Last week Boston 1775 observed the 250th anniversary of James Otis, Jr.’s argument against open-ended writs of assistance before the Massachusetts Superior Court in Boston. As I noted, Otis’s side eventually lost that case.
But not before Otis and his colleague, Oxenbridge Thacher, had to rehash their arguments in a second hearing during the court’s fall term, called because Chief Justice Thomas Hutchinson had sought a legal advisory from London. On 23 Nov 1761, the Boston Gazette reported on that session, which had taken place the previous Wednesday:
As this was a Matter in which the Liberty of the People was most nearly interested the whole Day and Evening was spent in the Argument. The Gentlemen in Favour of the [Customs officers’] Petition alleged, that such Writs by Law issued from the Court of Exchequer at home; and that by an Act of this Province, the Superior Court is vested with the whole Power and Jurisdiction of the Exchequer. . . .Edes and Gill’s Gazette had long leaned against expanded royal prerogative, and supported the interests of the Boston town meeting and the merchants who dominated it. The newspaper’s spin on the court’s decision managed to acknowledge the fact that the Customs office had used writs of assistance under Massachusetts law for years, but nevertheless suggest that there was no good precedent for them.
The Arguments on the other Side were enforced with such Strength of Reason, as did great Honour to the Gentlemen concerned; and nothing could have induced one to believe they were not conclusive, but the Judgment of Court immediately given in Favour of the Petition. . . .
It is worth observing, that the Power of the Exchequer had never been exercised by the Superior Court, for near Sixty Years after the Act of this Province investing them with such Power had been in Force.—The Writ, which was the first Instance of their exercising that Power now granted, was never asked for, or if asked, was constantly deny’d for this long Course of Years, until Charles Paxton, Esq; whose Regard for the Liberty and Property of the Subject, as well as the Revenue of the King, is well known, apply’d for it in 1754—It was granted by the Court in 1756, sub silentio, and continued till the demise of the late King—
Boston 1775 readers might wonder why this article didn’t come up when I searched the Early American Newspapers database for references to the writs of assistance case last week. I wonder that myself, especially since the article’s first sentence (not quoted) contains the key phrase “Writ of Assistance.” I found this item only by following the trail of a footnote and looking at all the items in that issue.
That leaves the possibility that there are one or two other mentions of the case in 1761 newspapers, submerged by flaws in the database. However, it’s still clear that this dispute over writs of assistance attracted little attention outside of Massachusetts. After all, it was all about Massachusetts law, and enforcement in Massachusetts ports.
But this article, the 7 December essay by “A Fair Trader,” and a lengthy 4 Jan 1762 recap of the case that the Gazette ran on its front page show how the Boston Whigs tried to make as much of the adverse court decision as they could. In essence, they began appealing to a higher court—the court of public opinion.
COMING UP: Making writs of assistance a legislative matter.