Call for Papers on “The Adams Family and the American Revolution”

The Sons of the American Revolution has announced that its 2017 Annual Conference on the American Revolution will take place in Quincy. In honor of the 250th anniversary of the birth of John Quincy Adams, the theme will be “The Adams Family and the American Revolution.” The gathering will also honor Lyman H. Butterfield, founding editor of the Adams Papers.

Here’s the call for papers:

John Adams famously wrote that “I must study Politicks and War that my sons may have liberty to study Mathematicks and Philosophy. My sons ought to study Mathematicks and Philosophy, Geography, natural History, Naval Architecture, navigation, Commerce and Agriculture, in order to give their Children a right to study Painting, Poetry, Musick, Architecture, Statuary, Tapestry and Porcelaine.” The comment seems to describe the story of the family in the generations from John to Henry Adams.

Yet the Adamses, whatever else they did, were political men and women. In 1821, an aging John Adams wrote his grandson George Washington Adams, an aspiring poet, that he must study politics, for “without some knowledge of it you will be always in confusion, blown about by every wind.” Politics were central to the story of the Adams family from the start, and at the foundation of the family’s politics was the American Revolution, a revolution that would create an American republic.

With that in mind, this conference proposes to explore the Adams family’s understanding of the nature, meaning, and significance of the American Revolution over the generations from John and Abigail to Henry and Brooks Adams. It will focus on the way their understanding of the American Revolution shaped their writings and their works from the Writs of Assistance Case in 1761 to Henry Adams’s death in the early 20th Century.

In support of their Congressional mandate to encourage historical research, the Sons of the American Revolution invites paper proposals from graduate students and advanced scholars in history and political science on any topic relating to the Adams family and the American Revolution.

Proposals should include a 250-word abstract of the paper and a short curriculum vitae for the author. They should be submitted to Richard Samuelson, Associate Professor of History, California State University, San Bernardino, by 15 Dec 2016.

The conference is scheduled to take place on 9-11 June 2017. The organizers will cover presenters’ travel and lodging expenses, and offer a $500 stipend. They anticipate collecting the papers in a subsequent printed volume.

TOMORROW: Back to our extended discussion of John Adams and birthday celebrations.

Hawley, Adams, Gridley, and Otis, Attorneys at Law

Going back to the newly digitized Joseph Hawley Papers at the New York Public Library, one noteworthy item is Hawley’s commonplace book.

A commonplace book was a notebook in which a (usually) gentleman copied out passages from books or documents that he found interesting, thoughts he wanted to explore, and other material. For example, Hawley’s starts with “Thoughts on various Subjects” and extracts from Cicero “of the Principles of the Stoics.”

Then comes something very meaty for historians of the Revolution: a summary of Jeremiah Gridley’s argument for the Crown in the February 1761 writs of assistance case, followed by the much longer rebuttal from James Otis, Jr. (shown here).

Late in life, and resentful of all the attention Patrick Henry and Virginia were getting, John Adams argued that that court case was the real beginning of the American Revolution. “Then and there the Child Independence was born,” he told William Tudor in 1817. Not coincidentally, almost all the information we have about that event was supplied by John Adams, sometimes with an extra helping of courtroom drama.

Hawley’s commonplace book contains, I understand from Mark Boonshoft’s essay at the Junto blog, the most complete rendering of those arguments to survive. Adams probably wrote out those texts from his notes between the argument in February and 3 Apr 1761, when he showed a copy to Col. Josiah Quincy. Compared to his later description, they are less dramatic but more reliable, though still a long way from a true transcript.

Interestingly, Adams’s own manuscript of these arguments doesn’t exist. Instead, he gets credit for having written the textual ancestor of several overlapping versions that do survive, including Hawley’s. On 29 Apr 1773 the Massachusetts Spy printed Otis’s speech, sparking more interest in it. That August, the Massachusetts Committee of Correspondence sent the Gridley and Otis arguments to the Connecticut legislature. Joseph Hawley was on that committee, so that’s probably how he got to make a copy of his own.

John Adams Sums Up

As I described yesterday, John Adams didn’t like how William Wirt’s 1817 biography of Patrick Henry gave the Virginian credit for sparking the American Revolution. Adams wanted Massachusetts to get the credit for being first.

The only problem was that Henry really did deliver incendiary remarks against the Stamp Act in the Virginia House of Burgesses on 29 May 1765. Wirt’s version of that speech ended, “If this be treason, make the most of it!” That may not be accurate, but there was no doubt that Henry attacked the Stamp Act months before Boston’s big public protests in August.

