided, paid and applied in manner following, that is to say, after deducting the Charges of Prosecution, one Third Part thereof to be paid into the Hands of the Collector of his Majesty's Customs for the said Port of Boston, for the Use of his Majesty, his Heirs and Successors, one Third Part to the Governor of said Province, and the other Third Part to him that informs for the same.

Whereupon as this is a matter properly within the Jurisdiction of this Honl. Court, the said Advocate General prays the Advisement of the said Court in the Premises, and that the said John Hancock may be attached and held to answer to this Information, and may by a Decree of this honourable Court be adjudged to pay the aforesaid sum of Nine Thousand Pounds to be applied to the Uses aforesaid.

"Jon Sewall Advo. for the King."

"Octr. 29, 1768. Filed and allowed and ordered that the Register of this Court or his Deputy issue out a Warrant for the Marshall of this Court or his Deputy to arrest the Body of the said John Hancock and him keep in safe Custody so that he have him at a Court of Vice Admiralty to be holden at Boston on the seventh day of November next at Nine of Clock before noon and that he take Bail for Three Thousand Pounds Sterling Money of Great Britain.

"Robert Auchmuty Judge &c."

Hancock was arrested on the night of November 2d, and gave the required bail. "Journal of the Times" of November 3, 1768, in Boston Evening Post of January 9, 1769. The Court adjourned from time to time until January 2d, when "a number of witnesses were examined by the court in a most extraordinary and curious manner; Mr. Hancock's nearest relations, and even his tradesmen, were summoned as evidences;" and the Court afterwards sat repeatedly and examined other witnesses. "Journal of the Times" of December 5 & 14, 1768, January 2, 5, 7, 23, 28, 30, February 11, 18, 21, 1769, in Boston Evening Post of January 30, February 6, 20, 27, March 13, 20, 27, April 10, 17, 1769. Observations published by the Merchants of Boston in 1769, 19, note. The grounds of defence, as stated in the notes of John Adams, were as follows:

1st. That even if Captain Marshall had landed the wines before the duties were paid, (of which there was evidence,) Mr. Hancock, if he "neither consented to this Frolick, nor knew of it," could not be held to be "assisting or otherwise concerned in the unshipping or landing inwards," within St. 4 G. 3, c. 15, § 87, which Adams compared with St. 8 Anne, c. 7, § 17.

2d. That the St. of 4 G. 3 was to be construed with the utmost strictness; because it was "the most poenal of almost any Law in the whole British Pandect," forfeiting the whole ship and cargo for withholding a small amount of duties.

"But among the Groupe of Hardships which attend this Statute, the first that ought always to be mentioned, and that ought never to be forgotten is

"That it was made without our Consent. My Clyent Mr Hancock never consented to it. He never voted for it himself, and he never voted for any Man to make such a Law for him. In this Respect therefore the greatest Consolation of an Englishman, suffering under any Law, is torn from him, I mean the Reflection, that it is a Law of his own Making, a Law that he sees the Necessity of for the Public. Indeed the Consent of the subject to all Laws, is so clearly necessary that no Man has yet been found hardy enough to deny it. The Patrons of these Acts allow that Consent is necessary, they only contend for a Consent by Construction, by Interpretation, a virtual Consent. But this is only deluding Men with Shadows instead of Substances. Construction, has made Treason where the law has made none. Constructions, in short and arbitrary Distinctions, made in short only, for so many by Words, so many Cries to deceive a Mob have always been the Instruments of arbitrary Power, the means of lulling and ensnaring Men into their own Servitude, for whenever we leave Principles and clear positive Laws, and wander after Constructions, one Construction or Consequence is piled up upon another untill we get at an immense distance from Fact and Truth and Nature, lost in the wild Regions of Imagination and Possibility, where arbitrary Power sitts upon her brazen Throne and governs with an iron Scepter. It is an Hardship therefore, scarcely to be endured that such a penal Statute, should be made to govern a Man and his Property, without his actual Consent and only upon such a wild Chimaera as a virtual and constructive Consent.

