“Then and there the child Independence was born"



Few freedoms are more fundamental to our way of life—and few so clearly differentiate our democracy from the rival system which seeks to bury it—than the freedom from the midnight knock on the door, from the arbitrary invasion of a man’s home by soldiery or police. Enshrined in ihe Fourth Amendment to the Constitution, the right is nevertheless still a matter of contention: almost every year that passes sees cases based upon it coming before the United States Supreme Court. Given the almost inevitable conflict between the legitimate demands of civil authority and the equally legitimate demands of individual freedom, it is likely that the controversy will be always with us.

What one famous Supreme Court justice called “the right most valued by civilized man,” the right to be let alone, is a venerable one in America: long before the Revolution, violation of it by representatives of the king rankled deeply in the hearts of his American subjects; it was, indeed, one of the major reasons they eventually decided they could no longer serve him.

The issue was first expounded in the course of an extraordinary forensic argument made in the year 1761 before five scarlet-robed judges in the council chamber of the Town-house in Boston. The speaker was James Otis, Jr., then thirty-six years old, born in nearby West Barnstable and considered the ablest young lawyer at the Boston bar.

His plea for the right of privacy was at once significant and poignant. It was significant because without the burning moral issue thus precipitated, it might have been possible for the cynical to dismiss the forthcoming Revolution as a mere squabble between colonies and mother country over taxation. The poignancy of Otis’ plea derives from ihe brilliant young lawyer’s subsequent curious conduct: while many of his friends became leaders in the fight for independence, he followed a mysterious zigzag course which cast doubt upon his loyalty to the cause of freedom and denied him an honored place in American history.

The specific occasion of Otis’ appearance was an application to the Superior Court of Massachusetts Bay by Charles Paxton, Surveyor of Customs for the Port of Boston, for writs of assistance. These were general warrants which, as they were commonly interpreted, empowered customs officers under police protection arbitrarily to enter—if necessary, to break into—warehouses, stores, or homes to search for smuggled goods. The intruders were not even required to present any grounds for suspecting the presence of the illicit items. Such writs had been authorized in England—where they were issued by the Court of Exchequer—since the time of Charles II, but nothing like them had been used in the colonies prior to the French and Indian War. The only writs theretofore procurable had been specific search warrants issued by the regular common-law courts; but these had authorized search only in places specified in the warrants and only upon specific information, supported by oath, that smuggled goods were hidden there. True, an act of King William III regulating colonial trade had given the customs officers in America the same rights of search as their opposite numbers in England enjoyed. But it was a new question whether the royal order extended to colonial courts the same authority to issue the writs that the Court of Exchequer exercised in the mother country.

During the final phase of the Second Hundred Years’ War between Britain and France, however, writs of assistance had been issued in Massachusetts to facilitate the feverish if futile efforts of customs officers to stamp out illegal trade between the colonists and the enemy—in Canada and the French West Indies. These writs had been issued in the name of King George II, but that monarch died in October, 1760, and his grandson succeeded to the throne as George III. According to law, the old writs expired six months after the death of a sovereign, and new ones had to be issued in the name of his successor. Now, in February of 1761, while the issue hung in the balance—George III would not be crowned until September—Surveyor Paxton’s case came to trial.

Sixty-three prominent Boston merchants joined to oppose him, retaining the brilliant, impassioned, unstable Otis—and his amiable and temperate associate, Oxenbridge Thacher—to represent them. In order to take their case, Otis resigned his office as Advocate General of the Vice-Admiralty Court, in which capacity he would have been expected to represent the Crown and present the other side o[ the argument. That task was now assigned to Jeremiah Gridley, a leader of the Boston bar, who appeared as counsel for the customs officers.