In February 1761 John Adams was present at an event which his later descriptions have firmly implanted in the mythology of the American Revolution. The arguments of James Otis before the Superior Court on the granting of writs of assistance to royal customs officials are generally known as one of the earliest statements of colonial opposition to parliamentary regulation. The scene itself, so vividly described by Adams in a letter to William Tudor nearly sixty years later, is surely part of the common vision of this period: In the Council Chamber of what is now the Old State House in Boston “near the Fire were seated five Judges, with Lieutenant Governor Hutchinson at their head, as Chief Justice, all in their new fresh Robes of Scarlet English Cloth in their Broad Bands, and immense judicial Wiggs. In this Chamber were seated at a long Table all the Barristers of Boston and its neighbouring County of Middlesex in their Gowns, Bands, and Tye Wiggs. They were not seated on ivory Chairs, but their dress was more solemn and more pompous than that of the Roman Senate, when the Gauls broke in upon them.”
There also sat Samuel Quincy and John Adams. “John was the youngest. He should be painted looking like a short, thick, fat Archbishop of Canterbury, seated at the Table with a pen in his hand, lost in Admiration, now and then minuting those despicable Notes which you know that Jonathan Williams Austin your fellow student in my office, stole from my desk and
printed in the Massachusetts Spy, with two or three bombastic expressions interpolated by himself; and which your Pupil, Judge Minot has printed in his history.”
Jeremiah Gridley, for the Crown, and Oxenbridge Thacher, for the merchants of Boston, argued well and eloquently, but it was Otis, also for the merchants, whom Adams hailed so many years later. “Otis was a flame of Fire! With the promptitude of Clasical Allusions, a depth of Research, a rapid Summary of Historical Events and dates, a profusion of legal Authorities, a prophetic glare [i.e. glance?
of his eyes into futurity, and a rapid Torrent of impetuous Eloquence, he hurried away all before him; American Independance was then and there born. The seeds of Patriots and Heroes to defend the non sine Diis animosus infans, to defend the vigorous Youth, were then and there sown. Every man of an [immense]
crowded Audience appeared to me to go away, as I did, ready to take up Arms against Writts of Assistants. Then and there was the first scene of the first Act of Opposition to the arbitrary Claims of Great Britain. Then and there the child Independance was born. In fifteen years, i.e. in 1776, he grew up to manhood, declared himself free.”1
By this and other letters to his old student, Adams sought to recreate a great moment of his youth. In the course of his efforts he put into Otis' mouth the entire body of arguments against the power of Parliament developed over the whole of the next decade. The inaccuracies and exaggerations of these letters have been ably summarized elsewhere; further comment on them must await
The Adams Papers
edition of that portion of Adams' correspondence.2
Here we deal only with the legal situation as it can be recreated from Adams' original notes of the argument and other sources.
The arguments which Adams heard turned on the nature of the writ and the construction of three Acts of Parliament and a Province statute. The term “writ of assistance” had originally been applied to process in favor of a particular litigant in the Exchequer or in Chancery, enabling him to obtain the sheriff's help in collecting a debt or gaining possession of property to which he was entitled.3
The writs sought by the Crown officials
in Boston in 1761, however, were general standing warrants, good from the date of issue until six months after the death of the issuing sovereign, which permitted the holder to enter any house by day, with a constable or other officer, and there search for smuggled goods without special application to a court.4
The earliest relevant statute, an Act of Parliament passed in 1660, authorized the issuance “to any person or persons” of a warrant to enter any house to search for specific goods, upon oath made of their illegal entry before “the lord treasurer, or any of the barons of the Exchequer, or chief magistrate of the port or place where the offense shall be committed, or the place next adjoining thereto.”5
Both the language and the legislative history of this enactment make reasonably clear that its purpose was to authorize a special search warrant of limited extent, under control of a higher authority.6
The statute central to the controversy was the Act of 1662, which, in setting up a comprehensive scheme of customs administration for the British Isles, first used “writ of assistance” to describe a customs search warrant. The act provided that “any person or persons, authorized by writ of assistance under the seal of his majesty's court of exchequer,” might enter any premises in the day time, with a constable or other officer, using force if necessary, and there seize any contraband goods found.7
It has been argued on the basis of the language and legislative history of this and other contemporary acts, that the Act of 1662 was intended to incorporate no more than the special warrant embodied in the Act of 1660.8
The language of the two statutes is open
to the contrary construction, however, and, since the parliamentary debates contain no affirmative statement on the precise point in question, contrary inferences may also be drawn from the legislative history.9
The actual intent of Parliament in the Act of 1662 thus cannot be determined.
