Collected Political Writings of James Otis. Otis James

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СКАЧАТЬ 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 seise in the Plantations, as well as in England. 7. & 8 Wm 3, C. 22 § 6, gives the same as 13. & 14. of C. gives in England. The Ground of Mr. Gridleys argt 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.

      In Eng. all Informations of uncusted [i.e., uncustomed] 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 the Peril, even with Probable Cause.—

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      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—notwithstanding all his Debts, & civil processes of any Kind.—But

      For flagrant Crimes, and in the Cases of great public Necessity, the Priviledge may be incrohd [encroached] on.—For Felonies an officer may break, upon Processes, and oath.—i.e. by a Special Warrant to search such an House, [“susp” crossed out] sworn to be suspected, and good Grounds of suspicion appearing.

      Make oath corm. Ld. Treaer, or Exchequer, in Engd. or a Magistrate here, and get a Special Warrant, for the public good, to infringe the Priviledge of House.

      Genl. Warrant to search for Felonies. Hawk. Pleas Crown.—every petty officer from the highest to the lowest, and if some of ’em are [“com, others” struck out] uncom others are uncomm. Gouvt Justices used to issue such perpetual Edicts. (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 & useful Powers were pushed to Extremity.—

      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.

      But all Precedents and this am’g 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.—

      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. The Executive Courts must pass such Acts into disuse—8. Rep. 118. from Viner.—Reason of the Com Law to control an Act of Parliament.—Iron Manufacture. noble Lord’s Proposal, that we should send our Horses to Eng. to be shod.—

      If an officer will justify under a Writ he must return it. 12th Mod. 396.—perpetual Writ.

      Stat. C. 2. We have all as good Rt to inform as Custom House officers—& every Man may have a general, irreturnable [“Writ” struck out] Commission to break Houses.—

      By 12. of C. on oath before Ld. Treasurer, Barons of Exchequer, or Chief Magistrate to break with an officer.—14th. C. to issue a Warrant requiring sheriffs &c to assist the officers to search for Goods not entrd, or prohibitd; 7 & 8th. W. & M. gives Officers in Plantations same Powers with officers in England.—

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      Continuance of Writts and Proscesses, proves no more nor so much as I grant a special Writ of ass. on special oath, for specl Purpose.—

      Pew indorsd Warrant to Ware.¹—Justice Walley search’d House. Law Prov. Bill in Chancery.—this Court confined their Chancery Power to Revenue &c.

      Gridley. By the 7. & 8 of Wm C. 22. § 6th.—This authority, of breaking and entering Ships, Warehouses Cellars &c given to Custom House officers in England by the Statutes of the 12th. and 14th of Charl. 2d, is extended to the Custom House officers in the Plantations:—and by the Statute of the 6th of Anne, [“this” struck out] 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 produced, in a Book intituld the modern Practice of the Court of Exchequer, 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 K.’s B. which is as great a sanction as any Books of Precedents ever have. altho Books of Reports are usually approved by all the Judges—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 & Rastal.

      And the Power given in this Writ is no greater Infringement of our Liberty than the Method of collecting Taxes in this Province.—

      Every Body knows that the Subject has the Priviledge of House only against his fellow Subjects, not vs the K. either in matters of Crime or fine.

      [print edition page 8]

2. Josiah Quincy Jr.’s Notes on the Second Argument of the Case, November 1761

      Charles Paxton, Esq., applied to the Superiour Court for the Writ of Assistants, as by Act of Parliament to be granted to him.

      Upon this, the Court desired the Opinion of the Bar, whether they had a Right and ought to grant it.

      Mr. Otis & Mr. Thatcher spoke against.

      Messrs. Gridley & Auchmuty for granting it.

      Mr. Thatcher first read the Acts of 14 Car. 2, ch. 22, and 7&8 of Wm. & Mary, upon which the Request for this Writ is founded.

      Though this Act of Parliament has existed 60 Years, yet it was never applied for, nor ever granted, till 1756; which is a great Argument against granting it; not that an Act of Parliament can be antiquated, but Non-user is a great Presumption that the Law will not bear it; this is the Reasoning of Littleton and Coke. Knight Service, p. 80, Sect. 108. Moreover, when an Act of Parliament is not express, but even doubtfull, and then has been neglected and not executed, in such a Case the Presumption is more violent.

      Ch. Justice. The Custom House Officers have frequently applied to the Governour for this Writ, and have had it granted them by him, and therefore, though he had no Power to grant it, yet that removes the Argument of Non-user.

      Mr. Thatcher. If this Court have a Right to grant this Writ, it must be either ex debita Justitia¹ or discretionary. If ex debita Justitia, it cannot in any Case be refused; which from the Act itself and its Consequences, he argued, could not be intended. It can’t be discretionary; for it can’t be in the Power of any Judge at discretion to determine that I shall have my House broken open or not. As says Just. Holt, “There can be no discretionary Power whether a Man shall be hanged or no.”

      He moved further that such a Writ is granted and СКАЧАТЬ