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Browsing: Legal Papers of John Adams, Volume 2


Docno: ADMS-05-02-02-0006-0002-0001

Editorial Note

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 { 107 } 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 { 108 } 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 { 109 } 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 { 110 } 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 { 111 } 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
{ 112 }
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 { 113 } 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
{ 114 }
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 { 115 } 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
{ 116 }
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 { 117 } 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• { 118 } 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 { 119 } 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
{ 120 }
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 { 121 } 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 { 122 } 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.51 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 { 123 } 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.
Document III is Hutchinson's draft of the writ issued after the November argument.
1. JA to William Tudor, 29 March 1817. LbC , Adams Papers. Printed with some variations and omissions in 10 JA, Works 244–249. The letter had first appeared in 14 Niles' Weekly Register 137–140 (25 March 1818), and was printed again in Novanglus and Massachusettensis 244–247 (Boston, 1819). JA , in a contemporaneous report of the proceedings in Congress on the Declaration of Independence, referred to “the Argument concerning Writs of Assistance, in the Superiour Court, which I have hitherto considered as the Commencement of the Controversy, between Great Britain and America.” JA to AA , 3 July 1776, 2 Adams Family Correspondence 28.
2. As to the inaccuracies, see notes 20, 22, below; they are fully discussed in Horace Gray's appendix to Quincy's Reports [hereinafter to be cited as Quincy, Reports (Appendix)] at p. 408–411, 416–417, 469. See also Joseph R. Frese, Writs of Assistance in the American Colonies, 1660–1776, p. 1–19 (Harvard Univ. doctoral dissertation, 1951). The principal letters are in 10 JA, Works 244–362; see also id. at 362 note.
3. See Quincy, Reports (Appendix) 395–396. The examples cited by Thacher, note 4 56 below, are writs of this kind, in aid of Chancery decrees. The process is still known in England. See 16 Halsbury's Laws of England, tit. Execution, §100 (London, 3d edn., 1956). In the United States the equitable writ of assistance is found in a number of states and, under Federal Rule of Civil Procedure 70, is available after an order for the delivery of possession. See Note, 8 Arkansas Law Review 92–100 (1954); James W. Moore, Federal Practice, 7:2503 (Albany and N.Y., 2d edn., 1955).
4. See the examples, text at note 48 100 below, and Doc. III.
5. 12 Car. 2, c. 19, §1 (1660). The warrant so issued enabled the holder
“with the assistance of a sheriff, 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 break open such houses, and to seize and secure the same goods so concealed; and all officers and ministers of Justice are hereby required to be aiding and assisting thereunto.”
The Act limited entries under it to one month after the offense was supposed to have been committed and gave any party injured by a false information an action of trespass against the informer. Id. §§2, 4.
6. See Frese, “Early Parliamentary Legislation on Writs of Assistance,” 38 Col. Soc. Mass., Pubns. 318–326 (1959); Frese, Writs of Assistance (dissertation) 41–56.
7. 13 & 14 Car. 2, c. 11, §5(2) (1662), set out in text at note 40 92 below as JA copied it. For confusion introduced by variant spellings of “assistance,” see note 40 93 below. §4 of the Act provided for search of vessels at any time without a warrant.
8. See Frese, “Legislation on Writs of Assistance,” 38 Col. Soc. Mass., Pubns. 327–352; Frese, Writs of Assistance (dissertation) 97–106. See also Quincy, Reports (Appendix) 530–532.