"But there are greater Proofs of the Severity of this Statute, yet behind. The Legislative Authority by which it was made is not only grievous, but the Executive Courts by which it is to be carried into Effect, is another. In the 41st. § of this Act 4 G. 3, c. 15, we find that all the forfeitures and penalties inflicted by this or any other Act of Parliament, relating to the Trade and Revenues of the said British Colonies or Plantations in America, which shall be incurred there, shall and may be prosecuted, sued for, and recovered, in any Court of Record, or in any Court of Admiralty," &c. "Thus, these extraordinary Penalties and Forfeitures are to be heard and try'd,--how? Not by a Jury, not by the Law of the Land, but by the civil Law and a Single Judge. Unlike the ancient Barons who unâ Voce responderunt, Nolumus Leges Angliae mutari--The Barons of modern Times, have answered, that they are willing, that the Laws of England should be changed, at least with Regard to all America, in the most tender Point, the most fundamental Principle. And this Hardship is the more severe as we see in the same Page of the Statute and the very preceeding Section, § 40, That all Penalties and Forfeitures, herein before mentioned, which shall be incurred in Great Britain, shall be prosecuted, sued for and recovered in any of his Majesty's Courts of Record in Westminster or in the Court of Exchequer in Scotland respectively. Here is the Contrast that stares us in the Face! The Parliament in one Clause guarding the People of the Realm, and securing to them the benefit of a Tryal by the Law of the Land, and by the next Clause, depriving all Americans of that Priviledge. What shall we say to this Distinction? Is there not in this Clause, a Brand of Infamy, of Degradation, and Disgrace, fixed upon every American? Is he not degraded below the Rank of an Englishman? Is it not directly, a Repeal of Magna Charta, as far as America is concerned. It is not att all surprising that the Tryals of Forfeitures & Penalties are confined to the Courts of Record at Westminster, in England--The Wonder only is that they are not confined to Courts of common Law here." He then refers to the attachment of Englishmen to c. 29 of Magna Charta; and to Lord Coke's commentary thereon in 2 Inst. 51, as "concluding with a Reflection, which if properly attended to might be sufficient even to make a Parliament tremble."

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3d. Adams also said: "We are here to be tryed by a Court of civil not of common Law, we are therefore to be tryed by the Rules of Evidence that we find in the civil Law, not by those that we find in the common Law.--We are to be tryed, both Fact and Law is to be tryed by a single Judge, not by a Jury.--We therefore claim it as a Right that Witnesses not Presumptions nor Circumstances are to be the Evidence." And he argued that by the rules of the civil law, in order to convict a person of any crime, there must be two witnesses, free from all exception; that "if there were two or ten such Witnesses as Mezle, they would not amount to Proof sufficient for condemnation;" that the respondents had "a right to examine the Witnesses whole past life, and his Character at large;" and to prove by other witnesses that (as it is stated in the "Journal of the Times") "he was a fugative from his native country to avoid the punishment due to a very heinous crime;" for which he cited the following authorities: "New Inst. Civil Law, 315, 316. Dig. Lib. 22, Tit. 5, §§ 3, 12. Codicis, Lib. 4, Tit. 19, § 25; Tit. 20, s. 9, § 1, & note 32. Deut. 19, 15. Calv. Lex Testis. Fortescue de Laudibus Legum, c. 21, p. 38. Wood Inst. 310. Domat, V. 1, p. 13, Preliminary Book, Tit. 1, § 2, IV. 15."

"On the contrary," Adams argued, "if we are to be governed by the Rules of the common Law we ought to adopt it as a whole and summon a Jury and be tryed by Magna Charta--Every Examination of Witnesses ought to be in open Court, in Presence of the Parties, Face to Face--and there ought to be regular Adjournments from one Time to another. What other Hypothesis shall we assume? Shall we say that we are to be governed by some Rules of the common Law and some Rules of the civil Law, that the Judge at his Discretion shall choose out of each System such Rules as please him, and discard the rest, if so, Misera servitus est. Examinations of Witnesses upon Interrogatories, are only by the Civil Law. Interrogatories are unknown at common Law, and Englishmen & common Lawyers have an aversion to them if not an abhorrence of them. Shall we suffer under the odious Rules of the civil Law, and receive no advantage from the beneficial Rules of it? This, instead of favouring the Accused, would be favouring the Accuser, which is against the Maxims of both Laws."

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G. Subsequent Action of the General Court.

At the next session of the General Court, on the 22d of February 1762, the following bill was introduced and passed to be engrossed in the Council:

"An Act for the better enabling the Officers of his Majesty's Customs to carry the Acts of Trade into Execution.

