Legal Papers of John Adams, volume 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 135the petition of Mr. Cockle3 and others on the one side, and the Inhabitants of Boston on the other, concerning Writs of Assistance. Mr. Gridley appeared for the former, Mr. Otis for the latter. Mr. Thacher was joined with him at the desire of the Court.
Mr. Gridley.
4 I appear on the behalf of Mr. Cockle and others, who pray “that as they cannot fully exercise their Offices in such a manner as his Majesty's Service and their Laws in such cases require, unless your Honors who are vested with the power of a Court of Exchequer for this Province will please to grant them Writs of Assistance. They therefore pray that they and their Deputies may be aided in the Execution of their Offices by Writs of Assistance under the Seal of this Court and in legal form, and according to the Usage of his Majesty's Court of Exchequer in Great Britain.”
May it please your Honors, it is certain it has been the practice of the Court of Exchequer in England,5 and of this Court in this Province, to grant Writs of Assistance to Custom House Officers. Such Writs are mentioned in several Acts of Parliament, in several Books of Reports; and in a Book called the Modern Practice of the Court of Exchequer, We have a Precedent, a form of a Writ, called a Writ of Assistance for Custom house Officers, of which the following6 a few years past to Mr. Paxton under the Seal of this Court, and tested by the late Chief Justice Sewall is a literal Translation.7
The first Question therefore for your Honors to determine is, whether this practice of the Court of Exchequer in England (which it is certain, has taken place heretofore, how long or short a time soever it continued) is legal or illegal. And the second is, whether the practice of the8 Exchequer (admitting it to be legal) can warrant this Court in the same practice.
In answer to the first, I cannot indeed find the Original of this Writ of Assistance. It may be of very antient, to which I am inclined, or it may be of modern date. This however is certain, that the Stat. of the 14th. Char. 2nd. has established this Writ almost in the words of the Writ itself. “And it shall be lawful to and for any person or persons authorised by Writ of Assistance under the seal of his Majesty's Court of Exchequer to take a Constable, Headborough, or other public Officer, inhabiting near unto the place, and in the day time to enter and go into any house, Shop, Cellar, Warehouse, room, or any other 137place, 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 138Assistance under the Seal of his Majesty's Court of Exchequer at home will not run here. They must therefore be under the Seal of this Court. For by the law of this Province 2 W. 3d. Ch. 315 “there shall be a Superior Court &c. over the whole Province &c. who shall have cognizance of all pleas &c. and generally of all other matters, as fully and 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 139Custom 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
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 140dying day oppose, with all the powers and faculties God22 has given me, all such instruments of slavery on the one hand, and villainy on the other, as this writ of assistance is. It appears to me (may it please your honours) the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of the constitution,23 that ever was found in an English law-book. I must therefore beg your honours patience and attention to the whole range of an argument, that may perhaps appear uncommon in many things, as well as points of learning, that are more remote and unusual, that the whole tendency of my design may the more easily be perceived, the conclusions better descend,24 and the force of them better felt.
