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Completing this project has put me in the debt of several people and institutions. I began working on James Otis not long after starting graduate studies under Peter S. Onuf’s direction at the University of Virginia. Thanks largely to Peter’s able mentoring, a master’s thesis blossomed into a scholarly article and now an edited collection as well.
I first conceived of the project when I was in residence at Liberty Fund as a visiting scholar, and I would like to thank Liberty Fund in general for supporting this project and for providing me with a welcoming environment in which to work for a year. I would also like to thank Laura Goetz of Liberty Fund for helping me see this project through to publication. Laura had both the patience to endure several delays and the vigor to push the project along. I also should thank the Massachusetts Historical Society and its librarian, Peter Drummey, for his assistance.
In preparing the text for publication, I received able assistance from Murray Bessette, then a student of political thought at the Claremont Graduate University, and now assistant professor of government at Morehead State University. Murray did a fine job compiling, organizing, and preparing the text for publication, as well as translating Otis’s occasional lines of French. James Chastek, formerly a student at the Claremont Graduate University, gracefully translated the Latin phrases that Otis sprinkled about his writing. And James Stoner of Louisiana State University helped with the translation of some Latin legal terms.
In addition, I owe a debt of gratitude to Nicholas Canny, the director of what is now the Moore Institute at the National University of Ireland, Galway, for providing me an academic home for a couple of years, part of which I spent on this project, and to the Irish Research Council for the Humanities and Social Sciences for the fellowship that took me to 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
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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.
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Otis in the Writs of Assistance Case
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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
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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.
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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
