Ireland. I also am indebted to the Henry Salvatori Center at Claremont McKenna College and its then-director, Charles Kesler, for providing invaluable assistance and support as I brought this project closer to completion. I owe thanks to the Claremont
[print edition page xxiv]
Institute and its president Brian Kennedy for giving me a congenial place to hang my hat in Claremont. In addition, I am grateful to the James Madison Program in American Ideals and Institutions, and its director, Robert P. George, where I was the Garwood Visiting Fellow during the 2009–10 academic year, during which I did some of the finishing work on the product.
[print edition page 1]
Otis in the Writs of Assistance Case
[print edition page 2]
[print edition page 3]
THE Writs of Assistance case was argued twice, in February and again in November of 1761. According to M. H. Smith, the leading scholar of the case, Chief Justice Hutchinson wrote home to England after the February hearing to learn more about the kinds of writs in use in England and how they were issued. Having heard from England, Hutchinson convened a second hearing, after which the court ruled that the writs were legal in Massachusetts and that the court was the proper authority to issue them.
Three lawyers argued the case. Jeremiah Gridley, the leader of the Massachusetts Bar, argued for the Crown. James Otis Jr. argued against the writs. The evidence suggests that the third lawyer, Oxenbridge Thatcher, was amicus curiae, a friend of the court, charged with enlightening them dispassionately about the underlying legal issues. Robert Auchmuty, Jr. also makes a brief appearance in the case. M. H. Smith suggests that “he probably appeared in the capacity of acting Advocate General.”
A writ of assistance was a general search warrant given by the court to customs agents to search for contraband. It empowered customs agents and their deputies to access all “ships, boats, vessells, vaults, cellers, warehouses, shops, or other places” where imported goods were or might be hidden to search for contraband.
The case is significant because in it Otis raised two key issues. He said that “this writ is against the fundamental principles of law” and “as to Acts of Parliament, an Act against the Constitution is void: an Act against natural Equity is void: and if an Act of Parliament should be made, in the very words of this Petition, it would be void.” John Adams made the case famous by highlighting Otis’s argument and recurring back to it as a touchstone throughout his long and eventful life. On July 3, 1776, the day after Congress voted that “These Colonies are and of right ought to be free and independent states,” Adams wrote home to Abigail, “When I look back to the year 1776, and recollect the argument concerning Writs of Assistance, in the Superior Court, which I have hitherto considered as the commencement of the controversy, between Great Britain and America, and run through the whole period from that time to this, and recollect the
[print edition page 4]
series of political events, the chain of causes and effects, I am surprised by the suddenness, as well as greatness of this revolution.”1
We have records of the case because young John Adams took notes of the February 1761 hearing, and Josiah Quincy Jr., another young lawyer in Boston, took notes of the August 1761 rehearing in November. Unfortunately, Quincy appears to have missed most of Otis’s argument. Quincy’s grandson compiled the notes of the case, which are reproduced here. In his edition Quincy includes a writ of assistance assigned to Charles Paxton in 1752 as an appendix, included here as “A Sample Writ of Assistance.” These documents are taken from the edition of Quincy’s Reports to be found in the University of Michigan’s “Making of America” digital archive. These are followed by John Adams’s effort to re-create Otis’s argument in full as it appeared in The Works of John Adams (1856). Adams first published this version of Otis’s speech in the Massachusetts Spy in 1773. The article on writs of assistance that follows was probably by Otis and originally appeared in the Boston Gazette on January 4, 1762.
[print edition page 5]
1. John Adams’s Notes on the First Argument of the Case, February 1761
Gridley.—The Constables distraining for Rates. more inconsistent with Eng. Rts. & liberties than Writts of assistance. And Necessity, authorizes both.
Thatcher:
I have searched, in all the ancient Repertories, of Precedents, in Fitzherberts Natura Brevium, and in the Register (Q. What the Reg. is) and have found such Writt of assistance as this Petition prays.—I have found two Writts of ass. In the Reg. but they are very difft., from the Writt prayd for.—
In a Book, intituled the Modern Practice of the Court of Exchequer there is indeed one such Writt, and but one.
By the Act of Palt. any other private Person, may as well as Custom House Officer, take an officer, a Sheriff, or Constable, &c. and go into any Shop, Store &c & seize: any Person authorized by such a Writt, under the Seal of the Court of Exchequer, may, not Custom House Officers only.—Strange.—Only a temporary thing.
The most material Question is, whether the Practice of the Exchequer, will warrant this Court in granting the same.
The Act impowers all the officers of the Revenue to enter and seise in the Plantations, as well as in England. 7. & 8 Wm 3, C. 22 § 6, gives the same as 13. & 14. of C. gives in England. The Ground of Mr. Gridleys argt is this, that this Court has the Power of the Court of Exchequer.—But This Court has renounced the Chancery Jurisdiction, which the Exchequer has in Cases where either Party, is the Kings Debtor.—Q. into that Case.
In Eng. all Informations of uncusted [i.e., uncustomed] or prohibited Importations, are in the Exchequer.—So that the Custom House officers are the officers of that Court.—under the Eye, and Direction of the Barons.
The Writ of Assistance is not returnable.—If such seisure were brot before your Honours, youd often find a wanton Exercise of their Power.
At home, the officers, seise at the Peril, even with Probable Cause.—
[print edition page 6]
Otis. This Writ is against the fundamental Principles of Law.—The Priviledge of House. A Man, who is quiet, is as secure in his House, as a Prince in his Castle—notwithstanding all his Debts, & civil processes of any Kind.—But
For flagrant Crimes, and in the Cases of great public Necessity, the Priviledge may be incrohd [encroached] on.—For Felonies an officer may break, upon Processes, and oath.—i.e. by a Special Warrant to search such an House, [“susp” crossed out] sworn to be suspected, and good Grounds of suspicion appearing.
Make oath corm. Ld. Treaer, or Exchequer, in Engd. or a Magistrate here, and get a Special Warrant, for the public good, to infringe the Priviledge of House.
Genl. Warrant to search for Felonies. Hawk. Pleas Crown.—every petty officer from the highest to the lowest, and if some of ’em are [“com, others” struck out] uncom others are uncomm. Gouvt Justices used to issue such perpetual Edicts. (Q. with what particular Reference?)
But one Precedent, and that in the Reign of C. 2 when Star Chamber Powers, and all Powers but lawful & useful Powers were pushed to Extremity.—
The authority of this Modern Practice of the Court of Exchequer.—it has an Imprimatur.—But what may not have?—It may be owing to some ignorant Clerk of the Exchequer.