I shall not think much of my pains in this cause as I engaged in it from principle. I was sollicited to engage on the other side.25 I was sollicited to argue this cause as Advocate-General, and because I would not, I have been charged with a desertion of my office; to this charge I can give a very sufficient answer, I renounced that office,26 and I argue this cause from the same principle; and I argue it with the greater pleasure as it is in favour of British liberty, at a time, when we hear the greatest monarch upon earth declaring from his throne, that he glories in the name of Briton, and that the privileges of his people are dearer to him than the most valuable prerogatives of his crown.27 And as it is in opposition to a kind of power, the exercise 141of which in former periods of English history, cost one King of England his head and another his throne. I have taken more pains in this cause, than I ever will take again: Although my engaging in this and another popular cause28 has raised much resentment; but I think I can sincerely declare, that I cheerfully submit myself to every odious name for conscience sake; and from my soul I despise all those whose guilt, malice or folly has made my foes.29 Let the consequences be what they will, I am determined to proceed. The only principles of public conduct that are worthy a gentleman, or a man are, to sacrifice estate, ease, health and applause,30 and even life itself to the sacred calls of his country. These manly sentiments in private life make the good citizen, in public life, the patriot31 and the hero.—I do not say, when brought to the test, I shall be invincible; I pray GOD I may never be brought to the melancholy trial; but if ever I should, it would be then known, how far I can reduce to practice principles I know founded in truth.—In the mean time I will proceed to the subject of the writ. In the first,32 may it please your Honours, I will admit, that writs of one kind, may be legal, that is, special writs, directed to special officers, and to search certain houses, &c. especially set forth in the writ, may be granted by the Court of Exchequer at home, upon oath made before the Lord Treasurer by the person, who asks, that he suspects such goods to be concealed in
those very places he desires to search. The Act of 14th Car. II. which Mr. Gridley mentions proves this. And in this light the writ appears like a warrant from a justice of peace to search for stolen goods. Your Honours will find in the old book, concerning the office of a justice of peace, precedents of general warrants to search suspected houses.33 But in more modern books you will find only special warrants to search such and such houses specially named, in which the complainant has before sworn he suspects his goods are concealed; and you will find it adjudged that special warrants only are legal. In the same manner I rely on it, that the writ prayed for in this petition being general is illegal. It is a power 142that places the liberty of every man in the hands of every petty officer. I say I admit that special writs of assistance to search special houses,34 may be granted to certain persons on oath; but I deny that the writ now prayed for can be granted, for I beg leave to make some observations on the writ itself before I proceed to other Acts of Parliament.
In the first place the writ is universal, being directed “to all and singular justices, sheriffs, constables and all other officers and subjects, &c.” So that in short it is directed to every subject in the king's dominions; every one with this writ may be a tyrant: If this commission is legal, a tyrant may, in a legal manner also, controul, imprison or murder any one within the realm.
In the next place, it is perpetual; there's no return, a man is accountable to no person for his doings, every man may reign secure in his petty tyranny, and spread terror and desolation around him, until the trump of the arch angel shall excite35 different emotions in his soul.36
In the third place, a person with this writ, in the day time may enter all houses, shops, &c. at will, and command all to assist.
Fourth, by this not only deputies, &c. but even their menial servants are allowed to lord it over us—What is this but to have the curse of Canaan with a witness on us, to be the servant of servants, the most despicable of God's creation.37 Now one of the most essential branches of English liberty, is the freedom of one's house. A man's house is his castle; and while he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom house officers may enter our houses when they please—we are commanded to permit their entry—their menial servants may enter—may break locks, bars and every thing in their way—and whether they break through malice or revenge, no man, no court can inquire—bare suspicion without oath is sufficient. This wanton exercise of this power is no chimerical suggestion of a heated Brain—I will mention some facts. Mr. Pew had one 143of these writs, and when Mr. Ware succeeded him, he endorsed this writ over to Mr. Ware, so that these writs are negotiable from one officer to another, and so your Honours have no opportunity of judging the persons to whom this vast power is delegated. Another instance is38 this.—Mr. Justice Wally had called this same Mr. Ware before him by a constable, to answer for a breach of the Sabbath day acts, or that of profane swearing. As soon as he had done,39 Mr. Ware asked him if he had done, he replied, yes. Well then, says he,40 I will shew you a little of my power—I command you to permit me to search your house for unaccustomed41 goods; and went on to search his house from the garret to the cellar, and then served the constable in the same manner.42 But to shew another absurdity in this writ, if it should be established, I insist upon it every person by 14th of Car. II. has this power as well as Custom-house officers; the words are, “it shall be lawful for any person or persons authorized, &c.” What a scene does this open! Every man prompted by revenge, ill humour or wantonness to inspect the inside of his neighbour's house, may get a writ of assistance; others will ask it from self defence; one arbitrary exertion will provoke another, until society will be involved in tumult and in blood. Again these writs are not returned. Writs in their nature are temporary things; when the purposes for which they are issued are answered, they exist no more; but these monsters in the law43 live forever, no one can be called to account. Thus reason and the constitution are both against this writ. Let us see what authority there is for it. No more than one instance can be found of it in all our law books, and that was in the zenith of arbitrary power, viz. In the reign of Car. II. when Star-chamber powers were pushed in extremity by 144some ignorant clerk of the Exchequer. But had this writ been in any book whatever it would have been illegal. All precedents are under the controul of the principles of the
44
law. Lord Talbot Says, it is better to observe these45 than any precedents though in the House of Lords, the last resort of the subject. No Acts of Parliament can establish such a writ; Though it should be made in the very words of the petition it would be void, “An act against the constitution is void.” Vid. Viner.46 But these prove no more than what I before observed, that special writs may be granted on oath and probable suspicion. The Act of 7th and 8th of William III. that the officers of the plantations shall have the same powers, &c. is confined to this sense, that an officer should show probable grounds, should take his oath on it, should do this before a magistrate, and that such magistrate, if he thinks proper should issue a special warrant to a constable to search the places. That of 6th of Anne can prove no more.47
It is the business of this court to demolish this monster of oppression, and to tear into rags this remnant of Starchamber tyranny—&c.
