Writs Of Assistance

A. What are Writs of Assistance?

This term has been applied in the books of the law to many different processes, which may conveniently be classed under three heads:

1. Writs of assistance, more usually called "writs of aid," issuing from the Court of Exchequer, addressed to the sheriff, and commanding him to be in aid —"quod sit in auxilium" —of the King's tenants by knight service, or the King's collectors, debtors, or accountants, to enforce payment of their own dues, in order to enable them to pay their dues to the King. These writs are very ancient. ...
2. Writs to the sheriff, to assist a receiver, sequestrator, or other 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. These writs, which issue from the equity side of the Court of Exchequer, or from any other Court of Chancery, are at least as old as the reign of James I, and are still in common use in England, Ireland, and some of the United States. But, whether from the odium attached to the name here, or from the practice in this Commonwealth to conform processes in equity to those at law, no instance is known of such a writ having been issued in Massachusetts.
3. Writs of assistance to seize uncustomed goods were introduced by a statute of Charles II., and were perhaps copied from the sheriff's patent of assistance. The book of precedents, quoted at the first argument here in 1761, is so rare, and the form therein given is so curious a justification of Otis's suggestion that it was framed "by some ignorant clerk of the Exchequer," that it is exactly reprinted in the margin. The same form, with very little change, is still followed in England, as appears by comparing the old writ with one issued in the first year of the present reign ... .

    

B. Writs of Assistance granted in Massachusetts Bay in the Reign of George II.

Hutchinson says, that under the administration of Governor Shirley, (which ended in 1756,) "he, as the civil magistrate, gave out his warrants to the officers of the customs to enter;" and "these warrants were in use some years," until a dispute of their legality caused the Governor "to direct the officers to apply for warrants from the Superior Court; and, from that time, writs issued, not exactly in the form, but of the nature of writs of assistance issued from the Court of Exchequer in England." The accuracy of this last statement is fully corroborated by the contemporaneous records. The foremost to apply to the Court was Charles Paxton.

"Province of the Massachusetts Bay

To the Honourable his Majestys Justices of his Superiour Court for said Province to be held at York in and for the County of York on the third Tuesday of June 1755.

"HUMBLY SHEWS Charles Paxton Esqr: That he is lawfully authorized to Execute the Office of Surveyor of all Rates Duties and Impositions arising and growing due to his Majesty at Boston in this Province & cannot fully Exercise said Office in such Manner as his Majestys Service and the Laws in such Cases Require Unless Your Honours who are vested with the Power of a Court of Exchequer for this Province will please to Grant him a Writ of Assistants, he therefore prays he & his Deputys may be Aided in the Execution of said office within his District by a Writ of Assistants under the Seal of this Superiour Court in Legal form & according to Usage in his Majestys Court of Exchequer & in Creat Britain, & your Petitioner &Ca: CHAS PAXTON

... The writ was afterwards issued in the following form:

"Province of the Massachusetts Bay.

 

GEORGE the Second by the Grace of God of Creat Britain, France and Ireland King, Defender of the Faith &c

— "To all and singular Justices of the Peace, Sheriffs and Constables, and to all other our officers and Subjects within said Prov. & to each of you Creeting

— "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 ye said C. P. and his Deputies and Servants from Time to time at his or their Will 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 & there found to View & Search & strictly 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 Coods, Wares or Merchandises, in ye 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 appertain'g to the same Port; and to open any Trunks, Chests, Boxes, fardells or Packs made up or in Bulk, whatever in wh any Coods, Wares, or Merchandises are suspected to be packed or concealed and further to do all Things which of Rt 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 Deputies and Servants and every of them in the Execution of the Premises in all Things as becometh: Fail not at your Peril: WITNESS Stephen Sewall Esqr &c—

. . . . . .

Case.

Opinion of Attorney General De Grey upon Writs of Assistance.

"7th Geo. 3d, Ch. 46.

