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The Fourth Amendment$

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

ContentsFRONT MATTER

Paxton’s Case and the Writs of Assistance Controversy in Massachusetts, 1755–1762

Chapter:
(p.377) Chapter 17 Paxton’s Case and the Writs of Assistance Controversy in Massachusetts, 1755–1762
Source:
The Fourth Amendment
Author(s):

William J. Cuddihy

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195367195.003.0017

Abstract and Keywords

This chapter discusses Paxton's Case and its implications for the specific warrant. The case was a milestone not only in civil libertarian thought, but in the political history of Massachusetts. On one level, Massachusetts lawyer James Otis had taken the British ideology of search and seizure beyond condemnation of general warrants to an appreciation of specific ones as their replacements. On another level, he had selectively fashioned law, history, and legal fiction into one of the weapons that an insurgent alliance of merchants and politicos aimed at the existing political order.

Keywords:   merchants, customs officers, specific warrant

  • Thesis-Introduction 377

  • I. Origins of the Controversy 378

  • II. Paxton’s Case: The Briefs 381

    1. 1. The Gridley Brief 382

    2. 2. The Thacher Brief 383

    3. 3. The Otis Brief 385

    4. 4. Final Arguments and Disposition 394

  • III. The Intellectual Fallout of Paxton’s Case 395

  • IV. The Politics of Paxton’s Case 397

    1. 1. The Political Origins of Paxton’s Case 397

      • A. Merchants versus Customs Officers 397

      • B. Customs Officer versus Customs Officers 398

      • C. Hutchinson versus the Otis Family 399

    2. 2. The Political Aftermath of Paxton’s Case 402

  • V. Summary and Conclusions 405

THESIS-INTRODUCTION

Although the implications of the specific warrant as a barrier and alternative to the general warrant were well understood by the 1750s, articulation of those implications was still wanting. In 1761, however, a young Massachusetts lawyer, James Otis, said in Paxton’s Case what his neighbors had assumed since at least 1756, that only specific warrants were reasonable.1 Writs of assistance of one kind were legal, declared Otis, “that is special writs,…to search certain houses & c. especially set forth,…upon (p.378) oath made…by the person who asks that he suspects such goods to be concealed in THOSE VERY PLACES HE DESIRES TO SEARCH.”2

Asserting that “the freedom of one’s house” was among “the most essential branches of English liberty,” Otis protested that the operation of writs of assistance would “totally annihilate” that freedom.3 Otis thereby exposed the chasm between the ideals and the reality of Britain’s law of search and seizure for those writs typified that law. Paxton’s Case, as Richard Brandon Morris has noted, was “a landmark in the law of privacy.”4

I. ORIGINS OF THE CONTROVERSY5

Paxton’s Case originated about 1755 when Governor Shirley began issuing writs of assistance to civil and customs officers in an attempt to halt illegal commerce with French Canada. Predicated not on legislation but on his assumed powers as governor, Shirley’s writs authorized only investigating violations and requisitioning assistance.6

For a century, however, the commissions and instructions that British customs officers received from their superiors had empowered them to enter and inspect all houses without any warrant.7 The customs service in Massachusetts had enforced this mandate for some time and employed Shirley’s writs as general warrants.8 Nonetheless, these practices violated both British and local law. The Fraud Acts of 1660 and 1662 did not permit warrantless searches of buildings, and the Bay Colony’s impost laws, the corresponding local legislation, allowed entrance into houses only by specific, not (p.379) general, warrant.9 Several victims of these intrusions offered physical and legal resistance.10 These disturbances were among the reasons that the colony institutionalized specific warrants shortly afterward.11

About 1755 Charles Paxton, a customs officer, received information that a warehouse belonging to the brother of Thomas Hutchinson, a close friend and member of the council, contained smuggled Spanish iron. Knowing that the information was inaccurate, Hutchinson challenged the officer, who produced a warrant from Shirley. Hutchinson obtained the keys and admitted Paxton but told him that his warrant was invalid and that he would have been sued for using it to break in.12

Shirley reacted promptly. The Court of Exchequer issued writs of assistance in England.13 Because the Superior Court of Judicature exercised an equivalent jurisdiction in Massachusetts, Shirley instructed his customs officers to approach it for those writs.14 Declaring writs of assistance indispensable to the performance of his office, Paxton asked the Superior Court for the first such writ in June of 1755.15 Paxton’s request was quickly granted, and by March 1760, each of his seven colleagues in Massachusetts had also requested and received the writs.16

(p.380) These Massachusetts writs of assistance were adaptations of the corresponding English forms and of the commissions of Britain’s customs officers in England and the colonies. Like the Fraud Act of 1662, from which their key language derived, all these writs and commissions authorized house-to-house searches.17 Customs officers obtained writs of assistance on request as routine accessories to their commissions, without alleging illegal activity as a pretext for them, without judicial superintendence, and without the possibility of refusal.18

The law and demands for its efficacious enforcement collided in 1760, setting the stage for Paxton’s Case. King George II died on 25 October 1760, a few months after Whitehall had ordered colonial governors to eradicate smuggling with the French West Indies.19 Because writs of assistance expired six months after the demise of a reigning (p.381) sovereign, customs officers had only until 25 April 1761 to get new writs.20 The outstanding writs faced extinction at the time of greatest need for them.

In mid-January, 1761, sixty-three members of the “Society for Promoting Trade and Commerce Within the Province,” an association of prominent merchants from Boston and Salem, asked the Superior Court to hear arguments against the writs.21 Shortly afterward, Thomas Lechmere, Surveyor General of the Customs, petitioned to the opposite effect, requesting writs of assistance for himself and his subordinates “as usual.”22

Both sides sought out high powered legal talent, the big guns of the Boston Bar. In addition to Oxenbridge Thacher, the merchants retained James Otis Jr., the Crown’s chief attorney in Massachusetts and the son of one of the colony’s most powerful politicians. Jeremiah Gridley, the dean of the legal profession and the mentor of the attorneys opposing him, represented the customs officers.23 Robert Auchmuty joined Gridley during the concluding phase of the case.24

II. PAXTON’S CASE: THE BRIEFS25

The brief of James Otis was the salient feature of Paxton’s Case, which came before the Superior Court twice, on 24–26 February and on 18 November 1761.26 Otis wove (p.382) precedent, history, constitutional philosophy, and the higher law into a passionate indict-ment of the writ of assistance. The pertinence of his brief to the Fourth Amendment, however, inhered less in his eloquence than in his categorical repudiation of general warrants and in his tandem insistence on specific warrants as their replacements. Many Englishmen had assailed different types of promiscuous search and seizure, but Otis implicitly rejected them all and offered a successor to them as well.27 His proclamation that only specific writs were legal was the first recorded declaration of the central idea to the specific warrant clause.28

The issues in Paxton’s Case were simple and afforded few grounds for the broad arguments that Otis was to make. All three attorneys agreed on several points.29 The Fraud Act of 1662 enabled English customs officers who had writs of assistance to search houses.30 By equipping such officers abroad with all powers of search that they had in England, the Navigation Act of 1696 appeared to have extended those writs to the colonies.31 Finally, a local enactment of 1699 had given the Superior Court the jurisdiction of the Court of Exchequer, the source of those writs in England.32 The first impression on any reader of the three statutes, now as well as in 1761, was that Hutchinson and his brethren had the jurisdiction to issue writs of assistance, which Parliament had already defined as licenses to search any and all suspicious houses.

II.1. The Gridley Brief33

Assuming that Parliament was omnipotent as well as supreme, Gridley spoke first and took the position that Parliament’s statutes were their own highest law. The gist of his (p.383) brief was that the legislature had codified writs of assistance in 1662 and extended the door-to-door searches they allowed to Massachusetts and the other colonies in 1696.34 To illustrate the orthodoxy of those writs, Gridley cited several other Restoration statutes permitting general searches in relation to impost taxes, but his most authoritative evidence was the Fraud Act of 1662 itself.35 After quoting the language of promiscuous search in that act, Gridley described the form of the writ in William Brown’s Compendium of 1688–1725 and Paxton’s writ of 1755, emphasizing that both documents followed that language closely.36

In upholding the writ of assistance as a general search warrant, Gridley also expressed the philosophy behind that warrant. As he put it, “the Subject has the Priviledge of House only against his fellow Subjects, not versus ye King either in matters of Crime or Fine.”37 Because the writs serviced the revenue on which England’s survival depended, Gridley reasoned that they outweighed “the Liberty of any Individual.”38

II.2. The Thacher Brief39

Thacher and Otis delivered complimentary but distinct rebuttals to Gridley. Thacher had evidently allocated the larger constitutional topics to Otis, for he confined his brief to three technical and procedural issues.

First, Thacher circumvented the legality of general search and seizure via the writ of assistance. Instead, he impugned the authenticity of Brown’s draft of the writ, which (p.384) Gridley had stressed, by noting its absence from earlier and more numerous books of precedents.40

Second, Thacher maintained that the Superior Court had previously disqualified itself as a source of that writ by renouncing the jurisdiction of the Court of Exchequer, which issued writs of assistance in England.41 Thacher exaggerated, however, for the precedent he cited, McNeal v Brideoak (1754), did not renounce any jurisdiction explicitly.42 During the November hearing, Thacher further claimed that the Exchequer Court jurisdiction had atrophied and that the local act of 1699 vesting it was obsolete. As proof, he noted that the Superior Court had not exercised that jurisdiction until 1755, when it had given Paxton his first writ of assistance.43 Auchmuty promptly retorted, however, that Thacher ignored the other side of the coin, that the consistent issuance of the writs after 1755 canceled the plea of disuse.44

Third, Thacher argued against the issuance of writs of assistance on grounds that the judiciary could not moderate general searches by customs officers in Massachusetts as it did in England. In Leglisle v Champante (1728), the King’s Bench had held fruitless seizures to be tortious, but Thacher warned that that precedent was inoperative in the colony because customs officials were not officers of the court there, as they were of the Court of Exchequer in England.45 Leglisle was of marginal pertinence, however, (p.385) for it concerned seizures, not searches.46 Moreover, later legislation had eviscerated Leglisle by allowing judges to declare, retrospectively, that probable cause had existed for a seizure, thereby shielding the agent of that seizure from being sued.47 Nor, for that matter, had Thacher shown that any English court, of Exchequer or otherwise, had ever used Leglisle to make customs searches less general.48

II.3. The Otis Brief49

In a versatile and intricate brief, Otis confronted the British law of search and seizure directly, put it on trial, and addressed every issue it implied. Four interlocking assumptions underpinned the Otis brief: (1) Statute law defined writs of assistance as specific, not general, search warrants; (2) moreover, even if legislation encompassed general writs, practice had since rendered them specific; (3) legislation and practice notwithstanding, the English Constitution tolerated only specific warrants; (4) the unconstitutionality of door-to-door searches in Massachusetts was independent of their consti-tutional standing elsewhere.50

Otis implied that general search warrants were not legal, were not used if legal, were not constitutional if used, and, if constitutional in England, were not so in Massachusetts. A dialectic for all contingencies, the Otis brief undercut every hypothesis that could conceivably sustain the general search warrant.

Unlike the other attorneys in the case, Otis questioned the language enacting writs of assistance. Although the Fraud Act of 1662 empowered holders of those writs to conduct house-to-house searches, Otis insisted that the writs were, nonetheless, specific search warrants. He grounded this thesis on the Fraud Act of 1660, which had also authorized searches for smuggled contraband. This earlier law, however, created warrants, not writs, and it predicated them on the sworn oaths of informants, exposed those informants to lawsuits for fruitless searches that they had caused, and limited the longevity of the warrants to thirty days. Otis argued that these warrants were not only specific but definitive of the writs of assistance that were codified two years later. He was wrong on both points.51

(p.386) Like writs of assistance, the customs search warrants of 1660 called for general searches, for both documents exposed every house to search. On the other hand, the writs permitted a different kind of general search; they not only adopted a new terminology but omitted most limits on the search process that the warrants had imposed.52 Moreover, Parliament’s continuance of both processes intimated that it regarded them as distinct entities.53 Thus, customs warrants and writs of assistance were not coextensive, and, even if they were, both permitted promiscuous searches and seizures.

To corroborate his interpretation of the statutory intent behind those writs, Otis also asserted that they currently functioned as specific search warrants in Britain. He cited a recent article in the London Magazine to that effect and observed, correctly, that the examples of search warrants for stolen property in modern legal treatises had shifted from the general to the specific kind.54

The logic of the Otis brief was weakest on these points, for its author assumed that the operation of writs of assistance in 1761 indicated the latitude of search and seizure that their codifiers had intended a century earlier, in 1660–1662. Moreover, this rationale was circular, for Otis held that Massachusetts practices respecting the writ had to conform to a century-old British law, but he used contemporary British practice to affix the content of that law.

Otis’s reasoning was procrustean as well, for he reconciled law to practice, not practice to law. The forensic dividend of his nonsequiturs, however, was a dichotomy that maximized evidence in behalf of the specific warrant. On the one hand, Otis implied that the current usage of writs of assistance as specific warrants disclosed the statutory intent behind them. Confronting statutory language that defined those writs as general warrants, on the other hand, he simultaneously held that such usage reversed that intent. By asserting that writs of assistance operated as specific warrants, Otis was able to have it both ways at the same time.55

(p.387) The data that Otis presented to portray writs of assistance as specific search warrants was also shaky. The London Magazine article, the most important piece of hard evidence in the Otis brief, was little more than editorial bombast against a new-found application for those writs.56 Although certain administrative restrictions had long attenuated their enforcement in contemporary England, the writs still authorized general searches, and the customs service undertook such searches regularly.57 The author of the article provided no sources and was in error, as was Otis by extension.

By citing the specific warrants in legal treatises as precedent against general writs of assistance, Otis misled by disembodiment and irrelevance. The British law of the day entertained searches and seizures for sixteen distinct applications.58 Searches for pilfered merchandise were only one of those applications, no more pertinent to searches by the customs service than those for felons, seditious authors, or vagrants. Because all of those latter searches involved general warrants, however, Otis mentioned none of them.59 Instead, he selected the most conspicuous examples of specific warrants, which were atypical, and misrepresented them as typical. General warrants pervaded the British law of search and seizure, however, and as that law was itself at issue, Otis had little choice.

