
    Paxton’s Case of the Writ of Assistance.
    1761.
    This Court has Power to issue general Writs of Assistance to Officers of the Customs.
    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. Thacher spoke against.
    
      Messrs. Gridley & Auchmuty () for granting it.
    
      Mr. Thacher
    
    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. Thacker.
    
    If this Court have a Right to grant this Writ, it must be either ex debita Justitia 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 must issue from the Exchequer Court, and no other can grant it; 4 Inst. 103; and that no other Officers but such as constitute that Court can grant it. 2 Inst. 551. That this Court is not such a one, vid. Prov. Law. () This Court has in the most solemn Manner disclaimed the Authority of the Exchequer; this they did in the Case of McNeal of Ireland & McNeal of Boston. () This they cannot do in Part; if the Province Law gives them any, it gives them all the Power of the Exchequer Court; nor can they chuse and refuse to act at Pleasure. But supposing this Court has the Power of the Exchequer, yet there are many Circumstances which render that Court in this Case an improper Precedent; for there the Officers are sworn in that Court, and are accountable to it, are obliged there to pass their Accounts weekly; which is not the Case here. In that Court, there Cases are tried, and there finally; which is another Diversity. Besides, the Officers of the Customs are their Officers, and under their Check, and that so much, that for Misbehaviour they may punish with corporal Punishment. 3 & 4 Car. 2, § 8. () 7 & 8 W. & M. does not give the Authority. ()
    
      Benefit of clergy in Massachusetts.
    
    Appeal of death in England.
    Appeal of murder in the other Colonies.
    In Massachusetts Bay.
    
      Trial by battel.
    
      Breaking of houses, &c., by officers of customs in England in 1629:
    In Massachusetts before 1755.
    
    Impeachment of Strafford.
    
      (Mr. Otis was of the same Side, but I was absent, while he was speaking, most of the Time, and so have but few Notes.)
    
      Mr. Otis.
    
    12 Car. 2, 19. () 13 & 14 Car. 2, p. 56. Let a Warrant come from whence it will improperly, it is to be refused, and the higher the Power granting it, the more dangerous. The Exchequer itself was thought a Hardship in the first Constitution. Vid. Rapin, Vol. 1st, p. 178, 386, 403, 404. () Vol. 2, 285, () 375. ()
    
      It is worthy Consideration whether this Writ was constitutional even in England; () and I think it plainly appears it was not; much less here, since it was not there invented till after our Constitution and Settlement. () Such a Writ is generally illegal. Hawkins, B. 2, ch. 1, Of Crim. Jur. () Viner, Tit. Commission, A. () 1 Inst. 464. () 29 M. ()
    
      Mr. Auchmuty.
    
    Bacon. () 4 Inst. 100. From the Words of the Law, this Court may have the Power of the Exchequer. Now the Exchequer always had that Power; the Court cannot regard Consequences, but must follow Law. As for the Argument of Non-user, that ends whenever the Law is once executed; and this Law has been executed in this Country, and this Writ granted, not only by the Governor, but also from this Court in Ch. Justice Sewall’s Time. ()
    
      Mr. Gridley.
    
    This is properly a Writ of Assist
      ants, not Assistance; not to give the Officers a greater Power, but as a Check upon them. For by this they cannot enter into any House, without the Presence of the Sheriff or civil Officer, who will be always supposed to have an Eye over and be a Check upon them. Quoting History is not speaking like a Lawyer. If it is Law in England, it is Law here; it is extended to this Country by Act of Parliament. 7 & 8 Wm. & M. ch. 18. () By Act of Parliament they are entitled to like Assistants; () now how can they have like Assistants, (26) if the Court cannot grant them it; and how can the Court grant them like Assistance, if they cannot grant this Writ. Pity it would be, they should have like Right, and not like Remedy; the Law abhors Right without Remedy. But the General Court has given this Court Authority to grant it, and so has every other Plantation Court given their Superiour Court. ()
    
      
      (2) Auchmuty was soon after appointed Advocate General, in the place of Otis, who had resigned to avoid arguing for these Writs. Washburn’s Jud. Hist. Mass. 185, 186.
    