By this Act of Parliament, after reciting 'That by an Act of Parliament made in the 14th CHA. 2d, intitled an Act for preventing Frauds and regulating Abuses in His Majesty's Customs, and several other Acts now in Force, it is lawful for any Officer of His Majesty's Customs, authorized by Writ of Assistants under the Seal of His Majesty's Court of Exchequer, to take a Constable, Headborough, or any other public Officer 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 kinds of Goods or Merchandize whatsoever, prohibited or uncustomed; and to put and secure the same in His Majesty's Storehouse, next to the Place where the Seizure shall be made. And further reciting, That by an Act made in the 7th and 8th of WILLIAM the 3d, intitled an Act for preventing Frauds and regulating Abuses in the Plantation Trade, it was amongst other Things enacted, That the Officers for collecting and managing His Majesty's Revenue, and inspecting the Plantation Trade in America, should have the same Powers and Authorities to enter Houses or Warehouses, to search for and seize Goods prohibited to be imported or exported into, or out of, any of the said Plantations, or for which any Duties were payable, or ought to have been paid, and that the like Assistance should be given to the said Officers in the Execution of their Office, as by the said recited Act of the 14th CHA. 2d, is provided for the Officers in England, but no Authority being expressly given by the said Act of 7th and 8th of WILLIAM 3d, to any particular Court to grant such Writs of Assistants for the Officers of the Customs in the said Plantations, it was doubted whether such Officers could legally enter Houses and other Places on Land to search for and seize Coods in the Manner directed by the said Acts; to obviate which Doubts for the future, and in order to carry the intention of the said Acts into effectual Execution.

"It is enacted, 'That after the 20th of November, 1767, such Writs of Assistants to authorize and empower the Officers of His Majesty's Customs to enter and go into any House, Warehouse, Shop, Cellar or other Place, in the British Colonies or Plantations in America, to search for and seize prohibited or uncustomed Goods in the Manner directed by the said recited Acts, shall and may be granted by the Superior or Supreme Court of Justice having Jurisdiction within such Colony or Plantation respectively.'

"IN PURSUANCE of this Act of Parliament, the Officers of the Customs in America, have applied to the Judges of the Superior Courts of Judicature in the respective Provinces, for Writs of Assistants, but most of them have refused to grant such Writs, seemingly for this Reason, that no informations had been made to them of any special Occasion for such Writ, and that it will be unconstitutional to lodge such Writ in the Hands of the Officer, as it will give him a discretionary Power to act under it in such Manner as he shall think necessary.

"But it must be observed, that if such a General Writ of Assistants is not granted to the Officer, the true Intent of the Act may in almost every Case be evaded, for if he is obliged, every Time he knows, or has received information of prohibited or uncustomed Goods being concealed, to apply to the Supreme Court of Judicature for a Writ of Assistants, such concealed Goods may be conveyed away before the Writ can be obtained. Inquiry has been made into the Manner of granting Writs of Assistants in England, and it appears that such Writs are issued out of the Court of Exchequer whenever the Commissioners of the Customs apply for them. Every Officer of the Customs here, is armed with such a Writ, and whenever a new Officer is appointed, the Commissioners direct their Sollicitor to procure a Writ of Assistants, which is issued as a matter of Course by the Clerks of the Exchequer without any Application to the Court. This Writ is directed to all Officers and Ministers who have any Office, Power or Authority from or under the Jurisdiction of the Lord High Admiral of England, to all and every Vice Admirals, Justices of the Peace, Mayors, Sheriffs, Constables, Bailiffs, Headboroughs, and all other the King's Officers, Ministers and Subjects, commanding them to be aiding, assisting and helping the Commissioners of the Customs and their Deputies, Ministers, Servants, and other Officers in the Execution of their Duty.

"Quest. Whether the Superior Courts of Justice in the British Colonies or Plantations in America, ought not upon Application, to issue Writs of Assistants in the same Manner as is practised in the Court of Exchequer in England, and what steps should be taken by Government in Order to Enforce the Issuing of these Writs for the Protection of the Officers of the Customs abroad ?