Whatever the legislative intent, a course of practice under the statute soon developed which was a surer guide to construction in the courts than ambiguous language and incomplete history.10
There are some indications
that in the years after 1662 searches were carried out under special warrant, probably as a result of an attempt to follow the former practice under the Act of 1660.11
Apparently, however, the view prevailed that the Act of 1662 had created a new process, limited neither by the earlier statute nor by practice under the ancient equitable writ. There is no reported decision on the point prior to the argument at Boston in 1761, but before 1685 a form of the writ granting unlimited powers of general search seems to have been in use in the Exchequer.12
Other evidence indicates that from some time in the first half of the 18th century, the writ was established as a general standing warrant issued by the Exchequer on the application of the Commissioners of Customs, to be held by the principal customs officers for use by them or their subordinates as the occasion demanded. Abuses of the instrument were probably avoided by virtue of the fact that ordinarily the principal officers required the same showing of information and probable cause that a justice would have required for the issue of a special search warrant.13
Furthermore, even with probable
cause, the officer who searched and found nothing was liable in damages for the trespass.14
The use of the writ in the colonies depended upon a third statute, the Act of 1696, by which colonial customs control was generally strengthened and reorganized, and colonial customs officials were given the powers of their English counterparts, whatever those might be.15
In Massachusetts, both before and after the passage of this act, the powers of search granted to customs officers by statute and inherent in their commissions were exercised, but there is little affirmative evidence that general warrants were issued in support of these powers.16
According to Thomas Hutchinson, however, Governor Shirley, in office from 1741 until 1757, issued what were apparently general warrants to the customs officers. When Hutchinson himself pointed out the illegality of this practice, the Governor directed “the officers to apply for warrants from the superior court; and from that time, writs issued, not exactly in the form, but of the nature of writs of assistance issued from the court of exchequer in England.”17
This development brought a fourth act into play—a Province law of 1699 which conveyed to the Superior Court the powers of the Exchequer. In 1754 the court had expressly refused to exercise the equitable branch of this jurisdiction, but it seemed to find no objection to the issuance of a writ ancillary to the Exchequer's revenue powers.18
On the application of Charles Paxton a writ of assistance issued in August 1755, and the files of the court reflect that thereafter until 1760 general writs of assistance were granted to seven other officers.19
The death of George II in October 1760 touched off the controversy which led to the argument in 1761. Since the existing writs survived the sovereign's death by only six months, it was necessary for the customs officers to procure new ones.20
The absence of records obscures the procedure by which the case came up, but probably Paxton and several other
officers applied in the form followed in the prior reign. This time, however, there was opposition, apparently as part of a general attack then being mounted on the customs and the Admiralty under the guidance of Benjamin Barons, disaffected collector of the port, and James Otis.21
Thomas Greene and other Boston merchants petitioned to be heard on the question. Thomas Lechmere, Surveyor General of the Customs, then stepped into the case both for the Crown and his men, petitioning the court “to be heard on the same subject: And that Writs of Assistants may be granted to himself and his officers as usual.” The proceeding seems to have gone forward as a hearing on these petitions, rather than on the application of any single officer.22
The argument actually began on 24 February 1761, and, according to later accounts, lasted for several days. Whether these recollections are accurate, and if they are, how many hours per day were spent in oratory, cannot now be determined.23
Adams' on-the-spot report indicates that Gridley spoke first for the Crown, but whether through enthrallment, inattention, or nonattendance, Adams took virtually no notes of this portion of the argument. Thacher and Otis then appeared and Gridley gave what was apparently a rebuttal. It is these last three arguments which Adams preserved, at least in part. How much else was said we can only speculate, perhaps more misled than guided by Adams' later recollections.
Gridley's position was clear-cut. Parliament, he argued, had empowered the Exchequer to issue “writs of assistance”; authority showed these to be general writs. Parliament had given colonial customs officers the powers of the English customs; and the Superior Court had the powers of the Exchequer; thus the writ could issue. If the practice seemed to infringe upon individual liberties, there were ample English and colonial precedents for such infringement in the name of the exigencies of collecting the revenue. Thacher cast doubt upon the existence of a proper precedent for the writ and contended that the powers given by the Act of Parliament were too broad to be exercised under a general warrant. The bulk of his argument as recorded by Adams was addressed to the power of the Superior Court to act as the Court of Exchequer. Not only had this jurisdiction been renounced in a prior case, but the Massachusetts court lacked many of the powers with which the Exchequer could control English customs officers.