9. The language of 13 & 14 Car. 2, c. 11, §5(2) (1662), standing alone seems to envision a general warrant, if the term “writ of assistance” is not held to incorporate the ancient process. See note 12 below. The statute, 12 Car. 2, c. 19 (1660), was continued and confirmed long after 1662, however, leading to the conclusion that the Act of 1662 included only the special warrant of the 1660 Act. Frese, “Legislation on Writs of Assistance,” 38 Col. Soc. Mass., Pubns. 335; compare Quincy, Reports (Appendix) 531–532. It could nevertheless be argued that the Act of 1660, which provided for the issuance of warrants by officers other than the Barons of the Exchequer (who had the sole power under the 1662 Act), was retained as an additional weapon in the battle against illicit trade. The other Acts chiefly relied upon to support the special warrant theory are 13 & 14 Car. 2, c. 3, §14 (1662), a provision of the Militia Act that general warrants might issue to search for illegal arms; and 13 & 14 Car. 2, c. 33, §§15, 19 (1662), which provided such warrants for searches for unlicensed printed matter. See Frese, “Legislation on Writs of Assistance,” 38 Col. Soc. Mass., Pubns. 336–351. Father Frese points to the contrast between the battle required to pass even these measures, which were limited by numerous exclusions, and the ease with which the less limited writs of assistance provision was passed, as evidence that the latter embodied only special warrants. Id. at 351–352. This difference might also be accounted for by a difference in the nature of the evils sought to be remedied by the various acts. Insurrection and sedition are political crimes; measures designed to control them may affect the liberties of the entire populace. Smuggling is a crime with a financial motive; its suppression is more likely to be localized in effect, harming only those who habitually live close to or beyond a rule of law accepted by the majority. Other legislation of the same Parliament provided for search without special warrant. See 13 & 14 Car. 2, c. 7, §§7, 14 (Search of London leather workers' shops for prohibited leather); 13 & 14 Car. 2, c. 5, §8 (Search of Norfolk and Norwich shops and other locations for defective yarns); 13 & 14 Car. 2, c. 32, §9 (Search of WestRiding shops and other locations for illegally imported cloth). Father Frese argues that the matters involved in these acts are too minor and local to be analogous to the Customs Act; moreover, they do not authorize use of force. Frese, Writs of Assistance (dissertation) 99–104. Although the latter objection has some merit, it could be argued that a customs measure bears greater resemblance to this last class of statutes than to the Militia and Printing Acts, thus accounting for a uniform silence as to the general search powers. In any event, it is clear that the 1662 Parliament did not hesitate to convey such powers when the occasion required.
10. For the general proposition that long-continued usage can control the construction of a statute, see Sir Peter B. Maxwell, The Interpretation of Statutes 308–314 (London, 9th edn., Sir G. H. B. Jackson, 1946). The printed Journals of the House of Commons and House of Lords, upon which Father Frese's legislative history (notes 8–9 above) is chiefly based were published in about 1742, but there is no evidence that they were known in Massachusetts. See L. A. Abraham and S. C. Hawtrey, A Parliamentary Dictionary 104 (London, 1956). Even if the Journals had been available, it is possible that the Massachusetts court might have refused to consider them in construing the statute. The familiar English doctrine barring legislative history as an aid in this process was not clearly formulated until 1769, however, and legislative materials were so used by Lord Camden in Entick v. Carrington, 2 Wils. K.B. 275, 95 Eng. Rep. 807 (C.P. 1765), a famous decision against general warrants, handed down in the course of the Wilkes controversy (text at note 33 below), cited in Plucknett, Concise History 335–336; see also Maxwell, Interpretation of Statutes 27–30.
11. Frese, Writs of Assistance (dissertation) 160–161 note.
12. See the form of a writ dating from between 1676 and 1685, published in William Brown, Compendium of the Several Branches of Practice in the Court of the Exchequer 358–361 (London, 1688). It is more fully discussed in notes 5 57 , 16 68 , below. This form bears little or no resemblance to the ancient writs of assistance (note 3 above). It has been suggested that the source may have been either the sheriff's “Patent of Assistance” (a general command to others to aid this officer), or, by analogy, the general warrants authorized by 13 & 14 Car. 2, c. 33, §15 (note 9 above), which gave the bearers power, “with a constable, to take unto them such assistance as they shall think needful.” See Quincy, Reports (Appendix) 397–398, 530–531 note. “Writs of assistance” were known in the colonies before the Act of 1696 (note 15 below), but these were apparently special warrants. Frese, Writs of Assistance (dissertation) 127–177. In England, however, the evidence is ambiguous. The materials cited by Frese (note 11 above) indicate the use of special warrants, but there was a second edition of Brown's Compendium in 1699, containing the form of the general writ. Reissues of the first edition in 1689 and 1692 presumably were likewise unchanged. See 1 Sweet and Maxwell, Legal Bibliography 319. Since special warrants could still be obtained under 12 Car. 2, c. 19 (1660), note 5 above, it is possible that warrants of both kinds were used during this period.
