PAXTON'S CASE Gray, Mass. Repts., 51 469 (1761)

inPaxton's Case, the Massachusetts Superior Court considered whether to continue issuing writs of assistance, which, by a British statute of 1662, empowered customs officers to search all houses for contraband. Massachusetts opposed these writs; its legislation had repudiated the general search warrants they resembled in favor of uniformly specific warrants. Other stimulants to the case were frequent searches under the writs, tense relations with local British customs officers, the belief that customs regulations had been enforced against local merchants with discriminatory rigor, and the thwarted ambitions of the powerful Otis family for appointment to the Superior Court.

The death of King George II terminated existing writs after six months, and local merchants asked the court not to replace them. In the initial hearing Josiah Gridley argued the positions of the customs establishment that the act of 1662 defined writs of assistance as general search warrants and that a local statute had empowered the court to issue them by giving it the same jurisdiction as the one that issued them in England. Oxenbridge Thacher and james otis, jr. , representing the merchants, inaccurately replied that the local court had not recently exercised the powers of the English tribunal, the Court of Exchequer.

Otis, son of the candidate for a seat on the Superior Court, cited a magazine article to prove that the writs did not currently operate as general warrants in Britain and had not been so intended by the statute of 1662. Legions of British laws authorized general searches, however, and Otis relied primarily on the higher law. Since general searches allegedly violated natural and common law, Otis reasoned that writs of assistance were intrinsically void if worded as the statute prescribed and should be judicially construed as specific search warrants.

Otis's use of sources was heavily didactic. He cited Sir edward coke, whose Institutes exaggerated magna carta into a prohibition of general search warrants, and he wrongly read into Coke a further requirement that all search warrants be specific. Otis also stretched bonham ' s case (1610) to hold that common law courts could "control" unreasonable Parliamentary legislation and render it void. Only private interests had actually clashed in Bonham'sCase, not levels of law or government as Otis implied. Although Otis had not advised the court explicitly to disallow a Parliamentary statute, he misused Bonham's Case to advocate a judicial construction of the act that would have had the effect of disallowance.

Persuaded by Otis's eloquence, the court delayed its decision, found that the writs used in England were general, and approved their local issuance over Otis's continued objections. The Massachusetts legislature responded by reducing the salaries of the judges and passing a bill, vetoed by the governor, to define the writs as specific warrants. thomas hutchinson, whose appointment as Chief Justice had blocked the judicial aspirations of the Otises, later traced his political demise to his courtroom support of writs of assistance. Paxton's Case is one of the leading precedents for the fourth amendment and probably inspired the rejection by later Massachusetts courts (1763–1766) of customary search warrants against felons in Bassett v. Mayhew and other cases.

William J. Cuddihy
(1986)

Bibliography

Smith, M.H. 1978 The Writs of Assistance Case. Berkeley: University of California Press.