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.

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.

Anthony Fitzherbert, New Natura Brevium (various edns.: French, ca. 1531–1635; English, 1652–1793).

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.

As the remarks of Otis and Gridley, notes 17 69 , 34 86 , below, indicate, the work referred to here is William Brown's Compendium of the Several Branches of Practice in the Court of Exchequer at Westminster (London, various edns., 1688–1725). The writ in question, found at p. 358–361 in the 1688 edition, is set out in full in Quincy, Reports (Appendix) 398–399. See an extract, note 17 69 below. See also notes 12 above, 16 68 below. A work entitled The Modern Practice of the Court of Exchequer (London, 1731) contains nothing even resembling a writ of assistance.

13 & 14 Car. 2, c. 11, §5(2) (1662), extracted by JA, text at note 40 92 below. The section cited bears Thacher out, but it probably should be read with 13 & 14 Car. 2, c. 11, §15, providing that no goods “shall be seized as forfeited” except by persons authorized by the Customs Commissioners, the Treasury, or the Crown.

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.

That is, 13 & 14 Car. 2, c. 11, note 6 58 above. For the Act of 7 & 8 Will. 3, see note 15 above.

Gray has identified this case as McNeal v. Brideoak, SCJ Rec. 1754, fol. 150 (Suffolk, Feb. 1754), in which the complainants, Ann and Mary McNeal of Dublin, proceeded as “Debtors and Accountants to his Majesty.” The action, described as a “Bill in Equity,” was dismissed and the complainants were allowed an appeal to the King in Council, of which no record has been found. Quincy, Reports (Appendix) 470–471 note. Compare Quincy, Reports 54. See Min. Bk. 67, SCJ Suffolk, Nov. 1752, N–137; Feb. 1754, C–26. The Exchequer jurisdiction in question, either legal or equitable, arose from a writ known as quominus, because the plaintiff made a fictional allegation that he was debtor to the King for the amount of his claim and was “by which less” able to meet his debt. The court acted by virtue of its power in matters affecting the royal purse. See 3 Blackstone, Commentaries *45–46; Plucknett, Concise History 160–161, 170. The Massachusetts court's refusal to act would seem to be a reflection more of its lack of equity powers than of any desire to disclaim the powers of Exchequer, conferred on it by statute. Act of 26 June, 1699, c. 3 §1, 1 A&R 370, set out, note 46 98 below. The writ of assistance was part of the Exchequer's common-law revenue jurisdiction, rather than an equitable process. See Quincy, Reports (Appendix) 538–539; Brown, Compendium 28–29; note 18 above; note 30 82 below.

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.

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.

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.

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.”

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.

This is apparently a reference to the prior practice in Massachusetts. See text and note 17 above. Gray reads the passage as “Government Justices” and suggests that it is a reference to the 17th-century English practice under which justices of the peace would issue warrants authorizing a general search for stolen goods upon the complaint of one who had been robbed. Quincy, Reports (Appendix) 472 note. See also 2 JA, Works 522. There is a passage in JA's “Abstract,” at note 33 135 below, in which Otis goes on at some length about the former powers of Justices of the Peace to issue general warrants. The use of the phrase “perpetual Edicts” in the present text, however, surely indicates a writ giving a general power of search, rather than the more limited Justice's warrant.

Probably a reference to the form of a writ in Brown's Compendium. See note 5 57 above, note 34 86 below. Although this work was not published until 1688, the form recites that the customs officers therein given writs were commissioned by virtue of Letters Patent dated “anno regni nostri vicesimo septimo” (in the twenty-seventh year of our reign), which could refer to no English monarch ruling between Elizabeth I and George II except Charles II. The date of the form would thus be between 1676 and 1685, the year of Charles II's death.

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.

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.”

Probably an inadvertence for the writ itself. A statute in the language of the petitions upon which the case came up would have been neither unconstitutional nor effective. See text at note 22 above. The petition of Charles Paxton for a writ in 1755, printed at note 47 99 below, even if it had been urged in this case, is scarcely less neutral in tone. But compare Quincy, Reports (Appendix) 474 note. Gray suggests that the phrase “natural equity” means that Otis cited Lord Hobart's language in Day v. Savadge, Hobart 85, 87, 80 Eng. Rep. 235, 237 (C.P. 1615): “Even an act of Parliament, made against naturall equitie, as to make a man judge in his owne case, is void in it selfe, for Jura naturae sunt immutabilia, and they are leges legum.” See Quincy, Reports (Appendix) 521–524. See note 41 above.

