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The Fourth AmendmentOrigins and Original Meaning 602 - 1791$

William J. Cuddihy

Print publication date: 2009

Print ISBN-13: 9780195367195

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780195367195.001.0001

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APPENDIX E-1 The Primary Sources on Paxton’s Case (1761)

APPENDIX E-1 The Primary Sources on Paxton’s Case (1761)

The Fourth Amendment
Oxford University Press

The primary sources for Paxton’s Case are numerous but fragmentary. The only pertinent documents in the extensive files of the Superior Court, which heard the case, are the opposing petitions of the litigants and documentation concerning the writs issued afterward. “Court Files Suffolk,” vol. 573 (Mar. 1765), no. 100,515b, Suffolk Co. Courthouse, Boston.

Four attorneys participated, James Otis, Oxenbridge Thacher, Jeremiah Gridley, and Robert Auchmuty, but none of them left records that have come to light. Otis, the most verbose, must have written substantial notes, for one of his arguments alone ran some five hours. John Adams to William Tudor, Quincy, 1 June 1818, J. Adams, Works, vol. 10, p. 314. Shortly before his death, however, he immolated all his papers in a fit of insanity, a task that took days. Adams to Hezekiah Niles, 14 Jan. 1818, ibid., p. 277.

The only surviving item of Otis’ legal papers of even marginal pertinence is his personal copy of volume 2 of the Institutes of Lord Coke (6th ed., 1681), now in the Alderman Library of the University of Virginia, Charlottesville. That volume contains Coke’s exegesis on Magna Carta, but not his argument against general warrants on the basis of the charter, which is in volume 4 (pp. 176–78). The marginalia of this Otis copy feature numerous marks of emphasis but no notations pertinent to Paxton’s Case. (I am indebted to Mr. Stephen K. Land of the aforesaid library for a copy of the pertinent sections of the Otis copy.) In 1960, however, Clifford K. Shipton mentioned notes on the case by Otis “in the margins of his folios [at the American Antiquarian Society] show[ing] that he prepared his argument with care.” Harvard Grads., vol. 11 (1741–45), pp. 252, 252n(19). Nevertheless, two independent sources have recently reported that Shipton was in error. Hugh Foster Bell, “Otis” (Ph.D., 1970), p. 228n(80): “[These] folios…can no longer be found.” Also, to a like effect, Nancy Burkett of the society to the author, 18 May 1979, author’s files. The folios to which Shipton referred were probably the marginalia cited above, at the Alderman Library, which do not bear out his description.

Besides Hutchinson, the chief justice, the members of the court were Peter Oliver, Chambers Russell, John Cushing, and Benjamin Lynde. Whitmore, Mass. Civil List, pp. 69–70. All but Russell left documentation, but it amounts to little. Although the Diary of Benjaman Lynde Jr. and Sr. has been published (1880), its coverage skips the period of Paxton’s Case. Peter Oliver’s Origin and Progress of the American Revolution (San Marino, Calif., 1961) discusses many issues ancillary to the writs but not the writs themselves. Hutchinson produced the lion’s share of post facto judicial commentary on the issue. His Diary and Letters (vol. 1, p. 66) devotes only a single phrase to the topic, but his History, which first appeared in 1828 (vol. 3, pp. 93–94), affords invaluable balance to the pro–Otis bias so evident elsewhere. The “Hutchinson Correspondence, 1761–70” (vol. 26 of “Mass. Ar.,” fols. 138, 153–64 passim) contains five pertinent letters, to Jackson, Secretary Conway, the Earl of Kinnoull, and the Lords of Trade (5 May, 12 Sept., 1 Oct., 27 Oct., and 3 Nov. 1765).