Otis required a technique that controlled rather than reflected the general warrant, and a multifaceted appeal to the higher law provided it.60 Otis insisted that writs of assistance violated not only statutory intent and practice but also the British Constitution, English common law, natural law, and the higher law. He reasoned that the writs infringed natural rights that were “inherent, inalienable and indefeasible by any laws, (p.388) pacts, and contracts, covenants or stipulations which man could devise and were wrought into the English Constitution as fundamental laws.”61

In Otis’s legal pantheon, statutory law was inferior to a constitutional law that itself rested on the immutable law of reason:

Thus, reason and the constitution are both against this writ…. No acts of Parliament can establish such a writ; Though it should be made in the very words of…[Lechmere’s] petition, it would be void. ‘AN ACT AGAINST THE CONSTITUTION IS VOID.’62

Natural law, in turn, interpenetrated the common law, whose judges oversaw its observance by passing unconstitutional statutes “into disuse.”63 To clinch the point, Otis cited the opinion of the Common Pleas in Bonham’s Case (1610):

It appears in our Books, that in several Cases the Common Law will controul Acts of Parliament and sometimes adjudge them to be utterly void; For where an Act of Parliament is against Common Right and Reason or repugnant or impossible to be performed, the Common Law will controul it and adjudge it to be void.64

This apotheosis of the common law enabled Otis to transcend the hostility of his evidence. By invoking a higher law against general search and seizure, he could logically maintain that writs of assistance were specific search warrants even though the statute codifying them said the opposite.65

Finally, Otis contended that the Massachusetts Charter of 1629 intruded a final constitutional barrier against the writs of assistance. This rationale was a feeble line of last defense if the principal argument, that general writs were illegal in England, failed. In effect, Otis asserted that the illegality of those writs in Massachusetts was independent of their legality in England because they had not been enacted until after the colony had been settled.66 Nevertheless, that argument contradicted the extension of the writs (p.389) to all the colonies by the Navigation Act of 1696 and a recent acknowledgment by the General Court of the validity of all Parliamentary acts respecting Massachusetts.67

The intricacy of the Otis thesis was more apparent than real, for its disparate components all derived from legal theory. The range of authorities that Otis arrayed against the constitutionality of the writs was diverse. At one point or other during the two hearings, Otis cited Article Thirty-nine of Magna Carta, its later confirmations by Parliament, the thesis of Matthew Hawkins against general warrants, and, probably, Coke’s opinion in his Institutes that Magna Carta forbade those warrants.68 Buttressed by the affirmations (p.390) of Lords Hobart (1615) and Talbot (1734), the Bonham precedent, whose author was also Coke, appeared to be only one of the many pillars of the Otis brief.69

Otis used Bonham, however, not as hard precedent but as the foundation for constitutional theories that went beyond Coke. The case had involved the authority of the London College of Physicians over a rebellious surgeon. Private interests had clashed, not levels of law. By seeking to reconcile the statutory and common laws, Coke had introduced the element of judicial activism that Otis exploited. Coke, however, had not invalidated an enactment infringing a higher law or denied Parliament’s power to enact it but only subjected the statute to a reasonable construction.70 By contrast, Otis’s appeal was a constitutional one involving the boundaries that a higher law had imposed on legislative power.71

Coke’s opinions in camouflage also grounded Otis’s contention that natural and common law rendered writs of assistance illegal as well as unconstitutional. As evidence of that illegality, Otis noted William Hawkins’ Pleas of the Crown (1721).72 The citation from Hawkins, however, simply rephrased the section of the Institutes in which (p.391) Coke had pronounced general warrants unconstitutional.73 The attempt to maintain the illegality as well as the unconstitutionality of the writs of assistance was hollow, for both objections were so much legal theory in disguise. Otis implied that the law and the ideology of search and seizure coincided, but his evidence that the writs were not legal was, ultimately, Coke’s insistence that general warrants could not be constitutional.74

In short, Otis compelled legal theory to serve as evidence of legal reality on the assumption that the former defined the latter. The theories of Coke and his disciples were the source from which the bulk of Otis’s apparently disparate arguments emanated. Starting with Coke’s elongation of Article Thirty-nine, per Hawkins, Otis concluded that general warrants were atypical and had always been enforced as specific warrants because Coke and Hawkins implied as much.75

Moreover, Otis enlarged the right against unreasonable search and seizure far beyond the usual British understanding. Coke, Hawkins, Hale, and their followers had condemned the general warrant without saying what its uniform replacement should be.76 Otis, however, implied that they had identified the specific warrant as that replacement, thereby taking Coke’s interpretation of Article Thirty-nine to its logical conclusion. Coke had suggested, but never declared, that specific warrants were the only legal ones.77 By proclaiming what Coke had only implied, Otis gave the “myth of Magna Carta” a civil libertarian extension of quantum proportions. The Otis edition of the myth placed specific warrants within the legitimating penumbra of the old charter.

Formidable constitutional difficulties would have impended had the Otis brief consisted of outright higher law constitutionalism. The Superior Court could have decided in his favor only by constructing the radical precedent that any colonial court could nullify any Parliamentary statute it thought unconstitutional. Such a decision suggested judicial review and was tantamount to it.78

Otis escaped this pitfall, however, by equating the theoretical and the real dimensions of British law. He skillfully represented Coke’s wishful legal thinking as ancient natural rights that England’s laws and constitution had recognized since Magna Carta.79 (p.392) By casting Coke’s exegesis on search and seizure as an aged but functioning reality, Otis suggested that the bench would paradoxically uphold the law by eviscerating one of its creatures, the general writ of assistance. Otis did not ask the bench to strike down the Fraud Act of 1662 but, rather, to acknowledge that its incompatibility with a higher law had vitiated it at creation. He subtly suggested that, because that writ was already stillborn before the law, the court should construe it in conformity with the specific warrants that the law alone permitted.80 Such an interpretation was a de facto disallowance, judicial activism in the disguise of judicial restraint.

The Otis brief also reflected a widespread failure to recognize the departure of the Bay Colony’s law of search and seizure from that of the mother country. At one point, Hutchinson charged that the opponents of the writs of assistance had injected “into the heads of the common people…[the idea] that these writs were contrary to their liberties as Englishmen.”81

Otis and his allies, however, had neither invented local hostility to the writs nor “put it into the heads of the common people.” Hostility to general warrants had been increasingly evident in the colony’s legislation on search and seizure for more than a century.82 Otis had not caused that evolution but only announced the conclusion, the specific warrant, that it implied. Because Massachusetts had heeded Britain’s legal ideology in developing that warrant, Otis and Thacher assumed that the mother country had done likewise. Although mistaken, that reasoning was not a calculated deception.

In proclaiming the assumptions beneath Massachusetts law, Otis transformed them into a discrete, coherent ideology. Because Otis ignored mounting disparities in the legislation of Massachusetts and Britain towards search and seizure, however, his brief had an intellectually explosive potential. Although the specific warrant that he defended was, by and large, a recent statutory invention of the Bay Colony, Otis mistook it for an established element of British law. However erroneous their assessment of British law and history, he and Thacher vehemently insisted that the liberties they believed were not only ancient but English.

Conversely, Otis perceived the definitive British law of search and seizure as aberrational, threatening, and hostile. Although writs of assistance typified that law, Otis damned them as Star Chamber relics, “instruments of slavery,…a terrible menacing monster.”83 Elsewhere, Otis blasted the writs as “destructive of English liberty and the (p.393) fundamental principles of the constitution.”84 In his view, they recalled that Stuart absolutism that “had cost one King of England his head and another his throne.”85

To illustrate the point, Otis cited a recent abuse of the writ of assistance by a customs officer, Nathaniel Ware. Convicted of Sabbath breaking or profanity, Ware retaliated by using his writ to ransack the houses of the constable who had arrested him and of the judge who had convicted him.86

Otis concluded that, for practical purposes, writs of assistance were licenses to conduct infinite searches. Citing Freeman v Bluet (1700), he correctly noted that regular search warrants were of limited duration but that the writs exposed all men’s houses to capricious, perpetual intrusion.87 Yet most applications of the search process in contemporary Britain shared the same promiscuous methods as the writ provided. The larger point that Otis ignored was that general searches were not excessive unless the specific warrant, which reigned supreme only in Massachusetts, was the norm.

The consequence of this dissimilation of statutes and statutory assumptions was that some Englishmen on opposite sides of the Atlantic began to attach opposing meanings to the same language and principles.88 By standardizing the specific search warrant, the people of Massachusetts had enlarged the idea of houses as castles far beyond the British understanding without realizing that they had done so or how far.89

(p.394) Although all three briefs had substantial defects, those against the writs of assistance were sufficiently persuasive that the court “inclined” against granting the writs when the first hearing ended.90 With Otis and Thacher on the brink of victory, the court suspended proceedings on 26 February 1761 to determine English policy on the matter.91

II.4. Final Arguments and Disposition

Only Hutchinson favored granting the writs, and he took the initiative in resolving the issue.92 On 5 March 1761, he wrote to William Bollan, the province’s agent in London, asking how the writs operated in Britain. Bollan replied on 13 June that they were employed routinely and included a sample writ. His response resolved the issues of whether the Court of Exchequer granted the writs and, by implication, of whether it did so legally. Bollan emphasized that the writs issued mechanically on application by the customs commissioners, without oath or particularization of place or person.93

The Superior Court returned to the writs of assistance on 18 November and reheard arguments, which added little to what had been said in February.94 Once again, Otis emphasized the higher law. He introduced two new precedents against the writs, however, the protests against general search warrants to collect ship money in 1629 and (p.395) Strafford’s impeachment for issuing general warrants of arrest in 1641.95 Nevertheless, Bollan’s information and the usage of the writs under Shirley and Pownall proved decisive.96 The court decided for issuance of the writs unanimously, immediately after argument had terminated.97

Paxton received his new writ on 2 December, and his colleagues obtained at least nine other writs over the next four years.98 Hutchinson drafted the form of these writs, which no longer required resistance as a precondition for forcible entry. Otherwise, however, the new writs differed only slightly from those that the same court had granted earlier.99

III. THE INTELLECTUAL FALLOUT OF PAXTON’S CASE100

Paxton’s Case intensified public antipathy to the writs of assistance and revealed the breadth and depth of that antipathy. An underlying hostility to those writs, however, was apparent even before adjudication commenced. A month prior to the first hearings in the case, the Boston Evening Post reprinted an article in the London Magazine reporting that the writs operated as specific search warrants in England.101 The Magazine piece set the tone of public commentary on search and seizure. A few weeks later, (p.396) another essay in the same newspaper condemned customs officers as “Ratts of Prey” who “seize voracious all they touch in Stores, Shops, or Desarts.”102

For three months after the November hearing, accounts of the proceeding and vehement protests against the writs saturated the press. On 21 November, the Boston Gazette summarized the concluding arguments and noted sarcastically that Paxton, “whose regard for the Liberty and Property of the Subject…is well known” had received the first writ years ago.103 Otis and Thacher, the Gazette continued, had presented their briefs “with strength and Reason” and thereby acquired “Great Honour.”104 Anonymous critics repeated Otis’ dire prophecies concerning the abuses that the writs would occasion: Everyone would obtain them; no premises would be safe. Informers, prophesied one colonist, would

break open doors, trunks, chests, and boxes—alms houses, bridswells, jails or churches—never mind a dwelling house—no, not a colonels, a justices, a representatives or even a ministers…why then should not the writ of assistance be extended to ALL. Let all alike be search’d for seiz’d and condemn’d—or none…. Let us all then lend a helping hand to this good work—not only customs house officers but others—lett ALL apply for writ of assistance.105

Another commentator vilified the “outrage” whereby any executor of a writ could “ENTER FORCEABLY into a DWELLING HOUSE, and rifle every part of it, where he shall PLEASE to suspect uncustom’d goods are lodg’d.” He further warned that “Every householder in the province will necessarily become less secure.”106 A third essayist envisioned Paxton commanding his assistance in searching a house. If the owner challenged the writ, the author promised to “leave friend Charlie to execute the law by himself.”107

The intense response of the colonial bar to the case was still another barometer of public sensitivities to promiscuous search and seizure. Benjamin Prat, the newly appointed chief justice of New York, delayed his departure to hear the trial.108 Lawyers crowded the council chambers, in which the case was heard, to capacity.109 John Adams and Josiah Quincy recorded the arguments.110 Eight years later, Governor Bernard still recalled the drama of the case.111

(p.397) IV. THE POLITICS OF PAXTON’S CASE

Apotheosis of the specific warrant in Paxton’s Case was only one outcome of political interactions within contemporary Massachusetts and cannot be understood apart from them. Otis had political as well as ideological incentives to sponsor that warrant, and his sponsorship of it had profound political consequences.

IV.1. The Political Origins of Paxton’s Case

Merchants, customs officers, and two legislative factions were the colony’s foremost political contestants in 1760–61. Paxton’s Case was but one arena in which those contestants fought, and the writ of assistance was only one issue on which they joined political battle.

IV.1.A. Merchants versus customs officers.

The mercantile community of the Bay Colony challenged writs of assistance because they threatened not only civil rights but the smuggling from which that community profited. Violators of the Acts of Trade in the Bay Colony had paid over one thousand, eight hundred pounds in fines since 1753. By rendering writs of assistance inoperative, those violators and their sympathizers hoped to disable a generator of those fines.112 Furthermore, many local merchants believed that the Navigation Acts were enforced with greater severity in their colony than in Rhode Island, where smuggling proceeded on a larger scale with less official hindrance.113 Opposing the writs made sound business sense.

