A STATED Meeting of the Society was held, at the invitation of Mr. Augustus Peabody Loring, Jr., at No. 2 Gloucester Street, Boston, on Thursday, 26 April 1951, at a quarter before nine o’clock. Due to the illness of the President, the Vice-President, the Hon. Robert Walcott, took the chair.
The records of the last Stated Meeting were read and approved.
The Vice-President reported the death on 2 March 1951 of George Gregerson Wolkins, a Resident Member, and that on 5 April 1951 of William Gwinn Mather, a Corresponding Member.
The Corresponding Secretary reported the receipt of letters from Mr. Gordon Thaxter Banks, Mr. Buchanan Charles, Mr. I. Bernard Cohen, Mr. Dennis Aloysius Dooley, Mr. William Henry Harrison, Mr. David Milton Kendall McKibbin, Mr. David Thompson Watson McCord, the Reverend Richard Donald Pierce and Mr. Vernon Dale Tate accepting election to Resident Membership; from the Reverend Arthur Adams accepting election to Non-Resident Membership; from Mr. Marion Vernon Brewington accepting election to Corresponding Membership, and from Mr. Julian Parks Boyd and Mr. Douglas Southall Freeman accepting election to Honorary Membership.
Mr. Stephen Thomas Riley, of Boston, the Reverend Robert Dale Richardson, of Concord, Mr. Douglas Swaim Byers, of Andover, Mr. Earle Williams Newton, of Sturbridge, were elected Resident Members, and Mr. Henry Beston, of Nobleboro, Maine, was elected a Corresponding Member of the Society.
The Reverend Joseph Raphael Frese, S.J., then read the following paper:
“An Act to prevent Fraudes and Concealments of His Majestyes Customes and Subsidyes”
12 Car. II c. 19
NOTHING occurs more constantly throughout the whole controversy over the writs of assistance than the question of their legality. Whether it was a lawyer arguing their issuance or a merchant defying their use or simply the court wondering over their validity, the constant thought and thread throughout is the interpretation of the laws of Parliament and their import to the American scene. In fact, the very importance of the fight over the writs of assistance lies in this: that it was not a petty struggle over temporary smuggling or an evasion of the law; it was a questioning of the law itself. It might be wise, then, at least to look at the laws which were advanced as a foundation for the writs of assistance.
There are three laws commonly mentioned in the early controversy:1
“An Act to prevent Fraudes and Concealments of His Majestyes Customes and Subsidyes”;2 “An Act for preventing Frauds and regulating Abuses in his Majesties Customes”;3 and finally, “An Act for preventing Frauds and regulating Abuses in the Plantation Trade.”4
It is extremely difficult to get behind the scenes of legislation passed even in modern times. It is just about impossible when we turn to that hopeful English spring of 1660 when Charles II was invited back to his father’s throne. The Journals of the House of Commons and the Journals of the House of Lords are as bare as the Hubbard cupboard. Debates and committee reports are scattered and unsatisfying.5 Nor are the other collected speeches of much additional help. But from the aggregate we can gather some dates and a few hints on the “Act to prevent Fraudes and Concealments of His Majestyes Customes and Subsidyes.”6
The new English Parliament opened its sessions on 25 April 1660. With a nation alternating between new hope and old fear and in the throes of the political turmoil the tottering Commonwealth had left it, there were obviously many points besides revenue clamoring for immediate settlement: the state of the nation, amnesty and an act of oblivion, the very power of Parliament itself. But all nations and kings, particularly new ones, are natively concerned with revenue and it was not long before the Parliament of 1660 began its earnest discussion of ways and means of income.7 There were poll assessments and loans, excise and customs, temporary measures and long-range planning. There were laws of policy, as the “Act for the Encourageing and increasing of Shipping and Navigation”;8 and laws of very practical practice, as the “Act for the speedy Provision of Money for disbanding and paying off the forces of this kingdome both by Land and Sea.”9 Of all this we are immediately concerned with the legislation on the customs service, for it was in a very practical act on the collection of the customs revenue that mention was first made of a search warrant for customs officials,10 which was to be the basis of the whole writs of assistance controversy.
It is possible that the idea of a search warrant for customs officers came from the surveyor general of the customs himself. At least we know he presented a petition to the House of Lords which was read and referred to the committee of petitions on 18 May 1660.11 His petition to the House of Commons was referred, on 28 May, to a committee set up to “prepare a Bill or Bills for Excise and Customs, in such a Way as may be most for Advancing of Trade, and best Advantage of the Publick. . . .”12 This influence of the surveyor general, of course, is only a surmise for there was another petition—one from the “Farmers of the Customs and Excise in Ireland”—which was also referred to the Commons committee.13 Besides, the committee was to “have Power to send for Persons and Papers. . . .” and with so many men on the committee interested in trade, the idea of a search warrant might have occurred to any of them.14
Throughout June and July the customs and revenue naturally came in for a good deal of discussion in committee and on the floor of the House of Commons.15 By the end of June, the committee on excise and customs had been granted permission to hold their own sessions on Monday, Wednesday, and Friday even though the Commons resolved itself into a grand committee to consider the “Act takeing away the Court of Wards and Liveries.”16 But all this discussion on revenue seems to have been a matter of routine: granting a subsidy of tonnage and poundage17 and setting up the “Rates of Merchandize.”18 Even by the end of July there seems to have been no discussion of search warrants. Colonel Birch, chairman of the committee on customs and excise, reported “certain Order, Directions, and Allowances, for the Advancement of Trade, and Encouragement of the Merchant; for regulating as well of the Merchants in making due Entrie and just Payments of their Customs, as of the Officers in all the Ports of this Kingdom, in the faithful discharge of their Duty. . . .”19 But these were general rules for the customs service and contained nothing about warrants for search.20 As a matter of fact there is only one mention of search at all:
XXII. The under Searcher or other Officers of Gravesend, having power to visite and search any Ship outward bound, shall not wthout just & reasonable cause deteyne any such ship under color of searching the goods therein laden above three tides after her arrivall at Gravesend under paine of losse of their officee & rendring damage to the Merct & Owner of the Ship And the Searcher or other Officer of the Custome House in any of the out ports having power to search & visite any ship outward bound, shall not wthout just & reasonable cause deteyne any such ship undr Color of Searching the goods therein laden above one tyde after the sd Ship is fully laden & ready to set saile, under paine of losse of the office of such offender & rendring damage to the Merchant & Owner of ye ship.21
But this was just regular customs service and the power of search was hardly extensive. It is certainly not what caused the controversy over the writs of assistance.
The “Act to prevent Fraudes and Concealments” with its search warrant may have had a more immediate occasion. On 4 August the Commons were informed that some customable goods had been smuggled by a creek near Bow and “lodged at a Merchant’s House there. . . .” The sergeant at arms was ordered to seize the goods and summon the merchant to attend a committee of the House at two o’clock in the afternoon. The committee, in turn, was ordered to examine the matter and report the facts to the House of Commons.22 This report may have been lost in the press of business; but it seems to be connected with the incident reported one month later.
On Thursday, 6 September, the House of Commons was informed “that great Quantities of Spanish Tobacco, lately imported, have been landed, and secretly conveyed away by several persons, without due Entry, or paying of Custom or Excise; to the Defrauding of his Majesty, and Prejudice of the Law. . . .” It was proposed that the sergeant at arms of the House by himself or his deputies “do forthwith search for, seize, inventory, and secure, the said Tobaccoes, wherever they shall be found. . . .” It was a large order for an officer of a legislative chamber and hardly seems in keeping with his official character. For this or other reasons the Commons did not like the resolution either, and voted it down 99 to 61. It was resolved, however, “That the Commissioners for the Excise do forthwith take notice of this Information; and, according to their Duty, and the Powers they are intrusted with, to make a Seizure of the said Tobaccco. . . .”23
Had the tobacco been seized as envisioned by the first resolution, the whole incident might have passed over and the customs service continued in its usual way. But two days later, on Saturday, we have a further report: “A Certificate from the Commissioners of the Excise was this Day read, touching Spanish Tobaccoes in the House of Mr. James Haberthwaite of London Merchant, who keeps his Doors against the Officers employed by the said Commissioners to search for, and secure, the same. . . .”24
The very same afternoon a bill was introduced “impowering the Commissioners of Excise and Customs to put certain Matters in Execution.” The bill, providing search warrants for customs officials, was read for the first and second time and sent to the grand committee.25 Two days later, Sir Heneage Finch reported from the grand committee certain amendments which were twice read and agreed upon.26 In the afternoon “A Bill to prevent Frauds and Concealments of his Majesty’s Customs and Subsidies, was this Day read the Third time; and, upon the Question, passed.” It was then sent up to the House of Lords.27
The Lords, too, had been considering various measures during this long summer of 1660,28 but the important bill providing search warrants for customs officials did not come to hand until very close to the fall recess. As a matter of fact, the session had been scheduled to end on 8 September,29 but the Commons had requested the Lords to beg the King for a postponement, which had been granted.30 There was little time and apparently as little disposition in the House of Lords to debate the matter of search warrants. On Monday afternoon, 10 September, “An Act to prevent Frauds and Concealments of His Majesty’s Customs and Subsidies” was read three times and “The Question being put, ‘Whether this Bill shall pass as a Law?’ It was Resolved in the Affirmative.”31
On Thursday of that same week, the King came down to the House of Peers, sent the gentleman usher of the black rod to give notice to the House of Commons, who came up bringing with them three bills. After a short address their speaker presented them to the King for his assent. One of them was the “Act to prevent Fraudes and Concealments of His Majestyes Customes and Subsidyes.”