Although Gov. Francis Bernard did not witness the case, his correspondence described its causes and consequences. See his letters of 13 Apr. and 1 May 1762, 30 Nov. 1765, and 24 Mar. 1768, in the “Bernard Papers” (vol. 2, fols. 58, 187–88; vol. 4, fols. 176–77; vol. 5, fol. 261) at the Harvard University Library. Another Bernard letter (to the Board of Trade, 5 Sept. 1763) with material on the case is in “Kings Manuscripts 205,” fol. 200 (406) at the British Library in London.

The most detailed accounts of the first (February) hearing are the three versions of John Adams. The first of these are crude, contemporaneous notes that consist more of words and (p.830) phrases than of sentences. This skeletal prototype includes sketches of all the contending briefs but was published last of the trinity. It first appeared (1850) in the Works of John Adams (vol. 2, pp. 521–23), then in Josiah Quincy’s compilation of Massachusetts colonial Reports (1865, pp. 466–77), and afterward, in Adams’ Legal Papers (1965, vol. 2, pp. 123–30). Entitled, “Writs of Assistance,” the manuscript for this rough draft is now housed in “John Adams, Miscellany: Legal Papers [1761–78]” of the “Adams Papers” at the Massachusetts Historical Society (reel 185 of the microfilm edition) in Boston.

Between the February and November arguments of Paxton’s Case, Colonel Quincy praised the excellence of a manuscript of the trial by Adams that could only have been an extended refinement of the austere original. Diary entry, 3 Apr. 1761; J. Adams, Works, vol. 2, pp. 124–25; idem., Diary and Autobiography, vol. 1, p. 210. Lawrence Henry Gipson, “Aspects of the Beginning of the American Revolution, 1760–62,” American Antiquarian Soc., Procs., vol. 67 (1957), p. 23n(42). Joseph Hawley, a contemporary of Adams, and Israel Keith made copies of this polished document for their own use. Since Hawley’s duplicate concludes with a sentence borrowed from a British trial in 1765, Hawley wrote it between 1770, when the report featuring that sentence was first published, and his death in 1788. Brief of Serjeant Leigh, Entick v Carrington [C. P. 13 May 1765], 2 Wilson 275 at 283; 95 E. R. 807 at 813. Great Britain. Court of King’s Bench, Reports of Cases…[1742–69] by George Wilson (2 vols. in 1. London, 1770). The date of origin of Keith’s version, which Quincy’s Reports (pp. 479–82) first printed in 1865, is unknown, but it and the Adams original are now lost. The Hawley transcript occupies fols. [5]–14 of “Thoughts on Various Subjects” near the end of “Joseph Hawley, Letters, 1653–1789,” in the “Hawley Papers” at the New York Public Library; it has no title and begins simply as “Substance of Mr. Gridley’s Argument Before the Superior Court in Favor of Writs of Assistance.” For background on Hawley, see: E. Francis Brown, “The Legal Career of Major Joseph Hawley,” N. E. Q., vol. 4 (1931), pp. 482–508.

Each of the three briefs in the “extended” version has had a different record of publication. The Otis brief has appeared in print not only first but more often. In 1773, Jonathan Williams Austin, a law student in the office of John Adams, “leaked” the “extended” version to the Massachusetts Spy, which, on 29 April 1773 (vol. 3, no. 117, p. 3) published the full text of the Otis brief that it contained. Adams to Tudor, Quincy, 29 Mar. 1817, “John Adams Letterbook, no. 35 (33), 3 Nov. 1816–12 Aug. 1819,” fol. 48; “Adams Papers” (reel 123), Mass. Hist. Soc., Boston. With minor variations nearly all later primary sources on Paxton’s Case except Quincy repeated the Spy’s version. Minot, History (1798–1803), vol. 2, pp. 91–99; Tudor, Otis (1823), pp. 63–68; J. Adams, Works (1850), vol. 2, pp. 91–99; Haliburton, Rule and Misrule (New York, 1851), pp. 260–63. J. Adams, Legal Papers (1965), vol. 2, pp. 139–44.