The court suspended the absolute determination of this matter. I have omitted many authorities; also many fine touches in the order of reasoning, and numberless Rhetorical and popular flourishes.48
The text that follows is the most complete rendition possible today of JA's “Abstract of the Argument for and against the Writts of Assistance,” probably made by him sometime in the spring of 1761. See text at note 49 above. Five versions of this famous document are here brought together: (1) The text of the Gridley and Thacher arguments from Israel Keith's Common Place Book, as printed in Quincy, Reports (Appendix) 479–482, from a document then (1864) in the possession of John Newell of Pittsford, Vt., and Boston, which recent extensive search has not located; (2) the text of the Gridley and Otis arguments from the Joseph Hawley Common Place Book now in NN:Hawley Papers; (3) the text of the Otis argument as printed in the Massachusetts Spy, 29 April 1773, p. 3, cols. 1–3; (4) the text of the Otis argument as printed in George Richards Minot, Continuation of the History of the Province of Massachusetts Bay, 2:91–99 (Boston, 1803), with paraphrases of the arguments of Gridley and Thacher; (5) Minot's text of the Otis argument as reprinted by CFA with some further minor corrections and the elimination of phrases which JA had described as interpolations, in 2 JA, Works
523–525. All five versions are closely related. The Spy and Minot texts of Otis differ only in corrections of grammar and style, apparently made by Minot, and CFA follows the latter, except for the interpolations. The Hawley version of Otis and that in the Spy are identical, with the exception of material apparently omitted in copying by Hawley and certain touches of style omitted, perhaps for editorial reasons, from the Spy. Gray did not print Keith's text of Otis, but we have his testimony that it closely followed Minot. Quincy, Reports (Appendix) 482. A similar identity prevails among the various texts of the Gridley and Thacher arguments, including Minot's paraphrase.
Although no copy in JA's hand has been found, the evidence that his was the common parent of these five versions seems overwhelming. The similarity in content and phraseology to JA's rough notes has already been pointed out, as have his later recollections that it was his notes which appeared first in the Spy, then in Minot's History of Massachusetts Bay. See text and note 51 above. For other circulation of the “Abstract,” see note 52 above. The best independent evidence of JA's authorship is the Keith Common Place Book. Keith, Harvard 1771, served in the Continental Army and was admitted an attorney in the Superior Court for Suffolk County in March 1780. No record of his clerkship has been found, but he undoubtedly studied law in Boston both before and after his military service. His Common Place Book was said to contain not only the argument on the writs, but other legal notes known to have come from JA. Quincy, Reports (Appendix) 478. On the basis of this evidence it seems a fair conclusion that Keith copied both the argument and the other materials either from JA's own papers, or from a copy by someone who had clerked for him. The history of the Hawley version cannot be so readily traced, but since Joseph Hawley was JA's friend and contemporary at the bar, it seems likely that he too copied the arguments from JA. The only other reasonable hypothesis would seem to be that the Keith and Hawley texts were copied from a summary of the argument which another (perhaps Jonathan Williams Austin, whom JA accused of the 1773 “theft” of the materials, text at note 1 above) had made on the basis of JA's on-the-spot notes, which are indubitably the source of the longer version. This theory seems refuted by the evidence of the diary entry, note 49 above, and by JA's later taking credit for the Spy and Minot texts.