“Then His Majesty gave Command for the passing of these Bills following; the Clerk of the Crown reading the Titles, and the Clerk of the Parliaments pronouncing the Royal Assent. . . . ‘Le Roy le veult.’”32 The same day Parliament adjourned.33
Whether a public bill would have been passed to remedy a specific instance without previous discussion or request by the customs officials (such as the petition of the surveyor general) may well be questioned. But the “Act to prevent Fraudes and Concealments” certainly reeks of Spanish tobaccoes and James Haberthwaite holding his doors against the officers.
The act is so important to subsequent discussion that it should be quoted in full.
Be it Enacted by the Kings most Excellent Majesty by and with the advice and consent of the Lords and Commons in this present Parliament assembled That if any person or persons at any time after the first day of September One thousand six hundred and sixty shall cause any Goods for which Custome Subsidy or other dutyes are due or payable by vertue of the Act passed this Parliament Entituled (A Subsidy granted to the King of Tonnage and Poundage and other Summes of money payable upon Merchandize exported and imported) to be landed or conveyed away without due entry thereof first made, and the Customer or Collector or his Deputy agreed with, That then and in such case upon Oath thereof made before the Lord Treasurer or any of the Barons of the Exchequer or cheife Magistrate of the Port or Place where the offence shall be committed, or the place next adjoyning therunto, it shall be lawfull to and for the Lord Treasurer or any of the Barons aforesaid or cheife Magistrate of the Port or Place where the offence shall be committed or the Place next adjoyning thereunto to issue out a Warrant to any person or persons thereby enableing him or them with the assistance of a Sheriffe Justice of Peace or Constable to enter into any House in the day time where such Goods are suspected to be concealed, and in case of resistance to breake open such Houses, and to seize and secure the same goods soe concealed, And all Officers and Ministers of Justice are hereby required to be aiding and assisting thereunto.
Provided alwayes That noe House shall be entred by vertue of this Act unlesse it be within the space of one moneth after the offence supposed to be commited.
Provided alsoe That this Act shall continue in Force until the end of the first Session of the next Parliament and noe longer.
Provided alsoe That if the Information whereupon any House shall come to be searched shall prove to be false, that then and in such case the party injured shall recover his full damages and costs against the Informer by Action of Trespasse to bee therefore brought against such Informer.34
There are several things to be noted about this act. In the first place the warrant was to be issued only upon oath that customable goods had been landed without payment. And if the information was false then the party injured was to recover full damages against the informer. Besides, the search had to be made within one month after the offense was committed (which may have been one reason for rushing the bill through Parliament). Furthermore, the warrant was good only in the day time and only with the assistance of a local official—a sheriff, justice of the peace, or constable. But the warrant could be issued to anyone and in case of resistance gave authority to break into suspected houses.
Although originally in force only until the next session of Parliament, the act was subsequently re-enacted and made permanent.35
This was a search warrant indeed but it was all very specific and very limited. It may have satisfied the Commissioners of Customs or it may have prompted them to make another move to enlarge their powers.
Parliament reassembled on 6 November 1660.36 On Monday, the nineteenth of the same month “The humble Petition of Christopher Metcalfe, Surveyor General of his Majesty’s Customs, was read”37 in the House of Commons. This time we have no record of a similar petition to the House of Lords. Perhaps the surveyor general had learned a good deal of lobbying procedure since the first session.
It seems that some goods which were detained for want of customs payment had been forcibly rescued and the customs officers resisted “in doing their Duties.”38 What remedy the petition was requesting we are not told; but it was referred to a committee who were ordered to send for all the people concerned in the case and were told to examine the matter of fact and to report to the House. Sir George Downing, who was long prominent in mercantile affairs and is credited with furthering the Navigation Act of 1660,39 was given special care of the business.40
On Saturday, Sir George reported from the committee the state of fact but we are not given too clear a picture of what actually happened. It seems that some “Persons, called Smugglers, in conveying away secretly several Goods”41 had given the customs officials a rather rough time of it. At all events, the House of Commons seemed to be quite moved by the account and took the action of several resolutions.
In the first place the committee, who had reported, was ordered to prepare suitable remedies “for preventing the like Inconveniences for the future.” One wonders if the “Inconvenience” was the lack of a general search warrant. If the customs officials had to go through the process outlined in the “Act to prevent Fraudes and Concealments,” the smugglers may well have managed to keep one step ahead of them. The committee was also urged to make the customs revenue more certain and settled, and finally, to consider a bill prepared for that purpose in the hands of Sir Wm. Vincent.
The Commons was also determined to punish the offenders. His Majesty’s attorneys were “desired to take notice of this Riot; and to take effectual Order, that the Rioters be proceeded with in the King’s Bench, and in the Court of Exchequer, according to Law.” Furthermore, a delegation was sent to the chief justice of the King’s Bench to give him an account of the affair and to request his “special Care, that Justice may be done upon the Offenders.” The lord chief baron of the Exchequer was also to be informed and desired “that his Majesty’s Duties for Customs be duly answered,” that the criminals be prosecuted and “that the Goods in Question be not restored.”42
Just what the committee decided about the bill or exactly what the bill was about, we do not know. “A bill for better gathering of the Customs” was reported on 7 December among the bills which were still to be considered.43
But the session was on its last legs. Parliament was to be dissolved on 29 December and with a couple of days holiday at Christmas there was little time to do anything but the essentials. Even as it was, candles had to be brought in for some evening sessions.44 Of course, it might well have been that the Commons were not interested in giving any more power to the customs officials. The bill may have been killed in committee. But whether it was time or disinclination, the bill was never enacted. The customs officials had gotten all the assistance they could for the present.
14 Car. II c. 11
While the legislation on search warrants enacted by the first Parliament of Charles II is fairly clear, that of his second Parliament is a little more confusing. Perhaps it is because this Parliament was much more to the King’s liking and more responsive to his wishes and hence more vague and general in its legislation. Perhaps the opponents of the royal prerogative lacked the intelligent leadership to perceive the full implication of the general phrases and vague terms employed in legislative enactments. Whatever the reasons, we have a corresponding lack of certitude on this second legislation concerning writs of assistance. We should, however, find out what we can.
After elections, a new Parliament opened on Wednesday, 8 April 1661,45 and like all Parliaments, particularly those of the Stuarts, soon started a discussion of the revenue.46 What became a particular concern for them (and for a slightly different reason particularly concerns our present discussion) was the discrepancy between the actual revenue returns and the income planned by the previous Parliament. Sir Philip Warwick was ordered to report to the House of Commons “the State of the Particulars,” in order that any deficiency in His Majesty’s revenue might be considered.47 On 18 June 1661, he reported that the customs, and excise, and crown lands, and wine licenses, and so on, would all fall short of the estimated value and that the “Total of the Defects” would be “Two hundred Sixty-five thousand Pounds.” For his part, “he recommended very earnestly the Laws for coercive Powers to be strengthened.” The Commons in turn ordered a committee appointed “to inspect and examine the Business of the King’s Majesty’s Revenue, and the Particulars proposed to make it up.” The committee was empowered to set up subcommittees, receive petitions “And to send for Persons, Papers, Witneses, and Records.”48
The committee had much to occupy their energies49 and were finally ordered to sit de die in diem until they had finished.50 How much time was devoted to a discussion of strengthening the “Laws for coercive powers” is not known; but it is known that the committee “had conferred with the Officers of the Custom and Excise, and his Majesty’s Surveyor General [who had petitioned the previous Parliament for powers], and the Auditors of the Revenue, and others who were best able to give Information concerning the Particulars, whereof his Majesty’s Revenue, was to be made up.” The conclusion was much the same as that previously advanced by Sir Philip Warwick “that the Defects [of the revenue] . . . amounted to near Three hundred thousand Pounds; and that new Powers should be added for the better bringing in of the Revenue.” The Commons resolved to take up the matter the very next day in a grand committee.51
The next day, Sir Robert Atkins was made chairman of the discussion, replacing the Speaker, Sir Edward Turner.52 “After long and serious debate,” the Commons had made these resolves: to advance the King’s revenue by a general excise tax on all ale and beer; to levy “by way of Poll”; and, finally, to continue the discussion at the next meeting of Parliament (on Monday) “to settle the Proportions.”53 There is no hint that any of this involved tightening the revenue service—much less descended into particulars such as the writs of assistance. The Commons seemed much more concerned in settling revenue policy than in strengthening the “coercive Powers.”