    
      
      (3) Sts. 13 & 14 Car. 2, c. 11, § 5; 7 & 8 W. 3, c. 22, § 6; quoted in Gridley’s first argument, post, 480, 481.
    
    
      
      (4) Paxton's case, August term, 1755; post, 402-404, & notes.
    
    
      
      (5) Co. Lit. 81 a, 81 b. S. P. 11 Met. 291.
    
    
      
      (6) Hutchinson, appointed November 13th, 1760. Post, 410, 411.
    
    
      
      (7) S. P. 3 Hutchinson’s Hist. Mass. 92. Post, 401.
    
    
      
      (8) Armstrong v. Lisle, (1697) Comb. 410. S. C. J. Kel. 95, 105; Skin. 671; Holt, 63; 12 Mod. 109, 157; Carth. 395; 1 Salk. 63. The decision in that case was, that a conviction of manslaughter and allowance of benefit of clergy were a bar to an appeal of murder by the heir of the deceased; and that the defendant was entitled to be allowed his clergy at once, without waiting for the trial of the appeal, on which, if convicted, he might be hanged. S. P. 3 Inst. 130; Smith v. Taylor, (1771) 5 Bur. 2778.
      Benefit of clergy does not appear to have been allowed in the Colony of Massachusetts. 1 Hutchinson’s Hist. Mass. (3d ed.) 388, note. At a later period, it was allowed in the Province in cases of manslaughter and burglary. Trial of the British Soldiers, (ed. 1770) 209. Washburn’s Jud. Hist. Mass. 194. But it was not settled to what other crimes it extended. Resolution of General Court in February, 1768, 14 Mass. Archives, 507. 2 John Adams’s Works, 534. Opinion of Trowbridge on “Benefit of Clergy respecting Rape,” Keith MS. No. 11. (Vid.post, 478.) It was abolished here by St. 1784, c. 56.
      The appeal of death was by Lord Holt “esteemed a noble remedy, and a badge of the rights and liberties of an Englishman.” Rex v. Toler, 1 Ld. Raym. 557; 12 Mod. 375; Holt, 483. See Barrington on Sts. (5th ed.) 27. In the early part of the last century in England, persons who had been acquitted on indictments for murder, were often tried, convicted and executed on appeals. Kendall on Trial by Battel (3d ed.), 44-47. In 1770 its abolition was suggested in the House of Commons, but not pressed. 2 Cavendish Debates, 13. 20 Howell’s State Trials, 716. An appeal of murder was brought in England as lately as 1817, but defeated by the appellant’s declining to accept the wager of battel. Asbford v. Thornton, 1 B. & Ald. 403. Such appeals, as well as all trials by battel, were then abolished by St. 59 G. 3, c. 46.
      The English Sts. of 9 H. 3, c. 34, & 6 Edw. 1, c. 9, concerning appeals of murder, were in force in the Provinces of Pennsylvania and Maryland. Report of Judges, 6 Binn. 599, 604. Kilty on Maryland Sts. 141, 143, 158. It is laid that no such appeal was ever brought in Pennsylvania. Roberts on British Statutes in Pennsylvania, 59, 60. But in Maryland in 1765 a negro was convicted and executed upon such an appeal. Soaper v. Tom, 1 Har. & McHen. 227. The St. of 9 H. 3 was expressly adopted in South Carolina in 1712; and Mr. Cooper, the state editor of its statutes, doubts whether trial by battel and appeal of death were not both still in force there in 1837. 2 Sts. at Large of South Carolina, 401, 403, 715.
      On the debate in the House of Commons in 1774 on the bill “for the better administration of Justice in Massachusetts Bay,” a clause suspending the appeal of murder was vigorously assailed by Dunning, Burke, Fox, and others, and withdrawn. 17 Parl. Hist. 1291, 1292, 1296. And Mr. Kendall thinks, it existed in the Colonies. Kendall, 248, 249, 272. But Mr. Dane says, the appeal of felony did not exist here. 7 Dane Ab. 336. And see Constitution of Massachusetts, c. 6, art. 6; Declaration of Rights, arts. 12, 15 ; U. S. Constitution, amendment 5.
      In England, the last joinder of issue for trial by battel was on a writ of right in 1638; but the judges deferred the combat from time to time for error in the record until 1641, when the House of Commons, upon the petition of the tenant, “ordered a bill to be brought in to take away trial by battel.” Claxton v. Lilburne, 2 Rushw. Hist. Coll. 788, 790; 3 Ib. 356. Commons & Lords Journals 1620-1641, quoted in Kendall, 135, note. 3 Bl. Com. 337 & req. But no such bill was passed in England until 1820, ut sup. This mode of trial is not supposed to have been introduced in America, unless in South Carolina, ut sup. Post, 178. 3 Wilson’s Works, 142. 3 Dall. 350. 2 Sumner, 68.
    