So the only way for Adams to win back Massachusetts’s primary role was to argue that the Revolutionary conflict had begun even earlier than that—with the writs of assistance case in 1761. On 29 Mar 1818 Adams sent his former law clerk William Tudor a long, detailed, and dramatic—at times melodramatic—description of the case, ending:

But [James] Otis was a flame of Fire! With a promptitude of classical allusions, a depth of research, a rapid summary of historical events and dates, a profusion of legal authorities, a prophetic glare of his eyes into futurity, and a rapid torrent of impetuous eloquence he hurried away all before him.

American independence was then and there born. The seeds of patriots and heroes to defend the Non Sine Diis Animosus Infans; to defend the vigorous youth were then and there sown. 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 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. In fifteen years, i.e. in 1776, he grew up to manhood and declared himself free.

Adams allowed that letter to be published in newspapers and a new collection of his “Novanglus” essays, thus making it available to historians just as the fiftieth anniversary of independence approached.

In March 1818 the North American Review printed young Jared Sparks’s critique of Wirt’s Patrick Henry, saying it relied too much on “tradition” instead of “truth.” The article listed several ways that Massachusetts instigated the Revolution. (That magazine was, after all, based in Boston.) Sparks went on to edit the first collection of George Washington’s writings.

Over the next couple of years Adams convinced the editor of that magazine, William Tudor, Jr., to write the biography of Otis that he had imagined. The Life of James Otis, of Massachusetts appeared in 1823, quoting heavily from Adams’s letters to the author’s father.

Thus, before he died on 4 July 1826, John Adams had managed to establish a historiography of the American Revolution that starts in Boston in 1761, with James Otis, Jr., delivering the opening speech. Or was that, as Adams had complained about Wirt’s book, largely “a romance”?

John Adams Looks Back on the Writs of Assistance Case

The reason we remember the February 1761 “writs of assistance case” without really remembering what writs of assistance are, I think, is not because of James Otis, Jr. It’s because of John Adams (shown here, courtesy of the Massachusetts Historical Society).

Adams was in the courtroom as a young lawyer in training. He took notes on the attorneys’ speeches and probably wrote up an “abstract” by 3 April, when his diary quotes some teasing from Col. Josiah Quincy of Braintree about it. Over the next decade Adams’s summary circulated in the Boston legal community.

In 1773, after Otis had fallen into intermittent mental illness, an Adams trainee named Jonathan Williams Austin published a version of the abstract in the Massachusetts Spy. Decades later, Adams complained that Austin had stolen the document and added erroneous commentary.

On 3 July 1776, as Adams told his wife Abigail about the Continental Congress’s vote for independence the previous day, he added:

When I look back to the Year 1761, and recollect the Argument concerning Writs of Assistance, in the Superiour Court, which I have hitherto considered as the Commencement of the Controversy, between Great Britain and America, and run through the whole Period from that Time to this, and recollect the series of political Events, the Chain of Causes and Effects, I am surprized at the Suddenness, as well as Greatness of this Revolution. Britain has been fill’d with Folly, and America with Wisdom, at least this is my Judgment.—Time must determine.

So Otis’s argument did hold great meaning for him.

In the quarter-century that followed, Adams drafted the Massachusetts constitution, served as a diplomat in Europe, and was elected Vice President and then President of the United States. After being turned out of office, he looked back on his career, first in anger and then, in his manuscript “Autobiography,” with a little more nostalgia.

Around 1804 Adams once again described the writs of assistance case. But this time, more than four decades afterward, he declared that Otis’s arguments had made him foresee the same split with Britain whose suddenness had “surprized” him in 1776:

In February Mr. James Otis Junr. a Lawyer of Boston, and a Son of Colonel Otis of Barnstable, appeared at the request of the Merchants in Boston, in Opposition to the Writ. This Gentlemans reputation as a Schollar, a Lawyer, a Reasoner, and a Man of Spirit was then very high. Mr. [James] Putnam while I was with him [as a clerk] had often said to me, that Otis was by far the most able, manly and commanding Character of his Age at the Bar, and this appeared to me in Boston to be the universal opinion of Judges, Lawyers and the public.

Mr. Oxenbridge Thatcher whose amiable manners and pure principles, united to a very easy and musical Eloquence, made him very popular, was united with Otis, and Mr. [Jeremiah] Gridley alone appeared for [Customs official James] Cockle the Petitioner, in Support of his Writ.