There was no report on the revenue discussions (if there were any) until the following Thursday and then only to say that no resolution had been taken.54 There was a good deal of subsequent discussion—impositions on salt, paper and parchment were considered—but there was no definite decision.55 At the end of July, Parliament adjourned56 having resolved to “take into Consideration the Advance of the King’s Majesty’s Revenue” “at the First time of their meeting after this Recess.”57
Parliament reassembled on Wednesday, 20 November 1661, and the King in his opening speech reminded the “Gentlemen of the House of Commons” “of the crying Debts which do every Day call upon Me; of some necessary Provisions which are to be made without Delay for the very Safety of the Kingdom; of the great Sum of Money that should be ready to discharge the several Fleets when they come Home; and for the necessary Preparations that are to be made for the setting out new Fleets to Sea against the Spring. . . .”58 When the Speaker “reported” to the Commons the “effect” of His Majesty’s speech, it was resolved to take into consideration the advance of the King’s revenue “the first publick Business To-morrow Morning.”59
Thereafter the pressing problem was not the reorganization of the customs service nor the writs of assistance, but the immediate sum to be “speedily raised for Supply of the King’s Majesty’s present Occasions.”60 It was not until the middle of January that the Commons got around to the “Bill for preventing Frauds and Abuses to his Majesty, in relation to his Duties of Customs.” It was read for the first time on 18 January.61
When the bill was read the second time a proviso was offered, penalizing those officers of the customs who held up anyone by putting him out of his turn, or who overcharged, or who denied or delayed a proper customs certificate, or who even detained the goods or merchandise of anyone without just cause. Furthermore, a committee was set up to consider the bill,62 and, besides being empowered to receive proposals for the advance of His Majesty’s customs, they were
to inquire into the Number and Quality of the Officers belonging to the Customs, and their Salaries; and how they hold their Places; and How they have demeaned themselves therein; and who are fit to be removed or continued; and to take into Consideration such Informations and Complaints as shall be offered against any of them, or touching any Frauds or Abuses in the Customs; and to consider of any Proposals, how the Officers may be limited and regulated, and their Fees ascertained; and to bring in a Table of such Fees as they are to receive from the Merchants; and further to consider how the Charge in collecting and receiving the Customs may be lessened; and to receive any other Informations and Complaints that shall be made, or Proposals that shall be tendered, for the Advantage of the King, or Ease of the People, in relation to the Levying of the Customs. . . .63
The whole temper of the discussion seems to be the restriction of the Officers’ powers and not their enlargement. Nothing is said about granting additional searching powers and a good deal is said about “how the Officers may be limited and regulated.” It may be that this Parliament was to grant general search warrants to customs officials, but it would not be gathered from this passage in the Journals of the House of Commons.
This committee on “Frauds and Abuses” seems to have lapsed or dissolved into the subcommittee to consider customs fees,64 for on 4 March it was ordered revived and told to sit de die in diem. When the bill on frauds was finally reported on 14 March, there were a few amendments, alterations, and provisos but we are not told what they were. Some further alterations were made, the whole agreed to and the bill ordered engrossed.65 A few days later the bill was read for the third time.66 During the subsequent debate one proviso was passed and another negatived, but nothing was reported about the powers of the officers.67 Again on the next day (21 March), the debate was resumed and while several amendments were proposed, there was nothing about search warrants. The bill was passed and sent to the House of Lords.68
The House of Lords received the bill, to prevent frauds in the customs, read it twice and gave it to a committee.69 There were several unknown amendments and alterations by the committee which were agreed to by the House and the bill was read the third time, passed,70 and sent back to the House of Commons.71 After a few false starts,72 all of these new amendments from the House of Lords were agreed to by the House of Commons except one;73 over this they asked for a conference.74 The Commons objected to the clause “which is concerning Offenders against that Act to be proceeded against by the Justices of the Peace.”75 After consideration the Lords agreed to the original reading,76 and the bill was accepted in that form by the King on 19 May 1662.77
There was little discussion, then, that was explicitly reported by the House of Lords. The few phrases we do have indicate no questioning of the writ of assistance as proposed in this bill “for preventing Frauds and regulating Abuses in his Majesties Customes.” Oddly enough, this is a very important point, for, as will be discussed somewhat later, the Peers were very particular about who searched their houses and under what authority. Even when the Commons were willing to grant fairly general searching privileges to the King’s officers, the Peers insisted that their houses be exempt from any such provision. It would indeed be strange, if the writ of assistance mentioned in this bill for preventing frauds was understood to be a more general search warrant than any other provided by Parliament, and the Peers, who fought every other general search measure, had nothing to report about this instance. It is an eloquent silence which leads one to question the interpretation of this bill as providing a general writ of assistance.
But what precisely did the bill provide in the way of search and search warrants? In the first place the power to search ships and vessels was quite general and was had in virtue of the customs office.
And be it hereby alsoe enacted That the said person or persons which are or shall be appointed for managing the Customes and Officers of His Majesties Customes and theire Deputies are hereby authorized and enabled to goe and enter aboard any Ship or Vessel as wel Ships of War as Merchant Ships and from thence to bring on shoar all Goods prohibited or uncustomed except Jewels if they be Outwards bound and if they be Ships or Vessels Inwards bound from thence to bring on shoare into his Majesties Store house as aforesaid all smal Parcels of Fine Goods or other Goods which shall be found in Cabbins Chests Trunks or other small Package or in any private or secret place in or out of the Hold of the Ship or Vessell which may occasion a just suspition that they were intended to be fraudelently conveyed away And all other sorts of Goods whatsoever for which the Dutyes of Tonnage and Poundage were not payed or compounded for within twenty dayes after the first Entry of the Ship to be put and remaine in the Store house aforesaid until his Majesties Duties thereupon be justly satisfied unlesse the said person or persons which are or shall be appointed by His Majesty for managing the Customs and Officers of the Customes shall see just cause to allow a longer time and that the said person or persons which are or shall be so appointed to manage the Customs and the Officers of the Customs and their Deputies may freely stay and remain aboard untill all the Goods are delivered and discharged out of the said Ships or Vessells . . .
And be it further enacted by the Authority aforesaid That in case after the clearing of any Ship or Vessel by the person or persons which are or shall be appointed by His Majesty for managing the Customes or any their Deputies and discharging the Watchmen or Tidesmen from attendance thereupon there shall be found on board such Ship or Vessell any Goods Wares or Merchandizes which have beene concealed from the knowledge of the said person or persons which are or shall be so appointed to manage the Customes and for which the Customes Subsidy and other Dutyes due upon the Importation thereof have not beene paid then the Master Purser or other person taking charge of such Shipp or Vessell shall forfeit the sum of One hundred pounds . . .78
This was clear enough, and seems to have caused little dispute. The searching of vessels was not the problem. It was the authorization for the search of houses that was to cause all the difficulty. The clause reads as follows:
And it shall be lawfull to or for any person or persons authorized by Writt of Assistance under the Seale of his Majestyes Court of Exchequer to take a Constable Headborough or other Publique Officer inhabiting neare unto the place and in the day time to enter and go into any House Shop Cellar Ware-house or Room or other place and in case of resistance to breake open Doores Chests Trunks and other Package there to seize and from thence to bring any kind of Goods & Merchandize whatsoever prohibited and uncustomed and to put and secure the same in his Majesties Store house in the Port next to the place where such seizure shall be made.79
There are several things to be noted about these clauses and phrases. In the first place the search was to be conducted in virtue of a warrant and not in virtue of the office as was done on shipboard. The warrant was issued from the Court of Exchequer and was technically a writ of assistance. It was limited to daytime use and required the presence of a local official. It explicitly included the right to overcome resistance. The phrase that it was to “be lawfull to or for any person or persons” was restricted to customs officials by the sixteenth clause of the same act.80
The whole problem of the act, however, was not who had use of a writ of assistance but what was a writ of assistance. Was the writ a general standing warrant issued to each customs official once and for all which he could then use at his discretion anywhere to search for uncustomed goods? Or was it the specific writ envisioned by 12 Car. II c. 19 where an oath was required to start the process and the informer liable to suit for damages? Perhaps we can find out.
