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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 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

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Court is no 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 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.

(Mr. Otis was on 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 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 Assistants, 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, 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 a like Right, and not like

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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.

The Justices were unanimously of Opinion that this Writ might be granted, and some Time after, out of Term, it was granted.