The Argument continued several days in the Council Chamber [of the Town House], and the question was analized with great Acuteness and all the learning, which could be connected with the Subject. I took a few minutes, in a very careless manner. . . . I was much more attentive to the Information and the Eloquence of the Speakers, than to my minutes, and too much allarmed at the prospect that was opened before me, to care much about writing a report of the Controversy.

The Views of the English Government towards the Collonies and the Views of the Collonies towards the English Government, from the first of our History to that time, appeared to me to have been directly in Opposition to each other, and were now by the imprudence of Administration, brought to a Collision. England proud of its power and holding Us in Contempt would never give up its pretentions. The Americans devoutly attached to their Liberties, would never submit, at least without an entire devastation of the Country and a general destruction of their Lives. A Contest appeared to me to be opened, to which I could foresee no End, and which would render my Life a Burden and Property, Industry and every Thing insecure.

As with many of Adams’s anecdotes, the story eventually came down to:

1. making the right choice despite the many formidable obstacles and opponents ranged against…
2. John Adams.

Because Adams didn’t write his autobiography for publication, his view of Otis’s 1761 argument as the start of America’s Revolution remained a private opinion.

That changed in 1817, when a Virginia lawyer named William Wirt published his best-selling biography of Patrick Henry.

TOMORROW: “Virginian geese are always swans.”

Writs of Assistance as a Legislative Matter

This posting returns to that dispute in Boston over writs of assistance, or general search warrants. In February 1761 James Otis, Jr., made a courtroom argument against them which later became famous—but in that year made hardly any waves. In May, Otis was elected to the Massachusetts House, and in November he reargued the question, only to have Chief Justice Thomas Hutchinson lead the Massachusetts Superior Court in ruling against him.

At some point in 1761, the House voted to define search warrants for the province of Massachusetts. Otis almost certainly took a leading role in writing this bill. It rejected the open-ended language of a writ of assistance. Instead, it required a Customs officer to seek a specific writ by swearing to “Information of the Breach of any of the Acts of Trade…that he verily believes or knows…to be true.”

The bill continued:

it shall be lawful in every such Case, for such Court or Justice, to whom Application may be made as aforesaid, upon reducing such Oath to Writing, with the Names of the Person Informing & ye Place informed against, and not otherwise, to issue a Writ or Warrant of Assistance…

The law specified how the writ should be written “with the name of the Person complained of.” That writ did not have to contain the name of the informer, but that name went into the justice of the peace’s records, and there was a fair amount of overlap between those gentlemen and the merchants who disliked Customs searches.

In early 1762 the upper house of the Massachusetts General Court, the Council, approved the same bill. The full legislature had already signaled its displeasure with the Superior Court by cutting the judges’ salaries.

Gov. Francis Bernard (shown above) consulted with his lieutenant governor—the same Thomas Hutchinson who was chief justice. Hutchinson told Bernard that the legislature’s bill would nullify the court’s November ruling. The governor therefore vetoed the bill, and there was no way for the legislature to override him. Bernard reported that this “occasioned a good deal of Murmuring.”

The General Court’s action made the fight against writs of assistance more respectable, I think. It was no longer a matter of a small interest group—merchants, many engaged in smuggling—trying to stymie law enforcement. The issue now involved two competing sources of governmental authority: a locally elected legislature, and Parliament in London working through appointed officials.

TOMORROW: Otis expands the argument beyond writs of assistance.

The Boston Gazette Spin on Writs of Assistance

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. . . .

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—

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.

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.

James Otis Tries a New Type of Politics

In 1760, Boston’s four representatives to the lower house of the Massachusetts General Court were John Phillips, Royall Tyler (father of the author who took the same name), Thomas Flucker, and Samuel Welles.

In early 1761, Flucker moved to Charlestown. Phillips, who had served off and on for decades, apparently decided not to run again; he had by far the highest vote total in 1760, and I know no reason he wouldn’t have been reelected.

That opened up two slots for other gentlemen. At a town meeting in May 1761, the qualified voters chose:

• Thomas Cushing, a prominent merchant and selectman (shown here).
• James Otis, Jr., the lawyer who had argued against renewed writs of assistance back in February, as quoted here.

Boston’s merchants, and the mariners and businessmen who depended on them, no doubt trusted Cushing and Otis to represent their interests.

Before that moment, Otis had filled appointive offices in the royal patronage system rather than elected offices that depended on maintaining popularity with the voters. These were two parallel tracks for rising within government in the eighteenth-century British Empire. As a brilliant, learned man who was sometimes snobbish and moody, Otis made a better fit for the patronage track. Royall Tyler reportedly had to give him tips on winning over voters.

