Page:Cambridge Modern History Volume 7.djvu/211

i76i] Objection to the writs. 179 officer to have an eye over them; that would save the writ from objection. Thacher, who was with Otis for the merchants of Boston, contended that the Superior Court had solemnly disclaimed the authority of the English Court of Exchequer. But assuming that the Court had the power of the English Exchequer, there were many circumstances which made the English practice an improper precedent for this case. There the officers were sworn in Court, and were accountable to it they were obliged to pass their accounts there weekly ; that was not the case here. In the English Court too cases were tried and tried finally ; which was another difference. Again, the officers of the customs in England were officers of the Exchequer, and could be punished corporally for mis- behaviour. No such authority had been given to this Court by the statute under which alone the petition was drawn. On the merits of the question, Thacher said that it was either a case in which the judges must act, or it was one of discretion. The statutes did not support the first view ; as for the second, it could not be within the power of a judge, at discretion, to determine whether a man's house should be broken open, any more than to determine, at discretion, whether a man should be hanged or not. Thacher's argument did not touch the authority of Parliament ; his contention was, that the writs desired by the Crown officers were not authorized by the statutes of England. Though such writs were good there, they were invalid in America; a distinction made also in Pennsylvania by John Dickinson. Otis argued against the very writ itself. It was an unlawful thing in very substance ; it was against the fundamental principles of law. A man's house was his castle, a place privileged from officers of government in matters of debt and civil process of any kind, including that of the Exchequer. Houses might, he admitted, be broken open to serve process of felony, as Gridley had said; but that could be done only by special (as distinguished from general, indefinite) warrant, granted on oath, naming the house to be searched as suspected, and alleging good grounds of suspicion. Let the officers now make oath and get such special warrants, if they needed to break open houses ; that was what the Acts of Parliament meant ; they did not authorize these general writs prayed for by the petitioners. Referring to the precedents, admitted to be few, Otis argued that all precedents were subject to the principles of law. He quoted Lord Talbot, who had said from the bench : "I think it much better to stick to the known general rules than to follow any one particular precedent which may be founded upon reasons unknown to us." The argument thus far was consistent with the idea that the statutes were sound ; the statutes did not justify the writs in question ; the writ might have been framed by "some ignorant clerk of the Exchequer." But Otis went CH. vi. 12 2