The basic texts followed here are Gray's rendition of the Keith version of Gridley's and Thacher's arguments, and the Massachusetts Spy version of the Otis argument. These are textually the most complete versions and are probably also closest to the missing original. In the footnotes, variations with the other versions have been noted where they seem significant, either as touches of style that might have been JA's, or as examples of later editorial practice.
The following text of Gridley's and Thacher's arguments is from Quincy, Reports (Appendix) 479–482. See note Id. at 479; see Min. Bk. 71, SCJ Suffolk, Aug. 1759, following N–73. The Massachusetts Spy's version of the Otis argument began with the first sentence of this introduction (erroneously dated Feb. term, 1771), and added that Gridley “endeavoured to support the legality of Writs of Assistance by force of several statutes and precedents in England, but his chief stay he acknowledged was the necessity of the case, and in the course of his arguments he discovered himself to be an ingenious lawyer.” Massachusetts Spy, 29 April 1773, p. 3, col. 1.
James Cockle, Collector of Customs at Salem from 1760 to 1764. See Quincy, Reports (Appendix) 422–424. That Cockle was one of the officers who sought writs seems certain from the fact that one was granted to him shortly after the second argument in Nov. 1761. Id. at 422. Paxton was probably the first to apply, however, and the matter was actually heard on the petitions of the merchants and the Surveyor General. See notes 22, 27, above.
The Hawley MS is headed “Substance of Mr. Gridley's Argument Before the Superior Court in favor of Writs of Assistance.” The argument begins: “May it please your honors.”
Hawley: “Great Britain” for “England.”
Hawley here supplies the inadvertent omission of “given.”
Hawley omits the writ. According to Gray, who also omitted it from his rendition of the Keith MS, it was the writ granted to Paxton in 1755, printed in text at note Reports (Appendix) 480.
Hawley here supplies “Court of.”
13 & 14 Car. 2, c. 11, §5(2). See JA's copy, text at note
12 Car. 2, c. 19, note 5 above.
Hawley: “Province” for “country.”
Hawley here adds “&c.” and omits the remainder of the present sentence.
7 & 8 Will. 3, c. 22, §6. See JA's copy, text and notes
It has been suggested that “like assistance” in 7 & 8 Will. 3, c. 22, §6, may be a reference to 13 & 14 Car. 2, c. 11, §32, providing that royal officers and others concerned were to “be aiding and assisting” the customs officers in performance of their duties. Frese, “Early Parliamentary Legislation on Writs of Assistance,” 38 Col. Soc. Mass., Pubns.
318, 354 note (1959). While “like assistance” certainly does not literally refer to the writ of assistance, the phrase is broad enough to include it as well as the aid and assistance of other officers.
That is, 11 Will. 3, c. 3, 1 A&R 370. See JA's copy, text at note
Apparently supplied by Gray. See Quincy, Reports (Appendix) 481.
Fitzherbert's New Natura Brevium
. See note
Horne v. Boosey, note
Correction apparently by Gray. See Quincy, Reports (Appendix) 482. Compare JA's rough notes at note History of Massachusetts Bay 90.
The text of Otis' argument, up to the sentence at note “For the Massachusetts Spy, 29 April 1773, p. 3, cols. 1–3. The argument was introduced as follows:
massachusetts spy. mr. thomas, As the public have been lately alarmed with the evil and wicked effects of the power lodged in custom-house officers, by virtue of that most execrable of all precepts, a Writ of Assistance: And as I conceive it to be more immediately destructive of the liberty of the subject, than any other innovation of power: The following is offered to the public, being taken from the mouth of that great American oracle of law, James Otis, Esq; in the meridian of his life.”