But Otis had apparently soured on the patronage system when the new governor, Francis Bernard, had dismissed the previous governor’s promise to appoint James Otis, Sr., as chief justice. He resigned his royal appointment in the Vice Admiralty court system and offered his services to the Boston merchants. That party in return supported his election to the Massachusetts House, where the senior Otis was already a representative for Barnstable and the Speaker.

The legislative records aren’t as clear as we might want, but they say that the younger Otis began to serve on lots of committees, a sign of influence. Within a short time he was recognized as a leader of the “country party” or Whigs who usually opposed the royal governor’s policies. Cushing also rose in the House, becoming Speaker in 1766. (Oxenbridge Thacher, Otis’s co-counsel in the writs case, would join them in the House in 1763, but died in 1765 before the Revolutionary arguments really heated up.)

TOMORROW: The next round of the writs of assistance argument.

The Press Response to the Writs of Assistance Argument

Given how much American chroniclers have made of James Otis, Jr.’s arguments against writs of assistance, we might expect writers of his time to have a lot to say about the case. But in fact it received virtually no attention in the press in 1761.

In his 1939 article on “Writs of Assistance as a Cause of the Revolution,” Oliver M. Dickerson wrote:

Careful search of these [newspapers] discloses no general information about applications for writs of assistance nor much discussion of the question of issuing them, except that contained in the Journal of the Times [a series of essays published in 1768-69]. So far, no contemporary pamphlet that has come to light has been devoted mainly to a discussion of writs of assistance. On the other hand, there are many such pamphlets dealing with practically every other issue connected with the British treatment of the American colonies.

With digital databases now available, I decided to check Dickerson’s findings. I searched for “James Otis” and “Oxenbridge Thacher” in newspapers and pamphlets published in 1761. I searched for “writ of assistance,” “writs of assistance,” and, given the quirks of O.C.R. scanning, “writ of afsiftance.” And indeed there’s practically nothing in that year. The pertinent hits are:

• In the 9 Mar 1761 Boston Post-Boy, Otis swore under oath that he had not written a recent newspaper satire on “Charles Froth, Esq.”—Customs official Charles Paxton. This suggests the lawyer had gotten a reputation for attacking the Customs office.
  
• In the 7 Dec 1761 Boston Gazette, an essay signed “A Fair Trader” complained that the Customs office in Boston was much stricter than those in other ports. Among the problems:

  WRITS OF ASSISTANCE are now established and granted to the Officers of the Customs, who were tho’t by many Persons, to have had full Power enough over us before.—If it be said that all this is no more than the Law prescribes, I again ask, Whether the Law is carried to these Extremities in any other Province?

  This essay is quoted in M. H. Smith’s The Writs of Assistance Case, published in 1978.
• Newspapers and legislative records note the election of Otis to the Massachusetts General Court as a representative of Boston in the middle of that year.
• [ADDENDUM: A different type of search turned up a report on the second and decisive court session about this case in November, again from the Boston Gazette.]
  

Some historians say Boston newspapers might not say much about local events since the printers expected readers to have already heard the news. There were fewer than 8,000 adults in town, after all, and the newspapers were weeklies. But there’s nothing at all in the newspapers for other colonies, either.

Otis’s argument simply wasn’t big news in 1761. Only in the following years, as he and his Whig colleagues expanded their argument against Parliament making laws for the colonies, did it take on wider significance.

TOMORROW: James Otis’s political career and writings.

“The Writs Were Ordered to Be Issued”

Yesterday I quoted from James Otis, Jr.’s argument in the writs of assistance case, as set down afterward by John Adams. Otis and his colleague, Oxenbridge Thacher, represented Boston’s merchants in arguing that the Massachusetts court should not issue an open-ended writ allowing the local Customs office to search anywhere for smuggled goods.

They lost.

For Chief Justice Thomas Hutchinson (shown here as a younger man), the case hinged on whether his court was a “Court of Exchequer” and whether similar courts in England issued writs of assistance. Hutchinson, in addition to being a probate judge and Lieutenant Governor, was the colony’s leading historian. Referring to himself in the third person, he provided this account of the case:

The court was convinced that a writ, or warrant, to be issued only in cases where special information was given upon oath, would rarely, if ever, be applied for, as no informer would expose himself to the rage of the people.