"There can be no doubt, but that the Superior Courts of Justice in America are bound by the 7th GEO. 3d. to issue such Writs of Assistants, as the Court of Exchequer in England issues in similar Cases, to the Officers of the Customs.

"As this Process was probably new to many of the Judges there, and they seem to have had no Opportunity of informing themselves about it, it is perhaps in some measure excusable, that they wished to have time to consider of it, and to inquire into the Practice of the Court of Exchequer and of other Colonies; and I think it can only be because the Subject was entirely misunderstood, and the Practice in England unknown, that the Chief Justice of Pennsylvania, who is generally well spoken of, could imagine, that 'He was not Warranted by Law' to issue a Writ commanded by the Legislature; which Writ was founded upon the Common Law, enforced by Acts of Parliament and in daily use in England, and which from the general import of the 7th WILL. 3d. ought to have been set on foot from that time in America, and which Statute the late Act only meant to Explain. And it appears accordingly that in Boston where a very able Judge presides and some Experience had been had upon the Subject, no Difficulty was made in granting it.

"I think therefore it is advisable that the Form of the Writ issued by the Court of Exchequer in England, should be sent over to the several Colonies in America, together with the Manner of applying for it and of granting it, by which they will see, that the power of the Custom House Officers is given by Act of Parliament and not by this Writ which does nothing more than facilitate the Execution of his Power by making the Disobedience of the Writ a Contempt of the Court: The Writ only requiring all Subjects to permit the exercise of it and to Aid it. The Writ is a Notification of the Character of the Bearer to the Constable and others to whom he applies, and a Security to the Subject against others who might pretend to such Authority. No Body has it but a Custom House Officer armed with such a Writ. The Writ is not granted upon a previous Information, nor to any particular Person, nor on a special Occasion. The inconvenience of that was experienced upon the Act of 12th CHA. 2d, C. 19. and the present Method of proceeding adopted in lieu of what that Statute had prescribed.

1. Were the Writs of Assistance legal?

   A report of the controversy upon the Writs of Assistance would be incomplete without an examination of ... four questions:

    

   1. Did Acts of the Parliament of Great Britain bind the Colonies?
   2. Were those Acts of Parliament, which provided for Writs of Assistance, void for unconstitutionality?
   3. Did those Acts, properly construed, authorize the issuing of general Writs of Assistance?
   4. Had the Superior Court of Judicature of the Province the powers of the English Court of Exchequer in this respect?

       

2. The inseparable less of taxation and representation, and the distinction between external and internal taxes were familiar to the law of England before the discovery of America.

   Under the Colony Charter, Massachusetts constantly asserted her right of exemption from Parliamentary taxation, upon the ground of not being represented in Parliament. And upon this theory several acts were passed by the General Court to carry into effect the Acts of Trade and Navigation.

   Under the Province Charter the subjection to the authority of Parliament seems to have been less disputed on grounds of legal right. The first statute of the Province was "an act setting forth general priveledges," one of which was that no tax should be imposed or levied on persons or estates, "on any colour or pretence whatsoever, but by the act and consent of the Governour, Council and Representatives of the People, assembled in General Court." But this act was disallowed by the King, under the power reserved to him in the new Charter. Three years later Parliament expressly extended the Acts of Trade to the American Colonies, and declared all laws, by-laws, usages or customs, repugnant to those or any future acts which should relate to and mention the Colonies, to be illegal and void. And the lawful authority of all Acts of Parliament, which concerned the Colonies and in terms applied to them, was acknowledged in the Provincial Courts of law, and expressly admitted in the addresses of the General Court of Massachusetts Bay to the Governor in 1757 and 1761; and in matters of external commerce, at least, was not seriously disputed until after the passage of the Stamp Act.

   The opposite position, if taken in the argument upon the Writs of Assistance, would have been too striking to have been omitted in the contemporary reports. Yet none of them contain anything which could bear that construction, except a single expression in Quincy's Report. And the elaborate argument printed in the Boston Gazette immediately after the decision ... assert in the most explicit terms the rightful authority of Parliament to legislate for the Colonies. ...

