by Nathan Allen
Future president John Adams was taking notes and recorded that Thacher spoke next; his argument failed to rouse Adams’s pen, for he took hardly any notes on it. Thacher made two arguments; first the technical ground that the writs were a matter for the Exchequer and that the Superior Court at least in part renounced its Exchequer jurisdiction; secondly, that unlike England, the officers in the colonies were not “under the Eye and Directions of the Barons [of Exchequer] and so accountable for any wanton exercise of power.” Hence, Thacher argued that there were jurisdiction and uniformity of application problems.
Then James Otis spoke – for the court and the people of the town to defend principle, as he made it clear he was working for no party to the case and would accept no fees from anyone for his work. Adams recollected that Otis spoke for four or five hours, and Adams’s observations of the argument cover six pages of scribbled notes, providing the outline of both the theory and content of the argument. Otis started:
Although my engaging in this and another popular cause [the Paxton case] had caused much resentment; but I think I can sincerely declare, that I cheerfully submit myself to every odious name for conscience sake; and for my soul I despise all those whose guilt, malice or folly has made my foes. Let the consequences be what they will. I am determined to proceed. The only principles of public conduct that are worthy of a gentlemen, or a man, are, to sacrifice estate, ease, health and applause, and even life itself to the sacred calls of his country. These manly sentiments in private life make a good citizen, in public life, the patriot and the hero.
This statement was directed at judges, not at a jury, so Otis is essentially making clear that he’s aware that his comfortable life as a “friend of government” was over. The former King’s advocate general probably would never again be appointed to another high ranking government position, probably would never be a judge or on the council, probably could not advance his career any further. He knew he was making enemies of the people in power and made known his decision that he’d rather be a patriot than a judge. Further, his opening statement adroitly straddled the feudal and post-feudal world – “a gentlemen, or a man” – making clear that the “principles of public conduct” and the very concept of “public conduct” applied to all; the “principles of public conduct” were no longer restricted to the oligarchy. And finally, his remark that “to sacrifice estate, ease, health and applause, and even life itself to the sacred calls of his country” echoes rather clearly the oath from the Declaration of Independence: “we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”
After affirming his allegiance, Jemmy launched an attack against the writs as “against the fundamental Principles of Law and The privilege of House.” The “House” Otis referenced was not a legislative “House” but rather a person’s private dwelling, which Otis argued was privileged. The only “Precedent” for such a writ, the one produced by Gridley, Otis denigrated by noting its origin during the reign of Charles II “when Star Chamber powers, and all Powers but lawful and useful Powers were pushed to Extremity.” He then ascribed the form of the writ, which was cast in truly execrable Latin, “to some ignorant Clerk of the Exchequer,” which was probably closer to the truth than even Otis realized. “But,” he continued, “all Precedents and this among the Rest are under the Control of the Principles of Law … Better to observe the known Principles of Law than any Precedent.” In view of the hazy and questionable origins of the writ this was a persuasive argument, for use of the writ had grown unchecked and, as construed in Massachusetts, no longer complied with the generally accepted rules against unreasonable search and seizure. The argument that precedent was irrelevant once it contravened principle would resurfaced in debates over slavery.
But Otis wasn’t done. He had never been one for compromises and was capable of taking arguments to logical extremes that few others even could fathom, and so he took a further step in his argument that has intrigued legal scholars ever since. He argued that, “As to Acts of Parliament. An Act against the Constitution is void: an Act against natural Equity is void: and if an Act of Parliament should be made, in the very Words of this Petition, it should be void.” The general warrant, and by implication Parliamentary supremacy, was “Tyranny” and the court should quickly proceed to “demolish this monster of oppression.” If general search warrants were legal, then “a tyrant in a legal manner also may control, imprison, or murder any one with the realm.” Any government bureaucrat who was fortunate enough to possess a writ was a de facto dictator, able to wield power arbitrarily and without constraint.
The argument was explosive, and it’s possible – even probable – that such an argument hadn’t been made in a court of English law for nearly a century; such words were potentially treasonous and certainly seditious. As Otis and all colonists were aware from the Land Bank Act, Parliament was the absolute and final arbiter of the law. There was no mechanism by which another person or body could contravene Parliamentary law, and Parliament could change or overturn its own laws at any time, hence Parliament was not even bound by its own precedents; the Land Bank imbroglio had made that clear. Otis was arguing that the tide of reform that had been sweeping across England for the previous century was erroneous, for while the legislative body certainly had legal supremacy over church law or the king, it could not make any law it wished because it was bound by common right and common sense. What Otis had done was to fuse 17th century English legal progress with 18th century radical English political theory to achieve an argument with revolutionary potential.