Paxton’s Case was only one of a cluster of law suits that were designed to cripple the customs service and neutralize its interference with mercantile activity.114 Charles Paxton was the most aggressive and effective customs officer in the colony. He had received the first writ of assistance in 1755, was in line for another one because of Lechmere’s petition, and had single-handedly accomplished all the recent seizures for (p.398) infringements of the Navigation Laws.115 Just before contesting Paxton’s access to that writ, the same merchants had instituted a series of politicized trials to minimize his profits from prosecuting smugglers and his financial inducements to prosecute them.116 At about the same time, George Erving, member of the council and the political captain of the merchants’ committees, sued another customs officer for trespass in seizing his brigantine, the Sarah.117 The assault on the writs was part of a larger campaign to manufacture a legal environment in which customs officers could not operate.

IV.1.B. Customs officer versus customs officers.

Tensions within the customs establishment were a second ingredient in Paxton’s Case and in the other judicial onslaughts of the merchants.118 Collector Benjamin Barons of Boston, the rogue elephant of the customs establishment, had long obstructed his colleagues and encouraged opponents of the Navigation Laws. He had once experienced the seizure of his own ship at Boston for violating the Acts of Trade, had been suspended from office scarcely seven weeks after assuming it, and attempted to suborn an informant into wrecking prosecutions of smugglers.119 Barons rotted the integrity of the customs service from within while the merchants besieged it from without.

(p.399) When reissuance of the writs of assistance became necessary, Barons approached a gathering of the merchants. Asserting that the Superior Court could not lawfully grant those writs, Barons laid before his astonished audience documents that facilitated the suits against Paxton.120

IV.1.C. Hutchinson versus the Otis family.

Another cause of the writs of assistance controversy was political rivalry between the Hutchinson and Otis families of, respectively, Suffolk and Barnstable Counties.121 Although both families had produced generations of office holders, the Hutchinsons had dominated throughout the first half of the century.122 For about a decade, however, the Otises had been more successful and were on the brink of political ascendancy. They had attained the attorney generalship in 1748 and the advocate generalship shortly afterwards.123 Since 1747, Otis Sr. had also acquired a colonelcy in the militia and a string of lucrative military supply contracts.124 Just before the commotion over the writs and the customs establishment started, he became the speaker of the House of Representatives, a position that Hutchinson had lost a decade earlier.125 The speakership was the paramount legislative office in the colony and a socio-political coup for Otis, who had begun adult life as a ropemaker.126 Otis also expected to occupy the top judicial post in the near future, signifying his arrival as chief of the colony’s preeminent political clan.127

(p.400) Despite their mutual hunger for office, the Otis and Hutchinson families had usually aligned on the same political side, in support of the gubernatorial faction in the General Court. According to Hutchinson, the Otises had hitherto been “good sound loyal men” and “friends to government.”128 The elder Otis had staunchly supported the unpopular financial schemes of Governor Shirley and of Hutchinson; indeed he had once prevented Hutchinson’s expulsion from the council.129 As advocate general, or king’s attorney, of Massachusetts, young Otis had been prosecuting the colony’s smugglers for years and was thus scheduled to argue the Crown’s case for writs of assistance.130

By contrast, Barons and the Bostonian merchants were the foremost antagonists of Otis and his father. Barons and Otis Jr. were fierce personal enemies, not on speaking terms.131 So great was the enmity between Otis Sr. and the merchants that they had tried and failed to prevent his election to the legislature.132 In turn, he had opposed them during the excise controversy. While Boston’s businessmen had spearheaded the fight against the excise, the elder Otis had written approvingly of the interrogation clause and had represented one of the few pro-excise towns.133

Bernard’s appointment of Hutchinson as chief justice, on the passing of Jonathan Sewall in 1760, however, triggered a convulsive realignment of these political forces.134 (p.401) The Otises had long anticipated a seat on the court, accused Hutchinson of betrayal and treachery for taking the job, and swore vengeance.135

When Otis agreed to represent the merchants in that heated political atmosphere, he not only enlarged his roster of clients but telegraphed his defection and that of his father from the governor’s political circle. Conversely, the merchants did much more than select legal representation by retaining young Otis; they broadcast their political allegiance and acquired powerful allies in the legislature.

The identity of the participants in Paxton’s Case further defined it as an extension of the preceding controversies respecting the Excise Bill and specific search warrants. The forces that had rejected the interrogation clause and championed specific warrants in 1754–56 dominated opposition to the writs of assistance in 1761–62. In 1755, Thacher had joined a committee against the clause, and “James Otis Jr.” appeared on the petition of merchants opposing that clause. Indeed, almost half of the persons who challenged writs of assistance in 1761, 28 of 63 or 44.44 percent, had signed that same petition.136 On the other hand, Gridley, who now defended the writs, had upheld the prosecution of a critic of the general searches that the old excise had allowed.137 With the exception of Otis Sr., who was switching sides, the political alignments over the writs repeated those over the interrogation clause and specific warrants.

Although they made strange political bedfellows with the merchants and Barons, the Otises undertook a poignant political journey as part of their new alliance. Otis Jr. resigned as advocate general, represented the merchants in their suits against Paxton, and encouraged Barons to sue his superiors after they again dismissed him for misconduct. Young Otis also made it widely known that his legal services to the merchants were gratis.138 He and his father deserted the governor’s faction in the assembly and (p.402) deployed with his erstwhile Bostonian opponents in consistent hostility to government policies. His defection carried others in its wake and produced a new legislative configuration less friendly to gubernatorial wishes.139

By denying the chief justiceship to Otis Sr., Hutchinson and Bernard had arrested the political momentum of the Otis clan. By collaborating with Barons and the merchants against the writs of assistance, the Otises sought to revive that momentum and to publicize the political costs of thwarting them. The lieutenant governor saw Paxton’s Case as little more than opportunistic political vengeance by Otis and Co.140 Revenge, however, was only a fragment of the larger picture.

Paxton’s Case signalized a political cleavage within the colony’s ruling elite far more than a displacement of that elite or personal vengeance for thwarted ambitions. The most striking characteristic of the participants in the case was the high percentage of them and their relatives who held potent political office. All of the judges of the Superior Court sat on the council.141 The vast majority of the sixty-three merchants who attacked the writs of assistance were politically connected as well. Of the sixty-three, only six, or less than 10 percent, had a family name absent from the list of colonial office holders for 1733–1761.142 The underlying political tenor of the case was palpable, for its participants were the outstanding political competitors of contemporary Massachusetts.

IV.2. The Political Aftermath of Paxton’s Case143

The political consequences of Paxton’s Case were another barometer of public attitudes towards the writ of assistance. Opponents of the writ triumphed politically while its supporters suffered. According to John Adams, the case brought Otis Jr. boundless popularity. In May 1761, young Otis led the field of Bostonian candidates for the House (p.403) of Representatives and won by a nearly unanimous vote.144 The assembly again picked Otis Sr. as it speaker; the following year, it reelected him and, soon after, elevated him to the council.145 Thacher joined Otis Jr. in the lower house in 1763.146

In March and April of 1762, the Otises orchestrated a campaign in the legislature to nullify the Superior Court’s approval of the writs and to punish those who had sponsored them. The onslaught began with an attempt to transform those writs from general into specific search warrants. On 5 March, the General Court passed a bill that limited the duration of writs of assistance to seven days, based them on oath, and required that they designate the informer, the accused owner of contraband, and the alleged place of concealment.147 The influence of Otis on the bill was obvious, for he represented the assembly in the conference committee that finalized it.148 Moreover, the proposed law coincided precisely with the specific warrants that he had advocated during Paxton’s Case.149

When Governor Bernard requested their opinion of the bill, the judges of the Superior Court replied that it violated British law by preventing the operation of writs of assistance as general search warrants. The following day, Bernard vetoed the provision in open council as inconsistent with the Navigation Act of 1696, the statute extending British customs searches to the colonies.150

(p.404) Like Hutchinson with the Otis brief, Bernard regarded the Special Warrants Bill as a crude attempt to conceal smuggling beneath a facade of legality.151 Yet the measure was no subterfuge for only its publicizing of informants was novel.152 Most restrictions on searches in the proposal already characterized local legislation respecting revenues and military desertion.153 The bill was little more than another success by specific warrants in Massachusetts law, an effort to compel British customs officers to observe the restraints on searches that their local counterparts already accepted.

The legislature’s most severe retaliation fell on the Superior Court and on Bollan. Prior to Paxton’s Case, each judge on the court had received a yearly salary of one hundred and fifty pounds, with another forty pounds for the chief justice.154 Six weeks after the initial arguments over the writs, the General Court slashed the annual remuneration for each justice by ten pounds and eliminated the chief justice’s addendum. To make doubly sure that Hutchinson appreciated the insult, the legislators donated a substantial amount to the estate of Sewall, his deceased predecessor, a rumored foe of the writs of assistance.155 When these salary reductions continued after the Special Warrants Bill had passed, Hutchinson observed that his positions on the writs and on the currency had divested him “of a great number of friends.”156

A greater shock awaited Hutchinson and his brethren. On 17 April, the assembly appointed a committee of three to draft a bill excluding members of the Superior Court from the council.157 With Otis as chairman, the committee took only hours to report a version barring those jurists from the lower house as well.158 The bill completed all three readings within as many days but failed by the slender margin of seven votes out of ninety-three cast.159

A coup by Otis on the preceding day, when his partisans commanded an ephemeral majority of the assembly, presaged this attack on the court. Alluding to the crucial documents concerning writs of assistance that Bollan had supplied Hutchinson during (p.405) the trial, Otis charged that Bollan had “favored ye Officers of ye Customs.”160 Before the startled government faction could react, a committee with young Otis at its head suddenly proposed Bollan’s dismissal, which another committee presented to the council.161 Although Hutchinson and Andrew Oliver frantically tried to block the dismissal in the upper house, they lost by a single vote. When Bernard refused to intercede, the junior Otis led a third committee that replaced Bollan with Jasper Mauduit as colonial agent.162

Together with the other suits against the customs service, Paxton’s Case had enabled the Otises and their allies to threaten the Bernard faction’s control of the legislature. Although the Otises had not swept all before them, the assaults on Bollan and on the Superior Court proclaimed their elevated position in a changing political order. Bernard acknowledged that rise by approving Otis Sr.’s seat on the council and by placing the entire gubernatorial patronage in Barnstable County at his disposal. The elder Otis thereupon assumed two local offices as a sort of consolation prize for the superior court justiceship, chief justice of common pleas and judge of probate.163 The causes and consequences of Paxton’s Case defined it as one of the most political episodes in colonial judicial history.

V. SUMMARY AND CONCLUSIONS

Advocacy of the specific warrant was only one dimension to Paxton’s Case because vindictive motives and maneuvering political factions underpinned that advocacy. The case was a milestone not only in civil libertarian thought but in the political history of Massachusetts. On one level, Otis had taken the British ideology of search and seizure beyond condemnation of general warrants to an appreciation of specific ones as their replacements. On another level, he had selectively fashioned law, history, and legal fiction into one of the weapons that an insurgent alliance of merchants and politicos aimed at (p.406) the existing political order. The movement against writs of assistance was as much a political escalator for the Otis clan as it was an intellectual one for the evolving right against unreasonable search and seizure.

Political expediency, however, provides an inadequate explanation to Paxton’s Case and does not erase the Otis brief as a civil libertarian achievement. Although his impulses were political, Otis’ argument for the specific warrant had deeper roots in local law and in inherited British traditions against unlimited search and seizure. Otis and his mercantile confederates were far less the architects than the beneficiaries of that law and those traditions. That Otis had advanced the ideology of search and seizure beyond Britain’s nebulous hostility to general warrants overwhelms the self-interested route by which he accomplished it.

Officer Record

Year and Folio

Date Writ Granted

Charles Paxton

1755, fols. 149–50

[30] Aug. 1755]

Richard Lechmere

1758, fol. 256

7 Feb. 1758

Francis Waldo

1758, fol. 297

Apr. 1758

James Nevin

1759, fol. 519

[5] Feb. 1759

Thomas Lechmere

1759, fol. 548

Mar. 1759

William Sheaf

1759, fol. 55

3 Feb. term 1759

George Craddock

1760, fol. 28

1 Mar. 1760

William Walter

1760, fol. 30

[4] Mar. 1760

Notes:

1 Mass. Prov. St., 1755–56, c. 31, sec. 24 (28 Feb. 1756), Mass. Acts and Resolves, vol. 3 (1742–57), pp. 909–10. Mass. Prov. St., 1755–56, c. 47, sec. 20 (20 Apr. 1756), ibid., pp. 936–37. Mass. Prov. St., 1758–59, c. 2, secs. 1, 2 (8 June 1758), ibid., vol. 4 (1757–68), pp. 156–57.

2 Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), Massachusetts Spy, Thu., 29 Apr. 1773 (vol. 3, no. 117), p. 3, cols. 1–2; J. Adams, Legal Papers, vol. 2, pp. 123 at 141.

3 Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), Massachusetts Spy, Thu., 29 Apr. 1773 (vol. 3, no. 117), p. 3, col. 1; J. Adams, Legal Papers, vol. 2, p. 142.

4 Richard B. Morris, “The Current Statesmen’s Papers Publication Program: An Appraisal from the Point of View of the Legal Historian,” A. J. L. H., vol. 11 (1967), p. 97.

5 For fuller discussions of the background to Paxton’s Case, see: Emily Hickman, “Colonial Writs of Assistance,” N. E. Q., vol. 5 (1932), pp. 84–92. Lasson, Fourth Amendment (1937), pp. 55–58. Freiberg, “Hutchinson” (Ph.D., 1951), pp. 8–10. Thomas, “Politics” (Ph.D., 1960), pp. 1–8. Gipson, Thunder Clouds (1961), pp. 117–22.

6 Hutchinson, Hist., vol. 3, pp. 92–93. For the only known example of one of these writs, see: Shirley to John Greenleaf, 28 Feb. 1755, “Maritime [Affairs], 1753–59; Mass. Ar.,” vol. 65. fol. 77, Mass. Ar., Boston.

7 Commissions

Treasurer Southampton to John Cottman, 14 Oct. 1663, C. T. B., vol. 1 (1660–67), p. 550. Commission of Charles Paxton (as Surveyor and Searcher at Boston), 8 Jan. 1752, “Book of Commissions, 1628–1763; Commissions, Instructions, Charters, etc.,” vol. 11, fols. 79–80, Ma. Ar., Boston. For additional examples, see Cuddihy (1990), p. 759n(7).