13. See Hoon, English Customs 63, 272–273; Quincy, Reports (Appendix) 532 note; note 25 below. Writs of assistance were among those processes which would survive the death of the sovereign by six months under 1 Anne, stat. 1, c. 8, §5 (1702), cited in notes 28 80 , 33 85 , below. No English case has been found in which the validity of the writs was directly raised, but their existence as general warrants was recognized and seemingly approved in a series of cases after 1765. See text and note 33 below; Quincy, Reports (Appendix) 533–534 note. Gray suggests that the writ first came to the notice of the English judges through Hutchinson's application to the ministry in 1761. Ibid. See also cases cited, notes 7 59 , 10 62 , below. The writ remained in use in England throughout the 19th century in substantially its earlier form. Wolkins, “Writs of Assistance in England,” 66 MHS, Procs. 357–360 (1936–1941). It is today authorized by the Customs and Excise Act of 1952, 15 & 16 Geo. 6 & 1 Eliz. 2, c. 44, §296, which permits entry with a writ by day or night on “reasonable grounds to suspect that anything liable to forfeiture under the customs or excise Acts” is concealed on the premises. The presence of a constable is required only when the entry is at night. The special search warrant is clearly distinguished, being covered in a separate paragraph. For an account of the practice in 1930, when writs were in the custody of principal customs officers for use when circumstances did not permit a special warrant, see Wolkins, “Writs of Assistance in England,” 66 MHS, Procs. 362; Ham's Year Book 1930 180 (London, 1930). In Canada the writ is still issued to officers charged with the enforcement of customs, excise, food and drug, and narcotics control acts. See Trasewick, “Search Warrants and Writs of Assistance,” 5 Crim. Law Quart. 341, 345–349, 356–363 (1962).
14. See note 10 62 below.
15. 7 & 8 Will. 3, c. 22, §6(2), set out as JA copied it in text at note 42 94 below. The legislative history of this provision, while inconclusive, offers no affirmative evidence that Parliament intended to establish warrants in the colonies. See Frese, “Legislation on Writs of Assistance,” 38 Col. Soc. Mass., Pubns. 352–359. There were, however, several measures in the same Parliament which provided general search powers in commercial situations like those in note 9 above. Frese, Writs of Assistance (dissertation) 117–125.
16. See Frese, Writs of Assistance (dissertation) 127–179. It was later argued that the power to search was actually conveyed by 13 & 14 Car. 2, c. 11, §5(2) (1662), note 7 above, and that the writs were merely for identification purposes. Opinion of Attorney General DeGrey, 20 Aug. 1768, Quincy, Reports (Appendix) 454; compare Frese, Writs of Assistance (dissertation) 171 note. This theory is borne out by the fact that the form of the writ used after 1676 contained authority for searches aboard ship as well as ashore, although the 1662 Act did not require a writ for cases of the former class. See the writ at note 48 100 below; compare Doc. III. For a copy of a commission, see Commission of Benjamin Hallowell as Comptroller of Boston, 9 March 1764, Quincy, Reports (Appendix) 433 note. One 18th-century colonial law book contains only a special search warrant for customs officers. Frese, Writs of Assistance (dissertation) 179 note; see Conductor Generalis: or the Office, Duty and Authority of Justices of the Peace 91–92 (Phila., 2d edn., 1749). The latter work, intended for justices of the peace, would not contain the form of the writ of assistance, which could issue only from the Exchequer or an equivalent.
17. 3 Hutchinson, Massachusetts Bay, ed. Mayo, 67. That the writs were general appears from Hutchinson's description of the event. This conclusion is supported by a phrase in Otis' argument at note 15 67 below, as well as by Hutchinson's remarks in the second writs of assistance argument in Nov. 1761. Quincy, Reports 52. Shirley was probably acting under the authority given to the governor, or one delegated by him, to seize illegally entered goods under 6 Geo. 2, c. 13, §3 (1733). He may also have relied, as “chief magistrate,” on the provisions of 12 Car. 2, c. 19, §1 (1660), which permitted search of any premises for specific goods. See text at note 5 above.