Although George R. Minot paraphrased them in 1803 (Continuation of [Hutchinson’s] History [2 vols. Boston, 1798–1803], vol. 2, pp. 87–91), the briefs of Gridley and Thacher in the “extended” transcript remained unpublished for more than a century. Using the Keith copy, Quincy’s Mass. Reports (pp. 479–82) provided the first full reproduction of those briefs in 1865, and Wroth and Zobel followed suit a century later. J. Adams, Legal Papers, vol. 2, pp. 139–44.

Adams’ final version, his reminiscences of both episodes of Paxton’s Case, provide the most detail of his three accounts. As early as 3 July 1776, the day after independence was declared, Adams wrote his wife that the Otis brief had been the first step to that outcome. (“Letters Received” in “Adams Papers,” reel 346). Between 1776 and 1818, Adams produced (p.831) at least thrirty–three letters and an autobiographical sketch (30 Nov. 1804) pertinent to the case. The remaining letters by Adams are those to the following persons:

Dr. Calkoens, 4 Oct. 1780

Abbe de Mably, [? Oct.] 1782

Mercy Warren, 20 July 1807

Same, 27 July 1807

Dr. Rush, 30 Nov. 1812

J. Morse, 29 Nov. 1815

Wm Tudor, 18 Dec. 1816

Dr. Waterhouse, 19 Mar. 1817

Same, 25 Mar. 1817

Wm. Tudor, 29 Mar. 1817

Wm. Wirt, 5 Jan. 1818

Same, 23 Jan. 1818

Dr. Waterhouse, 6 Feb. 1818

H. Niles, 13 Feb. 1818

Wm. Tudor, 25 Feb. 1818

Same, 5 Apr. 1818

Same, 1 June 1818

Same, 9 June 1818

Same, 17 June 1818

Same, 24 June 1818

Same, 9 July 1818

Same, 14 July 1818

Same, 17 July 1818

Same, 27 July 1818

Same, 30 July 1818

Same, 6 Aug. 1818

Same, 11 Aug. 1818

Same, 16 Aug. 1818

Same, 21 Aug. 1818

Same, Aug. 1818

Same, 10 Sept. 1818

Same, 13 Sept. 1818

The “Adams Papers” at the Massachusetts Historical Society contain the foregoing manuscripts in three groups of files: (1) “Letters Received and Other Loose Papers, May–December 1776; [ibid],…Oct.–Dec. 1780,” (2) the “Letterbooks” of John Adams, and (3) his “Autobiography.” For the microfilm edition, see reels 89, 118, 121–23, 180, 346, 353.

Nearly all of the Adams manuscripts have been printed, for their author designed all but two of the last twenty–two epistles for immediate publication. A few letters were published in the eighteenth century. For example, Adams’ Defence of the Constitutions (Philadelphia, 1787, at p. 383) contained his letter to de Mably. On 14 October 1789, the Gazette of the United States ([no. 53], p. 210, col. 1) printed the letter to Calkoens. In 1818–19, however, Niles’ Weekly Register and The Boston Daily Advertiser serialized nearly the entire set, starting with the letter to Tudor of 29 Mar. 1817, and an appendix to the 1819 edition of Adams’ Novanglus reprinted the lot. The multivolume edition of Adams’ Works by Adams Charles Francis Adams provided a fourth printing in 1850. Boston Daily Advertiser (p. 2, col. 1 of the following issues: 20, 27 June; 1, 3, 15, 23, 25 July; 1, 6, 11, 15, 27 Aug.; (p.832) 2, 23 Sept. 1818). Niles’ Weekly Register, vol. 13 (1817–18), pp. 361–62; vol. 14 (1818), pp. 17–20, 136–140, 257–58, 339–40, 364–69. J. Adams, Novanglus (1819), pp. 229–308 passim. Idem., Works, vol. 5, p. 492; vol. 7, p. 267; vol. 9, p. 418; vol. 10, pp. 182–356 passim. Most of the few letters not in the Works can be found in print elsewhere. The letters to Warren are in “Correspondence Between John Adams and Mercy Warren…,” Mass. Hist. Soc., Colls., ser. 5, vol. 4 (vol. 44: 1878), pp. 339–40. The Rush letter appears in John A. Schutz and Douglas Adair, eds., The Spur of Fame (San Marino, 1966), p. 256, and the first two letters to Waterhouse can be found in W. C. Ford, ed., Statesman and Friend: Adams-Waterhouse Correspondence (1923), pp. 126–32. The Diary and Autobiography of Adams (vol. 3, pp. 261 at 275–76) contains his autobiographical recollections of 1804.