Instructions

Great Britain, Commissioners of Customs, Instructions [to American Officers. n.p., n.d. {ca. 1707–32}], p. 6, sec. 14. Ibid. (1764), p. 6, sec. 14.

8 Hutchinson, Hist (1764–1828) vol. 3, p. 92. Brief of Robert Auchmuty and Opinion of Thomas Hutchinson, C. J., Paxton’s Case (Mass. Sup. Ct. 18 Nov. 1761), Mass. Reports, Quincy ed., pp. 52, 56.

9 12 Charles II, c. 19, secs. 1, 2, 4 (1660), S. L., vol. 7, pp. 460–46. 13 and 14 Charles II, c. 11, sec. 5 (1662), ibid. vol. 8., pp. 80–81. Mass. Prov. St., 1755–56, c. 47, sec. 20 (20 Apr. 1756), Mass. Acts and Resolves, vol. 3 (1742–57), pp. 936–37.

10 Hutchinson, Hist., vol. 3, p. 92.

11 Mass. Prov. St., 1755–56, c. 31, sec. 24 (28 Feb. 1756), Mass. Acts and Resolves, vol. 3 (1742–57), pp. 909–10. Mass. Prov. St., 1755–56, c. 47, sec. 20 (20 Apr. 1756), ibid., pp. 936–37. Mass. Prov. St., 1758–59, c. 2, secs. 1, 2 (8 June 1758), ibid., vol. 4 (1757–68), pp. 156–57. For a fuller exposition, see Chapters 15 and 16.

12 Hutchinson, Hist. (1764–1828), vol. 3, pp. 92–93. Commission of Charles Paxton (as Surveyor and Searcher at Boston), 8 Jan. 1752, “Book of Commissions, 1628–1763; Commissions, Instructions, Charters, etc.,” vol. 11, fols. 79–80, Mass. Ar., Boston.

13 13 and 14 Charles II, c. 11, sec. 5 (1662), S. L., vol. 8, pp. 80–81.

14 Hutchinson, Hist. (1764–1828), vol. 3, p. 93. Mass. Prov. St., 1699, c. 3, sec. 1 (26 June), Mass. Acts and Resolves, vol. 1 (1692–1714), p. 370. For scholarship on the Superior Court, see Cuddihy (1990), p. 761n(14).

15 Paxton to Superior Court justices, [17 June] 1755, “Miscellaneous Manuscripts,” vol. 12, 1749–60, Mass. Hist. Soc., Boston.

16 According to the “Records” of the Superior Court for 1755–60 in the Suffolk County Courthouse (recently relocated to the Massachusetts Archives), Boston, the following customs officers received writs of assistance between 1755 and 1760. (The dates for the granting of the petitions of Nevin and T. Lechmere are from the court files that the next paragraph describes.):

Officer Record

Year and Folio

Date Writ Granted

Charles Paxton

1755, fols. 149–50

[30] Aug. 1755]

Richard Lechmere

1758, fol. 256

7 Feb. 1758

Francis Waldo

1758, fol. 297

Apr. 1758

James Nevin

1759, fol. 519

[5] Feb. 1759

Thomas Lechmere

1759, fol. 548

Mar. 1759

William Sheaf

1759, fol. 55

3 Feb. term 1759

George Craddock

1760, fol. 28

1 Mar. 1760

William Walter

1760, fol. 30

[4] Mar. 1760

The court files at the above institution have also preserved the requests of three of the above officers for writs of assistance. Francis Waldo to the court, n.p., 11 Apr. 1758, “Court Files Suffolk,” vol. 471 (Feb.–May 1758), fol. 127 (no. 78,370): “Petition of Francis Waldo,” John Nevin to Same, Jan. 1759, ibid., vol. 476 (Jan.–Apr. 1759), fol. 49 (no. 79,409): “Petition of James Nevin as to a Writ of Assistance, 5 Feb. 1759.” Thomas Lechmere to Same, (19) Feb. 1759, ibid., fol. 79 (no. 79,449): “Petition of Thomas Lechmere, 8 March 1759.”

17 Massachusetts Writ of Assistance

For the undated writ issued Paxton, see: Stephan Sewall to various, [Aug. 1755], “Court Files Suffolk,” vol. 1226 (1753), no. 171,001, Suffolk Co. Courthouse, Boston (now in the Massachusetts Archives): “Writs of Assistance Endorsed Form.”

Contemporary English Writs of Assistance

“Breve Assisten pro Officiar Custum,” Brown, Compendium (1699; 2nd ed., 1725), pp. 358 at 360. George II to all, Westminister, 28 May (1750), RG 31 (Treasury Papers for the Province of Nova Scotia, c. 1770–1900), ser. 104 (Impost and Excise Records, 1758–1867), vol. 1 (1758–84), fols. 4–5 (no. 6), Public Archives of Nova Scotia, Halifax, Canada.

Commissions of Customs Officers in Massachusetts

Commission of Charles Paxton, 8 Jan. 1752, “Book of Commissions, 1628–1763; Commissions, Instructions, Charters, etc.,” vol. 11, fols. 79–80, Ma. Ar., Boston.

Additional Examples of the Foregoing Documents

Cuddihy (1990), p. 762n(17).

Commission of Customs Officer in England

Commission of 4 July (1749), quoted in writ of assistance of 28 May (1750), above.

Fraud Act

13 and 14 Charles II, sec. 4 (1662), S. L., vol. 8, p. 80.

All of the foregoing exposed places afloat to perpetual search and houses to daytime search. Assuming that an officer’s authority was inherent and autonomous, moreover, the commissions permitted those searches ex officio, but the statute and writs of assistance declared the writs essential for general searches ashore.

18 Recd., [30] Aug. 1755, 7 Feb. 1758, Apr. 1758, Jan. 1759, Mar. 1759, Feb. 1759, 1, [4?] Mar. 1760, Mass. Superior Ct., “Recs,” 1755, fols. 149–50; 1758, fols. 256, 297; 1759, fols. 519, 548, 553; 1760, fols. 28–30.

19 Smuggling Directive: William Pitt to Gov. Francis Bernard, Whitehall, 23 Aug. 1760, “Bernard Papers,” vol. 9, fol. 121, Harvard Univ. Library, Cambridge, Ma. Boston Gaz. and Cntry Jnl., Mon., 1 Dec. 1760 (no. 296), p. 1, col. 1. Md. Council, Procs., vol. 10 (1753–61); Md. Ar., vol. 31, pp. 416–17. Annual Reg., vol. 3 (1760), pp. 219–20. Death of George II: Entry, 1 Jan. 1761, “Boyle’s Journal,” N. E. H. G. R., vol. 84 (1930), pp. 154–55. Hutchinson, Diary and Letters, vol. 1, p. 64. Idem., Hist. (1764–1828), vol. 3, p. 88. Boston Gaz. and Cntry Jnl., Mon., 29 Dec. 1760 (no. 300), p. 2, col. 2.

20 According to Hutchinson, supra, Boston did not learn of the king’s passing until 27 December, leaving less than four months of longevity on existing writs of assistance. For the statute imposing the six month limit, see: 1 Anne, st. 1, c. 8, sec. 5 (1701), S. L., vol. 10, p. 416.

21 Thomas Greene et al., to justices of the court, [Jan.] 1761, “Court Files Suffolk,” vol. 573 (Mar. 1765), no. 100,515b: “Writs of Assistance, 1761–1765…Greene et al., petn,” Suffolk Co. Courthouse, Boston. Although the petition bore no date other than that on which the court was scheduled to reconvene, the third Thursday of February, 1761 (17 Feb. 1761), an abundance of other documents indicated the mid-January date given in the text. For a full discussion, see Cuddihy (1990), p. 764n(21).

22 Thomas Lechmere to justices of the court, 21 Feb. 1761, “Court Files Suffolk,” vol. 573 (Mar. 1765), no. 100, 515b, Suffolk Co. Courthouse, Boston.

23 John Adams to William Tudor, Quincy, 29 Mar. 1817, J. Adams, Works, vol. 10, p. 247. Same to Hezekiah Niles, 4 Jan. 1818, ibid., p. 275. Same to William Wirt, 5 Jan. 1818, ibid., p. 271. Same to William Tudor, 1 June 1818, ibid., p. 314. Briefs of Gridley, Thacher, and Otis, Paxton’s Case (Mass. Superior Ct. 24 Feb. 1761), Mass. Reports, Quincy ed., pp. 469–77, 479–82; J. Adams, Works, vol. 2, pp. 521–25; idem., Legal Papers, vol. 2, pp. 123–30, 136–44. Hutchinson, Hist. (1764–1828), vol. 3, pp. 86–87. For a discussion of the litigative relationships of Otis and Thacher to the case and to each other and of the role of Benjamin Prat, Chief Justice to New York, see Cuddihy (1990), pp. 765n(23)–766n(23).

24 Brief of Auchmuty, Paxton’s Case (Mass. Sup. Ct. 18 Nov. 1761), Mass. Reports, Quincy ed., p. 56.

25 For the leading primary and secondary sources on Paxton’s Case, see below, Appendices E-1 and E-2.

26 Although the surviving documentation does not stipulate these dates, it facilitates their deduction. The February session of the court began on the third Tuesday, or 17 February 1761. Thomas Greene et al., to the justices of the court, [Jan.] 1761, “Court Files Suffolk,” vol. 573 (Mar. 1765), no. 100,515b, Suffolk Co. Courthouse, Boston. Second, according to the rough abstract of the case by Adams, Paxton’s Case commenced on the second Tuesday of that session, or 24 February, and, third, Governor Bernard afterwards revealed that it had lasted for three days, or 24–26 February 1761. Paxton’s Case, Mass. Reports, Quincy ed., pp. 469 at 479; J. Adams, Legal Papers, vol. 2, p. 134. Bernard to Lt. Gov. Franklin, “Bernard Papers,” vol. 5, fol. 261, Harvard University Library, Cambridge, Ma. For the date of the second hearing, see: The Boston Gaz. and Cntry. Jnl. (Mon., 23 Nov. 1761 [no. 347], p. 3, col. 1).

The title of the case remains controversial. “Paxton’s Case,” “Cockle’s Case,” “Writs of Assistance Case,” and “Petition of Lechmere” have all been proposed. For an extended discussion see Cuddihy (1990), pp. 766n(26)–768n(26).

27 For examples of English legal authors who rejected some types of general searches or warrants while endorsing other types, see: Coke, Institutes, vol. 2, pp. 731–32, versus vol. 4, pp. 176–78. Hale, Historia Placitorum Coronae (1736), vol. 1, pp. 580, 586–87; vol. 2, pp. 113–14, 150, versus ibid., p. 103.

28 Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), Massachusetts Spy, Thu., 29 Apr. 1773 (vol. 3, no. 117), p. 1, cols. 1–2; J. Adams, Legal Papers, vol. 2, pp. 123 at 141.

29 Briefs of Gridley, Thacher, and Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb., 18 Nov. 1761), Mass. Reports, Quincy ed., pp. 51, 57, 470–72, 475–76, 480–81; J. Adams, Works, vol. 2, pp. 521–22; idem., Legal Papers, vol. 2, pp. 124–26, 129–30, 136–39, 141, 144; Massachusetts Spy, Thu., 29 Apr. 1773 (vol. 3, no. 117), p. 3, cols. 2–3.

30 13 and 14 Charles II, c. 11, sec. 5 (1662), S. L., vol. 8, pp. 80–81.

31 7 and 8 William III, c. 22, sec. 6 (1696), ibid., vol. 9, p. 432.

32 Mass. Prov. St., 1699, c. 3, sec. 1 (26 June), Mass. Acts and Resolves, vol. 1 (1692–1714), p. 370. For a fuller discussion of this statute and of the jurisdiction it conferred, see: John M. Murrin, “Anglicizing an American Colony: the Transformation of Massachusetts” (Unpublished Ph.D. Dissertation, Yale University, 1966), pp. 165–73.

33 For further discussion of the subject, see: Smith, Writs of Assistance Case (1978), pp. 271–92.

34 Brief of Gridley, Paxton’s Case (Mass. Sup. Ct. 22–24 Feb. 1761), Mass. Reports, Quincy ed., p. 476; J. Adams, Works, vol. 2, p. 522; idem., Legal Papers, vol. 2, pp. 129–30, 136–37.

35 Brief of Gridley, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), John Adams to William Tudor, Quincy, 9 July 1818, J. Adams, Works, vol. 10, pp. 325–26, citing: 13 and 14 Charles II, c. 13, sec. 3 (1662), S. R., vol. 5, p. 406. 1 James II, c. 4, sec. 5 (1685), ibid., vol. 6, p. 5. These recollections by Adams, fifty–seven years after the fact, are the only indication that Gridley acknowledged these impost searches, for the surviving transcripts of the case do not mention those imposts. idem., Legal Papers, vol. 2, pp. 123–44. Adams was probably accurate on this subject, however, for these imposts of 1662 and 1685 showed that general searches were ordinary when the writs of assistance were codified, which was exactly what Gridley had to prove.

For a fuller evaluation of Adams’ retrospections on the rebuttal of Otis, see Cuddihy (1990), p. 771n(35).

36 Brief of Gridley, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), Mass. Reports, Quincy ed., pp. 480–81; J. Adams, Legal Papers, vol. 2, pp. 136–37. “Breve Assisten pro Officiar Custum,” Brown, Compendium (1688, 1699, 2nd ed., 1715), pp. 358 at 360. Stephan Sewall to various, [Aug. 1755], “Court Files Suffolk,” vol. 1226 (1753), no. 171,001: “Writs of Assistance Endorsed Form,” Suffolk Co. Courthouse, Boston. For a fuller evaluation of Gridley’s brief, see Cuddihy (1990), pp. 772n(36)–773n(36).

37 Brief of Gridley, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), Mass. Reports, Quincy ed., p. 477. J. Adams, Works, vol. 2, p. 523; idem., Legal Papers, vol. 2, p. 130. To a similar effect: ibid., p. 138 and Mass. Reports, Quincy ed., p. 481.