Otis alone seems to have raised broader questions. After a bombastic introduction, which may be a subsequent contribution by Adams,24
he insisted that, while special writs might be allowed by necessity, a general writ violated the fundamental principle that a man should be secure in
his own house. He disparaged the source of Gridley's authority, then argued that if it were valid, the courts did not have to follow a precedent offensive to fundamental principles. In an often-cited passage he urged that an Act of Parliament which sought to make the courts act in violation of these principles was void. He then went on to show various flaws in the writ contended for and to argue that on a proper construction the statutes cited authorized only special warrants. He closed with a reiteration of Thacher's attack on the Exchequer powers of the Superior Court.
The only question about which the court seems to have been in doubt was that of the nature of the warrants actually used in England. Accordingly, judgment was suspended pending an inquiry by Hutchinson into the Exchequer practice. The reply was that general writs were granted freely upon the application of the Commissioners of Customs to the clerk of the Exchequer,25
but the whole matter was reargued at Boston in November 1761 at an adjournment of the August term. After the second hearing, the court decided unanimously in favor of the writ.26
No record or minute book entry has been found. The decision seems to have been not an order allowing the issuance of a writ to a specific officer, but a kind of declaratory ruling, in effect granting the prayer of Lechmere's petition, that the writ might thereafter issue upon due application in accordance with the English practice. Thus, the first writ granted after the argument was given to Paxton on 2 December 1761, upon the application of the Surveyor General in his behalf. Similar procedure was followed for each writ subsequently issued in Massachusetts.27
The importance which Adams attached to this case has been disputed. It has been suggested that oral argument delivered before a relatively small audience could not of itself have had the inspirational effects attributed to it.28
Certainly the efforts of Otis and Thacher did not change the orthodox view of what the law was. Writs were allowed to issue, and the practice was continued thereafter. Moreover, when in 1767 Parliament came to revise the statutes to effect the issuance of writs of assistance in all the colonies, the problem with which it was concerned was not the constitutionality of a general warrant, nor the power of the courts to deal with an unconstitutional Act, nor even the nature of the practice in the Exchequer, but merely an assurance to the high courts of judicature in the colonies that they could exercise Exchequer powers.29
The role of Otis' argument in the larger political and constitutional developments that were to follow is less easily dismissed. It is true that questions of Exchequer practice and Superior Court powers are not the stuff of revolution. As to the validity of general warrants, it is probably also true, as modern historians contend, that continuing colonial opposition to writs of assistance was not a direct response to Otis' oratory at Boston in 1761. Presumably the renewed efforts of customs officers to obtain writs after 1767 produced the widespread resistance to general warrants which led ultimately to the prohibition against unreasonable searches and seizures in the Fourth Amendment to the United States Constitution.30
Nevertheless, in this struggle Otis' ideas, published in the newspapers and circulated by the bar, continued to stimulate resistance.31
Otis' argument had its greatest significance in questions of legislative and judicial power. By 1761 the doctrine of absolute parliamentary sovereignty, which is today the foundation of the British constitution, had become generally accepted in England. As Blackstone said in 1765, “if the parliament will positively enact a thing to be done which is unreasonable, I know of no power that can control it.”32
In the latter year the doctrine was applied to writs of assistance. Litigation arising out of the problems of John Wilkes and the North Briton
had led to a series of rulings in which the English courts held that general warrants were invalid as an intrusion on rights guaranteed by the common law. There had been no statutory authority for the warrants in those cases, however, and in the leading formulation of the position, Lord Mansfield was careful to distinguish writs of assistance as authorized by act of Parliament.33
In the 1761 argument, the theory of parliamentary sovereignty was implicit in the Crown's position.34
Otis, however, urged that acts of Parlia•
ment “against the Constitution” and “against natural Equity” were void, and that “the executive courts must pass such Acts into disuse.” Adams' notes show that in support of this position Otis cited the well-known language of Coke's opinion in Bonham's Case:
“When an Act of Parliament is against Common Right and Reason, or repugnant, or impossible to be performed, the Common Law will controll it, and adjudge such Act to be Void.”35
Modern scholars have concluded that in context this passage states a familiar common law canon of construction, rather than a constitutional theory.36
Coke's view of the constitution was that a supreme Parliament (the “High Court”) and the courts of justice both participated in the process of declaring and applying the same body of unchangeable, preexisting law; a kind of sovereignty, the prerogative, resided in the Crown, subject to the limitations of that law. The issue to which constitutional arguments were directed was the clash between the powers of the Crown on the one hand and the powers of Parliament and the courts on the other.37
Since the power of the Crown was not in question in Bonham's Case,
the issue there raised was procedural, not constitutional.