Then follows the material quoted in note
Minot substitutes “them” for “the court,” a change typical of his minor improvements of style, most of which will not be noted herein.
Hawley here adds “almighty.”
Minot: “law” for “the constitution.”
This word apparently is illegible in the original. Hawley read it as “answered.” CFA has changed Minot's reading of “descend” to “discerned,” which is probably correct.
Minot omits this sentence.
In 1769, Otis published in the Boston Gazette a deposition alleged to be Paxton's, dated 28 Feb. 1761, which indicates that a more direct cause of his resignation as Advocate General of Admiralty was the attack upon the Vice Admiralty Court that resulted in the case of Gray v. Paxton, note 21 above. See Quincy, Reports (Appendix) 542 note. Robert Auchmuty was shortly thereafter appointed to the position. See the latter's biography in 12 Sibley-Shipton, Harvard Graduates
12–16.
George III, in his accession speech on 18 Nov. 1760, had actually said: “Born and educated in this country, I glory in the name of Briton; and the peculiar happiness of my life will ever consist in promoting the welfare of a people, whose loyalty and warm affection to me, I consider as the greatest and most permanent security of my throne; and I doubt not, but their steadiness in those principles will equal the firmness of my invariable resolution to adhere to, and strengthen, this excellent constitution in church and state; and to maintain the toleration inviolable. The civil and religious rights of my loving subjects are equally dear to me with the most valuable prerogatives of my crown: and, as the surest foundation of the whole, and the best means to draw down the divine favour on my reign, it is my fixed purpose to countenance and encourage the practice of true religion and virtue.”
This speech was reprinted in its entirety in the Boston News-Letter, 15 Jan. 1761, p. 1, cols. 2–4. In his diary for 9 Feb. 1761, JA set down his favorable reaction to the speech, concluding “These are sentiments worthy of a King—a Patriot King.” 1 JA, Diary and Autobiography
200–201.
As Gray points out, this “popular cause” was probably Gray v. Paxton. Quincy, Reports (Appendix) 482. See note 21 above.
This clause was rendered by Hawley, “whom guilt, malice or folly has made my foes,” and by Minot, “whose guilt, malice or folly has made them my foes.”
Hawley: “worthy a gentleman, a man of sense, or a Christian, are, to sacrifice estate, ease, health, honor, applause.”
Hawley: “the patriot, the man and the hero.”
Hawley and Minot supply “place.”
See text at note
Minot: “places” for “houses.”
Hawley: “raise” for “excite.”
The preceding clause, beginning “until the trump,” is one omitted by CFA, on the basis of JA's comments. The presence of both this and the other omitted passage (note Reports (Appendix) 479. JA's notation that these passages were interpolations may be seen in his copy of Minot's History of Massachusetts Bay at p. 95–96, now among his books in the Boston Public Library.
This sentence, beginning “What is this,” is the second passage omitted by CFA because disclaimed by JA. See note
Hawley telescopes this entire episode into “where the same Mr. Ware from a principle of revenge went on to search a number of houses from Garret to Cellar.”
Minot: “finished.”
Minot: “said Mr. Ware.”
Minot: “uncustomed” — no doubt a proper correction.
Compare the account in the version of the argument in the Boston Gazette for 4 Jan. 1762, attributed to Otis. Quincy, Reports (Appendix) 490. Procs.
418, 430 (1924–1925). Nathaniel Ware was Comptroller of Customs for the Port of Boston from 1750 until 1764. Book of Charters, &c., fols. 79–80; Wolkins, “Boston Customs District,” 58 MHS, Procs.
418, 430. Abiel Walley was appointed a Justice of the Quorum in Suffolk County, 5 Nov. 1740. Whitmore, Mass. Civil List
128. No documentation of these incidents has been found.
Minot omits “monsters in the law.”
Minot omits “THE.”
Hawley adds “principles of law.”
Hawley omits the remainder of this paragraph.
The next sentence appears only in the Hawley MS. See note
This paragraph appears in the Hawley MS. At least the first sentence of it also appears in the Keith MS. Quincy, Reports (Appendix) 482. See note