38 Brief of Gridley, Paxton’s Case (24–26 Feb. 1761), Mass. Reports, Quincy ed., p. 481; J. Adams, Legal Papers, vol. 2, p. 138.

39 For a fuller analysis of the subject, see: Smith, Writs of Assistance Case (1978), pp. 293–311.

40 Brief of Thacher, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), Mass. Reports, Quincy ed., pp. 469–70; J. Adams, Works, vol. 2, p. 521; idem., Legal Papers, vol. 2, pp. 124–25, citing Anthony Fitzherbert’s Natura Brevium (no writ of assistance) and the Registrum Brevium (4th ed., London, 1687), pp. 46–47 (writ to sequester property, not to search houses). Eighteen editions of the Natura Brevium were published between 1534 and 1755, the first ten in French and the last eight in English. To a similar effect: Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), Mass. Reports, Quincy ed., p. 472. J. Adams, Works, vol. 2, p. 522; idem., Legal Papers, vol. 2, pp. 126–27, 143–44; Massachusetts Spy, Thu., 29 Apr., 1773 (vol. 3, no. 117), p. 1, col. 3.

41 Brief of Thacher, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), Mass. Reports, Quincy ed., pp. 470, [482]; J. Adams, Legal Papers, vol. 2, pp. 125, 138–39; Idem., Works, vol. 2, p. 521.

42 McNeal v Brideoak (Mass. Sup. Ct. Nov. 1752, Feb. 1754), Mass. Superior Ct. of Judicature, “Recs.,” 1754, fol. 150, Suffolk Co. Courthouse, Boston. Idem., “Minute Books,” vol. 11 (1752–56: bks. 65–69), bk. 67 (Suffolk, Aug. 1752–Feb. 1754), Nov. 1752, new items, no. 137 and Feb. 1754, continued items, no. 26, ibid. A key point was that the court surrendered jurisdiction because one of the litigants had claimed the status of king’s debtor. This action was less a repudiation of the Exchequer Court jurisdiction than an admission by the local court that it lacked an equitable jurisdiction in the particular circumstances of this case.

43 Brief of Thacher, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), Mass. Reports, Quincy ed., pp. 51–54; Boston Gaz. and Cntry. Jnl., Mon., 23 Nov. 1761 (no. 347), p. 3, col. 1. Having searched the records, Wroth and Zobel report that Thacher’s contention was accurate. J. Adams, Legal Papers, vol. 2, p. 112n(18).

44 Brief of Auchmuty, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), Mass. Reports, Quincy ed., p. 56. Recd., [30] Aug. 1755, 7 Feb. 1758, Apr. 1758, Jan. 1759, Mar. 1759, Feb. 1759, 1, [4?] Mar. 1760, Mass. Superior Ct., “Recs,” 1755, fols. 149–50; 1758, fols. 256, 297; 1759, fols. 519, 548, 553; 1760, fols. 28–30, Suffolk Co. Courthouse, Boston.

45 Brief of Thacher, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb., 18 Nov. 1761), Mass. Reports, Quincy ed., pp. 54–55, 471, 482; J. Adams, Works, vol. 2, p. 521; idem., Legal Papers, vol. 2, pp. 125, 139. Leglisle v Champante (K. B. 1728), 2 Strange 820; 93 E. R. 871.

46 Leglisle v Champante (K. B. 1728), 2 Strange 820; 93 E. R. 871.

47 19 George II, c. 34, sec. 16 (1746), S. L., vol. 18, pp. 499–500; continued by: 32 George II, c. 18, sec. 1 (1759), ibid., vol. 22, p. 452. 4 George III, c. 15, sec. 46 (1764), ibid., vol. 26, p. 51.

48 For Thacher’s use of another marginal case, Horne v Boosey ([K. B. 1733], 2 Strange 952; 93 E. R. 963, in Brief of Thacher, Paxton’s Case [Mass. Sup. Ct. 24–26 Feb. 1761], Mass. Reports, Quincy ed., pp. 470, 482; J. Adams, Works, vol. 2, p. 521; idem., Legal Papers, vol. 2, pp. 124, 139), see Cuddihy (1990), p. 776n(48).

49 For a fuller discussion, see: Smith, Writs of Assistance Case (1978), pp. 331–86.

50 Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb., 18 Nov. 1761), Mass. Reports, Quincy ed., pp. 51 at 55–56, 469 at 471–76; J. Adams, Works, vol. 2, pp. 521 at 521–22; J. Adams, Legal Papers, vol. 2, pp. 123 at 125–29, 139–44; Massachusetts Spy, Thu., 29 Apr. 1773 (vol. 3, no. 117), p. 3.

51 Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), Mass. Reports, Quincy ed., pp. 471–72, 475; J. Adams, Works, vol. 2, pp. 521–22; idem., Legal Papers, vol. 2, pp. 126, 129, 140–41, 144; Massachusetts Spy., Thu., 29 Apr. 1773 (vol. 3, no. 117), p. 3, cols. 1–3. Hutchinson, Hist. (1764–1828), vol. 3, pp. 93–94. 12 Charles II, c. 19, secs. 1, 2, 4 (1660), S. L., vol. 7, pp. 460–61. 13 and 14 Charles II, c. 11, sec. 5 (1662), ibid., vol. 8, pp. 80–81. For Gridley’s different treatment of the same topic, see Cuddihy (1990), p. 778n(51).

52 12 Charles II, c. 19, secs. 1, 2, 4 (1660), S. L., vol. 7, pp. 460–61. 13 and 14 Charles II, c. 11, sec. 5 (1662), ibid., vol. 8, pp. 80–81. Both statutes forbade nocturnal searches of houses. Of the various limits on searches ashore in the first act, its successor retained only a prohibition of nocturnal house searches.

53 13 Charles II, stat. 1, c. 7 (1661), S. L., vol. 8, p. 9. 2 William and Mary, c. 4 (1691), S. R., vol. 6, pp. 166 at 167. 1 Anne, stat. 1, c. 13, sec. 2 (1701), S. L., vol. 10, p. 426. 9 Anne, c. 6, sec. 1 (1710), ibid., vol. 12, p. 93. 3 George I, c. 7, sec. 12 (1716), ibid., vol. 13, p. 341.

54 Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), J. Adams, Legal Papers, vol. 2, p. 141; Massachusetts Spy, Thu., 29 Apr. 1773 (vol. 3, no. 117), p. 3, col. 2. Hutchinson, Hist. (1764–1828), vol. 3, pp. 93–94. Otis did not specify how recently the shift from general to specific warrants for theft to which he referred had begun, but the shift had only started in 1730 with Harvey’s “Warrant to search for stoln Goods, and apprehend the Felon,” Harvey, Collection (1730), pp. 88–89; (3rd ed., 1751), pp. 142–43. For another example, see “A Search Warrant,” Shaw, Parish Law (2nd ed., 1734), Supplement, p. ix. For a full list of the other warrant–forms in Shaw, Barlow, Pearce, and Burn, see Cuddihy (1990), pp. 779n(54)–780n(54).

55 Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), Mass. Reports, Quincy ed., pp. 477, 475; J. Adams, Works, vol. 2, pp. 521–22; idem., Legal Papers, vol. 2, pp. 126, 129, 141, 144; Massachusetts Spy., Thu., 29 Apr. 1773 (vol. 3, no. 117), p. 3, cols. 1–3. Hutchinson, Hist. (1764–1828), vol. 3, pp. 93–94.

56 “The History of the last Session of Parliament,” London Mag., vol. 29 (1760), p. 126, col. 1, respecting 32 George II, c. 32, sec. 5 (1759) [S. L., vol. 22, pp. 513–14], which extended the writs of assistance to certain kinds of smuggled French linen. Although Otis did not cite his source, other evidence indicated clearly that it was the Magazine article. According to Hutchinson (idem., Hist. [1764–1828], vol. 3, p. 94n) Otis’ authority was “a London Magazine.” Also, a reprint of the foregoing article had appeared in the local press only five weeks before Paxton’s Case. Boston Evening Post (Mon., 19 Jan. 1761 [no. 1325], p. 1, col. 1).

57 Administrative Restrictions: Charles Carkese to Gentlemen, Custom House, London, 14 Apr. 1721, Customs 90/152, fol. 96, P. R. O., Kew. Crouch, Guide (1732), p. 280. Writ of Assistance: “Breve Assisten pro Officiar Custum,” Brown, Compendium (2nd. ed., 1725), pp. 358 at 360. General Searches: J. S(cott) and R. L. to (Commissioners of Customs), 11 Oct. 1729, C. E. 53/1/1, fols. 35 verso–36 recto, S. R. O., Edinburgh. Additional Documentation: Cuddihy (1990), p. 781n(57).

58 See above, Chapter 14. Of the searches there mentioned, only those respecting recruitment of the armed forces did not involve general searches in 1760.

59 For examples, see: “A Hue and Cry after Robbers,” Dalton, Justice (1746), pp. 419–20. “A Warrant to levy Hue and Cry on a Robbery having been committed,” Burn, Justice (1755), vol. 2, pp. 18, 20–21. Warrant nos. 134, 135 (30 Apr., 17 Dec. 1760), Webb, comp., Warrants (1763), p. 61.

60 “Higher law” here defines immutable principles of justice that are prior and superior to all human invention, interpenetrate reason, and regulate man–made law. For a discussion, see: E. S. Corwin, “The Higher Law Background the of American Constitutional Law,” H. L. R., vol. 42 (1928–29), pp. 152–54.

61 Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), John Adams to William Tudor, Quincy, 1 June 1818, J. Adams, Works, vol. 10, pp. 315–16. To the same or a similar effect: Same to Same, 18 Dec. 1816, ibid., p. 233. Same to Same, 24 June 1818, ibid., p. 323; ibid., vol. 2, pp. 521–22; idem., Legal Papers, vol. 2, pp. 125, 129, 138–44; Mass. Reports, Quincy ed., pp. 471, 475, 482; Massachusetts Spy, Thu., 29 Apr. 1773 (vol. 3, no. 117), p. 3, cols. 2–3.

62 Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), J. Adams, Legal Papers, vol. 2, pp. 143–44; Massachusetts Spy, Thu., 29 Apr. 1773 (vol. 3, no. 117), p. 3, cols. 2–3.

63 On the equation of natural law, higher law, and the common law by British legalists, see: “Edward S. Corwin, “Debt of American Constitutional Law to Natural Law Concepts,” Notre Dame Lawyer, vol. 25 (1949–50), pp. 258, 260–61.

64 Bonham’s Case (C. P. 1610), 8 Coke 113b, 118; 77 E. R. 646 at 652–53. Otis cited the precedent from Charles Viner, A General Abridgment of Law and Equity (23 vols. Aldershot, 1742–56), vol. 19, pp. 512–13. For another report of the same case, see: College of Physicians’ Case ([May–June] 1609), 2 Brownlow and Goldsborough 255–66; 123 E. R. 928–34. Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), Mass. Reports, Quincy ed., pp. 474, 474n(20); J. Adams, Works, vol. 2, p. 522; idem., Legal Papers, vol. 2, pp. 128, 128n(73), 144; Massachusetts Spy, Thu., 29 Apr. 1773 (vol. 3, no. 117), p. 3, col. 3.

65 Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), J. Adams, Legal Papers, vol. 2, p. 144; Massachusetts Spy, Thu., 29 Apr. 1773 (vol. 3, no. 117), p. 3, col. 3.

66 Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb., 18 Nov. 1761), Adams to William Tudor, Quincy, 1 June 1818, J. Adams, Works, vol. 10, p. 316. Same to Same, 24 June 1818, ibid., p. 323; Mass. Reports, Quincy ed., p. 56.

67 7 and 8 William III, c. 22, sec. 6 (1696), S. L., vol. 9, p. 432. Council and House of Representatives to Gov. Bernard, 27 Jan. 1761 in procs., 31 Jan. 1761, Mass. House of Representatives, Jnl., 1760–61, p. 243.

68 Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb., 18 Nov. 1761), Mass. Reports, Quincy ed., p. 56 (citing Magna Carta [“29M”] and Coke, Institutes, vol. 2, pp. 45–51), p. 472; J. Adams, Legal Papers, vol. 2, p. 126; Idem., Works, vol. 2, p. 522 (citing Hawkins); John Adams to William Tudor, Quincy, 1 June 1818, ibid., vol. 10, p. 316 (later confirmations of the charter). Magna Carta, 15 June 1215, [art. 39] Cottonian Mss., Augustus II, no. 106, Br. Lib., London; Stubbs, ed., Select Charters (1870), pp. 288 at 293. Coke, Otis, and other contemporaries cited art. 39 as its first statutory confirmation in 1225: 9 Henry III, c. 29 (1225), S. L., vol. 1, p. 24, or “29M,” as Otis put it.

Sir Edward Coke’s argument that general warrants violated Magna Carta appeared in volume four of his Institutes ([London, 1644], pp. 176–78). In arguing that general search warrants for felons and stolen property were illegal, however, Otis relied on A Treatise of the Pleas of the Crown ([2 vols. London, 1716–21], vol. 2, p. 82) by Matthew Hawkins rather than on Coke.

Nevertheless, the passage on general warrants in Hawkins advertised the one in the Institutes, for not only did Hawkins acknowledge Coke as an authority on that subject, so did another of his sources, Sir Matthew Hale’s Pleas of the Crown ([London], 1678], p. 93). More importantly, Otis had surveyed numerous manuals for justices of the peace, for he could not otherwise have reported that the more recent of those handbooks provided only specific search warrants for stolen goods. Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), J. Adams, Legal Papers, vol. 2, p. 141; Massachusetts Spy, Thu., 29 Apr. 1773 (vol. 3, no. 117), p. 3, col. 2. Hutchinson, Hist. (1764–1828), vol. 3, pp. 93–94. Eight general warrants for those goods were still available between 1746 and 1751 (Appendix C-3, warrant nos. 3, 4, 91, 92, 102–05). Accordingly, Otis was referring to treatises that had appeared in the last decade, 1751–61, for his statement that all such warrants were specific was true only in that timeframe. Four legal authors of 1751–61 featured the specific warrants to which Otis alluded: Joseph Shaw, Thomas Barlow, Thomas Pearce, and Richard Burn (ibid., warrant nos. 80–81, 112–13, 119, and 124). All four cited, quoted, or paraphrased Coke’s rhetoric against general warrants. Shaw, Practical Justice (1728), vol. 1, p. 489; (1733), p. 361. Barlow, Justice (1745), p. 41, sec. 5. Pearce, Justice (1754), p. 11. idem., Complete Justice (1756), p. 429. Burn, Justice (1755), vol. 2, pp. 348–49.