That is, the courts of justice, which “execute” the law. See Quincy, Reports (Appendix) 474 note; No. 46, text at note 15 92 . Compare Hutchinson's Charge to the Grand Jury, March Term, Suffolk, 1769:

“We, Gentlemen, who are to execute the Law, are not to enquire into the Reason and Policy of it, or whether it is constitutional or not. . . . We, and you, Gentlemen, as the Executive Body, are to enquire what is Law, and see that the Laws are inforced. If we step over this Line, and judge of the Propriety or Impropriety, the Justice or Injustice of the Laws, we introduce the worst sort of Tyranny:—the most absolute Despotism being formed by a Union of the Legislative and Executive Power.” Quincy, Reports 307–308.

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.”

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.

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.”

That is, the statutes of Charles II referred to in the next paragraph. Compare Thacher's remark, text at note 6 58 above.

12 Car. 2, c. 19, §1 (1660), discussed, note 5 above.

13 & 14 Car. 2, c. 11, §5(2) (1662), text at note 40 92 below.

7 & 8 Will. 3, c. 22, §6 (1696), text at notes 42–45 94–97 below.

That is, 1 Anne, stat. 1, c. 8, §5 (1702), providing for continuation of the writ of assistance and other processes after the death of the sovereign. JA's notes may be somewhat garbled, but Otis seems to be saying that this statute is of equal force whether the writs are special or general in nature. See his remarks in JA's “Abstract,” text at notes 32–34 134–136 , and following note 46 148 below.

These incidents are more fully described in JA's “Abstract,” text at notes 38–42 140–144 below.

Otis is here apparently rehearsing Thacher's arguments, text at note 9 61 above, that the Superior Court had renounced the Exchequer powers given it by province law (note 46 98 below). The last sentence, which may be inaccurately reported by JA, seems to mean that the only Exchequer powers which the court retained were those given it by provincial and parliamentary Acts of Trade and Revenue over violations of their provisions. See note 18 above. If this is the argument, it may prove too much. For, while the provincial statutes contained sharply limited search provisions (see note 12 64 above), in cases under English statutes it could well be argued that the power to issue writs of assistance was a power incident to the revenue jurisdiction, rather than an inherent chancery power which the court had renounced.

At notes 42–45 94–97 below.

The 12th of Charles II is quoted, note 5 above. For the “14th” (i.e. 13th & 14th) of Charles II, see text at note 40 92 below.

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).

That is, Brown's Compendium, cited in note 5 57 above.

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 .

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.

See note 2 54 above.

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.”

The material following is in a more careful hand and was evidently added to the foregoing by JA at some time after the argument.

That is, 13 & 14 Car. 2, c. 11, §5(2) (1662). Quotation marks supplied; italics are JA's.

There was considerable confusion between this spelling and “assistance.” In the Nov. 1761 argument Gridley urged that “assistants” was correct, and that it signified the controlling power which a constable could exercise in the search. Quincy, Reports 56–57. Contemporary sources indicate that the original spelling was “assistance.” See, for example, Thomas Manley, ed., A Collection of the Statutes Made in the Reigns of King Charles I and King Charles II 131 (London, 1667); J. Keble, ed., Statutes at Large 1216 (London, 1676); compare 5 Statutes of the Realm 394 (London, 1819). Although this spelling was followed in the index to the 1688 edition of Brown's work on Exchequer practice (note 5 57 above), “assistants” is found in all editions of the Statutes at Large published between 1681 and 1758. See, for example, Keble, ed., Statutes at Large 1218 (London, 2d edn., 1681); William Hawkins, ed., Statutes at Large, 2:583 (London, 1735). In editions of 1758 and after, however, the spelling is once again “assistance.” See John Cay, Statutes at Large, 2:708 (London, 1758); Owen Ruffhead, Statutes at Large, 3:237 (London, 1763). It seems probable that the confusion was due to an error in Keble's 1681 edition of the Statutes at Large. According to R. C. Jarvis, present Intelligence Officer and Librarian, H.M. Customs and Excise, “assistance” is merely an archaic form of “assistants,” meaning a body of official helpers. Letter of 8 Nov. 1963 and memorandum in Adams Papers editorial files. Compare OED . If this interpretation is correct, Gridley's view is sound, regardless of the spelling adopted.

That is, 7 & 8 Will. 3, c. 22, §6(2) (1696). Quotation marks supplied. Passages omitted by JA are set out in notes 43 95 and 44 96 below from Hawkins, Statutes at Large.

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.”

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.”

The section continues with provisions for penalties upon officers who violate the Act and for special pleading on their behalf in actions brought against them for performance of their duties. See note 10 62 above.

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.”

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.

JA has here copied the form of the writ issued to Paxton. The original has not been found. As Gray, who printed JA's copy, notes, it is a translation of the form in Brown's Compendium, note 5 57 above. Quincy, Reports (Appendix) 404 note.

Missing in worn margin of the MS. This is Gray's reading. The Latin is “volunt'.” Quincy, Reports (Appendix) 399, 404.

As to Sewall, see note 20 above.