1.1.3. New England (1620-1787): Key lawyers and judges

James Otis (Massachusetts,  1725-1783)

  • Otis, a prominent attorney in mid-18th century Massachusetts, was said by John Adams to have made “the first Act of Opposition to the arbitrary Claims of Great Britain” in the series of acts that led to the American Revolution. 
  • Prior to 1760, Crown officials routinely procured writs of assistance that allowed them to search merchants’ premises without a warrant in order to determine if they were avoiding Crown taxes.  In Paxton’s Case (1761), Otis argued that such warrants were contrary to British common law and to British ideals of liberty.  He failed to persuade the Massachusetts supreme court to his view but he gained many colonial supporters.  Otis’s view took hold and was incorporated into the U.S. Constitution’s prohibition of warrantless searches and seizures.    

“It appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book. …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. … 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.” – James Otis, argument in Paxton’s Case (1761)

John Adams (Massachusetts, 1735-1826)

  • Adams is best known for being one of the Founding Fathers, a member of the committee that assisted Thomas Jefferson in preparing the Declaration of Independence and second president of the United States.  But he also played an important role in shaping Massachusetts law. 
  • Adams spent the first part of his career gaining prominence through his law practice, which he used as a platform to attain higher office.  In 1775, while serving in the Continental Congress he was chosen as Massachusetts’ chief justice and served on the bench for two years.  Adams wrote Thoughts On Government (1776) in which he argued that America should move away from on British law and institutions gradually rather than discard them all at once. 
  • In 1780 he applied his ideas as the principal author of Massachusetts’s new constitution, which embodied his view that each branch of government should exercise checks on the other branches and that the legislature should not be given predominant power, as it was in some other states.  Adams’ concept of checks and balances later became a central part of the U.S. Constitution. 

“You and I ... have been sent into life at a time when the greatest lawgivers of antiquity would have wished to live. How few of the human race have ever enjoyed an opportunity of making an election of government, more than of air, soil, or climate, for themselves or their children! When, before the present epoch, had three millions of people full power and a fair opportunity to form and establish the wisest and happiest government that human wisdom can contrive?”  -John Adams, Thoughts On Government (1776)

James Otis - courtesy Wikimedia Commons

John Adams - portrait by John Trumbull (1792)- courtesy Wikipedia