Writs of Assistance
The Constables distraining for Rates.2
More inconsistent with English Rights and Liberties than Writts of assistance. And Necessity authorizes both.
I have searched, in all the ancient Repertories of Prece•
dents, in Fitzherberts Natura Brevium,3
and in the Register (Q. what the Register is) and have found no such Writt of assistance as this Petition prays. I have found two Writts of assistance in the Register but they are very different from the Writt pray'd for.4
In a Book, intituled the Modern Practice of the Court of Exchequer5
there is indeed one such Writt, and but one.
By the Act of Parliament any other private Person may as well as a Custom House Officer take an officer, a sherriff, or Constable &c. and go into any shop, store &c. and seize: any Person authorized by such a Writt, under the seal of the Court of Exchequer, may. Not Custom House officers only.6
Only a temporary Thing.
The most material Question is, whether the Practice of the Exchequer, will warrant this Court in granting the same.
The Act impowers all the officers of the Revenue to enter and seize in the Plantations, as well as in England. 7. & 8. Wm. 3, c. 22, §6. gives the same as 13. & 14. of C[harles]
gives in England. The Ground of Mr. Gridleys argument is this, that this Court has the
Power of the Court of Exchequer. But This Court has renounced the Chancery Jurisdiction, which the Exchequer has in Cases where either Party is the Kings Debtor. Q. into that Case.9
In England all Informations of uncust[om]ed or prohibited Importations, are in the Exchequer. So that the Custom House officers are the officers of that Court. Under the Eye and Direction of the Barons.
The Writ of Assistance is not returnable. If such seisure were brot before your Honours, youd often find a wanton Exercise of their Power.
At home, the officers seise at their Peril even with Probable Cause.10
Otis. This Writ is against the fundamental Principles of Law. The Priviledge of House. A Man, who is quiet, is as secure in his House, as a Prince in his Castle, not with standing all his Debts, and civil Prossesses of any kind.—But
For flagrant Crimes, and in Cases of great public Necessity, the
Priviledge may be [encroached?]
on. For Felonies an officer may break upon Prossess, and oath—i.e. by a Special Warrant to search such an House, sworn to be suspected, and good Grounds of suspicion appearing.
Make oath coram Ld. Treasurer, or Exchequer, in England or a Magistrate here, and get a special Warrant, for the public good, to infringe the Priviledge of House.12
General Warrant to search for Felonies, Hawk. Pleas Crown.13
Every petty officer from the highest to the lowest. And if some of em are <comm[issioned], others>
others are uncomm[issioned]
Justices used to issue such perpetual Edicts.15
(Q. with what particular Reference?)
But one Precedent, and that in the Reign of C. 2, when Star
Chamber Powers, and all Powers but lawful and useful Powers were pushd to Extremity.16
The Authority of this Modern Practice of the Court of Exchequer. It has an Imprimatur. But what may not have? It may be owing to some ignorant Clerk of the Exchequer.17
But all Precedents and this among the Rest are under the Control of the Principles of Law. Ld. Talbot. Better to observe the known Principles of Law than any one Precedent, tho in the House of Lords.18
As to Acts of Parliament. An Act against the Constitution is void: an Act against natural Equity is void: and if an Act of Parliament should be made, in the very Words of this Petition, it would be void.19
The executive Courts must pass such Acts into disuse.20
8. Rep. 118. from Viner. Reason of the Common Law to control an Act of Parliament.21
Iron Manufacture. Noble Lord's Proposal, that we should send our Horses to England to be shod.22
If an officer will justify under a Writ he must return it. 12th. Mod. 396.23
Stat. C. 2.24
We have all as good Right to inform as Custom House officers. And any Man may have a general, irreturnable <Writ>
Commission to break Houses.
By 12. of C. on oath before Ld. Treasurer, Barons of Exchequer, or Chief Magistrate to break with an officer.25
14th. C. to issue a Warrant requiring sherriff &c. to assist the officers to search for Goods not enterd, or prohibited.26
7 & 8th. W. & M. gives officers in Plantation same Powers with officers in England.27
Continuance of Writts and Prossesses proves no more, nor so much as I grant a special Writ of assistance on special oath, for special Purpose.28
Pew indorsd Warrant to Ware. Justice Walley searchd House.29
Law Prov. Bill in Chancery. This Court confind their Chancery Power to Revenue, &c.30
By the 7. & 8. of Wm. c. 22. §. 6th.31
This authority, of breaking and Entring ships, Warehouses Cellars &c. given to the Customs House officers in England by the statutes of the 12th. and 14th. of Charl. 2d.32
is extended to the Custom House officers in the Plantations: and by the statute of the 6th. of Anne,33
Writts of assistance
are continued, in Company with all other legal Proscesses for 6 months after the Demise of the Crown.—Now What this Writ of assistance is, we can know only by Books of Precedents. And We have producd, in a Book intituld the modern Practice of the Court of Exchequer,34
a form of such a Writ of assistance to the officers of the Customs. The Book has the Imprimatur of Wright, C.J.