"Whereas it is the Desire of this Court, that the Officers of his Majesty's Customs in this Province may be assisted in the due Execution of their Office, for the securing his Majesty's Dues, and for the preventing of Fraud:

"Be it enacted by the Governour, Council and House of Representatives, That upon Application of any of the Officers of his Majesty's Customs in this Province, impowred by Commission to seise upon Oath made to the Superiour Court of Judicature, Court of Assize, and General Goal Delivery, or to the Court of General Sessions of the Peace, or to the Inferiour Court of Common Pleas, or to either of the Justices of said Courts, or to any one of his Majesty's Justices of the Peace of the County, that he has had information of the Breach of any of the Acts of Trade; and that he verily believes or knows such Information to be true; it shall be lawful in every such Case, for such Court or Justice, to whom Application may be made as aforesaid, upon reducing such Oath to Writing, with the Name of the Person [Informing and the place] informed against, and not otherwise, to issue a Writ or Warrant of Assistance, which Writ or Warrant of Assistance shall be in the Form following and no other, Vizt.

"     ss. To the Sheriff and Coroner of the County of     and to their respective deputies; and to the respective Constables of the Town of     in said County--Greetings

"Whereas A. B.     of his Majesty's Customs, hath this Day made Complaint on Oath, That (setting forth the Complaint and Oath with the name of the Person complained of) You and every of You in his Majesty's Name, upon Sight thereof, are strictly Commanded to be aiding and assisting to the said A. B. in the due Execution of his Office relating to the Information aforesaid. Hereof fail Not at your Peril, and make Return of this Warrant and of your Doings thereon unto myself in seven Days from the Date hereof. Dated at B. the     Day of

In the     Year of his Majesty's Reign: Anno Domini

"And be it further enacted, That it shall be lawful for any Person or Persons authorized by Writ or Warrant of Assistance, in matter and Form as aforesaid, and not otherwise, in the Daytime to enter and go into any House, Shop, Cellar, Warehouse, or other Place; and in Case of Resistance, to break open Doors, Chests, Trunks and other Packages, them to seize and from thence to bring any Kind of Goods or Merchandize whatsoever prohibited and unaccustomed there found and them secure. And all his Majesty's good Subjects are required to be aiding and assisting in the due Execution of said Writ or Warrant of Assistance, and all such shall hereby be defended and saved harmless."

The bill was also passed through all its stages by the House, with the amendment inclosed in brackets in the third paragraph, and was returned to the Council on the 6th of March, and there passed on the same day. After the bill had been sent up from the House, the Governor sent a message to the House that he had signed certain bills, of which this was not one; and the House thereupon sent a message to the Council by James Otis to inquire if they had passed on this bill, and the Council returned a message to acquaint the House that the Council had passed it to be enacted.

At a Council held on the 6th of March 1762, "His Excellency informed the Council that he had a Bill laid before him for his consent intituled an Act for the better enabling the Officers of his Majesty's Customs to carry the Acts of Trade into Execution which appeared to him to be repugnant and contrary to the Laws of the Realm and particularly to the Act of Parliament of the 7th: and 8th: of William the Third Chap: 22, in pursuance of which Act the Judges of the Superior Court heretofore granted Writs of Assistance to the Officers of the Custom House, Wherefore he thought proper in Council to take the opinion of the Judges upon this Question,

"Whether if this Bill should be enacted, The Superior Court as a Court of Exchequer could (consistently with such Act) grant a Writ of Assistance in pursuance of the Act of Parliament of the 7th: and 8th: of William the Third in the same manner as if such Bill was not enacted.

"The Judges having the Question in Writing given to them retired into the Lobby, and soon after returning, unanimously declared their opinion,

"That if this Bill should pass into a Law the Superiour Court would be restrained from granting a Writ of Assistance in the manner they have heretofore done and in the manner such Writs of Assistance are granted by the Court of Exchequer in England."

On the 6th of March the Governor prorogued the General Court, after making a speech to the two Houses, in which he gave these reasons for refusing to sign this bill:

"I have had a Bill laid before me, which I have not Power to pass to be enacted, I mean the Bill Intituled 'An Act for the better enabling the Officers of his Majesty's Customs, to carry the Acts of Trade into Execution;' which is so plainly repugnant and contrary to the laws of England, and particularly to the Act of Parliament of the seventh and eighth of King William the Third, Chapter twenty-second, that if I could overlook, it is impossible it should escape the Penetration of the Lords of Trade: In such Case, if I was to transmit this Bill as passed here, it would have no other Effect than to give a Proof of my Ignorance of my Business, and your Inattention to the Conditions upon which we are intrusted with the Power of Legislation."

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I. Were the Writs of Assistance legal?

A report of the controversy upon the Writs of Assistance would be incomplete without an examination of the legal correctness of the decision of Hutchinson and his associates. Such an examination naturally resolves itself into four questions.