Otis had at least five weeks to prepare his brief after his mercantile clients petitioned the court against writs of assistance in mid–January. In those five weeks, he had encountered citations to Coke–against–general warrants at least six times (Hawkins, Hale, Shaw, Barlow, Pierce, and Burn) and probably many more, for those citations saturated the legal literature of the day. For other examples: Wood, Institute (1720), vol. 1, p. 139; vol. 2, p. 1054. Blackerby, Justice (1729), vol. 2, p. 303. Justice’s Case Law (1731), p. 296. Hale, Historia Placitorum Coronae (1736), vol. 2, pp. 107, 113–14. Law of Arrest (1742), pp. 173–74. Moreover, Otis had ready access to the Institutes. He owned, and cited, a copy of the second volume (now in the American Antiquarian Society, with his signature). Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 18 Nov. 1761), Mass. Reports, Quincy ed., p. 56. His colleague, Thacher cited the fourth and more pertinent volume. Brief of Thacher, ibid., pp. 53–54. To conclude that Otis ignored the parent source of the many authorities he cited against general warrants defies credulity.

69 Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), Mass. Reports, Quincy ed., pp. 473–76; J. Adams, Works, vol. 2, p. 522; idem., Legal Papers, vol. 2, pp. 127–29 (quoting, “an act against natural Equity is void”), 127n(70, 71), 143–44; Massachusetts Spy, Thu., 29 Apr. 1773 (vol. 3, no. 117), p. 3, col. 3. Opinion of Lord Hobart, Day v Savadge (C. P. 1615), Hobart 85 at 87; 80 E. R. 235 at 237. Opinion of Lord Talbot, Clare v Clare (Chancery 1734), Talbot 21 at 26–27; 25 E. R. 638 at 640.

70 Bonham’s Case (C. P. 1610), 8 Coke 113b, 118; 77 E. R., 646, 652–53. Other seventeenth century judges rejected the purview over legislation that Coke proposed for the judiciary. See: Opinion of Rolle, L. C. J., Captain Streator’s Case (Upper Bench 23 Nov. 1653), S. T., vol. 5 (1650–61), pp. 365 at 386.

For monographic discussions of Bonham’s Case, see: Theodore F. T. Plucknett, “Bonham’s Case and Judicial Review,” H. L. R., vol. 20 (1926–27), pp. 31–48. S. E. Thorne, “Dr. Bonham’s Case,” L. Q. R., vol. 54 (1938), pp. 543–52. George P. Smith, “Dr. Bonham’s Case and the Modern Significance of Lord Coke’s Influence,” Washington Law Review, vol. 41 (1966), pp. 297–314. Raoul Berger, “Doctor Bonham’s Case: Statutory Construction or Constitutional Theory,” University of Pennsylvania Law Review, vol. 117 (1968–69), pp. 521–45. Harold J. Cook, “Against Common Right and Reason: The College of Physicians Versus Dr. Thomas Bonham,” A. J. L. H., vol. 29 (1985), pp. 301–22.

For other treatments of the case in scholarly literature, see: E. S. Corwin, “The ‘Higher Law’ Background of American Constitutional Law,” H. L. R., vol. 42 (1928–29), pp. 367–76. Smith, Writs of Assistance Case (1978), pp. 482–92, and, for a fuller list, Cuddihy (1990), p. 788n(70).

71 Although a monograph of the use of the Bonham precedent by Otis has yet to appear, scholarship on the subject is extensive. See, e.g.: C. H. McIlwain, The High Court of Parliament (New York, 1910), pp. 309–10. McLaughlin, The Courts, the Constitution, and Parties (1912), p. 79. Haines, American Doctrine of Judicial Supremacy (1914), pp. 52, 69–72. Corwin, Doctrine of Judicial Review (1914), p. 30. Idem., “The ‘Higher Law’ Background of American Constitutional Law,” H. L. R., vol. 42 (1928–29), p. 398. Freiberg, “Hutchinson” (Ph.D., 1951), p. 14. Wroth and Zobel in J. Adams, Legal Papers (1965), vol. 2, pp. 118–19. For a fuller list, see Cuddihy (1990), p. 788n(71).

72 Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), Mass. Reports, Quincy ed., pp. 472, 472n(12); J. Adams, Works, vol. 2, p. 522; idem., Legal Papers, vol. 2, pp. 126, 126n(65).

73 Coke, Institutes, vol. 4, pp. 176–77. Hawkins, Treatise (1716–21), vol. 2, p. 82.

74 Brief of Otis, Paxton’s Case (24–26 Feb. 1761, 18 Nov. 1761), Mass. Reports, Quincy ed., pp. 56, 56n(22), 472, 483–85; J. Adams, Legal Papers, vol. 2, pp. 126, 126n(65), 129, 142–44; Massachusetts Spy, Thu., 29 Apr. 1773 (vol. 3, no. 117), p. 3, cols. 2–3. Hutchinson, Hist. (1764–1828), vol. 3, pp. 93–94. Coke, Institutes, vol. 2, pp. 45–47; vol. 4, pp. 176–77.

75 Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), Mass. Reports, Quincy ed., pp. 472, 472n(12); J. Adams, Works, vol. 2, p. 522; idem., Legal Papers, vol. 2, pp. 126, 126n(65), 142–44; Massachusetts Spy, Thu., 29 Apr. 1773 (vol. 3, no. 117), p. 3, cols. 2–3.

76 Coke, Institutes, vol. 4, pp. 176–77. Hawkins, Treatise (1716–21), vol. 2, p. 82. Hale, Historia Placitorum Coronae (1736), vol. 1, pp. 580, 586–87; vol. 2, pp. 103, 113–14, 150.

77 Coke, Institutes, vol. 4, pp. 176–78. Brief of Otis, Paxton’s Case (24–26 Feb. 1761), Mass. Reports, Quincy ed., pp. 471–72; J. Adams, Works, vol. 2, pp. 521–22; idem., Legal Papers, vol. 2, pp. 126, 129, 141, 144; Massachusetts Spy, Thu., 29 Apr. 1773 (vol. 3, p. 117), p. 3, cols. 2–3.

78 Some scholars have argued that Otis advocated full–blown judicial review. Haines, Judicial Supremacy (1914), p. 52. Bob Redeman, “The Historical and Philosophical Foundations of the Exclusionary Rule,” Tulsa Law Journal, vol. 12 (1976–77), p. 329.

79 Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb., 18 Nov. 1761), Mass. Reports, Quincy ed., pp. 56, 56n(22), 472–75, 472n(12); J. Adams, Works, vol. 2, p. 522; idem., Legal Papers, vol. 2, pp. 126–29, 126n(65), 141–44; Massachusetts Spy., Thu., 29 Apr. 1773 (vol. 3, no. 117), p. 3, cols. 3–4.

80 Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), Mass. Reports, Quincy ed., p. 474; J. Adams, Works, vol. 2, p. 522; idem., Legal Papers, vol. 2, pp. 127–28, 144; Massachusetts Spy, Thu., 29 Apr. 1773 (vol. 3, p. 117), p. 3, col. 3. Hutchinson, Hist. (1764–1828), vol. 3, pp. 93–94.

81 Hutchinson to the Earl of Kinnoull, 27 Oct. 1765, “Hutchinson Correspondence, 1761–70; Mass. Ar.,” vol. 26, fol. 164, Ma. Ar., Boston.

82 E.g., Mass. Prov. St., 1755–56, c. 31, sec. 24 (28 Feb. 1756), Mass. Acts and Resolves, vol. 3 (1742–57), pp. 909–10. For a fuller treatment, see above Chapters 15 and 16.

83 Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), Mass. Reports, Quincy ed., p. 472 (Star Chamber reference); J. Adams, Works, vol. 2, p. 522 (Star Chamber reference); idem., Legal Papers, vol. 2, pp. 126–27 (Star Chamber reference), 139–40 (quotation, “instruments…”), 143–44 (Star Chamber reference); Massachusetts Spy, Thu., 29 Apr. 1773 (vol. 3, no. 117), p. 3, col. 1 (quotation, “instruments…”), col. 3 (Star Chamber reference); final quotation, “terrible menacing monster”: Adams to Tudor, Quincy, 29 Mar. 1818, J. Adams, Works, vol. 10, p. 247.

84 Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), J. Adams, Legal Papers, vol. 2, p. 140; Massachusetts Spy, Thu., 29 Apr. 1773 (vol. 3, no. 117), p. 3, col. 1.

85 Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), J. Adams, Legal Papers, vol. 2, pp. 140–41; Massachusetts Spy, Thu., 29 Apr. 1773 (vol. 3, no. 117), p. 3, col. 1.

86 Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), Mass. Reports, Quincy ed., pp. 470, 475; J. Adams, Works, vol. 2, pp. 522, 524–25; idem., Legal Papers, vol. 2, pp. 129, 142–43; Massachusetts Spy, Thu., 29 Apr. 1773 (vol. 3, no. 117), p. 3, col. 2.

Otis provided no date, but the incident had to have occurred within the preceding six years during which all outstanding writs of assistance had been granted. According to Otis, Walley acquired the writ of assistance from his predecessor, Jonathan Pew. This was an impossibility, for it and several other facts can not be reconciled as Otis provided them. Walley, a comptroller, succeeded one Lambert in 1750, but Pew’s successor as surveyor and searcher was Paxton, in 1752, before the first writs issued. Joseph Harrison and Benjamin Hallowell to Commissioners of Customs, Boston, 30 Apr. 1768, [fols. 11–14], Treas. 1/465, fols. 184 verso, P. R. O. See: Smith, Writs of Assistance Case (1978), pp. 344–46 for a more detailed discussion.

87 Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), Mass. Reports, Quincy ed., pp. 474–75; J. Adams, Works, vol. 2, pp. 522; idem., Legal Papers, vol. 2, pp. 128–29. Freeman v Bluet (K. B. 1700), 12 Modern 394–97; 88 E. R. 1403–04 (to the effect that an officer had to return a warrant to the court in order to justify his conduct in pursuance of that warrant).

88 For example, specific search warrants were still less common in the British legal treatises of the 1750s than were general warrants. See below, Appendix C-3, nos. 72–109, 115–24.

89 Although he advised the Superior Court to temper Parliament’s unconstitutional statutes, Otis was not advocating revolution. Like Coke, he acknowledged Parliament as the final arbiter of its decisions. Coke, Institutes, vol. 1, p. 115b. Hutchinson, Hist. (1764–1828), vol. 3, pp. 107–08, 133. Nevertheless, the Otis brief had an inherently revolutionary potential, for its ideological ramifications went beyond the right of privacy to the derivate issue of imperial relations. For scholarship on the point: McLaughlin, Foundations (1932), p. 120. Knollenberg, Origin of the American Revolution (1960), p. 70. Barrow, Trade and Empire (1967), p. 169. For a summary, see Cuddihy (1990), pp. 796n(89)–790n(89).

90 Hutchinson to Secretary Conway, Boston, 1 Oct. 1765, “Hutchinson Correspondence, 1761–70; Mass. Ar.,” vol. 26, fol. 155, Ma. Ar., Boston. Hutchinson, Hist. (1764–1828), vol. 3, p. 94. Adams to Tudor, Quincy, 18 Dec. 1816, J. Adams, Works, vol. 10, p. 233. Same to Same, 29 Mar. 1817, ibid., p. 248.

91 For the date of the interruption, see above, footnote 26. Although Gridley’s brief was accurate, and half a millennium of general warrant legislation and practice had stacked the deck in his direction, Gridley cited only a handful of the available multitude of favorable precedents. Although the weight of data contradicted Otis and Thacher, they too had ignored substantial evidence in their behalf, but, according to Hutchinson, had nearly won anyway. Had Otis reinforced his higher law rhetoric with such examples as the impeachment of Chief Justice Scroggs in 1681, the repeal of the Hearth Money Statute in 1689, and the expiration of the Licensing Acts in 1695, he would probably have triumphed. Articles of Impeachment, 5 Jan. 1681, sec. 6, C. H., vol. 2 [1680–95], pp. 63, 66; P. D., vol. 2 [1680–92], pp. 22, 26. 1 William and Mary, c. 10, sec. 1, 2 (1688/89), S. L., vol. 9, pp. 12–13. Report of the Committee, 17 Apr. 1694/5, sec. 16, C. J., vol. 11 (1693–97), p. 306.

92 Hutchinson to Conway, Boston, 1 Oct. 1765, “Hutchinson Correspondence, 1761–70; Mass. Ar.,” vol. 26, fol. 155, Ma. Ar., Boston. Gov. Bernard to the Lords of Trade, Boston, 30 Nov. 1765, “Bernard Papers,” vol. 4, fol. 177, Harvard University Library, Cambridge, Ma.

93 “Mr. Bollan’s Memorandum” in Bollan to the Duke of Newcastle, Gerard St., 12 Apr. 1766, “Additional Mss.,” no. 32,974, fol. 368 recto–verso, Br. Lib. William Bollan, “Memorandum relating to the proceedings at Boston with respect to illicit Trade, & c.,” [fol. 2], Townshend Papers, item 297/2, University of Michigan, Wm. L. Clements Library, Ann Arbor. Hutchinson, Hist. (1764–1828), vol. 3, p. 94. For additional documentation regarding the dates and outcome of the case, see Cuddihy (1990), p. 797n(93).

94 Paxton’s Case (Mass. Sup. Ct. 18 Nov. 1761), Boston Gaz. and Cntry. Jnl., Mon., 23 Nov. 1761 (no. 347), p. 3, col. 1; Mass. Reports, Quincy ed., pp. 51–57.

