May it please your Honors: I was desired by one of the court to look
into the books, and consider the question now before them concerning
Writs of Assistance. I have accordingly considered it, and now appear
not only in obedience to your order, but likewise 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 dying day oppose, with all the powers and
faculties God 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 the worst instrument of arbitrary power, the most
destructive of English liberty and the fundamental principles of law,
that ever was found in an English law-book. I must therefore beg your
Honors' patience and attention to the whole range of an argument that
may perhaps appear uncommon in many things, as well as to 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,
and the force of them be better felt. I shall not think much of my pains
in this cause, as I engaged in it from principle. I was solicited to
argue this cause as Advocate-General; and, because I would not, I have
been charged with desertion from my office. To this charge I can give a
very sufficient answer. I renounced that office and I argue this cause
from the same principle; and I argue it with the greater pleasure, as it
is in favor 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; and as it is in opposition
to a kind of power, the exercise of which in former periods of 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 cause 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 them my foes. Let the
consequences be what they will, I am determined to proceed. The only
principles of public conduct that are worthy of a gentleman or a man are
to sacrifice estate, ease, health, and applause, and even life, to the
sacred calls of his country.
These manly sentiments, in private life, make good citizens; in
public life, the patriot and the hero. I do not say that, 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 will then be known how
far I can reduce to practice principles which I know to be founded in
truth. In the meantime I will proceed to the subject of this writ.
Your Honors will find in the old books concerning the office of a
justice of the peace precedents of general warrants to search suspected
houses. 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 that he suspects his goods are concealed; and 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 that 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 places, 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"; 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 be legal, a tyrant in a legal manner, also,
may control, imprison, or murder any one within the realm. In the next
place, it is perpetual; there is 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
Archangel shall excite different emotions in his soul. In the third
place, a person with this writ, in the daytime, may enter all houses,
shops, etc., at will, and command all to assist him. Fourthly, by this
writ not only deputies, etc., 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 servants of servants, the most
despicable of God's creation? 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 whilst 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 everything 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 not a chimerical suggestion of a heated brain. I will
mention some facts. Mr. Pew had one of 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 Honors
have no opportunity of judging the persons to whom this vast power is
delegated. Another instance is this: Mr. Justice Walley 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
finished, Mr. Ware asked him if he had done. He replied, "Yes." "Well
then," said Mr. Ware, "I will show you a little of my power. I command
you to permit me to search your house for uncustomed goods" - and went
on to search the house from the garret to the cellar; and then served
the constable in the same manner! But to show another absurdity in this
writ: if it should be established, I insist upon it every person, by the
14th Charles Second, has this power as well as the custom-house
officers. The words are: "It shall be lawful for any person or persons
authorized," etc. What a scene does this open! Every man prompted by
revenge, ill-humor, or wantonness to inspect the inside of his
neighbor's house, may get a Writ of Assistance. Others will ask it from
self-defence; one arbitrary exertion will provoke another, until society
be involved in tumult and in blood.
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