1st. Did Acts of the Parliament of Great Britain bind the Colonies?

2d. Were those Acts of Parliament, which provided for Writs of Assistance, void for unconstitutionality?

3d. Did those Acts, properly construed, authorize the issuing of general Writs of Assistance?

4th. Had the Superior Court of Judicature of the Province the powers of the English Court of Exchequer in this respect?

I. The inseparableness of taxation and representation, and the distinction between external and internal taxes, were familiar to the law of England before the discovery of America.

In the reign of Edward 3 Irish nobles were sometimes summoned to the English Parliament--"an excellent president to be followed," says Lord Coke, "whenever any Act of Parliament shall be made in England concerning the state of Ireland." In 1441 Chief Justice Fortescue held, that an act of the Irish Parliament, forfeiting offices in Ireland held by absentees, vacated an office previously expressly granted by the King to one or his deputy; and said that an English statute granting a tax would not bind the Irish, unless approved by their Parliament. For this last position the counsel for the losing party suggested the reason, that they were not represented in Parliament. In 1486 the same doctrine and the same reason were laid down by all the Judges of England, limited however to internal as opposed to external legislation.

Lord Coke declared in the House of Commons in 1627 that "the lord may tax his villein high or low, but it is against the franchises of the land, for freemen to be taxed, but by their consent in Parliament." Lord Hale is said to have been of opinion that "no acts here can bind the Irish in point of subsidies." Even Sir William Blackstone, in the debate on the repeal of the Stamp Act, is reported to have "declared, Tory as he was, that Parliament had no right to impose internal taxes." And Lord Camden, in his first speech in the House of Lords, said that the Act of 1766, declaring the right of the British Parliament to make laws to bind the American Colonies in all cases whatsoever was "illegal, absolutely illegal, contrary to the fundamental laws of nature, contrary to the fundamental laws of this Constitution;" and, nine years later, speaking "not only as a statesman, politician and philosopher, but as a common lawyer," told the house, "You have no right to tax America."

Yet Coke agreed with the uniform current of English authority, in holding that an Act of Parliament bound Ireland or the Colonies, if expressly named or necessarily included therein. And Camden, in the winter of 1767--8, said in the House of Lords that "though he had been clearly of opinion that Parliament had no such right, yet since it had been declared by Parliament, he did not think himself, or any man else, at liberty to call it in question." The reason of this is to be found in that principle of the English law, which attributes to Parliament the supreme legislative authority and the ultimate power of deciding what accords with the Constitution. In England, as has been truly said by Lord Brougham, though it sounds to American ears like a paradox, "things may be legal and yet unconstitutional."

Under the Colony Charter, Massachusetts constantly asserted her right of exemption from Parliamentary taxation, upon the ground of not being represented in Parliament. And upon this theory several acts were passed by the General Court to carry into effect the Acts of Trade and Navigation.

Under the Province Charter the subjection to the authority of Parliament seems to have been less disputed on grounds of legal right. The first statute of the Province was "an act setting forth general priveledges," one of which was that no tax should be imposed or levied on persons or estates, "on any colour or pretence whatsoever, but by the act and consent of the Governour, Council and Representatives of the People, assembled in General Court." But this act was disallowed by the King, under the power reserved to him in the new Charter. Three years later Parliament expressly extended the Acts of Trade to the American Colonies, and declared all laws, by-laws, usages or customs, repugnant to those or any future acts which should relate to and mention the Colonies, to be illegal and void. And the lawful authority of all Acts of Parliament, which concerned the Colonies and in terms applied to them, was acknowledged in the Provincial Courts of law, and expressly admitted in the addresses of the General Court of Massachusetts Bay to the Governor in 1757 and 1761; and in matters of external commerce, at least, was not seriously disputed until after the passage of the Stamp Act.

The opposite position, if taken in the argument upon the Writs of Assistance, would have been too striking to have been omitted in the contemporary reports. Yet none of them contain anything which could bear that construction, except a single expression in Quincy's Report. And the elaborate argument printed in the Boston Gazette immediately after the decision, as well as the later published writings of Otis and Thacher, assert in the most explicit terms the rightful authority of Parliament to legislate for the Colonies.

II. But Otis, while he recognized the jurisdiction of Parliament over the Colonies, denied that it was the final arbiter of the justice and constitutionality of its own acts; and relying upon words of the greatest English lawyers, and putting out of sight the circumstances under which they were uttered, contended that the validity of statutes must be judged by the Courts of Justice; and thus foreshadowed the principle of American Constitutional Law, that it is the duty of the judiciary to declare unconstitutional statutes void.