For Coke, Bonham's Case
was thus a conflict between private interests regulated by a statute which had to be interpreted, rather than a direct challenge to the power of Parliament to make the statute.38
The standard by which the statute was to be measured was the basic reasonableness, the common sense, of the common law. This quality was not a “higher law” by which Parliament was to be kept in check, but a guide by which statutes, presumably intended by the makers to conform to the reason of the common law, were to be construed. If, in the process of construction, an act was adjudged “void,” the court was not acting as a separate branch of government with a power to control Parliament by declaring acts unconstitutional, but was only applying the law of Parliament, necessarily
general in effect, so as to do justice in the circumstances of a particular case.
Otis' argument in 1761, by contrast, was a constitutional one, addressed directly to the questions of the limits of legislative power and the power of the judiciary to enforce those limits. In the latter half of the 17th century, as Parliament increasingly acquired the sovereignty formerly attributed to the Crown, Bonham's Case,
taken out of its private law context, had often been relied upon in political and constitutional argument to support the proposition that there was a higher law to which Parliament must bow.39
Other authorities cited by Otis indicate that he quoted Coke's words in this constitutional sense, rather than as a canon of construction. The contrast between construction and constitution is emphasized by the fact that Otis also argued in conventional fashion that the statute should be read narrowly to permit only the special search warrant known at common law. If, however, the court insisted on treating the act as “made in the very words of this petition,” that is, as embodying the language of the writ of assistance itself, then he argued that the act would be void not only under Bonham's Case,
but by virtue of “natural equity” and “the Constitution.”40
These terms do not denote the “reason of the common law,” but instead refer to fundamental principles of equity and justice embodied in a British constitution that a century and a half of political development had made into a formal, if still invisible, instrument of government. They are thus “higher law” in something like the sense used by modern constitutional theorists. Otis drew these ideas from sources which demonstrate the breadth of his argument. His pamphlet, Rights of the British Colonies,
published in 1764, invoked Locke's description of a government in which legislative sovereignty ultimately was a grant from the people and so could not be absolute. In a passage strongly reminiscent of his writs of assistance argument, Otis cited the Swiss publicist Emmerich de Vattel, as well as Bonham's Case
and other common law precedents, for the proposition that Parliament could not make a statute against natural equity or the British constitution. In all probability he cited the same authorities and made the same appeal to higher law before the Superior Court in 1761.41
Both the writs argument and Rights of the British Colonies
also suggest that Otis saw the courts in a constitutional role not envisioned in Bonham's Case.
The phrase, “the executive courts must pass such acts into disuse,” reported by Adams, contains a hint of a power that went beyond Coke's words. This hint is borne out by a passage in the pamphlet. Otis there argued the existence of two remedies when an act of Parliament clashed with equity and justice. Repeal might be sought, or, “If the reasons that can be given against an act plainly demonstrate that it is against natural
equity, the executive courts will adjudge such act void. It may be questioned by some, though I make no doubt of it, whether they are not obliged by their oaths to adjudge such act void. If there is not a right of private judgment to be exercised, so far at least as to petition for a repeal, or to determine the expediency of risking a trial at law, the parliament might make itself arbitrary, which it is conceived it cannot by the constitution.”42
In voiding acts of Parliament, the courts were not merely interpreting statutes incident to the decision of private disputes. They were obligated by the nature of their office to pass judgment on legislation, and this function was itself a vital element of the constitution.