The statute of the 14th [year of the reign] of Charles II. authorized issuing writs of assistance from the court of exchequer in England. The statutes of the 7th and 8th of William III. required all that aid to be given to the officers of the customs in the plantations, which was required by law to be given in England. Some of the judges, notwithstanding, from a doubt whether such writs were still in use in England [because of an article reprinted from a London magazine], seemed to favour the exception, and, if judgment had been then given, it is uncertain on which side it would have been.

The chief justice was, therefore, desired, by the first opportunity in his power, to obtain information of the practice in England, and judgment was suspended. At the next town [where the court met], it appeared that such writs issued from the exchequer, of course [i.e., as a matter of course], when applied for; and this was judged sufficient to warrant the like practice in the province. A form was settled, as agreeable to the form in England as the circumstances of the colony would admit, and the writs were ordered to be issued to customhouse officers…

The Massachusetts court issued writs of assistance to Customs officials in that province. The court in New Hampshire, which usually followed Massachusetts’s lead, did the same.

However, as Oliver M. Dickerson described in “Writs of Assistance as a Cause of the Revolution,” his chapter in Richard B. Morris’s The Era of the American Revolution, the judges in other American colonies resisted the Customs service’s requests for open-ended writs. Judges delayed rulings, they sent for advice from London and then ignored the results, they asked other colonies’ courts what they had done, they lost the paperwork, they reworded the writs to be less general.

Furthermore, in Boston the Customs officials had a hard time enforcing their writ, particularly in an attempted search of merchant Daniel Malcom’s warehouse in 1766. Malcom refused to unlock a room for the searchers, no justice of the peace would cooperate, and a grumpy crowd gathered.

Charles Townshend’s Revenue Act of 1767, which established new taxes, also explicitly authorized writs of assistance. The Customs Commissioners based in Boston had forms printed up and distributed to other colonies. But they still didn’t get the broad powers they sought. Though the Massachusetts court had decided otherwise, American society came to regard open-ended writs as unconstitutional.

Eventually Otis and Thacher’s argument became institutionalized in the U.S. Constitution’s Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The new republic thus rejected Hutchinson’s fear that “a writ, or warrant, to be issued only in cases where special information was given upon oath, would rarely, if ever, be applied for.”

TOMORROW: The political effect of the writs case.

In a Boston Courtroom, 250 Years Ago Today

On 23 Feb 1761, two and a half centuries ago, James Otis, Jr. (shown here), and Oxenbridge Thacher stood before the top court of Massachusetts and argued that the colonial government did not have the constitutional power to grant the Customs service a “writ of assistance.” Representing the government in what is now the Old State House was Attorney General Jeremiah Gridley, who had trained both his opponents.

Otis and Thacher’s clients were the import merchants of Boston. At best, those men comprised a narrow special interest. At worst, they were a bunch of privileged whiners trying to stymie the lawful authorities’ power to curb their habitual smuggling.

Otis himself had worked for the royal government not long before, as Advocate General in the Vice Admiralty Court. He switched sides, everyone acknowledged, at least in part because the new governor, Francis Bernard, had not given his father the judicial appointment that the previous governor had promised.

A writ of assistance was general and open-ended. Having received one, Customs officials did not need to provide evidence of what smuggled goods they were looking for and where. And a writ of assistance lasted until the king died—which is why the writs issued under George II (1683-1760) were no longer valid.

Young lawyer John Adams took notes on the case, which survive in sketchy form, and afterward wrote out a more detailed and dramatic abstract of the event. That quoted Otis making this case against the writ:

In the first place, the writ is universal, being directed “to all and singular Justices, Sheriffs, Constables, and all other officers and subjects;” so, that, in short, it is directed to every subject in the King’s dominions. Every one with this writ may be a tyrant; if this commission be legal, a tyrant in a legal manner also may control, imprison, or murder any one within the realm.

In the next place, it is perpetual; there is no return. A man is accountable to no person for his doings. Every man may reign secure in his petty tyranny, and spread terror and desolation around him.

In the third place, a person with this writ, in the daytime, may enter all houses, shops, &c. at will, and command all to assist him.

Fourthly, by this writ not only deputies, &c., but even their menial servants, are allowed to lord it over us. Now one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege.

Having invoked class privilege against “menial servants,” Otis went on to warn, “This wanton exercise of this power is not a chimerical suggestion of a heated brain.” Loyalists complained that Otis did have an overheated brain, and by the end of the decade he actually had a mental breakdown. But the writs of assistance case had started an argument that eventually led to American independence.

TOMORROW: The outcome and results of the Massachusetts writs of assistance case.

