James Otis: Against
Writs of Assistance
The "Writs of
Assistance" were general warrants allowing officials to search for
smuggled material within any suspected premises. James Otis was Advocate-General
when the legality of these warrents was attacked, but promptly resigned
his office when called upon to defend that legality. The Boston merchants
then retained him as their counsel to oppose the writs before the Superior
Court of Massachusetts. Otis refused the fee they offered, saying that
in such a cause he despised all fees. In a five-hour speech, which was
witnessed by a young John Adams, Otis argued that the writs were unconstitutional.
He based his case on the rights guaranteed in English common law.
MAY it please your Honors: I was desired by one of the court to look
into the books, and consider the question now before them concerning Writs
of Assistance. I have accordingly considered it, and now appear not only
in obedience to your order, but likewise in behalf of the inhabitants of
this town, who have presented another petition, and out of regard to the
liberties of the subject. And I take this opportunity to declare that whether
under a fee or not (for in such a cause as this I despise a fee) I will
to my dying day oppose, with all the powers and faculties God has given
me, all such instruments of slavery on the one hand and villainy on the
other as this Writ of Assistance is.
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. I must therefore beg your Honors' patience
and attention to the whole range of an argument that may perhaps appear
uncommon in many things, as well as to points of learning that are more
remote and unusual, that the whole tendency of my design may the more easily
be perceived, the conclusions better descend, and the force of them be
better felt. I shall not think much of my pains in this cause, as I engaged
in it from principle.
I was solicited to argue this cause as Advocate-General; and, because
I would not, I have been charged with desertion from my office. To this
charge I can give a very sufficient answer. I renounced that office and
I argue this cause from the same principle; and I argue it with the greater
pleasure, as it is in favor of British liberty, at a time when we hear
the greatest monarch upon earth declaring from his throne that he glories
in the name of Briton and that the privileges of his people are dearer
to him than the most valuable prerogatives of his crown; and as it is in
opposition to a kind of power, the exercise of which in former periods
of history cost one king of England his head and another his throne. I
have taken more pains in this cause than I ever will take again, although
my engaging in this and another popular cause has raised much resentment.
But I think I can sincerely declare that I cheerfully submit myself to
every odious name for conscience' sake; and from my soul I despise all
those whose guilt, malice, or folly has made them my foes. Let the consequences
be what they will, I am determined to proceed. The only principles of public
conduct that are worthy of a gentleman or a man are to sacrifice estate,
ease, health, and applause, and even life, to the sacred calls of his country.
These manly sentiments, in private life, make good citizens; in public
life, the patriot and the hero. I do not say that, when brought to the
test, I shall be invincible. I pray God I may never be brought to the melancholy
trial; but, if ever I should, it will then be known how far I can reduce
to practice principles which I know to be founded in truth. In the meantime
I will proceed to the subject of this writ.
Your Honors will find in the old books concerning the office of a justice
of the peace precedents of general warrants to search suspected houses.
But in more modern books you will find only special warrants to search
such and such houses, specially named, in which the complainant has before
sworn that he suspects his goods are concealed; and will find it adjudged
that special warrants only are legal. In the same manner I rely on it,
that the writ prayed for in this petition, being general, is illegal. It
is a power that places the liberty of every man in the hands of every petty
officer. I say I admit that special Writs of Assistance, to search special
places, may be granted to certain persons on oath; but I deny that the
writ now prayed for can be granted, for I beg leave to make some observations
on the writ itself, before I proceed to other Acts of Parliament.
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, until the trump of the Archangel shall excite different emotions
in his soul. In the third place, a person with this writ, in the daytime,
may enter all houses, shops, etc., at will, and command all to assist him.
Fourthly, by this writ not only deputies, etc., but even their menial servants,
are allowed to lord it over us. What is this but to have the curse of Canaan
with a witness on us: to be the servants of servants, the most despicable
of God's creation?
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. Custom-house officers
may enter our houses when they please; we are commanded to permit their
entry. Their menial servants may enter, may break locks, bars, and everything
in their way; and whether they break through malice or revenge, no man,
no court can inquire. Bare suspicion without oath is sufficient.
This wanton exercise of this power is not a chimerical suggestion of
a heated brain. I will mention some facts. Mr. Pew had one of these writs,
and, when Mr. Ware succeeded him, he endorsed this writ over to Mr. Ware;
so that these writs are negotiable from one officer to another; and so
your Honors have no opportunity of judging the persons to whom this vast
power is delegated. Another instance is this: Mr. Justice Walley had called
this same Mr. Ware before him, by a constable, to answer for a breach of
the Sabbath-day Acts, or that of profane swearing. As soon as he had finished,
Mr. Ware asked him if he had done. He replied, "Yes." "Well
then," said Mr. Ware, "I will show you a little of my power.
I command you to permit me to search your house for uncustomed goods"
- and went on to search the house from the garret to the cellar; and then
served the constable in the same manner!