The power which Otis urged for the courts fell short of the later American doctrine of judicial review. His pamphlets show that he still saw Parliament as supreme, and so not bound to yield to a court's decision adverse to a statute. The point was that, although Parliament might err, it was benevolent and sought to act within the constitution; it would therefore accept the judicial determination, even though not compelled to.43
The courts thus did not occupy their modern position as a separate governmental branch of coordinate authority with the legislature, having express power to declare the law. Lacking this power, a court could not
totally annul an act, but could only decide the case before it. The modern court does no more in form, but its constitutional eminence gives its decisions an effective force beyond the confines of a particular case. Nevertheless, Otis' notion that the courts have some kind of constitutional function in controlling Parliament was surely one source of the modern concept of their power.44
In his argument, Otis was far from proclaiming revolution, and he did not singlehandedly create American constitutional law. He was, however, ahead of the revolutionary pamphleteers in confronting the orthodox idea of Parliamentary sovereignty with the notion that there might be a rule of law superior to Parliament;45
and he did suggest that it might be a function of the courts to enforce compliance with that rule. These ideas appeared in his later writings, but other problems, theoretical, political, and emotional, so obscured them, that Otis undoubtedly did not realize their full import, and certainly did little to argue them in a consistent and coherent manner.46
Nevertheless, he had put them into play. Other writers, more aware of political realities, carried his ideas to their logical extreme—the justification of the overthrow of parliamentary authority and the subsequent establishment of a new government in which the legislature was limited by an express fundamental law.47
The argument of 1761 did not of itself lead to these great ends, but if it marked for Otis a first opportunity to formulate and express ideas which were later to circulate throughout the colonies in his pamphlets, then it
cannot be said that his words stopped at the door of the Council Chamber. And if, when John Adams said sixty years later that “Then and there the child Independence was born,” he really meant that the suggestion that Parliament's power was not absolute started the intellectual process which was to lead him to the forefront of the revolutionary movement, then surely the argument of 1761 was a vital predecessor of those of 1776.48
The documentary history of the materials which follow is nearly as tortuous as their intellectual history. Document I
is the booklet of “despicable notes” which Adams actually took down at the argument. They are hastily written and certainly do not touch all points covered in the course of a hearing of at least several hours' duration. Appended to them are Adams' extracts of the statutes involved and copies of the petition and writ issued to Paxton in 1755. These were apparently made by him for use in the more elaborate abstract of the argument which is reproduced as Document II
It is this document which creates problems, since no copy of it in Adams' hand has been found. In his diary for 3 April 1761, he reported showing to Colonel Josiah Quincy “an Abstract of the Argument for and against Writts of Assistance.” Quincy cried, “did you take this from those Gentlemen as they delivered it? You can do any Thing! You can do as you please! Gridley did not use that Language. He never was Master of such a style! It is not in him—&c.”49
This description is ambiguous, the more so because it occurs in a passage in which Adams is dubious of the sincerity of the Colonel's flattery on this and other points. It seems, on balance, to refer not to the rough notes made in court but to a more careful treatment written out at a later date. Description of the piece as an “Abstract” seems to imply work of more finished quality than that of notes made on the spot; moreover, praise such as that given by Quincy would have seemed extravagant and suspect in the extreme if applied to the fragmentary jottings that are the notes.50
In his Autobiography, and in the passage from his letter to Tudor quoted at the beginning of this note, Adams spoke of his notes of the argument as having been printed in the Massachusetts Spy
and in Minot's History of Massachusetts Bay
The material printed is not the rough notes, but a comparison of the texts shows that it was drawn from those notes. Other versions of the arguments, in virtually identical language, exist in
circumstances linking them to Adams. It therefore may be concluded that Adams composed a longer version of his notes and that it was this work which circulated among the bar and was preserved in the Spy
and in Minot's History.
On the basis of these conclusions, Document II
is offered as the first collation of all known versions of Adams' “Abstract of the Argument.”52
In the “Abstract” Adams has made the remarks of Gridley the opening argument, although from their position in his notes they would seem to have been a rebuttal. This argument and that of Thacher, which follows it, are taken with almost literal exactness from the rough notes. It is in Otis' often reprinted argument that Adams seems to have exercised artistic license. No doubt Otis said all that is attributed to him and much more; but the “Abstract” seems to be a combination of Adams' notes and his impressions of the larger questions that is peculiarly his own. The bones of the legal arguments which appear in the notes are there, but in pruning legal complexities and in adding fervor, Adams created a minor work of political propaganda. Perhaps the inspiration that produced this epitome of a famous address is the best evidence we have of the birth of “the child Independence” in 1761.
is Hutchinson's draft of the writ issued after the November argument.