Anniversary Events in Greater Boston This Week

At Longfellow House–Washington’s Headquarters National Historic Site in Cambridge, the National Park Service is offering special out-of-season tours on Tuesday, 22 February—Gen. George Washington’s actual birthday. These tours focus on Washington’s months in the house during the siege of Boston, and how the family of poet Henry W. Longfellow later celebrated that history. Tours are scheduled to start every half-hour, and are free.

(To be completely accurate, the calendar read 11 Feb 1731 when Washington was born. But by the end of his lifetime he was acknowledging 22 Feb 1732 as his birth date. More on that change tomorrow.)

On Wednesday, 23 February, at 6:30 P.M., the Bostonian Society’s Old State House hosts a program called “‘A Man’s House Is His Castle’: The Legacy of James Otis.” This event commemorates the 150th anniversary of James Otis, Jr.’s legal argument against writs of assistance in that building, which in 1761 served as a courthouse. The Fourth Amendment is one eventual result of that argument, as are today’s debates about search warrants and pat-downs of travelers.

The panelists are:

• Robert Allison, Professor of History, Suffolk University
• Christopher Pyle, Professor of Politics, Mount Holyoke College
• Dennis Treece, Colonel U.S. Army (Ret.); Director of Security, Massport
• moderator Meghna Chakrabarti, Host, Radio Boston, WBUR

The discussion is presented by the Bostonian Society and the American Civil Liberties Union of Massachusetts. It is free and open to the public.

Hearing “A Knock at the Door”

A recording of the “A Knock at the Door: Three Centuries of Governmental Search and Seizure” panel discussion at the Old State House in Boston in November is now available for viewing through the WGBH Forum Network.

I’m posting a screen grab from that website last night, showing its most recent 18th-century history lectures. After all, it may be a long time before I again see myself featured side by side with Gordon S. Wood.

I don’t actually deserve top billing on this video, but there was a delay in setting up, so Frederick Lane’s introduction didn’t get recorded. He comes on after me, and you’ll see that he moderated the event as author of American Privacy.

Connecting 1761 with Today (well, with Wednesday)

So here’s my report on Wednesday’s panel discussion at the Bostonian Society about America’s long debate over lawful search and seizure. We started with a gossipy introduction to James Otis, Jr.’s argument against writs of assistance in 1761 (that would be me), examined the Fourth Amendment to the U.S. Constitution, and ended with electronic surveillance by the same U.S. government today.

The moderator was Vermont lawyer Frederick S. Lane, author of the new book American Privacy. I hadn’t met him before, but by the end of the event it was clear that we were connected in some curious ways:

• Fred and I are both descended from John and Elizabeth (Tilley) Howland of the Plymouth Colony.
• When my mom did some historic knitting for Plimoth Plantation, Fred’s mom was her contact as volunteer coordinator.
• The first citation in Fred’s book is a newspaper article co-written by my lab partner in high-school chemistry.

The second panelist was Prof. Joe McEttrick of Suffolk Law School, with whom I share a more reasonable past. A few years back, he organized a reenactment of the trial of the soldiers after the Boston Massacre. By email I contributed a bit to his script (about Pvt. James and Elizabeth Hartigan) and helped draft the printed program. Those were among the first things I ever wrote about Revolutionary Boston for public consumption.

I haven’t spotted any personal link to the third panelist, Kurt Opsahl of the Electronic Freedom Foundation. But his description of the last decade’s fight over the limits of government surveillance showed some parallels with Boston’s legal dispute over writs of assistance.

That lawsuit arose in 1761 because, with the death of King George II the previous October, the Customs officials’ old writs were about to expire. That offered a once-in-a-king’s-lifetime chance for local merchants to argue that such writs had no basis in Massachusetts law.

Similarly, the Bush-Cheney administration’s electronic surveillance program known as “Stellar Wind” had to be renewed every 45 days. At one of those junctures in 2004, there was a showdown inside the Justice Department. Deputy Attorney General James B. Comey and White House Counsel Alberto Gonzales squared off in Attorney General John Ashcroft’s hospital room. Many Justice Department officials threatened to resign. As a result, the program was modified, though only slightly, and in ways we don’t really know.

TOMORROW: Another common element of the privacy fights in the 1760s and those of today: government leaks.

“With a Writ of Assistance”

In a footnote for his contribution to The Era of the American Revolution (1939), Oliver M. Dickerson quoted the American Commissioners of Customs appointing an officer for the port of Charleston, South Carolina, in 1772. The original document was filed with the Treasury Office in London.