18. The Province law was the Act of 26 June 1699, c. 3, § 1, 1 A&R 370, set out in note 46 98 below. For the 1754 refusal to act, see note 9 61 below. The Superior Court could be said to have had a jurisdiction equivalent to that of the Exchequer over breaches of the Acts of Trade in England, because the acts applicable to the colonies gave concurrent jurisdiction of breaches there to the Courts of Vice Admiralty and the common-law courts. The Superior Court also had jurisdiction of breaches of provincial revenue acts. See 15 Car. 2, c. 7, §§6, 8 (1663); Act of 31 Jan. 1761, c. 20, §§14, 15, 20, 4 A&R 407. No evidence of a significant exercise of the jurisdiction under the English statutes has been found in the records or files of the Superior Court, however, and there seem to have been few actions under the Province acts. See p. 99, note 9, above; note 30 82 below. For Parliament's later efforts to meet the problem of a general colonial lack of Exchequer jurisdiction, see note 29 below.
19. See Paxton's petition and writ in text at notes 47 99 , 48 100 , below. For the record references to the allowance of his and the other petitions, see Quincy, Reports (Appendix) 402–406. See also the petition of Francis Waldo, April 1758, SF 78370, and that of James Nevin, Jan. 1759, SF 79409.
20. By virtue of 1 Anne, stat. 1, c. 8, §5 (1702), note 13 above. Hutchinson stated that the argument which followed had been called for in part because Samuel Sewall, “the late chief justice, who was in high esteem, had doubts of the legality of such writs.” 3 Hutchinson, Massachusetts Bay, ed. Mayo, 68. JA later concurred as to Sewall's doubts and further stated that the February argument was before that Justice. JA to Tudor, 29 March 1817, 10 JA, Works 247. There is some question whether Sewall in fact had doubts. See Malcolm Freiberg, Prelude to Purgatory: Thomas Hutchinson in Provincial Massachusetts Politics, 1760–1770, p. 13 note (Brown Univ. doctoral dissertation, 1950). Whatever his views, he had died in Sept. 1760, so that he could not have heard the Feb. 1761 argument. See Whitmore, Mass. Civil List 70; Quincy, Reports (Appendix) 409. Since Hutchinson was commissioned as chief justice on 13 Nov. 1760 and took his seat on the bench on 30 Dec., only three days after George II's death was known in Boston, it would seem that JA was also in error in stating that Hutchinson was appointed expressly to decide the writs question in the Crown's favor. See Quincy, Reports (Appendix) 408–411 note.
21. Barons, appointed in 1759, had immediately begun to cause trouble, apparently because of a long-standing vendetta with Charles Paxton, surveyor and searcher at Boston. Barrow, Colonial Customs 261–262, 352–353. According to Paxton, Barons was behind not only the opposition to writs of assistance but also the efforts of the merchants to alter the practice whereby the charges of the informer in condemnations in the Court of Admiralty were paid out of the Province share of the proceeds. Quincy, Reports (Appendix) 425–426, 542. In the latter controversy James Otis represented the merchants at legislative hearings in Dec. 1760, which led the General Court to authorize Province Treasurer Harrison Gray to sue Paxton for specific sums he allegedly received in this fashion. Id. at 541–543. See note 28 130 below. Gray, with Otis as counsel, first lost on a plea in abatement upheld because he had sued in his own person. See id. at 541–547; 1 JA, Diary and Autobiography 210–212; SF 172289, 172353. In a new action in the name of the Province, Paxton obtained verdict and judgment at the Feb. 1762 term of the Superior Court. Quincy, Reports (Appendix) 548–552; SF 100183. At the Aug. 1761 Superior Court, John Erving, a Boston merchant and councilor, had obtained judgment against Collector George Cradock for money paid under a composition (consent decree) of a libel brought in Admiralty for duties—despite the court's instructions that the Admiralty decree was binding. Id. at 553–557. In the meantime, Barons had finally been removed from his post, in June 1761. See No. 45, note 6 44 . Since he had brought three actions against those responsible for his removal which, with Gray v. Paxton and Erving v. Cradock, were all pending in the Suffolk Inferior Court in July 1761, it is little wonder that Governor Bernard saw the entire problem as the result of a plot fomented by Barons, Erving, and Otis. Bernard to Lords of Trade, 6 Aug. 1761, quoted in Quincy, Reports (Appendix) 426, 545, 555. It is more likely, however, that the opposition derived strong support from all the merchants because of their resentment toward a tightening of customs control insisted on by Pitt in Aug. 1760 as a means of halting illicit trade with the enemy. See id. at 407–408; Lawrence H. Gipson, The British Empire before the American Revolution, 10:111–131 (N.Y., 1961); King, “Judicial Flotsam in Massachusetts Bay,” 27 NEQ 366, 371–374 (1954); Freiberg, Prelude to Purgatory 9 note. Otis was allegedly involved against the Crown because of wrath at the appointment of Hutchinson to the Superior Court in lieu of Otis' father. See 11 Sibley-Shipton, Harvard Graduates 252; note 20 above; note 26 128 below.