It is to be noted that this session of Parliament had been advised to strengthen the “Laws for coercive Powers” and to add “new Powers. . . for the better bringing in of the Revenue.” Was this new warrant intended to be a vast extension over the old? There is nothing in the act to indicate that it was; nor, other than the phrases quoted, anything in the debates. On the other hand, there are a few things to indicate that it was not.
The enacting language and conditions set down are much the same in both laws:
|12 Car. II c. 19||14 Car. II c. 11|
it shall be lawfull to and for the Lord Treasurer or any of the Barons aforesaid or cheife Magistrate of the Port or Place where the offence shall be committed or the Place next adjoyning thereunto to issue out a Warrant to any person or persons thereby enableing him or them with the assistance of a Sheriffe Justice of Peace or Constable to enter into any House in the day time where such Goods are suspected to be concealed, and in case of resistance to breake open such Houses, and to seize and secure the same goods soe concealed, And all Officers and Ministers of Justice are hereby required to be aiding and assisting thereunto.81
And it shall be lawfull to or for any person or persons authorized by Writt of Assistance under the Seale of his Majestyes Court of Exchequer to take a Constable Headborough or other Publique Officer inhabiting neare unto the place and in the day time to enter and go into any House Shop Celler Ware-house or Room or other place and in case of resistance to breake open Doores Chests Trunks and other Package there to seize and from thence to bring any kind of Goods & Merchandize whatsoever prohibited and uncustomed and to put and secure the same in his Majesties Store house in the Port next to the place where such seizure shall be made.82
Furthermore, 14 Car. II c. 11 was not just an enactment—or reenactment—of the writ of assistance. It included a variety of measures intended to plug the holes in the navigation laws of the mercantile system: e.g., entries were to be made on oath, warships were subject to search, armed resistance to customs officials heavily penalized,83 and the provisions on English ships clarified. This could well cover any intention to broaden the powers of the customs officials. Besides, as we have seen,84 the Commons while strengthening the mercantile system seemed to want a restriction in the customs officials. Thus, in this act they tagged on the limitation of search and seizure to officers properly appointed.
Thus, too, the first act (12 Car. II c. 19) was not allowed to lapse but was continually re-enacted. If 14 Car. II c. ii really intended a new and general search warrant and was meant to supersede the previous act, there would be no point in continually re-enacting the old outmoded form, and 12 Car. II c. 19 would have been allowed to die. But if one act was explained by the other, then they should both be re-enacted, as they were. Any general writ of assistance would have made 12 Car. II c. 19 completely anachronous; yet it was constantly passed as if it were an explanation of 14 Car. II c. ii.85
Unfortunately, there is no report of the debate or discussions on the confirmation of the previous act to prevent frauds (12 Car. II c. 19). It was included in a general confirmatory act86 and passed with no reported discussion of search warrants.87
The same is generally true of the bill for the improvement of the excise. Before Parliament adjourned in July, the Lord Treasurer was asked to send commissions to all the counties directed to the members of Parliament and the justices of the peace “to inspect the Revenue of the Excise upon Beer and Ale, and other Liquors; and to inform themselves, against the next Meeting of the Parliament, how the Excise came to fall short in the Proportion of Three hundred thousand Pounds per Ann. and how, for the future, it may be advanced with the most Ease to the People, and collected with the least Charge to his Majesty.”88 But there was no subsequent discussion of search warrants as part of the plan, and the bill seems to have died in committee, for it was not passed until the next session.89
It is from the discussions of the militia bill or “An Act for ordering the Forces in the several Counties of this Kingdom”90 that we derive most of our light on the ideas of this Parliament concerning search warrants. The bill is important to us principally because we have some notation of the debate on the provisions for searching houses for arms.
The whole problem of military forces and arms had given Parliament a good deal of concern since the Restoration. The first Parliament of Charles had been mostly interested in paying salary arrears and disbanding the army.91 The present Parliament seemed more concerned with the preservation of the royal person and royal prerogative. It early passed “An Act for Safety and Preservation of His Majesties Person and Government against Treasonable and Seditious practices and attempts,”92 and not much later introduced the whole militia question which resulted eventually in a discussion of the search problem.
On 14 May 1661, Sir Heneage Finch, the King’s solicitor general,93 and Sergeant Charlton were ordered to prepare a bill for settling the militia.94 It did not take long, for the bill was read for the first time three days later.95 After the second reading on 21 May96 real, serious debate began. It was resolved to discuss the bill every morning at ten o’clock until its completion.97 There were occasional reports of “much Debate”98 with “little Progress”99 or “some Progress”100 or “further Progress,”101 but it became evident that a temporary measure would have to be passed if anything at all was to be accomplished before the first adjournment.102 This temporary measure, “An Act declaring the sole Right of the Militia to be in King and for the present ordering & disposing the same,”103 was read and finally passed with amendments and provisos on 17 July.104 Within a week, the House of Lords had passed the bill105 and it was accepted by the King on the day of adjournment.106
Parliament had been reassembled about a month, and the House of Commons had reconstituted the committee on the militia bill,107 when the King sent a message to the House of Lords, “that, besides the Apprehensions and Fears that are generally Abroad, His Majesty hath received Letters from several Parts of the Kingdom, and also by intercepted Letters it does appear, that divers discontented Persons are endeavouring to raise new troubles, to the Disturbance of the Peace of the Kingdom. . . .”108 The Lords conferred with the Commons and a joint committee was appointed to sit during the Christmas recess.109 But beyond hearings the committee did little or nothing. It was too near and too like the Commonwealth. Ugly rumors got around about “a Plot to govern by an Army,”110 and as the Lords seemed unimpressed by the royal report, the joint committee dissolved as soon as Parliament reassembled.111 The committee of the Commons, however, “was very sensible of the real Danger; and hoped this House [of Commons] would be so too. . . .”112 It was in such an atmosphere that the Commons on the very next day resolved itself into a committee of the whole “to consider of the Militia; and also . . . such Proposals as shall be offered, for preventing the present Dangers, and securing the Peace of the Kingdom.”113
The debate was quite extensive114 with some progress and occasionally “a good Progress”115 being made. There was even talk of finishing the bill about the middle of February,116 but it was still in committee when the King called the Commons up to Whitehall on 1 March.117 We have no report of what the King said, but the Commons came back and resolved that the “Revenue, the Militia, and Highways, be first taken into Consideration, and in Order proceeded in: And that no other Business shall intervene, till these be finished.”118 Three days later the Commons finished the militia bill,119 and on 7 March it was ordered to be engrossed with its alterations and additions, amendments and provisos.120 Finally, after a little more debate, the bill was passed and carried up to the House of Lords.121
When the bill came up to the House of Lords,122 the search provisions were quite general: the lieutenants of the army or their deputies could issue warrants to search for arms in the possession of anyone they considered dangerous to the peace of the kingdom. No time was excluded and no place. A local official was required to be present.123
In the House of Lords the bill was read for the first time on 20 March,124 but it was almost a month later before the bill was approved with some very important amendments.125 The Peers had balked at the general search provisions and added a proviso that severely limited the search of their own houses and even added some protection to others: “Provided that no such Search be made in any house or houses between Sun setting and Sun rising other then in Cities and Townes Corporate And that no house of any Peere of this Realme be searched but by immediate Warrant from His Majesty under His Sign Manual.”126 It seems the Lords wanted to exclude their houses from search except by immediate warrant of the King, and then exclude their country houses from all night searches.
With this and other amendments (which are of little concern for our discussion) the bill was shipped back to the House of Commons.127 Here all these amendments were subjected to debate,128 and by 3 May the Commons had reached the amendment on search. They did not particularly care to see the houses of the Peers given so many exclusive privileges. Consequently, they sought to broaden the first half of the proviso to include more than the cities and corporate towns of the Commoners. They added the “Suburbs” and “Market Townes, and houses within the bills of Mortality.”129 Then, perhaps for clarity’s sake, they added this clause: “where it shall and may be lawfull to search in the night time by Warrant as aforesaid if the Warrant shall so direct and in case of resistance to enter by force.”130
Instead of clearing up matters, however, the clause only engendered further doubts and debate. This added clause introduced into the bill for the first time the use of force in case of resistance in conducting a search. By explicitly making it lawful to use force in the nighttime the question naturally arose “Whether, in case of Resistance in the Day-time, there was sufficient Power given by the Act to enter into any House to make Search for Arms. . . .” The question was given over to a committee to consider and prepare a paragraph authorizing force in the daytime “if they find it necessary.”131
On Monday, the next calendar day, the Committee reported they thought it was necessary and submitted this clause to the consideration of the House: “And that in all places and houses whatsoever where search is to be made as aforesaid it shall and may be lawfull in case of resistance to enter by force. . . .”132 The amendment was twice read and agreed to without a recorded vote.133 The fact that the Committee and House thought this explicit clause a necessary addition to make the use of force in the daytime lawful may be an indication that without such an explicit clause in any bill, the use of force was considered unlawful; or it may only mean that as force had been authorized for a night search, it was thought better for this bill, also, to make it explicitly lawful in the day-time.