To All People to Whom These Presents Shall Come

We the Commissioners for managing and causing to be Levied His Majesty’s Customs and other Duties in America Do hereby Depute and Impower George Roupell Esqr. to be Collector of the Customs at Charles Town South Carolina and to do and perform all things to the said Service or Office or Employment belonging. In virtue whereof He hath power to enter into any Ship Bottom, Boat or other Vessel and also in the daytime with a Writ of Assistance granted by his Majesty’s Superior or Supreme Court of Justice and taking with him a Constable, Head-borough or other Public Officer next inhabiting, to enter into any House, Shop, Cellar, Warehouse or other place whatsoever not only within the said Port but within any other Port or place within our Jurisdiction there to make diligent Search and in case of resistance to break open any Door, Trunk, Chest, Case, Pack, Truss or any other Parcel or package whatsoever for any Goods, Wares, or Merchandizes, prohibited to be exported out of or imported into the said Port, or whereof the Customs or other Duties have not been duly paid: And the same to Seize to His Majesty’s use and to put and secure the same in the Warehouse in the Port next to the Place of Seizure.

In all which Premises He is to proceed in such manner as the law directs.

Hereby praying and requiring all and every His Majesty’s Officers and Ministers and all others whom it may concern, to be aiding and assisting to Him in all things as becometh.

Given under our hands and Seal at the Custom House, Boston this seventh day of April in the Twelfth Year of the Reign of our Sovereign Lord King George the Third and in the year of our Lord One Thousand Seven Hundred and Seventy Two.

Signed, Wm. Burch Hen. Hulton Chas. Paxton

The writ of assistance was basically an open-ended search warrant, not tied to specific evidence or specific cases. And because of that generality, the Customs Commissioners actually had a hard time getting them issued by colonial courts outside of Massachusetts and New Hampshire. Dickerson’s article is full of examples of how other colonies’ high courts managed not to issue such writs without coming right out and defying the Crown: they asked for more clarification, lost the paperwork, &c.

Tonight I’ll be discussing the history of this legal controversy as part of a panel at the Old State House in Boston on American search and seizure laws. No need for a special document to get in—this session is free and open to all.

Capt. Molesworth Falls in Love

According to Sheaffe family tradition, which was apparently first published in the 1864 edition of Lorenzo Sabine’s American Loyalists, Capt. Ponsonby Molesworth spotted Susannah Sheaffe on the first day he arrived in Boston, 1 Oct 1768.

He was marching his company of the 29th Regiment off their transport ship and up Long Wharf. (See those little red figures in the print above?) She and her little sisters were watching from the balcony of their house. And he immediately fell in love.

That’s a lovely “How I Met Your Grandmother” story. And even in the spotty genealogical records of colonial Boston, we can find some more detail to fill it out.

Susannah’s father was William Sheaffe, born in 1705 in Charlestown. He became Deputy Collector of Customs for the port of Boston, a mid-level position which meant he usually ended up doing all the work for less pay. (Especially in the 1750s, when the Collector was Sir Harry Frankland, who was busy chasing barmaids.)

Sheaffe was also the Customs official who handled writs of assistance following the latterly famous court case that we discuss at the Old State House on Wednesday. Sheaffe tried to help search Daniel Malcom’s house in 1766, as described back here. He never seems to have become as unpopular as some of his colleagues, but it wasn’t an easy job.

On 1 Oct 1752, Sheaffe married Susannah Child at Trinity Church. He was in his later forties, twice widowed, and she was in her very early twenties. Seven months later, their first child was baptized at the same church; this little William didn’t survive to adulthood.

In the spring of 1754 Susannah Sheaffe was born, followed by the usual pattern of one child every one to three years until their mother reached menopause. Three died young, and eleven survived to adulthood. (The best recreation of their family tree, though still missing little William, appeared in the New England Historical and Genealogical Register in 1971.)

Susannah was thus fourteen years old when Capt. Molesworth reportedly spotted her. The family lore says that she had just turned fifteen when the captain asked for her hand in marriage. William Sheaffe thought that was too young, and refused.

TOMORROW: The young couple find help from an unexpected source.