Otis derived authority for his argument, in part, from an entry in Viner’s Abridgment based upon Lord Coke’s opinion of the 1610 Dr. Bonham’s Case. Legal scholars have suggested that Coke misused his authorities to support his opinion and that Coke had in mind not a true concept of a “higher law” limiting parliamentary acts but rather an overly broad rule of statutory construction. In 1610, Lord Coke was essentially arguing that common right and common sense have precedent over parliamentary law. At the time, “common right and common sense” was not codified in any single place – no written constitution or sole source – but rather existed in previous legal decisions, royal decrees, treaties and charters, common practice and the notion of “reasonableness.” Parliament could not enact and enforce a law that contradicted these sources of common right and common sense. Otis applied this principle, as expressed in his Abridgment, to the question at hand, ignoring the tangled background of Dr. Bonham’s Case and its subsequent demise as an authoritative precedent in English law. Otis ignored the Glorious Revolution and rise of Parliamentary Supremacy and merged Coke’s assertion with Locke’s natural rights and Cicero’s recta ratio, or “right reason,” thus formulating not only a legal argument but the cornerstone of his emerging political theory. The Petition of Lechmere argument and this emerging political theory was of stunning importance as it was to be a recurring theme in the development of the revolutionary ideology to follow and a cornerstone of both the argument for independence and the argument for a written constitution.
It is precisely because James Otis was not trained at the Inns of Court that he was able to conceive of an argument that had as its premise a law higher than Parliament, for Parliamentary Sovereignty was accepted fact in the courts of England in the 1760s. And it is through this argument that a torrent of ideas would flow, which eventually coalesced into the theories of written constitutions and judicial review. The power to “pass such Acts into disuse,” – that is, to nullify laws and statutes – which Otis insisted the courts possessed, was a single but important facet in the structuring of “higher law” that in turn became the theoretical basis for the Declaration of Independence. The Land Bank Act should never happen again because such arbitrary power – Parliamentary supremacy – was “tyranny.”
After a lengthy digression in which Otis analyzed, one by one, the English Acts of Trade, he returned to the writs of assistance that, unlike any other search warrant, wer
e “Universal,” being directed to “all and singular” public officers; they were “Perpetual,” requiring no report to the court; they were usable “At Will”; they had been and continue to be subject to gross abuse and were treated as assignable from one officer to another without permission from or report to the court. While Otis readily admitted that special writs of assistance issued under oath and probable suspicion to a particular officer for a particular search would be valid, everyone in the court knew that the writs had been used to conduct searches simply to harass, even though the customs officer conducting the search could argue that anyone could be (and nearly everyone was) a smuggler. Such general warrants were virtually abolished in England and otherwise not employed, but customs officials were relying on them with increasing frequency. For Otis, such lack of equal treatment was the hallmark of arbitrary and fickle power.
John Adams characterized Jemmy Otis on the night of February 24, 1761 as a “flame of fire!” Adams said that “Every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance. … Then and there the child Independence was born.” Otis made an argument with which the justices couldn’t possibly agree: that Parliament was not the supreme legal authority. Further, agreeing with Otis would effectively emasculate Massachusetts customs efforts and substantially diminish the government. And yet Otis’s argument was so powerful and so logical that Hutchinson, the new chief justice, was paralyzed. Hutchinson therefore convinced his fellow justices to stall the case until he could determine how warrants were presently executed in England.
Thus the Petition of Lechmere was held in abeyance while the other justices permitted Hutchinson time to confirm the practice of issuing writs in England. If the practice in England was a legal issue, it would be incumbent upon the petitioning surveyor general to obtain verification from the Board of Customs Commissioners or the Lords of the Treasury. If the Court intended to take judicial notice of English procedure, then an inquiry should have been sent by either the provincial Governor to the Board of Trade or by the Court to the attorney general of England. But Hutchinson knew he was playing with fire and did not want to risk a report that would support Otis’s argument, so he ignored these proper avenues of inquiry. Instead, Hutchinson made his inquiry in a letter to his close friend, William Bollan, the province agent in London. Bollan was also the man who lost his job as advocate general of the vice admiralty court to Otis. So Bollan was a “friend of government” but not a friend of the Otises. Hutchinson had his own doubts about the legitimacy of the writs and knew that a finding that favored Otis would effectively halt the province’s custom tax collection efforts. The suspicion that Otis may have found a fatal defect in the colonial tax collection process caused Hutchinson to seek unofficial advice rather than an official determination. Otis would not forget Bollan’s participation, but for now, the validity of Otis’s argument was in Bollan’s hands.
So the court waited for an opinion from England, and Otis returned to the Paxton case. While the Writs of Assistance case attracted much attention, the Paxton case attracted more attention in Boston, in large part because Charles Paxton was a polarizing figure. While Paxton was being investigated by the legislature, a somewhat coordinated media attack commenced; personal attacks in the newspapers were nothing new, but they would take on a vigor, virulence, and effectiveness in the early 1760s never before experienced. And Charles Paxton was the first in a long line of public targets that would lead right up to the revolution.