22. JA 's “Abstract,” at note 3 105 below, reports that the case came up on the petition of James Cockle, Collector at Salem, at the Nov. 1760 term of the Essex Superior Court, an assertion which JA repeated in later writings. See, for example, JA to Tudor, 29 March 1817, 10 JA, Works 246–247. Cockle's petition has not been found, and there is no indication in the appropriate Minute Book that he, or any other officer, had applied for a writ in Nov. 1760. Quincy, Reports (Appendix) 409. Moreover, since the news of George II's death was not received in Boston until 27 Dec. 1760 (Id. at 411), the application certainly was made at a later date. That Paxton was first to apply is indicated by the facts that his was the first writ granted, and that Quincy's account is entitled “Paxton's Case.” See note 27 below. Hutchinson also says that an officer applied first. 3 Hutchinson, Massachusetts Bay, ed. Mayo, 68. There are no Minute Books for the 1761 terms of the Suffolk Superior Court, but the files and records support the conclusion that the petitions of Greene et al. and Lechmere were filed at the Feb. term 1761, and that the final decision reached at the Nov. adjournment of the Aug. term was on these petitions. See Petition of Greene et al., Petition of Lechmere, SF 100515b, printed in Quincy, Reports (Appendix) 412–414. See entries, “Greene et al. Petn.,” and “Lechmere, Survr. Genl. his petition,” on otherwise blank leaves, SCJ Rec. 1760–1761, fols. 225–226; and see, generally, Quincy, Reports (Appendix) 412–418.
23. Francis Bernard in 1765 said that the argument lasted three days, but it is unclear whether he referred to the Feb. or Nov. argument. Quincy, Reports (Appendix) 416. JA , in his Autobiography, characterized the argument as “several days” and in a letter in 1818 said that Otis' speech against the Acts of Trade alone lasted four or five hours. 3 JA, Diary and Autobiography 276; JA to William Tudor, 1 June 1818, 2 JA, Works 314. The argument has been dated by virtue of the fact that it was held on the second Tuesday of the term. See note 2 104 below. The term began on the third Tuesday of the month, 17 Feb. 1761.
24. This portion of Otis' remarks does not appear in JA 's actual minutes (Doc. I), but is part of his later “Abstract” (Doc. II).
25. 3 Hutchinson, Massachusetts Bay, ed. Mayo, 68; Quincy, Reports (Appendix) 414–416; Freiberg, Prelude to Purgatory 15 note. The inquiry was apparently directed by Hutchinson to William Bollan, former Massachusetts agent in London. According to Bollan's memorial of 1766, seeking preferment from the Duke of Newcastle, Hutchinson desired “to know whether such writs of assistance ever issue from the exchequer, except upon special information, and confined either to particular houses, or to particular goods of which information is made.” Bollan replied by sending him a copy of the writ from the Exchequer, which was similar to that used in Massachusetts in 1755, reproduced in text at note 48 100 below. Bollan also noted that “These writs upon any application of the commissioners of the customs to the proper officer of the court of Exchequer are made out of course by him, without any affidavit or order of the court.” Wolkins, “Bollan on Writs of Assistance,” 59 MHS, Procs. 415, 420 (1925–1926). See, as to the English practice, note 13 above.
26. See Quincy, Reports 51–57; compare Boston Gazette, 23 Nov. 1761, reprinted in Quincy, Reports (Appendix) 486–487. A summary of the arguments, apparently by Otis, appeared in the Boston Gazette for 4 Jan. 1762. It is reprinted in Quincy, Reports (Appendix) 488–494.