95 Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 18 Nov. 1761), Mass. Reports, Quincy ed., pp. 55–56, citing, Rapin, History of England (2nd ed., 1732), vol. 2, pp. 285 (ship money protest), 375 (Strafford’s impeachment).

96 Paxton’s Case (Mass. Sup. Ct. 18 Nov. 1761), ibid., pp. 52, 56.

97 Ibid., p. 57; Boston Gaz. and Cntry Jnl., Mon., 23 Nov. 1761 (no. 347), p. 3, col. 1. Gov. Bernard to Lt. Gov. William Franklin, Boston, 24 Mar. 1768, “Bernard Papers,” vol. 5, fol. 261, Harvard University Library, Cambridge, Ma.

98 John Temple to Thomas Hutchinson, 2 Dec. 1761–25 Feb. 1765, “Court Files Suffolk,” vol. 573 (Mar. 1765), no. 100,515b: “Writs of Assistance, 1761–65. Greene et al., petn.,” Suffolk Co. Courthouse, Boston (recently relocated to the Massachusetts Archives). Another copy by Adams is in the “Writs of Assistance” file [fol. 8] in the “Legal Papers” Section, “Adams Papers,” (reel 185), Mass. Hist. Soc., Boston.

99 Three examples survive: (1) Draft writ of assistance [1761], in “Writs of Assistance” file [fols. 5–7] in the “Legal Papers” Section, “Adams Papers,” (reel 185), Mass. Hist. Soc., Boston. (2) George III to all officers and subjects, Boston, 1761, RG40 (Court of Vice Admiralty Records, 1762–1954), vol. 8 (Miscellaneous Correspondence, etc., 1761–1835), Public Archives of Nova Scotia, Halifax, Canada. (3) Samuel Winthrop to Same, Boston, 3 June 1762, “Court Files Suffolk,” vol. 573 (Mar. 1765), no. 100, 515b: “Writs of Assistance, 1761–65,” Suffolk Co. Courthouse, of 1699 respecting the court’s jurisdiction.

Having examined the first example, Justice Horace Gray noted about 1864 that the handwriting was Hutchinson’s and that all later writs were identical. Mass. Reports, Quincy ed., p. 418. The new writs recited the statutory triad that Gridley had mentioned as justifications for them: the Fraud Act of 1662, the Navigation Act of 1696, and the local act of 1699 respecting the court’s jurisdiction.

100 For discussions of the aftermath of Paxton’s Case, see: Hickman, “Colonial Writs of Assistance,” N. E. Q., vol. 5 (1932), pp. 92–93. Lasson, Fourth Amendment (1937), pp. 66–67. Freiberg, “Hutchinson” (Ph.D., 1951), pp. 17–22. Gipson, Thunder Clouds (1967), pp. 126–31.

101 Boston Evening Post, Mon., 19 Jan. 1761 (no. 1325), p. 1, col. 1.

102 Ibid., Mon., 9 Feb. 1761 (no. 1328), p. 3, col. 1.

103 Boston Gaz. and Country Jnl., Mon., 23 Nov. 1761 (no. 347), p. 3, col. 1.

104 Ibid.

105 Ibid., Mon., 21 Dec. 1761 (no. 351), p. 1, col. 2.

106 Ibid., Mon., 4 Jan. 1762 (no. 353), p. 1, col. 1.

107 Ibid., Mon., 22 Feb. 1762 (no. 360), p. 1, col. 1.

108 Adams to William Tudor, Quincy, 29 Mar. 1817, J. Adams, Works, vol. 10, p. 245.

109 Adams to Dr. J. Morse, Quincy, 29 Nov. 1815, ibid., p. 183. Same to Dr. Waterhouse, 25 Mar. 1817, “John Adams Letterbook, no. 35 (33), 3 Nov. 1816–12 Aug. 1819,” fol. 48; “Adams Papers,” (reel 123), Mass. Hist. Soc., Boston. Same to William Tudor, 29 Mar. 1817, J. Adams, Works, vol. 10, pp. 247–48.

110 Adams transcript: “Legal Papers” Section, “Adams Papers,” (reel 185), Mass. Hist. Soc., Boston; J. Adams, Works, vol. 2, pp. 521–22; idem., Legal Papers, vol. 2, pp. 123–30; Mass. Reports, Quincy ed., pp. 469–77. Quincy transcript: ibid., pp. 51–57.

111 Bernard to Lt. Gov. William Franklin, 24 Mar. 1768, “Bernard Papers,” vol. 5, fol. 261, Harvard University Library, Cambridge, Ma.

112 Report of joint committee, 13/14 Jan. in procs., 31 Jan. 1761, “Judicial, 1759–74; Mass. Ar.,” vol. 44, fol. 450; Mass. House of Representatives, Jnl., 1760–61, p. 339 [i.e., 239]. The same merchants who challenged writs of assistance sued the officers who had occasioned these fines. For documentation, see Cuddihy (1990), p. 803n(113).

113 “A Fair Trader,” Boston Gaz. and Cntry. Jnl., Mon., 7 Dec. 1761 (no. 349), p. 1, col. 1. Ibid., Mon., 21 Dec. 1761 (no. 351), p. 1, cols. 1–2; Mon., 4 Jan. 1762 (no. 353), p. 1, col. 2. Deposition of Charles Paxton, Boston, 18 Feb. 1761, sec. I.3, in Commissioners of Customs to Treasury Lords, London, 18 Nov. 1761, Treas. 1/408, fol. 102 verso, P. R. O. Bernard to Lords of Trade, n.p., 6 Aug. 1761, ibid., fols. 165 verso–166 recto. These allegations, that Rhode Island led in illegal trade with the French, were well founded, both before and after 1761. For details and sources see Cuddihy (1990), pp. 803n(114)–804n(114).

114 For leading scholarship on the following trials, see: Beer, Br. Col. Policy (1907), pp. 118–21. Joseph Edward King, “Judicial Flotsam in Massachusetts Bay,” N. E. Q., vol. 27 (1954), pp. 372–74. Ubbelohde, Vice Admiralty Courts (1960), pp. 35–36. Smith, Writs of Assistance Case (1978), pp. 174–82. For additional secondary sources, see Cuddihy (1990), p. 804n(115).

115 Procs., [30] Aug. 1755, Mass. Superior Ct., “Recs.,” 1755, fols. 148–50, Suffolk Co. Courthouse, Boston (now housed in the Massachusetts Archives). Thomas Lechmere to justices of the court, 21 Feb. 1761, “Court Files Suffolk,” vol. 573 (Mar. 1765), no. 100, 515b, Ibid. Gov. Bernard to Lord Halifax, Boston, 17 May 1764, Treas. 1/441, fol. 372 recto, P. R. O.

116 Discontent focused on the misallocation of fines arising from violations of the Navigation Acts, which the Sugar Act distributed equally to the governor, the Crown (for the use of the colony), and the plaintiff, normally the seizing official who sued the culprit. 6 George II, c. 13 (1733), sec. 3 (1733), S. L., vol. 16, pp. 374 at 375. The catch was that Paxton and his colleagues had been bloating their share by paying informants from the colony’s third. Deposition of Paxton, Boston, 18 Feb. 1761, sec. III.1–3 in Commissioners of Customs to Treasury Lords, London, 18 Nov. 1761, Treas. 1/408, fols. 103 verso–104 recto, P. R. O. Deposition of Craddock, Boston, 24 Feb. 1761, ibid., fol. 123. Gov. Bernard to [Lord Halifax?], Boston, 17 May 1764, “Bernard Papers,” vol. 3, fols. 216–17, Harvard University Library, Cambridge, Ma. Hutchinson, Hist. (1764–1828), vol. 3, p. 89. On learning of this arrangement, the same merchants who would later challenge the writs of assistance petitioned the governor and General Court, charging that Paxton and his associates had thereby defrauded the province. Ibid., pp. 89–90. John Avery et al. to Bernard and the General Court, 17 Dec. 1760, “Judicial, 1759–74; Mass. Ar.,” vol. 44, fols. 446–47, Ma. Ar., Boston; Mass. House of Representatives, Jnl., 1760–61, pp. 231–37.

For the political and judicial consequences, centering about the lawsuits of Gray v Paxton (1761) and Province v Paxton (1762), see Cuddihy (1990), pp. 805n(117)–806n(117).

117 Cradock v Erving (Mass. Sup. Ct. Feb. term 1761) and Erving v Cradock (Boston Inferior Ct. July term 1760), Mass. Superior Ct., “Recs.,” 1761, fol. 230, Suffolk Co. Courthouse, Boston, recently relocated to the Massachusetts Archives. For additional documentation, see Cuddihy (1990), p. 806n(118).

118 For the best scholarship on Barons, see: “The Long Shadow of Benjamin Barons,” chapt. 1 (pp. 28–86) of Tyler, “First Revolution” (Ph.D., 1980). For other discussions, see Cuddihy (1990), p. 807n(119).

119 Treasury to Customs, London, 13 Mar. 1749/50, Treas. 11/23, fol. 579, P. R. O. (on seizure of Barons’ ship). Commission of 11 May 1759, “Book of Commissions & c., 1628–1763; Commissions, Charters, etc.,” vol. 11, fols. 170–71, Ma. Ar., Boston: oath taken, 25 Sept. 1759. George III to Suffolk Co. sheriff, 23 June 1761, Treas. 1/408, fol. 158 verso, P. R. O.: mention of suspension from office, 15 Dec. 1759. Deposition of Ebenezer Richardson, 27 Feb. 1761, ibid., fols. 155–56: tampering with informant charge.

120 Deposition of Paxton, Boston, 18 Feb. 1761, secs. I.2, II.1, III.1–3 in Commissioners of Customs to Treasury Lords, London, 18 Nov. 1761, Treas. 1/408, fols. 102 recto–104 recto, P. R. O. Deposition of Nathaniel Hatch in Same, Boston, 27 Feb. 1761, sec. I.2, ibid., fol. 153 recto. For additional documentation, see Cuddihy (1990), p. 808n(121).

121 For fuller discussions, see: Brennan, Plural Office Holding (1945), pp. 25–40. Thomas, “Politics” (Ph.D., 1960), pp. 10, 14. Bailyn, Hutchinson (1974), pp. 1–35, 47–50.

122 Since 1684, six Hutchinsons had spent ninety–eight years in the upper house of the General Court. Whitmore, comp., Mass. Civil List (1870), pp. 26, 45–62. The Otises did not arrive there until 1708 and provided but two members whose tenure ran only thirty years. Ibid., pp. 49–53, 58–59. Between 1708 and 1761, Hutchinson justices of the peace outnumbered their Otis counterparts ten to four. Ibid., pp. 126–31, 144–46.

123 Procs., 24 June 1748, Mass. House of Representatives, Jnl., 1748–49, p. 62. Recd., 14 May 1751, Mass. Superior Ct., “Recs.,” 1750–51, fol. 187, Suffolk Co. Courthouse, Boston. Recd., 20 Aug. 1754, ibid., 1753–54, fol. 308. Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), J. Adams, Legal Papers, vol. 2, p. 140; Massachusetts Spy, Thu., 29 Apr. 1773 (vol. 3, no. 117), p. 3, col. 1. The attorney general was the chief legal officer of the colony while the advocate general was the corresponding official for the Crown.

124 Procs., 20 Oct. 1747, Mass. House of Representatives, Jnl., 1747–48, p. 135. W. Williams to “Colo. James Otis Esqr.,” Weston, 21 Jan. 1749, “Otis Family Papers,” no. 22, Columbia University. James Otis Sr., “an Account of Sundrys supply’d,” Boston, 6 Sept. 1757, ibid., no. 43.

125 Procs., 25 May 1748, Mass. House of Representatives, Jnl., 1748–49, p. 5. Procs., 31 May 1749, ibid., 1749–50, p. 6. Procs., 28 May 1760, ibid., 1760–61, pp. 4–5.

126 Oliver, Origin (1961), p. 27.

127 Edmund Trowbridge to William Bollan, n.p., 15 July 1762, [fol. 6], “Dana Papers,” Mass. Hist. Soc., Boston. Hutchinson, Hist. (1764–1828), vol. 3, p. 87.

128 Hutchinson, Diary and Letters, vol. 1, p. 66n: first quote. Idem., Hist. (1764–1828), vol. 3, p. 88: second quote.

129 Procs., 5, 6, 20 April 1751, Mass. House of Representatives, Jnl., 1750–51, pp. 195–95, 199, 224–25 (opposition by Otis to a soft money bill). James Otis to unspecified, Boston, 7 Apr. 1763, Boston Gaz. and Country Jnl., Mon., 11 Apr. 1763 (no. 419), p. 2, col. 1. For fuller scholarship on the currency incident, see: Malcom Freiberg, “Thomas Hutchinson and the Province Currency,” N. E. Q., vol. 30 (1957), pp. 190–208. For additional scholarship, see Cuddihy (1990), p. 810n(129).

130 Recd., 14 May 1751, Mass. Superior Ct., “Recs.,” 1750–51, fol. 187, Suffolk Co. Courthouse, Boston. Recd., 20 Aug. 1754, ibid., 1753–54, fol. 308.

131 Deposition of Charles Paxton, Boston, 18 Feb. 1761, sec. II.1 in Commissioners of Customs to Treasury Lords, London, 18 Nov. 1761, Treas. 1/408, fol. 103 recto, P. R. O.

132 Hutchinson, Hist. (1764–1828), vol. 3, p. 166n.

133 James Otis [Sr.] to [Joseph?] Otis, Boston, 18 Dec. 1754, “Otis Papers,” Mass. Hist. Soc., Boston. Procs., 22 Aug. 1754, “Barnstable Town Records,” vol. 2 (1713–64), fol. 148, Office of the Town Clerk and Treasurer, Town of Barnstable, Drawer T, Hyannis, Ma. 02601.