Despite their number and the rich detail they provide, the Adams letters have to be used with great caution. First, the bulk of them began as vindicatory rebuttals to Mercy Warren and William Wirt, who, in 1805 and 1817 respectively, had published histories criticizing the roles of Massachusetts and/or of Adams in the revolution. (Warren, History of the Rise…of the American Revolution [3 vols. Boston, 1805]. Wirt, Sketches of the Life…of Patrick Henry [Philadelphia, 1817]). To Warren and Wirt, Adams replied that the path to revolution had started with the Otis brief. Adams to Warren, 20 July 1807, above, last paragraph. Same to Wirt, Quincy, 5 Jan. 1818, J. Adams, Works, vol. 10, p. 271. Same to Same, 23 Jan. 1818, ibid., p. 280. In letters to others, Adams added that Otis had first challenged Parliament’s authority to tax the colonies, and he put into Otis’ mouth in 1761 political arguments that no colonist made until after the Stamp Act in 1765. Adams to Dr. J. Morse, 29 Nov. 1815, ibid., pp. 182–83. Same to Tudor, 29 Mar. 1817, ibid., pp. 246–48. Same to H. Niles, 13 Feb. 1818, ibid., p. 291.

Furthermore, forgetfulness exacerbated these partisan fabrications. Writing as much as fifty–eight years after the fact, Adams embroidered his theses with a host of factual innacuracies. As Adams now told it, the customs officers had requested writs of assistance in November 1761, but Chief Justice Sewall had courageously refused them. This request, continued Adams, was the first step in a conspiracy by Whitehall to enslave the colonies, and the second stage had been Hutchinson’s appointment as chief justice to insure issuance of the writs. Adams’ letters of 20 July 1807, 29 Nov. 1815, 29 Mar. 1817, above; also: Same to Dr. Waterhouse, 25 Mar. 1815, Ford, ed., Statesman and Friend: Adams-Waterhouse Correspondence (1923), pp. 128–32. Same to H. Niles, 14 Jan. 1818, J. Adams, Works, vol. 10, p. 274.

The evidence, however, eviscerates this scenario. The “Records” of the Superior Court in the Suffolk County Courthouse for the November term of 1760 (ibid., 1760, fols. 154–60) ignore the writs of assistance. On the other hand, applications for writs of assistance at about that time have survived in the same institution but are clearly dated 2 and 4 Dec. 1761, not November. “Court Files Suffolk,” vol. 573 (Mar. 1765), no. 100,515b. At any rate, Sewall could not have refused these petitions at either time because he had been in his grave for more than a month. Boston Post Boy and Advertiser, Mon., 22 Sept. 1760 (no. 162), p. 1, cols. 1–3. For a fuller critique of the Adams letters, and of William Tudor’s derivative biography of Otis (1823), see Justice William Gray’s note in Quincy’s Mass. Reports (1865), p. 469n(1).

The sources for the November hearing of Paxton’s Case are the transcript by Josiah Quincy (Mass. Reports, Quincy ed., pp. 51–57) and summaries of the arguments in the Boston Gazette and Country Journal (23 Nov. 1761 [no. 347], p. 3, col. 1; 4 Jan. 1762 [no. 353], p. 1, cols. 1–2). Quincy includes the only summary of Auchmuty’s brief.