The first story appeared in the Gazette of December 15, 1760, timed for publication just before the merchant petition was filed. It was in the form of allegory and described a hollow wooden statue representing the government, which was inhabited by a rat, Charles Paxton, which gnawed at the vitals of government from within. Allegory was a common weapon in colonial papers. The story of the statue and the rat was embellished in an issue printed January 2, 1761 and again on February 2, when it was reported that the rat was infesting the ships, docks, and warehouses of Boston harbor, but that some cats had been secured. Even the reserved Boston Evening-Post expanded on the theme in a virulent poem. This allegory reached its crest in the Gazette’s “A Short Sketch of the History of Charles Froth, Esq.” published on March 2. The force of the piece is diminished because of the obscurity of the allusions, but “Sir Thomas Graspall, who was dictator general” is certainly identifiable as Thomas Hutchinson. A few years later such rhetoric would not have been too scandalous, and a decade later it would have seemed somewhat common, but in 1760 and 1761, it was shocking to publicly mock the men of the oligarchy and accuse the government of being infested with rats and dictators. Of course, in accordance with Otis’s plan, the articles were all published anonymously. And of course, given Otis’s threat to set the province on fire, he was the suspected author, but Jemmy denied it, and no proof of authorship has ever been discovered. Otis would later make heavy use of anonymous newspaper articles as a tactical weapon, attacking men and destroying arguments, and his close relationship and alleged “management” of Edes and Gill’s Boston Gazette would become a formidable weapon in the rebel’s arsenal not only in Boston but across the colonies. The Gazette would become widely known for the acerbity and accuracy of its reporting, and its articles were probably the most reprinted in all the colonies; within a few years, Gazette articles would appear regularly in newspapers from New Hampshire to Georgia.
The formal lawsuit in the Paxton case, Gray v. Paxton, was filed on March 18th for indebitatus assumpsit (essentially unjust enrichment) alleging that Paxton “had & received” £357 “for the use of the Province.” Benjamin Kent, Paxton’s counsel on this particular aspect of the case, filed a plea in abatement arguing that the plaintiff had established no promise on Paxton’s part to pay anything, and that even if Paxton did owe the money, it was the Province, not the treasurer, who was the proper plaintiff. The Inferior Court overruled the plea, thus requiring Kent to argue the case. The jury found Paxton, province rat, guilty; he appealed, and the case came before Chief Justice Thomas Hutchinson and his colleagues in the August term at Boston.
For the second time that year, Hutchinson was the chief judge on a case argued by Jemmy Otis that attacked the customs establishment. Fearing the outcome, the Court would not let the case go to a jury but rather agreed with the appeal, thus overturning the jury verdict. The reversal was good law. The decision to bring the action in the common law courts instead of in Vice-Admiralty Court was made for two obvious reasons, expediency and political impact; Otis was clearly not concerned with actually winning the case. And the decision to sue in the name of Harrison Gray, province treasurer, rather than in the name of the province itself was made to keep the case out of the hands of Attorney General Trowbridge, who would almost certainly have taken control of a lawsuit made on behalf of the province. But as soon as the first judgment was overturned by Hutchinson, a new one was filed named Province of Massachusetts Bay v. Paxton. The lawsuit was filed on September 21, 1761 but various postponements delayed it into 1762 and into a different political climate and ultimate oblivion. Regardless of the legal outcome, the Paxton cases had one significant practical outcome: collection costs and informers’ fees never again would be deducted from the province’s share of any recovery, thereby making customs enforcement less lucrative for both the governor and the customs officers. Even though Charles Paxton never paid the judgment, his cases produced a new level of scrutiny and fiscal honestly in provincial customs practices, again making James Otis wildly unpopular within the customs establishment.
Otis was determined to set the province “in a flame,” and he was not a man to use just one or two matches. Though juggling Petition of Lechmere and the various Paxton cases would be enough to keep Otis occupied, there was more to come. Six days after filing his writ in Gray v. Paxton, Otis filed Erving v. Cradock. The plaintiff was John Erving, a merchant, councilor, and father of a signer against the writs of assistance. A year before, Erving’s b
rigantine Sarah had been seized for violation of the Acts of Trade by customs coastal watchman William Shaeffe and tax collector George Cradock. Fearing the loss of his ship, Erving entered into a settlement in the Admiralty Court for £555, half the value of the vessel’s cargo, but now his lawyer filed a suit in the Suffolk Inferior Court to recover his payment plus damages, claiming the settlement was made under duress – reflective of Jemmy’s master’s thesis that argued that an oath obtained by craft was not binding. The defense conceded the futility of a full scale defense in the Inferior Court and merely pled the general issue, and two of the justices went so far as to direct the jury to find for the plaintiff to “give him for damages every farthing he was out of pocket.” The jury was happy to comply and gave Erving his judgment. Otis had now launched another successful attack on the provincial government’s primary means of collecting revenue, and now the customs establishment was abundantly aware that they were under full assault.