27. See the applications (1762–1769) in SF 1005150, printed in Quincy, Reports (Appendix) 416–434. Quincy styled the second argument “Paxton's Case of the Writs of Assistance,” but the evidence of the court records suggests that he, like JA in the first argument, simplified the nature of the proceedings. See Quincy, Reports 51; note 22 above. Hutchinson's draft of the writ which issued is printed as Doc. III. For the reaction and subsequent history of the writ in Massachusetts, see Quincy, Reports (Appendix) 416–468, 495–499; Wolkins, “Malcom and Writs of Assistance,” 58 MHS, Procs. 5 (1924–1925); Frese, “James Otis and Writs of Assistance,” 30 NEQ 496, 499–508 (1957); Frese, Writs of Assistance (dissertation) 202–235, 251–257, 273; Freiberg, Prelude to Purgatory 19–22. See also note 30 below.
28. See Dickerson, “Writs of Assistance as a Cause of Revolution,” in R.B. Morris, ed., The Era of the American Revolution 40 (N.Y., 1939). Compare Frese, Writs of Assistance (dissertation) 21–26; Frese, “Otis and Writs of Assistance,” 30 NEQ 496 (1957).
29. The Townshend Act, 7 Geo. 3, c. 46, §10 (1767), provided that, doubts having arisen about the legality of the use of writs of assistance in the colonies through the failure of the Act of 7 & 8 Will. 3, c. 22, to authorize any particular court to issue them, “such writs of assistance . . . shall and may be granted by the said superior or supreme court of justice having jurisdiction within such colony or plantation respectively.” The doubts had been expressed in a series of opinions of the Attorney General in England, which did not squarely face the question presented by the Exchequer jurisdiction of the Massachusetts superior court. See Wolkins, “Malcom and Writs of Assistance,” 58 MHS, Procs. 5 (1924–1925); Frese, “Otis and Writs of Assistance,” 30 NEQ 496, 503–505. Compare Opinion of Attorney General DeGrey, 20 Aug. 1768, Quincy, Reports (Appendix) 452–454.
30. The passage of 7 Geo. 3, c. 46, note 29 above, and the creation of a new board of American Customs Commissioners to enforce it (No. 45, notes 10–14), marked the beginning of a concerted effort by the customs officials in all colonies to obtain and enforce writs of assistance. For the difficulties which they encountered, even with the new enactments, see Dickerson, “Writs of Assistance,” Era of the Revolution 49–75; Frese, Writs of Assistance (dissertation) 225–293. For earlier problems in Massachusetts, see sources and authorities cited in note 27 above. The 14th Article of the Declaration of Rights in the Massachusetts Constitution of 1780, substantially drafted by JA , is an early and explicit demonstration of the reaction:
“Every subject has a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation, and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure; and no warrant ought to be issued but in cases and with the formalities prescribed by the laws.” 4 JA, Works 226–227.
As to JA 's role in the framing, see id. at 215–217; 2 JA, Diary and Autobiography401 note. The Fourth Amendment to the United States Constitution is of similar purport:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The first United States Customs Act provided that officers might search vessels upon reasonable suspicion at any time without warrant, but that premises ashore could be searched only with a warrant obtained on representation of suspicion to a Justice of the Peace. Act of 31 July 1789, c. 5, §24, 1 Stat. 43.
31. For newspaper publication in Boston after the Nov. 1761 argument and reaction there, see notes 26, 27, above. In many other colonies arguments similar to those of Otis were used; in 1773 JA 's version of his argument as printed in the Massachusetts Spy (Doc. II and notes 1 103 , 20 122 , below) was sent to the Connecticut Committee of Correspondence. Frese, “Otis and Writs of Assistance,” 30 NEQ 506–508.
32. 1 Blackstone, Commentaries *91. As to the 18th-century position generally, see J. W. Gough, Fundamental Law in English Constitutional History 174–191 (Oxford, rev. edn., 1961); Plucknett, “Bonham's Case and Judicial Review,” 40 Harv. L. Rev. 58–60 (1926). Even Lord Camden, a friend to America, took the same position in 1768. Quincy, Reports (Appendix) 516–517. For the modern British view, see Edward McWhinney, Judicial Review in the English-Speaking World 31–48 (Toronto, 2d edn., 1960).
