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Illustrated Episode · Volume III, chapter 5 · 24 February 1761

An act against equity is void

In a high panelled chamber lit by a great fire, a stout man in a black gown and white wig flings out one arm before five judges in scarlet robes and white wigs, while gowned barristers at a long table and a packed crowd watch.
Boston, February 1761. In the Council Chamber of the Town House, James Otis faces five scarlet-robed judges and argues for hours that an act against natural equity is void. The merchants who hired him feared a general writ that let the king's officers search any house. Chief Justice Thomas Hutchinson sat at the center of the bench. Chapter 5 of Conceived in Liberty.

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Adapted from Murray N. Rothbard, Conceived in Liberty (Mises Institute, 2011), CC BY 3.0.

What happened

On 24 February 1761 the Massachusetts Superior Court sat in the Council Chamber of the Town House to decide whether customs officers could keep their general writs of assistance. A general writ let an officer and a constable break into any warehouse, shop or home on suspicion alone. Sixty-three Boston merchants hired Oxenbridge Thacher and James Otis Jr., and Otis gave up his post as the Crown's advocate general to take their case. John Adams, then a young lawyer writing at the long table, remembered five judges in new scarlet robes and immense wigs seated round a great fire. Otis spoke for hours. Rothbard stresses how far he went: past the wording of the statute to the claim that a court may set aside an act of Parliament, since "an act against natural equity is void" (CiL, p. 802). Chief Justice Thomas Hutchinson talked the court into upholding the writs anyway. But Boston sent Otis to the House, where he became head of the Popular Party, and Adams wrote that in that room the child Independence was born.

Sources

  1. Murray N. Rothbard, Conceived in Liberty (Mises Institute, 2011 single-volume ed.), vol. III, ch. 5, 'Writs of Assistance in Massachusetts', pp. 801-803. CC BY 3.0. Rothbard
  2. John Adams to William Tudor, 1818, describing the Council Chamber and the writs argument of February 1761, Adams Papers Digital Edition, Massachusetts Historical Society (LJA02dg13): five judges in 'new fresh Robes of Scarlet English Cloth', a great fire, barristers in gowns at a long table, 'an immense crowded Audience'. Primary source
  3. 'Then and There the Child Independence Was Born', American Heritage 13:2 (February 1962): trial opened 24 February 1761 in the council chamber of the Town-house before five scarlet-robed judges (Hutchinson, Lynde, Cushing, Oliver, Russell), Otis then thirty-six; Adams's 'flame of fire'. Secondary source
  4. Era registry entry urban-colonial-1760-1775 (data/cil/registry/eras/), dress and architecture for Boston; its own sources are listed in its notes. Secondary source
  5. Place registry entry council-chamber-boston-1761 (data/cil/registry/places/), the Council Chamber of the Town House, February 1761; its own sources are listed there. Secondary source