The House of Commons then began a discussion of the second half of the proviso sent from the Peers which excluded all houses of the Peers from search except by an immediate warrant from the King. Again the Commons balked at such exclusive privileges. Various alterations were suggested to limit the exemption to the actual dwelling houses of the Peers and to broaden the authority under which search could be made. The proviso was finally made to read
Provided that no such Search be made in any house or houses between Sun setting and Sun rising other then in Cities and theire Suburbs and Townes Corporate Market Townes and houses within the bills of Mortality where it shall and may be law full to search in the night time by Warrant as aforesaid if the Warrant shall so direct and in case of resistance to enter by force And that no dwelling house of any Peere of this Realme be searched by vertue of this Act but by immediate Warrant from His Majesty under his Sign Manual or in the presence of the Leiutenant or one of the Deputy Leiutenants of the same County or Riding And that in all places and houses whatsoever where search is to be made as aforesaid it shall and may be lawfull in case of resistance to enter by force.134
There are many possibilities why the phrase “by Vertue of this Act” was added. It may have been just good legislative practice; it may have meant that the Commons wanted it understood that the houses of Peers could be subject to search under a particular local warrant; it may have meant that the Commons were conscious of the bitter fight with the Peers about a provision for search that had shelved the bill to regulate printing;135 or it may have been that the Commons had in mind general writs of assistance. Perhaps it was a combination of all of these reasons. In view of the animosity aroused by the printing bill, it would be natural, if that was principally in the minds of the Commons. In the absence of any explicit mention of the writs of assistance, there is no way of telling if the Commons thought of them at all at this time; and only a consideration of the whole session of Parliament can give us any indication as to whether the Commons considered them general or not.
This was not the only amendment of this bill debated in the Commons,136 but it is the only one that throws any light on what this session of Parliament thought of general search warrants, and/or writs of assistance. By Saturday, 10 May, the Commons had completed their discussions and sent a request to the House of Lords for a conference on the bill. It was granted the same day in the “Painted Chamber.”137 Sergeant Charlton principally conducted the discussions for the Commons and John, Lord Robartes, lord privy seal, for the Peers.138 On the following Monday a long report was made to the House of Lords on the results of the conference. Among other things, Sergeant Charlton in defending the position of the Commons had advanced the argument that “‘The Powers that were granted in this Act were such as never were granted by Parliament.’”139 While the power of search was not mentioned at that time, it is well to note that this bill was considered extraordinary. Besides, Sergeant Charlton did have something to say about the search of houses. After presenting the amendments adopted by the Commons,140 he had given these reasons for their adoption:
“He said, The Commons thought the Suburbs equally dangerous as Cities and Market Towns, and Houses within the Bills of Mortality as Towns Corporate. And as to the searching of the House of any Peer, they paid so much Respect, as to have it done in the Presence of Lieutenant or Deputy Lieutenant, being the chief Men in the County. The Reason, he said, was, That the Houses of Commoners were their Castles as well as the Lords Houses, and could not be broken open. But they were willing to part with their Privilege, though they had not many left, for the Public Safety.
“The Lords, he said, had greater Estates, and more to lose, than the Commons; and therefore were more concerned in the Public Safety; so as, if Arms were laid up in the House of a Peer, to stay until the King’s Sign Manual cometh, might lose the Opportunity of taking the Arms, or preventing of a Design.
“Besides, the Lords had divers Houses where they did not reside, And if there were any Sanctuary known exempt from searching, it is probable such Places might be made dangerous Repositories; and yet they pay so much Respect to the Lords, as to have such Places searched in the Presence of such unto whom the Safety of the County is committed.”141
Beneath a certain amount of parliamentary deference to the Lords, it is clear that the Commons did not much like the houses of the Peers to be completely exempt from the search warrant provided in the bill. It also seems clear that they considered their houses generally free from forcible search, a privilege they surrendered at this time only in the interests of the “Public Safety.”
Much the same opinion of the security of their Houses was presented by the Speaker of the Commons at the end of the session when he was presenting a revenue bill for the King’s approval.
“In the next Place, [he said] according to your Majesty’s Commands, we have surveyed the wasted Revenue of the Crown; and, in Pursuance of our Promises, do humbly propound unto Your Majesty a fair Addition. We considered, that great Part of Your Majesty’s Revenue is but for Life; and both that, and also Part of the rest, depends upon the Peace, the Trade, and Traffic of the Nation, and therefore may be much impaired by Wars with Foreign Nations. This put us upon the Search of something that might arise within our own Walls, and not be subject to such Contingencies. We pitched our Thoughts at last upon those Places where we enjoy our greatest Comforts and Securities, our Dwelling houses; and, considering even that Security is secured unto us by Your Majesty’s Vigilance and Care in the Government; we have prepared a Bill, whereby we desire it may be enacted, That all Houses in this Kingdom, which are worth in Yearly Value above Twenty Shillings, and not inhabited by Almsmen, may pay unto Your Majesty, Your Heirs and Successors, Two Shillings Yearly for every Chimney-hearth in each House for ever.”142
Allowing for a certain amount of sheer debate, the Commons seem to have been quite conscious of the implications of a general search warrant, and equally conscious that it was to be rarely granted. Keeping in mind the report of the King at Christmas time and how impressed the committee of the Commons had been with the “real Danger” of a revolution, one might well wonder if anything less than a threat to their peace—and hence also to their economy—would have forced the Commons to grant so broad a privilege. Even if this were not true, one could still question whether the Commons, or the Lords, after so much discussion on the right of search, would have parted with this privilege without any reported discussion, as would be the case if the writ of assistance in the bill to prevent frauds was understood to be a general search warrant with the right of forcible entry. The more so, if we look further and see how tenacious the Lords continued to be in protecting their houses from search.
In debating the amendments brought up from the House of Commons, the Lords were willing to make some concession about the search of their houses but were not willing to go as far as the Commons wanted to push them. The Commons had proposed that the presence of the lieutenant or deputy lieutenant of the county be sufficient warrant for the search. The Lords held to their original intention of having the warrant come from the King and made the amendment read: “And that no dwelling house of any Peere of this Realme be searched by vertue of this Act but by immediate Warrant from His Majesty under His Sign Manual or by other Directions from His Majesty, and either Way in the Presence of a Lieutenant or Deputy Lieutenant.”143
With this and other amendments, a conference was arranged and the bill returned to the House of Commons.144
On the next day, the King sent a message warning Parliament that he was leaving in a couple of days and wished them to finish the bills on the militia and printing and have them ready for his signature.
The House of Commons in debating the amendments they had received from the House of Lords took full advantage of the concession granted by the Lords by retaining the clause “other Directions from His Majesty” but on the essential point of making the houses of the Peers subject to search by the lieutenants and deputy lieutenants, they held their ground.145 They asked the Lords for a conference and returned the bill.146
The Lords must have realized they had been trapped for in their debate they refused to agree to this new amendment of the Commons but went back to the reading as it was first amended by the House of Commons.147 This seems to have ended the dispute on the right of search, although the bill went through two more conferences148 before the Lords granted the wishes of the Commons on the power of lieutenants and deputies to fix penalties, and the Commons reluctantly agreed to the Lords’ provision on the assessment of Peers.
The militia bill had been passed under the pressure of closing time and there had been a good deal of discussion about matters that had nothing to do with the right of search. But from those passages which do, it is quite clear that the Peers were very tenacious of their immunity from forcible search and even the Commons recognized it as one of the few privileges they still possessed. Apparently it was something to be rarely granted and then only in such an emergency as would justify the militia bill itself.