134 On Sewall’s death, see: Boston News–Letter, Thu., 11 Sept. 1760 (no. 2932), p. 2, col. 3. Hutchinson, Diary and Letters, vol. 1, p. 65n idem., Hist. (1764–1828), vol. 3, p. 86n. Sewall was a rumored opponent of writs of assistance; see: Hutchinson, Hist. (1764–1828), vol. 3, p. 93. John Adams to Dr. J. Morse, Quincy, 29 Nov. 1815, J. Adams, Works, vol. 10, p. 182. Same to Dr. Waterhouse, 25 Mar. 1817, [fol. 2], “John Adams Letterbook no. 35 (33) [3 Nov. 1816–12 Aug. 1819],” fol. 46; “Adams Papers (reel 122),” Mass. Hist. Soc., Boston. Same to William Tudor, Quincy, 29 Mar. 1817, J. Adams, Works, vol. 10, p. 247. For evidence of Hutchinson’s appointment, see: Procs., 13 Nov. 1760, Mass. Council, “[Executive] Recs.,” vol. 14 (1759–61), fol. 288, Ma. Ar., Boston. Bernard to Lord Halifax, Boston, 17 Nov. 1760, “Bernard Papers,” vol. 1, p. 283, Harvard University Library, Cambridge, Ma. Green and Russell’s Boston Post–Boy & Advertiser, Mon., 17 Nov. 1760 (no. 170), p. 2, col. 1.

For the analytical accounts of the fight over the chief justiceship, see: Thomas, “Politics” (Ph.D., 1960), pp. 2–10; Bell, “Otis” (Ph.D., 1970), pp. 201–08, Smith, Writs of Assistance Case (1978), pp. 202–30, and Cuddihy (1990), pp. 811n(134)–813n(138) and text at same. For other primary and secondary sources on the fight over the chief justiceship, see Cuddihy (1990), pp. 811n(134)–813n(138).

135 James Otis to unspecified, n.d., Boston Gaz. and Cntry Jnl., Mon., 4 Apr. 1763 (no. 418), p. 1, col. 1. Same to Same, Boston, 7 Apr. 1763, ibid., Mon., 11 Apr. 1763 (no. 419), p. 1, col. 2–p. 2, col. 2. Hutchinson to unspecified, 5 Apr. 1763, Massachusetts Gaz. and Boston News–Letter, Thu., 7 Apr., 1763 (no. 3094), p. 2, col. 1. Hutchinson, Hist. (1764–1828), vol. 3, pp. 86–87. idem., Diary and Letters, vol. 1, p. 65. Adams to Dr. J. Morse, Quincy, 29 Nov. 1815, J. Adams, Works, vol. 10, p. 183. Same to Dr. Waterhouse, 6 Feb. 1818, ibid., p. 281. As to the Otis vengeance vow, see: Hutchinson to [Israel Williams], Boston, 21 Jan. 1761, “Williams Papers,” Mass. Hist. Soc., Boston. Diary entry, 5 June 1762, J. Adams, Works, vol. 2, p. 135; idem., Diary and Autobiography, vol. 1, p. 226. Trowbridge to Bollan, n.p., 15 July 1762, “Dana Papers,” Mass. Hist. Soc. Bernard to the Earl of Shelburne, Boston, 22 Dec. 1766, “Bernard Papers,” vol. 4, fol. 276, Harvard University Library, Cambridge, Ma. Oliver, Origin (1961), pp. 28, 48, 163.

136 Recd., 16 May 1755, Boston Town Recs., 1742–57; Boston Recd. Commrs., Repts., vol. 14 (1885), pp. 273, 275 (respecting Thacher). Thomas Hancock et al. to Lt. Gov. Spencer Phipps and the General Court, Boston, 26 Dec. 1756, “Towns, 1755–62; Mass. Ar.,” vol. 117, fols. 51 at 53–54. Thomas Greene et al. to Superior Court justices, [mid-Jan. 1761], “Court Files Suffolk,” vol. 573 (Mar. 1765), no. 100,515b; “Writs of Assistance, 1761–1765,” Suffolk Co. Courthouse, Boston.

137 Procs., 11 June 1755, Mass. House of Representatives, Jnl., 1755–56, pp. 58–60.

138 Adams, Bernard, Hutchinson, and Otis all wrote profusely on the subject, as did others. For a sample, see: Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), J. Adams, Legal Papers, vol. 2, p. 140; Massachusetts Spy, Thu., 29 Apr. 1773 (vol. 3, no. 117), p. 3, col. 1. Otis to unspecified, n.d., Boston Gaz. and Cntry. Jnl., Mon., 4 Apr. 1763 (no. 418), p. 1, col. 3. Gov. Bernard to unspecified, Boston, 6 July 1761, “Bernard Papers,” vol. 1, fol. 323, Harvard University Library, Cambridge, Ma. Lechmere to Barons, n.p., 24 June 1761, Treas. 1/408, fols. 144–45, P. R. O. John Rowe to Thos. Saul, Boston, 20 Oct. 1761, Rowe, Letters and Diary, p. 401. For many more sources, see Cuddihy (1990), p. 815n(141).

139 Hutchinson, Hist. (1764–1828), vol. 3, p. 166n. Gov. Bernard to unspecified, Boston, 6 July 1761, “Bernard Papers,” vol. 1, fol. 323, Harvard University Library, Cambridge, Ma.

140 Hutchinson, Hist. (1764–1828), vol. 3, p. 95.

141 Whitmore, comp., Mass. Civil List (1870), pp. 55–65, 69–70.

142 Ibid., passim. Thomas Greene et al. to Superior Court justices, [mid–Jan. 1761], “Court Files Suffolk,” vol. 573 (Mar. 1765), no. 100,515b; “Writs of Assistance, 1761–1765,” Suffolk Co. Courthouse, Boston. The signers included one inferior court judge and the son of another, one current and four future councilors, twelve relatives of councilors, and twenty–one recent or contemporary justices of the peace. Whitmore, comp., Mass. Civil List (1870), pp. 52–65, 126–52.

143 Doctoral dissertation furnish the most detailed analyses; see: Fiore, “Bernard” (Ph.D., 1950), pp. 109–11, 116–19. Freiberg, “Hutchinson” (Ph.D., 1951), p. 22. Vering, “Otis” (Ph.D., 1954), pp. 69–73. Bell, “Otis,” (Ph.D., 1970), pp. 276–82. Tyler, “First Revolution” (Ph.D., 1980), pp. 79–81.

144 Procs., 12 May 1761, Boston Town Recs., 1758–69; Boston Recd. Commrs., Repts., vol. 16 (1886), p. 57. Diary entry, 12 May 1761, “Boyle’s Journal,” N. E. H. G. R., vol. 84 (1930), p. 156. Trowbridge to Bollan, n.p., 15? July 1762, [fol. 6], “Dana Papers,” Mass. Hist. Soc., Boston. For additional sources, see Cuddihy (1990), p. 818n(147).

145 Procs., 27 May 1761, Mass. House of Representatives, Jnl., 1761–62, p. 5. Procs., 26 May 1762, ibid., 1762–63, pp. 5, 7.

146 Procs., 10 May 1763, Boston Town Recs., 1758–69; Boston Recd. Commrs, Repts., vol. 16 (1886), p. 88.

147 “An Act for the better enabling the Officers of his Majesty’s Customs to carry the Acts of Trade into Execution” 22 Feb. 1762, “Maritime Affairs, 1759–1775; Mass. Ar.,” vol. 66, fols. 191–93, Ma. Ar., Boston. Thomas Hutchinson to William Bollan, Boston, 6 Mar. 1762, “Hutchinson Correspondence, 1761–70; ibid.,” vol. 26, fol. 8. William Bollan, “Memorandum relating to the proceedings at Boston with respect to illicit Trade & c.,” ca. 1766, [fols. 2–3], “Townshend Papers,” item 297/2, sub date, 1762…March 6th, Clements Library, University of Michigan, Ann Arbor. For the passage of the bill, see: Procs., 22, 24 Feb., 5, 6 Mar. 1762, Mass. House of Representatives, Jnl., 1761–62, pp. 271, 278, 292, 299. Procs., 5, 6 Mar. 1762, Mass. Council, “[Legislative] Records,” vol. 24 (1761–63), pp. 315–16, Ma. Ar., Boston.

148 Procs., 6 Mar. 1762, Mass. Council, “[Legislative] Recs.,” vol. 24 (1761–63), fols. 316–17, Ma. Ar., Boston.

149 Brief of Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), J. Adams, Legal Papers, vol. 2, pp. 123 at 141; Massachusetts Spy, Thu., 29 Apr. 1773 (vol. 3, no. 117), p. 3, cols. 1–2.

150 Procs., 6 Mar. 1762, Mass. Council, “[Executive] Recs.,” vol. 15 (1761–65), fol. 111, Ma. Ar., Boston. Procs., 6 Mar. 1762, idem., “[Legislative] Recs.,” vol. 24 (1761–63), p. 328, Ma. Ar. Bernard to General Court, 6 Mar. 1762, Mass. House of Representatives, Jnl., 1761–62, p. 299. Hutchinson to Bollan, Boston, 6 Mar. 1762, “Hutchinson Correspondence, 1761–70; Mass. Ar.,” vol. 26, fol. 8, Ma. Ar. Bernard to Lords of Trade, Boston, 13 Apr. 1762, “Bernard Papers,” vol. 2, fol. 58, Harvard University Library, Cambridge, Ma. Same to John Pownall, 25 Apr. 1762, ibid., fol. 186. Same to Lord Barrington, 1 May 1762, ibid., fols. 187–88 (also printed in Barrington–Bernard Correspondence, Channing ed., pp. 51–53.).

151 Bernard to Lords of Trade, Boston, 13 Apr. 1762, “Bernard Papers,” vol. 2, fol. 58, Harvard University Library, Cambridge, Ma. Same to the Earl of Halifax, 7 Dec. 1764, C. O. 5/755, fol. 169, P. R. O. Hutchinson to the Earl of Kinnoull, 27 Oct. 1765, “Hutchinson Correspondence, 1761–70; Mass. Ar.,” vol. 26, fol. 164, Ma. Ar., Boston.

152 “An Act for the better enabling the Officers of his Majesty’s Customs to carry the Acts of Trade into Execution” 22 Feb. 1762, “Maritime Affairs, 1759–1775; Mass. Ar.,” vol. 66, fols. 191–93, Ma. Ar., Boston.

153 Mass. Prov. St., 1755–56, c. 31, sec. 24 (28 Feb. 1756), Mass. Acts and Resolves, vol. 3 (1742–57), pp. 909–10. Mass. Prov. St., 1755–56, c. 47, sec. 20 (20 Apr. 1756), ibid., pp. 936–37. Mass. Prov. St., 1758–59, c. 2, secs. 1, 2 (8 June 1758), ibid., vol. 4 (1757–68), pp. 156–57.

154 Mass. Prov. Resolves, 1759–60, c.’s 281, 282 (2 Feb. 1760), ibid., vol. 16: Resolves, 1757–60, p. 474.

155 Mass. Prov. Resolves, 1760–61, c.’s 385, 386 (10 Apr. 1761), ibid., p. 735. Hutchinson, Hist. (1764–1828), vol. 3, p. 93.

156 Mass. Prov. Resolve, 1761–62, c. 379 (23 Feb. 1762), Mass. Acts and Resolves, vol. 17: Resolves, 1761–64, p. 161. Hutchinson to Bollan, Boston, 6 Mar. 1762, “Hutchinson Correspondence, 1761–70; Mass. Ar.,” vol. 26, fol. 9, Ma. Ar., Boston.

157 Procs., 17 Apr. 1762, Mass. House of Representatives, Jnl., 1761–62, p. 311. Edmund Trowbridge to William Bollan, n.p., 15 July 1762, “Dana Papers,” Mass. Hist. Soc., Boston.

158 Procs., 17 Apr. 1762, Mass. House of Representatives, Jnl., 1761–62, p. 312.

159 Procs., 17, 20 Apr. 1762, ibid., pp. 311–12, 318–20.

160 Edmund Trowbridge to Bollan, n.p., 15? July 1762, [fol. 7], “Dana Papers,” Mass. Hist. Soc., Boston. Gov. Bernard to John Pownall, Boston, 25 Apr. 1762, “Bernard Papers,” vol. 2, fol. 183, Harvard University Library, Cambridge, Ma. (quote at same).

161 Procs., 19 Apr. 1762, Mass. House of Representatives, Jnl., 1761–62, p. 315. Hutchinson to Bollan, Boston, 24 Apr. 1762, “Hutchinson Correspondence, 1761–70; Mass. Ar.,” vol. 26, fol. 12, Ma. Ar., Boston.

162 Hutchinson to Bollan, Boston, 24 Apr. 1762, “Hutchinson Correspondence, 1761–70; Mass. Ar.,” vol. 26, fol. 12, Ma. Ar., Boston. Ibid. Gov. Bernard to John Pownall, Boston, 25 Apr. 1762, “Bernard Papers,” vol. 2, fol. 183, Harvard University Library, Cambridge, Ma. Edmund Trowbridge to Bollan, n.p., 15? July 1762, [fol. 7], “Dana Papers,” Mass. Hist. Soc., Boston. Procs., 20, 21, 23 Apr. 1762, Mass. House of Representatives, Jnl., 1761–62, pp. 318, 323, 328. Procs., 20, 23 Apr. 1762, Mass. Council, “[Legislative] Recs.,” vol. 24 (1761–63), fols. 349, 366. Mass. Prov. Resolve, 1761–62, c. 447 (20 Apr. 1762), Mass. Acts and Resolves, vol. 17: Resolves, 1761–64, p. 194. Mass. Prov. Resolve, 1761–62, c. 473 (23 Apr. 1762), ibid., p. 408.

163 Procs., 26 May 1762, Mass. House of Representatives, Jnl., 1762–63, p. 7. Procs., 31 May 1763, Mass. Council, “[Executive] Recs.,” vol. 15 (1761–65), fol. 248, Ma. Ar., Boston. Procs., 1 Feb. 1764, ibid., fol. 300. Gov. Bernard to the Earl of Shelburne, Boston, 22 Dec. 1766, “Bernard Papers,” vol. 4, fol. 277, Harvard University Library, Cambridge, Ma., Hutchinson, Hist. (1764–1828), vol. 3, pp. 95–96.