33. Money v. Leach, 3 Burr. 1742, 1766, 97 Eng. Rep. 1075, 1088 (K.B. 1765). See generally, 10 Holdsworth, History of English Law 659–672. The existence of the writ in England today (note 13 above) emphasizes the continuing force of the constitutional doctrine.
34. See Gridley's arguments, text following note 31 83 below; compare his position in Nov. 1761. Quincy, Reports 56–57. Hutchinson expressly adopted this position at a later date. See his charge to the Grand Jury, March 1769, quoted in note 20 72 below; Hutchinson to Richard Jackson, 12 Sept. 1765, 26 Mass. Arch. 153, quoted in Quincy, Reports (Appendix) 441 note.
35. Bonham's Case, 8 Co. Rep. 113b, 118a, 77 Eng. Rep. 646, 652 (C.P. 1610), quoted more fully, note 21 73 below. For Otis' citation of the case and the other phrases quoted here, see text at notes 19-21 71-73 below.
36. See Thorne, “Dr. Bonham's Case,” 54 L.Q. Rev. 543 (1938); MacKay, “Coke Parliamentary Sovereignty or the Supremacy of Law,” 22 Mich. L. Rev. 222–231 (1924); Gough, Fundamental Law 10–11, 31–40. It has also been argued that Coke intended to state a broader proposition of fundamental law. See Plucknett, “Bonham's Case,” 40 Harv. L. Rev. 31–48; Corwin, “The 'Higher Law' Background of American Constitutional Law,” 42 Harv. L. Rev. 373 (1929).
37. See Gough, Fundamental Law 40–65.
38. In a sense, Bonham's Case involved the public interest, since it concerned the statutory powers of the London College of Physicians to license practitioners. However, the form of the proceeding was an action of trespass for false imprisonment brought by Dr. Bonham against the members of the Board of Censors of the College, who had imprisoned him for contempt of their orders; such actions were considered as ordinary civil actions, the concept of review of administrative action by certiorari not having been developed. See Jaffe and Henderson, “Judicial Review and the Rule of Law: Historical Origins,” 72 L.Q. Rev. 350–352 (1956); compare Gough, Fundamental Law 49. See also No. 24, note 4; No. 27, notes 4–9.
39. See Gough, Fundamental Law 104–105, 111; Plucknett, “Bonham's Case,” 40 Harv. L. Rev. 61–63.
40. See text at notes 19–21 71–73 below. Compare Adams' “Abstract,” text at note 46 148 below.
41. See James Otis, The Rights of the British Colonies Asserted and Proved 72–73 (Boston, 1764), reprinted with the original pagination in Bernard Bailyn, Pamphlets of the American Revolution, 1:419–482 (Cambridge, Mass., 1965):
“Tis hoped it will not be considered as a new doctrine that even the authority of the Parliament of Great Britain is circumscribed by certain bounds which if exceeded their acts become those of mere power without right, and consequently void. The judges of England have declared in favor of these sentiments when they expressly declare that acts of Parliament against natural equity are void. That acts against the fundamental principles of the British constitution are void. This doctrine is agreeable to the law of nature and nations, and to the divine dictates of natural and revealed religion.”
(See also id. at 18 70 .) In a footnote at the dagger Otis quoted a long passage on legislative power from Emmerich de Vattel, Law of Nations, bk. 1, c. 3, §34 (London, 1760), to the effect that the legislature could not change “the constitution of the state.” The footnote also cited Bonham's Case; Day v. Savadge, Hobart 85, 80 Eng. Rep. 235 (C.P. 1615) (possibly cited in argument; see note 19 71 below); Thornby v. Fleetwood, 10 Mod. 113, 88 Eng. Rep. 651 (C.P. 1713); and City of London v. Wood, 12 Mod. 669, 88 Eng. Rep. 1592 (K.B. 1701). The last three were all cases which repeated the Bonham principle. For Otis' reliance on Locke, see, for example, Rights of the British Colonies 22–23; see also Corwin, “Higher Law,” 42 Harv. L. Rev. 399. JA , years later, asserted that Rights of the British Colonies did contain the authorities cited in the writs argument. JA to Tudor, 21 Aug. 1818, 10 JA, Works 351.