The same attitude on the part of the House of Lords and the House of Commons is evident in the discussion of the bill to regulate printing.149 It was in early July, 1661, that the House of Commons “taking Notice, that several traiterous, schismatical, and scandalous Pamphlets have been printed and published since his Majesty’s happy Restauration” ordered a bill to be prepared and brought in “for the Regulation of Printing; and for the calling in of all seditious and schismatical Books and Pamphlets, in whose Hands soever they be.”150 It is not known what happened to this committee and bill but towards the end of the month Sir Heneage Finch, the solicitor general, was told to “bring in a Bill to impower his Majesty to regulate the Press, till it be otherwise provided for.”151 The very next day the bill was read for the first and second time and given to a committee of whom Sir Heneage Finch and Sergeant Charlton were both members.152 Several amendments were reported and adopted and the bill was ordered to be engrossed.153 On 27 July the bill was read again and passed154 and sent up to the House of Lords.155
Parliament was to adjourn in about three days which left the Lords little time if the bill was to be passed at this session. On the same day it was received, the bill was read the first and second times and given to a committee.156 The committee had some alterations to make, one of which was quite important: the Lords wanted their houses exempt from search.157
The Commons in turn could not agree to this amendment and asked for a conference with the Lords about it.158 Among others, Sir Heneage Finch was asked to prepare for the conference the reasons of the Commons for their refusal. In the first place, he reported to an agreeing House, if this exception were allowed, the bill could not prevent the general “Mischief”; because it was quite possible that the crime envisioned by the bill would be attempted by the servants of the Lords without their knowledge, especially in their absence. Besides, for books of treason and sedition, there should be no sanctuary. Further, there was danger from books “tending to the Overthrow of the Religion established” if there were any “Privileged Place.” Again (and more importantly for our discussion): “4. All Houses, as well of Commons as Peers, are equally the Castles and Proprieties of the Owners: And therefore if all the Gentry of England submit their Houses for publick Safety, it would look as if we were prodigal of the Liberty of the Gentry, if we admit this Exception.”159
Here, then, we have both houses of Parliament conscious of a general search provision: the Lords strenuously opposing any search of their houses under such blanket authority; and the Commons conscious of the concession but claiming all houses should be equal in view of the “publick Safety.” It was the same reason the Commons later used to justify the general search warrant in the militia bill, and it looks as if the same men were connected with it: Sergeant Charlton and Sir Heneage Finch.
The House of Commons asked for and the Lords agreed to a conference to discuss the amendment excluding the houses of Peers from search.160 It was at this conference that the Commons presented their reasons against the amendment granting exemption. The Lords reported the reasons of the Commons back to their own House and again took up the debate.
But the Lords not agreeing to the Reasons of the House of Commons; a Proviso was offered, as an Expedient concerning the searching of the Houses of Peers, by Order of Six of the Privy Council, and not otherwise; which, being read, was agreed to, and ordered to be offered to the House of Commons at a Free Conference; with this Declaration and Caution, Not to forsake their Lordships First Amendment, but to be in Force unless the House of Commons do agree to this Proviso.161
The Lords requested another conference with the Commons to present this proviso concerning the search of the houses of Peers “by Order of Six of the Privy Council.”162 The conference was granted and the Commons took into consideration this new proviso of the Lords. It is not known exactly how this proviso read, but judging from the action of the Commons it does not seem to have been much of a concession. The debate in the Commons seems to have been quite short:
And the Question being put, That this House doth agree to the said Proviso; It passed in the Negative.
The Question being put, to adhere to the Bill for regulating unlicensed and disorderly Printing;
It was resolved in the Affirmative.163
Another conference was desired to return the bill with this negative note to the House of Lords.164 By this time (the third conference on the same day on the same bill and same amendment) tempers seem to have worn thin. Sir Heneage Finch, the solicitor general, told the conference that the Commons had considered the proviso and “‘they find not Reason enough to consent to the same: And Mr. Solicitor told their Lordships, he had only Power to adhere, and to receive no further Reasons.’”165 This refusal to entertain any more debate at a free conference seems to have been the last straw. The Lords resolved to have another conference with the House of Commons and return the bill
and to let them know, “that their Lordships do adhere to their Proviso, and do forbear to give any further Reasons (though much could be said), because it was delivered at a Free Conference, that the Commons would hear no further Reasons; which their Lordships conceive is contrary to the Proceedings and Liberty of Parliament in Transacting Businesses between the Two Houses.”166
The Commons granted the conference (number four) as requested, and the solicitor general and lord privy seal met again. The message from the House of Lords was delivered, and the bill concerning printing was offered “‘to Mr. Solicitor, who refused to receive it; and so his Lordship left it upon the Table in the Painted Chamber, and came away.’”167
Apparently the bill was now neither in the House of Lords nor in the House of Commons, but was stranded on a table in the “Painted Chamber.”
The Commons did one thing more, they passed a resolution of commendation for those who had represented them:
Resolved, That the Persons, who managed the Conference with the Lords upon the Bill for regulating unlicensed and disorderly Printing, have done well in the Managing thereof, and leaving the Bill with the Lords: And that Mr. Sollicitor-General, who was chiefly intrusted with this Business, have the Thanks of the House returned to him for his Care and discreet Carriage therein.
And Mr. Speaker did accordingly return Mr. Sollicitor the Thanks of the House.168
Allowing a certain amount of this fight to blue Monday, a summer day, the end of the session, and Parliamentary privilege, it is still obvious that the Lords were in no mood to grant a general searching permit for their houses even for the “publick Safety.” The Commons, too, were certainly conscious of their privileges and the criticism of their constituents even though they may have been more ready to part with them. Search warrants were not to be thrown around lightly.
This little dispute hurt all progress on the printing bill. Of course, nothing was done before the summer recess which began the very next day. Parliament reassembled on 20 November 1661, and about three weeks later the worried House of Commons sent up a message to the Lords to put them in mind of the printing bill.169 The Lords ordered the attorney general to bring in a new bill after the Christmas recess.170 On 16 January the bill was read for the first time in the House of Lords.171 The next day it was read again and buried in a committee.172 It was not until 22 April that it was reported with amendments and alterations.173 Within a week it was passed and sent to the House of Commons.174 This printing bill contained a long article on the search of houses which eventually was to read this way:
And for the better discovering of printing in Corners without Licence Be it further enacted by the Authority aforesaid That one or more of the Messengers of his Majesties Chamber by Warrant under His Majesties principal Secretares of State or the Master and Wardens of the said Company of Stationers or any of them shall have power and authority with a Constable to take unto them such assistance as they shall thinke needfull and att what time they shall thinke fitt to search all Houses and Shops where they shall knowe or upon some probable reason suspect any Books or Papers to be printed bound or stitched especially Printing Houses Booksellers Shops and Warehouses and Bookbinders Houses and Shops and to view there what is imprinting binding or stitching and to examine whether the same be licensed and to demand a sight of the said License and if the said Booke soe imprinting binding or stitching shall not be licensed then to seize upon so much thereof as shall be found imprinted together with the several Offenders and to bring them before one or more Justices of the Peace whoe are hereby authorized and required to commit such Offenders to Prison there to remaine untill they shall be tried and acquitted or convicted and punished for the said Offences. . . .175
The bill also contained an important proviso on the search of the houses of Peers. As it came from the House of Lords it read:
Provided alwaies That no search shall be att any time made in the House or Houses of any the Peers of this Realm But by special Warrant from the Kings Majestie under His Sign Manual or under the Hand of one or both of His Majesties principal Secretaries of State or for any other Books then such as are in printing or shall be printed after the Tenth of June One thousand six hundred sixty two Any thing in this Act to the contrary thereof in any wise notwithstanding176
In the House of Commons the bill was read on 2 May177 and on the following day given to a committee.178 About the middle of the month the bill was reported with amendments and provisos179 and on the next calendar day it was debated by the Commons.180 Just at this time the Lords sent two reminders of the bill to the lower House.181
The Commons had something very particular to say about the proviso the Lords had put in on searching the houses of Peers. Perhaps the Commons were mindful of the obstinacy the Lords had shown on the previous bill which had died of just such a proviso. Perhaps they were also mindful of their own former argument that “All Houses, as well of Commons as Peers, are equally the Castles and Proprieties of the Owners,”182 for they let the proviso stand. But they added a very significant amendment including in the exemption from search the houses of all those who were not connected with the printing trade. The proviso was eventually made to read:
Provided alwaies That no search shall be att any time made in the House or Houses of any the Peers of this Realm or of any other person or persons not being free of or using any of the Trades in this Act before mentioned but by special Warrant from the Kings Majestie under His Sign Manual or under the Hand of one or both of His Majesties principal Secretaries of State or for any other Books then such as are in printing or shall be printed after the Tenth of June One thousand six hundred sixty two Any thing in this Act to the contrary thereof in any wise notwithstanding183
Another proviso which gives some indication of the temper of Parliament was added to limit the duration of the bill to two years.184 It seemed that “publick Safety” could be carried just so far.