But to show another absurdity in this writ: if it should be established,
I insist upon it every person, by the 14th Charles Second, has this power
as well as the custom-house officers. The words are: "It shall be
lawful for any person or persons authorized," etc. What a scene does
this open! Every man prompted by revenge, ill-humor, or wantonness to inspect
the inside of his neighbor's house, may get a Writ of Assistance. Others
will ask it from self-defence; one arbitrary exertion will provoke another,
until society be involved in tumult and in blood.
[The remainder of the speech exists only in the following summary
by John Adams:]
A dissertation on the rights of man
in a state of nature. He asserted that every man, merely natural, was an
independent sovereign, subject to no law but the law written on his heart
and revealed to him by his Maker, in the constitution of his nature and
the inspiration of his understanding and his conscience. His right to his
life, his liberty, no created being could rightfully contest. Nor was his
right to his property less incontestable. The club that he had snapped
from a tree, for a staff or for defense, was his own. His bow and arrow
were his own; if by a pebble he had killed a partridge or a squirrel, it
was his own. No creature, man or beast, had a right to take it from him.
If he had taken an eel or a smelt or a sculpin, it was his property. In
short, he sported upon this topic with so much wit and humor, and at the
same time with so much indisputable truth and reason, that he was not less
entertaining than instructive.
He asserted that these rights were inherent
and inalienable. That they never could be surrendered or alienated but
by idiots or madmen and all the acts of idiots and lunatics were void and
not obligatory, by all the laws of God and man. Nor were the poor Negroes
forgotten. Not a Quaker in Philadelphia or Mr. Jefferson in Virginia ever
asserted the rights of Negroes in stronger terms. Young as I was and ignorant
as I was, I shuddered at the doctrine he taught; and I have all my life
shuddered, and still shudder, at the consequences that may be drawn from
such premises. Shall we say that the rights of masters and servants clash
and can be decided only by force? I adore the idea of gradual abolitions!
but who shall decide how fast or how slowly these abolitions shall be made?
From individual independence he proceeded to association. If it was inconsistent
with the dignity of human nature to say that men were gregarious animals,
like wild geese, it surely could offend no delicacy to
say they were social animals by nature, that there were natural
sympathies, and, above all, the sweet attraction of the sexes, which must
soon draw them together in little groups, and by degrees in larger congregations,
for mutual assistance and defense And this must have happened before any
formal covenant, by express words or signs, was concluded. When general
councils and deliberations commenced, the objects could be no other than
the mutual defense and security of every individual for his life, his liberty,
and his property. To suppose them to have surrendered these in any other
way than by equal rules and general consent was to suppose them idiots
or madmen whose acts were never binding. To suppose them surprised by fraud
or compelled by force into any other compact, such fraud and such force
could confer no obligation. Every man had a right to trample it underfoot
whenever he pleased. In short, he asserted these rights to be derived only
from nature and the Author of nature; that they were inherent, inalienable,
and indefeasible by any laws, pacts, contracts, covenants, or stipulations
which man could devise. These principles and these rights were wrought
into the English constitution as fundamental laws. And under this head
he went back to the old Saxon laws and to Magna Carta and the fifty confirmations
of it in Parliament and the executions ordained against the violators of
it and the national vengeance which had been taken on them from time to
time, down to the Jameses and Charleses, and to the position of rights
and the Bill of Rights and the revolution.
He asserted that the security of these
rights to life, liberty, and property had been the object of all those
struggles against arbitrary power, temporal and spiritual, civil and political,
military and ecclesiastical, in every age. He asserted that our ancestors,
as British subjects, and we their descendants, as British subjects, were
entitled to all those rights by the British constitution as well as by
the law of nature and our provincial character as much as any inhabitant
of London or Bristol or any part of England, and were not to be cheated
out of them by any phantom of "virtual representation" or any
other fiction of law or politics or any monkish trick of deceit and hypocrisy.
He then examined the Acts of Trade,
one by one, and demonstrated that, if they were considered as revenue laws,
they destroyed all our security of property, liberty, and life, every right
of nature and the English constitution and the charter of the province.
Here he considered the distinction between "external and internal
taxes," at that time a popular and commonplace distinction. But he
asserted that there was no such distinction in theory or upon any principle
but "necessity." The necessity that the commerce of the Empire
should be under one direction was obvious. The Americans had been so sensible
of this necessity that they had connived at the distinction between external
and internal taxes, and had submitted to the Acts of Trade as regulations
of commerce hut never as taxations or revenue laws. Nor had the British
government till now ever dared to attempt to enforce them as taxations
or revenue laws.
The Navigation Act he allowed to be
binding upon us because we had consented to it by our own legislature.
Here he gave a history of the Navigation Act of the first of Charles II,
a plagiarism from Oliver Cromwell. In 1675, after repeated letters
and orders from the King, Governor Leverett very candidly informs His Majesty
that the law had not been executed because it was thought unconstitutional,
Parliament not having authority over us.
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