42. Otis, Rights of the British Colonies 41. For a passage in JA 's “Abstract” which may also convey this idea, see text at note 47 149 . In a newspaper statement of the arguments, attributed to Otis, Bonham's Case was not cited, and it was merely argued that the English construction of the Act should not be followed in Massachusetts. Boston Gazette, 4 Jan. 1762, printed in Quincy, Reports (Appendix) 491–492.
43. See Otis, Rights of the British Colonies 60, citing Jeremiah Dummer, A Defence of the New England Charters 41 (Boston, 1745). See generally 1 Bailyn, Pamphlets 415–417. Otis' concept of a supreme Parliament complying with law of its own volition is related to Coke's ideas. Id. at 412–413; Gough, Fundamental Law 40–50. For Otis, however, it was the necessity for maintaining the constitution, rather than undefined moral obligation, which enjoined compliance.
44. See Charles G. Haines, The American Doctrine of Judicial Supremacy 22–25 (Berkeley, 1932); Henry Rottschaefer, Handbook of American Constitutional Law 32–36 (St. Paul, Minn., 1939); Andrew C. McLaughlin, A Constitutional History of the United States 26–27 (N.Y., 1935); Corwin, “Higher Law,” 42 Harv. L. Rev. 375, 379, 408–409. Corwin seems to read too much into Adams' report of Otis' words when he says, “Then and there American constitutional law was born, for Otis' contention goes far beyond Coke's: an ordinary court may traverse the specifically enacted will of Parliament, and its condemnation is final.” Id. at 398. The history of judicial review in the colonies suggests many roots, including the activities of the colonial courts and the judicial functions of the Privy Council. See Haines, Judicial Supremacy 44–66; Smith, Appeals to the Privy Council 522–653. For references to the idea in Massachusetts, see Quincy, Reports (Appendix) 527–528 note; note 42 above; note 48 below. JA spoke of “telling the jury the nullity of acts of Parliament,” but this was after the British had left Boston. JA to William Cushing, 9 June 1776, 9 JA, Works 390–391.
45. 1 Bailyn, Pamphlets 121; Charles F. Mullet, Fundamental Law and the American Revolution 80–81 (N.Y., 1933).
46. Otis' writings contained much ambiguity, which gave rise to the correspondingly ambiguous reactions among his contemporaries. See 1 Bailyn, Pamphlets 121–123, 409–417. In Rights of the British Colonies 22–23, he quoted, apparently with approval, Locke's theory that revolution was justified when the sovereign arbitrarily assumed absolute power. He expressly rejected revolution as a solution to the existing problems of the colonies, however. Id. at 50–51. Later he retreated even further. 1 Bailyn, Pamphlets 122, 546–552.
47. See Corwin, “Higher Law,” 42 Harv. L. Rev. 394–409. The power of the courts to enforce the supremacy of the United States Constitution was not express, but was established by Chief Justice Marshall in Marbury v. Madison, 1 Cranch (5 U.S.) 137, 173–180 (1803). See also 1 Bailyn, Pamphlets 102–105.
48. See JA 's comment of 3 July 1776 in note 1 above. For an example of his use of the fundamental law principle, see his argument before the Governor and Council on the closing of the courts during the Stamp Act crisis. Quincy, Reports 200–202. JA 's own notes for this argument suggest that he was citing Bonham's Case in a narrow sense. 2 JA, Works 159 note. In another well-known case where the validity of an act denying jury trial was in question, JA argued for strict construction only. No. 46, text at notes 65–66.
50. See 1 JA, Diary and Autobiography 211 note; 10 Gipson, British Empire 122–123 note.
51. For the letter, see text at note 1 above. The passage in the Autobiography is in 3 JA, Diary and Autobiography 276.
52. Details of the provenance of the materials printed are in note 1 103 below. For one example of the “Abstract's” circulation, see note 31 above. Further evidence is provided by the existence of the Hawley and Keith versions, note 1 103 below. It is worth noting that the brief accounts of the argument in 3 Hutchinson, Massachusetts Bay, ed. Mayo, 68, and 1 Gordon, History of Independence 141–142, suggest that their authors may have at least read the “Abstract,” probably in the Massachusetts Spy.
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