    

3. The St. of 13 & 14 Car. 2, c. 11,  5, declared that it should be lawful for any person "authorized by writ of assistance under the seal of his Majesty's Court of Exchequer" to take an officer and go into any house or shop and seize and bring out uncustomed goods. This statute, in which the name first appeared as applied to this process, did not define what it was, but assumed it to be already known. The only process, mentioned in any earlier statute or law book, to which the name could be referred, would seem to be the warrant mentioned in St. 12 Car. 2, c. 19, (confirmed by ... subsequent statutes,) which could only issue upon information on oath, and authorized the entry of a house for one month only after the offence, and by which, "if the information upon which any house is searched should prove to be false," the informer was made liable in full costs and damages to the party injured.

   As general warrants were not authorized by the common law, Otis argued that the writ of assistance mentioned in St. 13 & 14 Car. 2, must be special, according to St. 12 Car. 2. This seems to have been considered at the time of the argument and afterwards the most important point; and upon the ordinary rules of interpreting statutes in pari materia together, and according to the rule and reason of the common law, the conclusion of Otis seems inevitable. If the writ of assistance contemplated by the Sts. of Charles 2 was general to search all houses and issued without oath, it is a little remarkable that Lord Hale, neither in discussing general warrants, nor in speaking of these very statutes, gives any hint of such a departure from the principles of the common law.

   It must be admitted that in practice general writs of assistance were commonly used in England. But they do not seem to have been the subject of judicial remark there before the argument in Massachusetts, after which Lord Mansfield took every opportunity to assert that general writs of assistance were expressly authorized by statute, which was certainly not the fact. And the practice was no more uniform nor better established than that which was allowed no force, either by Lord Camden, or by Lord Mansfield and his associates, in the matter of general warrants. But Lord Camden, who led the way in that matter, had not yet been raised to the Bench.

   It is hard to imagine that the same House of Commons which condemned general warrants in 1766 intended to authorize general writs of assistance in 1767. Even after the passage of the St. of 7 G. 3, some of the American courts refused to issue anything but special writs of assistance; and attempts were made to limit them by statute. But in England the practice of issuing general writs of assistance continued until 1817, when a limit was imposed upon their use by an order of the Board of Customs, providing that no writ of assistance should in future be delivered to any officer of the customs, unless he should previously make oath before a magistrate of his belief and grounds of belief that smuggled goods were lodged in a certain house. And thus the reasonableness of the position of the Colonies was finally vindicated in the mother country.

   In Massachusetts, the General Court recognized and applied the principles of the common law on the subject of general warrants, even in time of war, not allowing general warrants to issue even for the arrest of deserters in the Old French War, or to search for the arms of disaffected persons at the beginning of the War of the Revolution. Those principles were confirmed in 1780 by the Declaration of Rights, prefixed to the Constitution of Massachusetts, as follows: "Every subject has a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers and all his possessions. All warrants therefore are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure; and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws." ...

    

4. The only question remaining is, whether the Superior Court of Judicature of the Province had in this matter the powers of the Court of Exchequer in England.

   ... A careful examination of the subject compels the conclusion that ... there was at least reasonable ground for holding, as matter of mere law, that the British Parliament had power to bind the Colonies; that even a statute contrary to the Constitution could not be declared void by the judicial Courts; that by the English statutes, as practically construed by the Courts in England, Writs of Assistance might be general in form; that the Superior Court of Judicature of the Province had the power of the English Court of Exchequer; and that the Writs of Assistance prayed for, though contrary to the spirit of the English Constitution, could hardly be refused by a Provincial Court, before general warrants had been condemned in England, and before the Revolution had actually begun in America. The remedy adopted by the Colonies was to throw off the yoke of Parliament; to confer on the judiciary the power to declare unconstitutional statutes void; to declare general warrants unconstitutional in express terms; and thus to put an end here to general Writs of Assistance.