(Picture of the British army landing in 1768 above courtesy of the Boston Public Library’s Flickr collection. http://www.flickr.com/photos/boston_public_library/ / CC BY 2.0)

“A Knock at the Door” Panel, 4 Nov. at the Old State House

And speaking of writs of assistance, as I did yesterday, next Wednesday I’ll be on a public panel discussing how those fit into American legal history. Here’s the announcement of that event from the Bostonian Society:

A Knock at the Door: Three Centuries of Governmental Search and Seizure
Wednesday, November 4, 2009, 6:30 p.m., at the Old State House
Free and open to the public

The protection against unreasonable governmental search and seizure has long been considered a fundamental American right. This concept has its roots in patriot James Otis’s 1761 legal petition opposing the Writs of Assistance and general property searches, a case heard in Old State House.

Even though guaranteed by the Fourth Amendment to the U.S. Constitution, this right has been challenged and debated many times throughout our history. Today we are confronted with new debates over wiretapping, immigration raids, and school drug searches.

Join our panelists, public historian J.L. Bell, legal scholars Frederick Lane and Joseph McEttrick, and Kurt Opsahl, in a discussion of the historical origins of this concept, as well as modern challenges to this long-cherished protection of our rights.

The “writ of assistance” that Customs Comptroller Benjamin Hallowell tried to use to search Capt. Daniel Malcom’s house was an open-ended authorization to search for smuggled goods. As the Massachusetts Superior Court under Chief Justice Thomas Hutchinson (shown above) interpreted British law of the time, Hallowell didn’t have to appear before a judge and describe the specific evidence pointing to smuggled goods in Malcom’s house.

Instead, a Customs officer granted such a writ had all the authority he needed to demand assistance from a local magistrate, whom citizens were bound to obey. But, as the September 1766 stand-off outside Malcom’s house demonstrated, local justices of the peace could be reluctant to force the issue, or force open doors. And citizens were even less cooperative.

Stand-off at Captain Malcom’s

And speaking of Paul Revere, as I did yesterday, here’s his sworn testimony about what he saw outside Capt. Daniel Malcom’s house in Boston’s North End on 24 Sept 1766, in the form of a deposition copied and sent to London:

I Paul Rivere of lawfull age testifieth and Sayeth that as I the Subscriber on Wednesday 24th Septr last between 3 and 4 oClock post meridium was going to the north part of the Town I saw a number of men I believe above fifty standing near the Revd Mr. Mathews [sic—Samuel Mather’s] meeting house and in the lane leading to the North Grammar School

I went up to some of them and asked why they were standing there

they told me they understood the Custom House Officers were agoing to break open Capt. Malcom’s house to search for some casks of Wine that had been run,

I stopt some time I believe about an hour and asked where the Officers where [i.e., were]

they told me they were gone to get assistance from some Justices of the Peace, soon after Capt. Benjn Hallowell [Comptroller of the Customs in Boston] came (I thought he looked very angry)

a number of Gentlemen gathered round him, soon after Mr. [justice of the peace John] Tudor came and then Mr. Sheriff [Stephen] Greanleaf, I saw a number of People gather round him but I did not hear any of their discourse only Mr. Greanleaf asked them if they would assist him in the discharge of his Office

I think I heard Mr. Benjn. Goodin say he would assist him out of doors but would not go into Capt. Malcom’s house.

While I was there I did not see any officer go near Capt. Malcom’s house if they had they might have spoken to Capt. Malcom for as I passed by Capt. Malcom’s house going down the land to Mr. [justice of the peace Joseph?] Gardner I saw Capt. Malcom look through the Window

I am certain the people that were gathered there had not any intent to hinder the officers in the discharge of their duty but would have protected them all that lay in their power

I did not hear that the old North bell was to ring nor that Capt. Malcom had encouraged any person to come to his Assistance, and while I tarred there the people behaved with decency and good order.

Paul Rivere

So there were at least fifty men standing around watching the Customs officers closely, Revere recalled. But that was in no way an attempt to interfere with or intimidate those officers, or any local officials they summoned to help them under writs of assistance.

And as for rumors that the crowd would ring the Old North Meeting-house bell to summon an even bigger crowd, Revere and his fellow deponents insisted those were just rumors, or something only schoolboys were saying, or words that had been misunderstood, or...

Eventually, Justice Tudor told the Customs officers that evening was coming on, when their writ would expire, so they might as well go home. The boys who were watching for a riot had to content themselves with razzing Ebenezer Richardson, who they assumed had informed on Malcom and his tenant, “for the great Prize he’d got.”

This posting was prompted by Caitlin G. D. Hopkins’s tribute to Capt. Malcom, who died in 1769. While this stand-off outside his house cemented Malcom’s reputation as a fervent Son of Liberty, we can’t be sure sure that he would have broken with London in the end. He was an Anglican, and his brother John actually worked for the Customs service at another port.