The bill went back to the Lords185 and all the amendments were agreed to with slight changes.186 Apparently the Lords were willing to consider the houses of the Commoners in the same light as their own and were only adamant when their houses were threatened with a general search. The same day another conference was held, the slight changes agreed to by the Commons,187 and the bill was presented to the King.188
The real significance in the reported discussions of these bills on militia and printing is the insistence of the Peers on exempting their houses from any general search provisions. Perhaps a certain amount should be allowed for feudal tradition in the discussion on the militia bill; perhaps, too, a certain amount should be allowed to the dissident and Catholic elements for the protection of their libraries in the discussions of the printing bill. But even with these allowances, there seems to have been a genuine reluctance to grant general powers of search which was obstinate enough to kill one bill and threaten two others. It is doubtful if feudal tradition or the dissident party could have been this strong.
This insistence on exemption is congruous with the bill “for preventing Frauds and regulating Abuses” only if the writ of assistance mentioned in that bill is understood in the particular sense of 12 Car. II c. 19. If the writ of assistance as passed by this Parliament was understood to be a general writ, it is too difficult to explain the silence of the Peers—and even of the Commons—on allowing such a general search warrant. They were too vociferous on the militia and printing bills to imagine they would keep quiet on any bill, if they understood that it contained a general search warrant. It may have been passed, but it certainly would have been discussed. General search warrants seem to have been too solidly abhorred to pass without some voice being raised. Even the religious dissenters—if we owe them anything for the bill on printing—would have objected to a general search warrant just to be consistent and to conceal the supposed reason of their objection to the printing bill. In the absence of any objection at all to the writ of assistance in the bill “for preventing Frauds and regulating Abuses” in the light of the insistence of the Peers and even of the Commons on exemption from any general search, it seems strongly probable that the writ of assistance was understood to be a particular writ and not a general one.
“An Act for preventing Frauds and regulating Abuses in the Plantation Trade”
7 & 8 Gul. III c. 22
The third and last act189 which was always introduced in American colonial discussions of the legality of writs of assistance was “An Act for preventing Frauds and regulating Abuses in the Plantation Trade.”190 Designed as a more direct extension of the mercantile system and navigation laws to the American colonies and customs service, the act is brought into the present discussion on writs of assistance by its explicit mention of 14 Car. II c. 11,191 the act discussed in the previous section. The clause which gives particular concern is as follows:
And for the more effectuall preventing of Frauds and regulating Abuses in the Plantation Trade in America Bee itt further enacted by the Authority aforesaid That all Shipps comeing into or goeing out of any of the said Plantations and ladeing or unladeing any Goods or Commodities whether the same bee His Majesties Shipps of Warr or Merchants Shipps and the Masters and Commanders thereof and their Ladings shall bee subject and lyable to the same Rules Visitations Searches Penalties and Forfeitures as to the entring lading or dischargeing theire respective Shipps and Ladings as Shipps and their Ladings and the Commanders and Masters of Shipps are subject and lyable unto in this Kingdome by vertue of an Act of Parliament made in the Fourteenth Yeare of the Reigne of King Charles the Second intituled An Act for preventing Frauds and regulating Abuses in His Majesties Customes And that the Officers for collecting and manageing His Majesties Revenue and inspecting the Plantation Trade in any of the said Plantations shall have the same Powers and Authorities for visiting and searching of Shipps and takeing their Entries and for seizing and secureing or bringing on Shoare any of the Goods prohibited to bee imported or exported into or out of any the said Plantations or for which any Duties are payable or ought to have beene paid by any of the before menconed Acts as are provided for the Officers of the Customes in England by the said last mentioned Act made in the Fourteenth Yeare of the Reigne of King Charles the Second and alsoe to enter Houses or Warehouses to search for and seize any such Goods And that all the Wharfingers and Owners of Keys and Wharfes or any Lightermen Bargemen Watermen Porters or other Persons assisting in the Conveyance Concealment or Rescue of any of the said Goods or in the hindering or resistance of any of the said Officers in the Performance of their Duty and the Boates Barges Lighters or other Vessells imployed in the Conveyance of such Goods shall bee subject to the like Paines and Penalties as are provided by the same Act made in the Fourteenth Yeare of the Reigne of King Charles the Second in relation to prohibited or uncustomed Goods in this Kingdome And that the like Assistance shall bee given to the said Officers in the Execution of their Office as by the said last mentioned Act is provided for the Officers in England And alsoe that the said Officers shall bee subject to the same Penalties and Forfeitures for any Corruptions Frauds Connivances or Concealments in violation of any the before mentioned Lawes as any Officers of the Customes in England are lyable to by vertue of the said last mentioned Act And also that in case any Officer or Officers in the Plantations shall bee sued or molested for any thing done in the Execution of their Office the said Officer shall and may plead the General Issue and shall give this or other Custome Acts in Evidence and the Judge to allow thereof have and enjoy the like Priviledges and Advantages as are allowed by Law to the Officers of His Majesties Customes in England.192
The purport of the act is clear: to give colonial customs officials the same legal authority that officers at home enjoyed. They were to have “the same Powers and Authorities for visiting and searching Shipps . . . as are provided for the Officers of the Customes in England . . . and alsoe to enter Houses or Warehouses to search for and seize any such goods. . . .”193 Actually, of course, the writ of assistance is nowhere mentioned by name194 and least of all is there any indication in the law itself whether the writ mentioned in 14 Car. He. 11 was understood as a general writ or a particular writ. Even when we turn to the debates of the House of Commons and the House of Lords, we derive little or no indication of the intentions of Parliament.
Oddly enough, the bill itself seems to have originated actually if not technically in the House of Lords. During the investigation of the East India Company chartered by the Scottish Parliament,195 the committee in one of its December, 1695, reports included this suggestion:
That the Commissioners of the Customs attend this House, to give an Account, whether, as the Law now stands, there be sufficient Power, in Carolina, Maryland, Pensilvania, and other Plantations where there are Proprietors, to collect the King’s Duty there: and whether there be the same Security to prevent the Inconveniences that may arise to the Proprietors and Planters there, from the Act of Parliament in Scotland for erecting an East India Company in that Kingdom, as there is in other Plantations.196
It was so resolved by the House of Lords. Some ten days later the resolution was renewed and the Commissioners of Customs ordered to attend.197 The Commissioners were also ordered to give an account of the trade for the previous three years.198
Early in January, 1696, the Commissioners of Customs delivered some papers to the House of Lords which may have contained their suggestions on the plantation trade.199 A committee was appointed to consider the papers and hold hearings,200 and one or more of the Commissioners was ordered to attend.201 At a meeting on 8 January, the Commissioners were told that they would do well to prepare the bill mentioned by them with all convenient expediency.202
The first report of the committee was mostly concerned with an annual account of trade the Lords wished the Customs Commissioners to supply.203 Even the committee meeting of 15 January 1696, which some of the Commissioners were again ordered to attend, seems to have been mainly concerned with this account of imports and exports.204 The next day, however, the Commissioners of Customs on being reminded of proposals to strengthen the navigation acts reported themselves in great “forwardness” in preparing such measures.205 Thus, four days later, even though there was still talk of the “Papers touching the Balance of Trade,” the committee of the House of Lords also reported:
“That whereas the Commissioners of Customs had said, ‘The several Plantations under Proprietors by Grants from the Crown are subject to the Acts for Trade, and other Plantation laws, in like Manner as are all other the English Plantations’; yet they are now become sensible, that it would be necessary to strengthen the Acts of Navigation, for a further Security of the Trade of those Plantations; and they are in great Forwardness to offer some Bills to that Purpose.”206
This seems to have ended the discussion in the House of Lords for the present, but on 23 January, in the House of Commons it was “Ordered, That Leave be given to bring in a Bill for preventing Frauds, and regulating Abuses, in the Plantation Trade: And that Mr. Chadwick and Mr. Blathwaite do prepare, and bring in, the Bill.”207 The bill was presented and read for the first time on 27 January 1696,208 but it was not until 12 February that it was read the second time.209 The bill was considered on 9 March;210 several amendments were made and agreed to on 12 March;211 and the whole was passed and sent to the House of Lords on 19 March.212 Only the bare skeleton was reported; and nothing at all on search warrants.