    
      
      (9) Prov. St. 11 W. 3, Anc. Chart. 330, 331.
    
    
      
      (10) McNeal v. Brideoak, post, 470, note.
    
    
      
      (11) St. 13 & 14 Car. 2, c. 11, § 8.
    
    
      
      (12) St. 7 & 8 W. 3, c. 22, § 6.
    
    
      
      (13) St. 12 Car. 2, c. 19, post, 395, note.
    
    
      
      (14) Rapin’s Hist. of Eng. (2d ed.) London, 1732. The pages referred to in the first volume relate to the Court of Exchequer and proceedings therein.
    
    
      
      (15) Where Rapin says, that in 1629 the privy council of Charles 1 gave orders, “impowering the officers of the customs to enter into any ship, vessel, or house, and to search in any trunk or chest, and break any bulk whatsoever, in default of the payment of customs. But besides that this had never been practised before, another inconvenience arose. These officers, under colour of searching, used many oppressions and rogueries, which caused the people still the more to exclaim.” See also 1 Rushworth’s Hist. Coll. 665, 668, 669 ; 2 Ib. 8, 9.
      Before writs of assistance were issued in Massachusetts, the officers of the customs, “merely by the authority derived from their commissions, had forcibly entered warehouses, and even dwelling-houses, upon information that contraband goods were concealed in them.” But “the people grew uneasy under the exercise of this assumed authority,” and refilled or sued the officers. 3 Hutchinson’s Hist. Mass. 92.
    
    
      
      (16) The articles of impeachment against the Earl of Strafford in 1641, beginning with the ninth article, which charged him with issuing general warrants of arrest. S. C. & S. P. in Rushw. Hist. Coll. 65, 236-240; 3 Howell’s State Trial 1391, 1404, 1427.
    
    
      
      (17) An indication of the position, more distinctly stated in Otis’s first argument in February, 1761: “An act of Parliament against the Constitution is void.” Vid. post, 474, & Appendix I, J.
    
    
      
      (18) Qu. Whether Otis here intended to deny that Acts of Parliament bound the Province. See Appendix I, J.
    
    
      
      (19) 2 Hawk. c. 1, §§ 7, 8.
    
    
      
      (20) “If commission issues to take J. S. and his goods, without indictment, or suit of the party, or other process, this is not good; for it is against the law.”
    
    
      
      (21) Probably 1 Inst. 272 b, note to Lit. § 464: “The surest construction of a statute is by the rule and reason of the common law.”
    
    
      
      (22) Probably c. 29 of Magna Charta: “Nullus liber homo capiatur, vel imprisonetur,” &c. 2 Inst. 45 & req. See Appendix I, E.
    
    
      
      (23) Bac. Ab. Court of Exchequer.
    
    
      
      (24) 1755-1759, post, 403-406.
    
    
      
      (25) St. 7 & 8 W. 3, c. 22, § 6.
    
    
      
      (26) Altered in the MS. from “Assistance” to “Assistants.” The words of St. 7 & 8 W. 3, c. 22, § 6, are “like assistance.”
    
    
      
      (27) But it is said that in other colonies the writs were refused. 7 John Adams’s Works, 267. 4 Bancroft’s Hist. U. S. 431, note.
    
   The Justices were unanimously of Opinion that this Writ might be granted, and some Time after, out of Term, it was granted. () 
      
      (28) Judgment was given at the conclusion of the argument on the 18th of November, 1761. Boston Gazette of November 23, 1761. And it appears by the court files that the writ was issued on the 2d of December, 1761. See App. I, C.
      For a report of another case of public interest, decided soon after, to which Paxton was a party, see Province of Massachusetts Bay v. Paxton, App. II.
     