John Adams, who made extensive notes on the Writs of Assistance Case of 1761, observed that, "Then and there was the first scene of the first Act of Opposition to the arbitrary Claims of Great Britain. Then and there the child Independence was born." 11 The case was the first articulate expression of what became an American tradition of
constitutional hostility toward the general powers of search. It was also the opening salvo in the colonists' legal resistance to the new English mercantile policy.
The customs writ of assistance was an odd creature. Both it and a search warrant, in the name of the Crown, provided the bearer with legal authority to enter and search a premises. The search warrant was an exercise of jurisdiction in which a justice, upon a showing of cause, went through a minimal process of deliberation. The customs writ of assistance, on the other hand, was issued by a functionary in the English Court of Exchequer as an administrative act. It was entirely ministerial and by itself conferred no power on the bearer; it provided only that a constable was to assist the customs officer in making a specific search of a given building.
This distinction was lost on Charles Paxton, surveyor and searcher of customs in Boston. As a zealous official, he used a writ obtained in 1756 from the Massachusetts Superior Court to invade the warehouses of uncooperative merchants, ignoring the requirement that he give oath that probable cause existed to suspect that illegal goods were being hidden. Paxton treated the writ as if it was general in nature, rather than special and specific. The merchant community retaliated by accusing him of customs racketeering, of using his position and the writ to force merchants to pay him protection money, and of being "no man's friend." 12
Two events in 1760 and 1761 precipitated a crisis. The first was the death of King George II, in whose name all writs had authority. Within six months of the king's death those persons holding writs had to apply to the new sovereign. Second, in September 1760 Chief Justice Stephen Sewall of the superior court died, and Governor Francis Bernard, bent on a vigorous customs enforcement policy, appointed his lieutenant governor, Thomas Hutchinson. The new chief justice, who was not a lawyer, was well on his way to becoming "the most hated man in Massachusetts." "Virtuous but not stylish, intelligent but didactic, heavy-spirited and self-absorbed," the historian Bernard Bailyn has explained, "he judged people, and often found them wanting." 13 He was also a "good friend" of Paxton. 14
Hutchinson immediately ran afoul of James Otis, Jr., who appeared before the superior court to argue against renewing Paxton's writ of assistance. Personal and political rivalry tinged the legal confrontation. Otis believed that Hutchinson had usurped a seat on the court that Governor Bernard had supposedly promised to the senior Otis.
Otis transformed the technical legal issue of whether the customs writ was general or specific into an intense debate over the nature of the British constitution and the place of colonists under it. The customs writ of assistance, Otis argued, was merely a device for the enforcement of the Navigation Acts. Otis had made a decisive turn, linking the political question of control over the colonial economy to the right of the English to exercise such control. As Peter Oliver, himself a judge on the court, subsequently recalled, Otis's assertion "broke down the Barriers of Government to let in the Hydra of Rebellion." 15 He argued that the issuance of the writ ran counter to the "fundamental principles of law" that composed the original British constitution of the seventeenth century. 16 To substantiate the idea that fundamental principles of law would prevail over acts of Parliament, Otis cited Lord Coke's celebrated judgment in Bonham's Case ( 1610) that "it appears in our books that in many cases the common law will control acts of Parliament, and sometimes adjudge them to be utterly void." 17
Otis's actions demonstrated how legal the growing colonial. opposition to English
control was. Yet the arguments he made were ancient rather than modern. He claimed the rights of Englishmen, not the rights of colonists. He made no attempt to assert that the American colonists could of their own will make law to suit themselves; instead, he insisted only that they be extended the same privileges as they would otherwise receive in England. He clung to the notion that English constitutional law was more than adequate to serve the interests of the colonists, and that it rested on reason and discoverable natural law principles. The rights of the colonists, Otis wrote, were guaranteed "by the law of God and nature as well as by the common law and the constitution of their country." 18 He did not need a written document to state the existence of such liberties; they were already understood within the great tradition of the English common law. He agreed, in short, with Hutchinson: the Parliament was the constitution, a source of authority complete unto itself. Like Hutchinson, he shared a belief in the British constitution and the notion of Parliament as the source of sovereign authority, although Otis reached quite different conclusions about its meaning.
The writs of assistance cases changed little from a strictly legal point of view. Hutchinson did grant Paxton a new writ, but the British attorney general in 1766 informed the colonial customs service that the writ was illegal, because the power of the exchequer to issue it did not run by implication to colonial common law courts. By then the damage was already done. Otis had set loose the principle of natural law as a means of limiting arbitrary governmental action otherwise uncontrollable by the constitution. Otis's sharp attacks through the Boston press on Hutchinson following the decision and the subsequent mob violence directed against the chief justice and later governor of Massachusetts revealed how this principle could be turned into a direct manifestation of popular will. If Otis did not quite appreciate the implications of his natural law theorizing, other and more radical figures were more than willing to embrace the legal issues through political action.