His main reliance was the well known statement of Lord Coke in Dr. Bonham's case--"It appeareth in our books, that in many cases the common law will control Acts of Parliament and adjudge them to be utterly void; for where an Act of Parliament is against common right and reason or repugnant or impossible to be performed, the common law will control it and adjudge it to be void." Otis seems also to have had in mind the equally familiar dictum of Lord Hobart--"Even an Act of Parliament made against natural equity, as to make a man judge in his own case, is void in itself: for jura naturae sunt immutabilia, and they are leges legum." Lord Holt is reported to have said, "What my Lord Coke says in Dr. Bonham's case in his 8 Rep. is far from any extravagancy, for it is a very reasonable and true saying, That if an Act of Parliament should ordain that the same person should be party and judge, or what is the same thing, judge in his own cause, it would be a void Act of Parliament."

The law was laid down in the same way, on the authority of the above cases, in Bacon's Abridgment, first published in 1735; in Viner's Abridgment, published 1741--51, from which Otis quoted it; and in Comyn's Digest, published 1762--7, but written more than twenty years before. And there are older authorities to the same effect. So that at the time of Otis's agreement his position appeared to be supported by some of the highest authorities in the English law.

The same doctrine was repeatedly asserted by Otis, and was a favorite in the Colonies before the Revolution. There are later dicta of many eminent judges to the effect that a statute may be void as exceeding the just limits of legislative power; but it is believed there is no instance, except one case in South Carolina, in which an act of the legislature has been set aside by the courts, except for conflict with some written constitutional provision.

The reduction of the fundamental principles of government in the American States to the form of written constitutions, established by the people themselves, and beyond the control of their representatives, necessarily obliged the judicial department, in case of a conflict between a constitutional provision and a legislative act, to obey the Constitution as the fundamental law and disregard the statute. This duty was recognized, and unconstitutional acts set aside, by courts of justice, even before the adoption of the Constitution of the United States. Since the ratification of that Constitution the power of the courts to declare unconstitutional statutes void has become too well settled to require an accumulation of authorities. But as the office of the judiciary is to decide particular cases, and not to issue general edicts, only so much of a statute is to be declared void as is repugnant to the Constitution and covers the case before the court, unless the constitutional and unconstitutional provisions are so interwoven as to convince the court that the legislature would not have passed the one without the other.

III. The St. of 13 & 14 Car. 2, c. II, § 5, declared that it should be lawful for any person "authorized by writ of assistance under the seal of his Majesty's Court of Exchequer" to take an officer and go into any house or shop and seize and bring out uncustomed goods. This statute, in which the name first appeared as applied to this process, did not define what it was, but assumed it to be already known. The only process, mentioned in any earlier statute or law book, to which the name could be referred, would seem to be the warrant mentioned in St. 12 Car. 2, c. 19, (confirmed by St. 13 Car. 2, St. 1, c. 7, and subsequent statutes,) which could only issue upon information on oath, and authorized the entry of a house for one month only after the offence, and by which, "if the information upon which any house is searched should prove to be false," the informer was made liable in full costs and damages to the party injured.

As general warrants were not authorized by the common law, Otis argued that the writ of assistance mentioned in St. 13 & 14 Car. 2, must be special, according to St. 12 Car. 2. This seems to have been considered at the time of the argument and afterwards the most important point; and upon the ordinary rules of interpreting statutes in pari materia together, and according to the rule and reason of the common law, the conclusion of Otis seems inevitable. If the writ of assistance contemplated by the Sts. of Charles 2 was general to search all houses and issued without oath, it is a little remarkable that Lord Hale, neither in discussing general warrants, nor in speaking of these very statutes, gives any hint of such a departure from the principles of the common law.

It must be admitted that in practice general writs of assistance were commonly used in England. But they do not seem to have been the subject of judicial remark there before the argument in Massachusetts, after which Lord Mansfield took every opportunity to assert that general writs of assistance were expressly authorized by statute, which was certainly not the fact. And the practice was no more uniform nor better established than that which was allowed no force, either by Lord Camden, or by Lord Mansfield and his associates, in the matter of general warrants. But Lord Camden, who led the way in that matter, had not yet been raised to the Bench.