of the King's Bench which is as great a sanction as any Books of Precedents ever have, altho Books of Reports are usually approvd by all the Judges.35
And I take Brown the Author of this Book to have been a very good Collector of Precedents. I have two Volumes of Precedents of his Collection, which I look upon as good as any, except Coke and Rastal.36
And the Power given in this Writ is no greater Infringement of our Liberty, than the Method of collecting Taxes in this Province.37
Every Body knows that the subject has the Priviledge of House only against his fellow subjects, not vs. the King either in matters of Crime or fine.38
Extracts from the Acts of Parliament.39
14. Car. 2nd.40
“And it shall be lawful to and for any Person or Persons authorized by Writ of assistants,41 under the seal of his Majesties Court of Exchequer,
to take a Constable, Headborough, or other public officers inhabiting near unto the Place, and in the day time to enter and go into any House, shop, Cellar, Warehouse or Room or other Place, and in Case of Resistance to break open Doors, Chests, Trunks and other Package, there to seize and from thence to bring any Kind of Goods, or Merchandize what soever prohibited and uncustomed and to put and secure the same in his Majesties store House, in the Port [next]
to the Place where such seizure shall be made.”
7. & 8th. Willm. 3rd.42
“And that the officers for collecting and managing his Majesties Revenue and inspecting the Plantation Trade in any of the said Plantations shall have the same Powers and authorities &c.43
as are provided for the officers of his Majesties Customs in
England by the said last mentioned Act made in the 14th. Year of the Reign of K. Char. 2d. and also to enter Houses or Warehouses to search for and seize any such Goods.44
And that the like assistance shall be given to the said officers in the Execution of their office, as by the said last mentiond Act is provided, for the officers in England.”45
Prov. Law. Page 114.46
Be it enacted &c. that there shall be a Superiour Court of Judicature, Court of Assize and General Goal &c. over this whole Province &c. who shall have Cognizance of all Pleas Real, Personal or mixt, as well all Pleas of the Crown &c. and generally of all other matters as fully and amply to all Intents and Purposes whatsoever as the Courts of Kings Bench, Common Pleas, and Exchequer
within his Majesties Kingdom of England, have or ought to have.
Province of the Massachusetts Bay
George the second by the Grace of God of Great Britain France and Ireland King, Defender of the Faith &c.48
[salute] To all and singular Justices of the Peace, sherriffs and Constables, and to all other our officers and subjects within said Province and to each of you
Whereas the Commissioners of our Customs have by their Deputation dated the 8th. day of Jany. 1752, assignd Charles Paxton Esqr. surveyor of all Rates, Duties, and Impositions arising and growing due within the Port of Boston in said Province as by said Deputation at large appears, We therefore command you and each of you that you permit the said C.P. and his Deputies and servants from Time to time at his or their Wi[ll]
as well in the day as in the Night to enter and go on board any ship, Boat or other Vessel riding lying or being within or coming to the said Port or any Places or Creeks appertaining to said Port, such ship, Boat or Vessell then and there found to View and search and strait to examine in the same, touching the Customs and subsidies to us due, and also in the day Time together with a Constable or other public officer inhabiting near unto the Place to enter
and go into any Vaults, Cellars, Warehouses, shops or other Places to search and see, whether any Goods, Wares or Merchandizes, in the same ships, Boats or Vessells, Vaults, Cellars, Warehouses, shops or other Places are or shall be there hid or concealed, having been imported, ship't or laden in order to be exported from or out of the said Port or any Creeks or Places appertaining to the same Port; and to open any Trunks, Chests, Boxes, fardells or Packs made up or in Bulk, whatever in which any Goods, Wares, or Merchandizes are suspected to be packed or concealed and further to do all Things which of Right and according to Law and the statutes in such Cases provided, is in this Part to be done: and We strictly command you and every of you that you, from Time to Time be aiding and assisting to the said C.P. his Deputties and servants and every of them in the Execution of the Premisses in all Things as becometh: Fail not at your Peril:
Witness Stephen Sewall Esqr.50