In the meantime the committee from the House of Lords had been holding sessions with Edward Randolph213 in constant attendance, but we learn nothing of the writs of assistance.214 From the floor of the House of Lords we have little more. The bill was read215 and given to a committee of the whole216 and they in turn again ordered Randolph to appear as a witness.217 Some progress was made and then the “Judges” were asked to attend.218 It was even
Ordered, by the Lords Spiritual and Temporal in Parliament assembled, That the Lord Chief Justice of the Court of King’s Bench do attend this House on Thursday next, at Ten of the Clock in the Forenoon, to give the House an Account of the several Laws now in Force concerning the Plantation Trade, and whether those Laws interfere one with the other; and how they consist with the Clause herewith sent, in the Bill for preventing Frauds and regulating Abuses in the Plantation Trade.219
The bill was returned to the House of Commons223 where the amendments were considered and agreed to with a further amendment,224 and the bill was shipped back to the House of Lords.225 Here this bill was approved in its final form226 and, on 10 April 1696 the King gave his royal assent.227
Not too much was reported on the bill itself, and nothing at all on the powers of search. It is to be noted, however, that the bill explicitly reenacts “An Act for preventing Frauds and regulating Abuses in his Majesties Customes”228 and says nothing about the first “Act to prevent Fraudes and Concealments of His Majestyes Customes and Subsidyes.”229 Did this mean that this Parliament considered that the writ of assistance from the Court of Exchequer mentioned in 14 Car. He. 11 had superseded the warrant mentioned in 12 Car. II c. 19? It is possible. Did they consider one as a general the other as a particular warrant? It is possible, but there is no proof.230 In other words, it is impossible to decide from the bill, which does not even mention a writ of assistance explicitly, or from the debates in Parliament, which give us no information on the problem of search, or from the committee books of the House of Lords, just what was intended by this measure. It is just not known, nor are the other laws and other debates of this Parliament much of a help in solving the problem.
As can be seen, neither the bills nor the debates of this Parliament are of any help in trying to come to any positive decision on writs of assistance. At most we have a few hints of disapproval of general warrants and the use of particular ones. There was simply no real discussion of the search problem reported in either House.
What, then, can be said, in summary, of the legislation of Parliament authorizing search warrants for customs officials?
- 1. Parliament passed a very specific law granting searching privileges under a very specific warrant and power to overcome resistance.231 Of this we are certain. There was no mistaking the intention. Even the background of the bill is reasonably clear.232
- 2. The only bill which legislates a writ of assistance by name does not itself indicate whether this was to be a specific or a general search warrant.233 Other legislation of the same Parliament makes it highly probable that it was intended only as a specific warrant.234
- 3. There is no positive evidence anywhere that the writ of assistance was intended by Parliament to be a general warrant and a good deal of evidence to indicate that it was not.
Mr. Jerome Davis Greene spoke informally on the theme: “Milf ord Haven: a Colony of Massachusetts in Great Britain,” referring to the effort made after the American Revolution to settle Nantucket whalemen, first in Nova Scotia, and then in Wales.
Mr. Walter Muir Whitehill offered the following contribution:
IN A Collection of College Words and Customs, published by John Bartlett, the instigator of the often revised Familiar Quotations, at Cambridge in 1851, it is stated that the Latin word mingo was formerly used at Harvard College to designate a chamber-pot.235 In explanation, Bartlett cited an incident in the long career of the Reverend Henry Flynt236 of the Harvard class of 1693, who was a Fellow of Harvard College from 1700 to 1760. “Many years ago, some of the students of Harvard College, wishing to make a present to their Tutor, Mr. Flynt, called on him, informed him of their intention, and requested him to select a gift which would be acceptable to him. He replied that he was a single man, that he already had a well-filled library, and in reality wanted nothing. The students, not all satisfied with this answer, determined to present him with a silver chamber-pot. One was accordingly made of the appropriate dimensions and inscribed with these words:
Mingere cum bombis
Res est saluberrima lumbis.
On the morning of Commencement Day, this was borne in procession in a morocco case, and presented to the Tutor. Tradition does not say with what feelings he received it, but it remained for many years at a room in Quincy,237 where he was accustomed to spend his Saturdays and Sundays, and finally disappeared, about the beginning of the Revolutionary War. It is supposed to have been carried to England.”
The story is entirely understandable, first of all because Tutor Flynt was the kind of man to whom one would like to give a present, if one may judge by an anecdote quoted by C. K. Shipton. “At morning recitation in his chamber, while the students were standing around, he chanced to look in the glass and see one of them behind him lift a keg of wine from the table and take a satisfying drink from the bung-hole. ‘I thought,’ said Father Flynt, ‘I would not disturb him while drinking; but, as soon as he had done, I turned round and told him he ought to have had the manners to have drank to somebody.’”238
In the second place, the old gentleman had been in residence for so many decades that he had already received ex dono pupillorum candlesticks, teapot, covered cup, porringer, and silver in most of the forms for which it is manufactured for polite presentation.239 Thirdly, elegant persons in the eighteenth century saw no reason why their chamber-pots should not be fashioned from precious metal. As late as 1812, Sir Walter Scott and his lively friend J. B. S. Morritt were exchanging jests on the theme. Morritt regaled Scott with the account of Lady Holland’s habit of traveling with a silver chamber-pot. During a visit she made in the “South country,” her hostess’s chambermaid carried “her ladyship’s favorite” to the “underbutler, as she said it was his business to clean plate,” and he in turn “appealed to the Major domo, alleging that a pot-de-chambre, though of silver, did not fall within his jurisdiction. The ladies and gentlemen of the second and third table broke into feuds, and being unable to agree in the decision of the housekeeper or butler, the parties in procession carried the subject in dispute to their master and mistress, who have ever since been. . . angry. . . at the fastidiousness of her ladyship.”240 Scott, claiming that “nothing can exceed the tale of the silver Chalice,” repaid Morritt with the tale of “a huge implement of this metal at Armiston not reserved for the commodity of any individual but usually brought in after dinner when there is a large company for the general use and benefit.”241
Moreover the students’ gift to Tutor Flynt showed a becoming erudition, which clearly indicated that Harvard College in the first half of the eighteenth century piously preserved the memory of the great medieval Italian medical school of Salerno, for the Latin verses engraved upon the chamber pot were not a contemporary Harvard witticism, but a direct quotation from the Prœcepta generalis—sub-heading Egestio—ventositas et mictura—of the celebrated Schola Salernitana.242 These verses must have been often repeated in succeeding centuries, for Professor Morris P. Tilley gives them as the source of the English proverb, “Piss and fart, a sound heart” and cites similar instances in Spanish and Italian. James Boswell must have known the Latin jingle, for, while misbehaving himself on the Continent, he perverted its meaning by entering in a memorandum of 12 October 1764: “Then had girl, merely saluberrima lumbis.”243
A quarter of a century ago our fellow member Dr. Harold Bowditch conducted a widespread search in the United States and Great Britain for Tutor Flynt’s silver chamber-pot, hoping to be able to include it in the Harvard Tercentenary exhibition. As his diligent labors were without result,244 it seems probable that the pot in question shared the fate of an earlier vessel eulogized in a poem entitled “On Melting down the Plate: Or the Piss-pot’s Farewel, 1697,” which begins:
Maids need no more their Silver Piss-pots scour,
They now must jog like traitors to the Tower.
. . . . .
When thou, transformed into another shape,
Shalt make the World rejoice at thy Escape;
And from the Mint in triumph shall be sent,
New coin’d and mill’d, to ev’ry Hearts content.
Bearing the Passport of a Royal Stamp;
And pass as current, pleasant, and as free,
As that which hath so oft pass’d into thee.245
Although Dr. Bowditch was unable to recover this dignified relic for the collections of Harvard University, other neighboring institutions possess related trophies. The Club of Odd Volumes exhibits—in the same case with a History of the Brighton Artillery246 and a presentation copy of F.D.R.’s On Our Way—a pottery utensil reputed to bear the arms of William III, which Sir Winston Churchill suggested to President A. P. Loring, Jr., should be used for drinking punch. The Cabinet of the Massachusetts Historical Society contains a pot ornamented with the likeness of General Benjamin F. Butler, presented by a traveling Bostonian who seemingly stole it from a Mississippi River steamboat soon after the Civil War. In the collection of pewter given to Boston University by the Reverend H. J. Hill of Concord, New Hampshire, is a mid-eighteenth-century pewter bedpan, thought to be of American origin.247 The Bostonian Society is reliably reported248 to have owned within the present century one of the French porcelain pots adorned with the portrait of Benjamin Franklin and the motto eripuit coelo fulmen sceptrumque tirannis that Louis XVI, bored with the Comtesse Diane de Polignac’s ardors over Franklin, had made at the Sevres manufactory as a New Year’s gift for her.249 Today the Society can only produce a neatly mounted Sevres medallion of Franklin, which gives rise to suspicion of bowdlerization by past officers.250