It is hard to imagine that the same House of Commons which condemned general warrants in 1766 intended to authorize general writs of assistance in 1767. Even after the passage of the St. of 7 G. 3, some of the American courts refused to issue anything but special writs of assistance; and attempts were made to limit them by statute. But in England the practice of issuing general writs of assistance continued until 1817, when a limit was imposed upon their use by an order of the Board of Customs, providing that no writ of assistance should in future be delivered to any officer of the customs, unless he should previously make oath before a magistrate of his belief and grounds of belief that smuggled goods were lodged in a certain house. And thus the reasonableness of the position of the Colonies was finally vindicated in the mother country.

In Massachusetts, the General Court recognized and applied the principles of the common law on the subject of general warrants, even in time of war, not allowing general warrants to issue even for the arrest of deserters in the Old French War, or to search for the arms of disaffected persons at the beginning of the War of the Revolution. Those principles were confirmed in 1780 by the Declaration of Rights, prefixed to the Constitution of Massachusetts, as follows: "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." And the substance of this article was incorporated into one of the earliest amendments of the Constitution of the United States.

IV. The only question remaining is, whether the Superior Court of Judicature of the Province had in this matter the powers of the Court of Exchequer in England.

Upon this point Gridley's argument seems hard to meet. The Act of Parliament of 13 & 14 Car. 2, c. 11, § 5, one of the Acts of Trade, empowered "any person authorized by writ of assistance under the seal of his Majesty's Court of Exchequer," to enter with a peace officer houses, &c. The General Court of the Colony afterwards provided for the strict observation of those acts. And the English St. of 7 & 8 W. 3, c. 22, § 6, provided "that the like assistance shall be given" to officers of the customs in the American Colonies, "as by the said" Act of Car. 2 "is provided for the officers in England." By the Province Charter "the great and general court of assembly" was vested with power "to erect and constitute judicatories or courts of record, or other courts," to try all crimes and civil actions; reserving the probate jurisdiction to the Governor and Council, and the jurisdiction in admiralty to Judges to be commissioned by the King. And under the power thus conferred, the General Court of the Province, by the first Judiciary Act which obtained the King's approval, established a Superior Court of Judicature, and bestowed upon it all the jurisdiction which "the Courts of King's Bench, Common Bench and Exchequer within his Majesty's Kingdom of England have or ought to have."

In support of the argument that the Superior Court had not the powers of the Court of Exchequer, much reliance was placed upon their refusal to entertain jurisdiction of a bill in equity. But no Court of the Province could well have assumed, on any pretence, a general equity jurisdiction, in the face of the opinions repeatedly expressed by the English Government upon that subject.

Whether the authority of the Court of Exchequer in matters of revenue was a part of its jurisdiction in equity does not appear to have been determined when the case of the Writs of Assistance came up. But the opinion seems to have since prevailed in England, that the revenue jurisdiction of that Court was strictly a common law jurisdiction, although some of its incidental proceedings might take the form of processes in equity. And the writs of assistance to officers of the customs certainly seem to bear a closer analogy to the common law writs of aid, which always issued from the Exchequer, than to the writs of assistance out of Chancery to take possession of lands.

Yet it is evident that the exercise of the jurisdiction of the Exchequer by the Superior Court was considered by both parties to be very doubtful. No instance was shown in which this Court had exercised any of the powers of the Exchequer, which might not have been exercised by the King's Bench or Common Bench; and it certainly did not possess all the powers of that Court even in matters of revenue. And this objection seems to have been thought the only one worthy of notice in England.

A careful examination of the subject compels the conclusion that the decision of Hutchinson and his associates has been too strongly condemned as illegal: and that there was at least reasonable ground for holding, as matter of mere law, that the British Parliament had power to bind the Colonies; that even a statute contrary to the Constitution could not be declared void by the judicial Courts; that by the English statutes, as practically construed by the Courts in England, Writs of Assistance might be general in form; that the Superior Court of Judicature of the Province had the power of the English Court of Exchequer; and that the Writs of Assistance prayed for, though contrary to the spirit of the English Constitution, could hardly be refused by a Provincial Court, before general warrants had been condemned in England, and before the Revolution had actually begun in America. The remedy adopted by the Colonies was to throw off the yoke of Parliament; to confer on the judiciary the power to declare unconstitutional statutes void; to declare general warrants unconstitutional in express terms; and thus to put an end here to general Writs of Assistance.

The Founders' Constitution
Volume 5, Amendment IV, Document 2
http://press-pubs.uchicago.edu/founders/documents/amendIVs2.html
The University of Chicago Press

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