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.

Behind Otis’ resignation lay deep personal animosities that added drama to the legal battle. Not long before, the chief justiceship of the Superior Court—which would hear the arguments on the writs of assistance and render a decision—had fallen vacant. William Shirley, then governor of the colony, had promised the post to Otis’ father, but Shirley’s successor, Francis Bernard, had ignored the commitment and instead named his lieutenant governor, Thomas Hutchinson. Already the target of colonists who resented his nepotistic use of the lieutenant governorship, Hutchinson now earned additional criticism for holding two offices at the same time. And his appointment of course precipitated a feud with the influential Otises; young James, according to rumor, declared “he would set the province in flames, if he perished by the fire.”

Nevertheless Hutchinson, attired in his new judicial robes, took his seat in the great Town-house council chamber as the trial opened on February 24. With him on the bench were Justices Lynde, Cushing, Oliver, and Russell. Gridley opened for the Crown. He argued that such general writs were being issued in England by the Court of Exchequer, which had the statutory authority to issue them; the province law of 1699, he continued, had granted the Superior Court jurisdiction in Massachusetts “generally” over matters which the courts of King’s Bench, Common Pleas, and Exchequer “have or

ought to have.”

Thacher replied first. Addressing himself largely to technical issues, he denied that the Superior Court could exercise the right of the Court of Exchequer in England to issue such writs. Then Otis arose to speak. One contemporary critic described him as “a plump, round-faced, smooth skinned, short-necked, eagle-eyed politician,” but to John Adams—who attended the trial, reported it in his diary, and was to write an account of it more than fifty years later—“Otis was a flame of fire.”

He had prepared his argument with care. Although his oration covered some four or five hours and was not taken down stenographically, it left on Adams an indelible impression. With a “profusion of legal authorities,” Adams tells us, “a prophetic glance of his eye into futurity, and a torrent of impetuous eloquence, he hurried away everything before him.” Adams continued: “Every man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance.” And he concluded: “Then and there the child Independence was born.”

More important than the electrifying effect of Otis’ argument upon his auditors was its revolutionary tenor. Anticipating ideas that would be set forth in the Declaration of Independence fifteen years later, Otis argued that the rights to life, liberty, and property were derived from nature and implied the guarantee of privacy, without which individual liberty could not survive. (Venturing beyond the immediate issue, Otis declared that liberty should be granted to all men regardless of color—an abolitionist note that startled even the sympathetic Adams.)

Relying on English lawbooks to prove that only special warrants were legal, Otis attacked the writs as “instruments of slavery,” which he swore to oppose to his dying day with all the powers and faculties God had given him. Defending the right of privacy, he pointed out that the power to issue general search warrants placed “the liberty of every man in the hands of every petty officer.” The freedom of one’s house, he contended, was “one of the most essential branches of English liberty.” In perhaps his most moving passage he was reported to have declared:

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....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-defense; one arbitrary exertion will provoke another, until society be involved in tumult and blood.

With remarkable prescience Otis’ words captured the mood of the midnight visitation by totalitarian police which would terrify a later era less sensitive to individual freedom.

Otis then proceeded to denounce the Navigation Acts, which had regulated the trade of the empire since the time of Cromwell, exposing their nuisance aspects with great wit. By implication he acknowledged the widespread existence of smuggling, and went so far as to contend that “if the King of Great Britain in person were encamped on Boston Common, at the head of twenty thousand men, with all his navy on our coast, he would not be able to execute these laws. They would be resisted or eluded.” Turning to the similarly unenforceable Molasses Act, passed by Parliament in 1733 to protect the British West Indies planters from the competition of the foreign West Indies, he charged that the law was enacted “by a foreign legislature, without our consent, and by a legislature who had no feeling for us, and whose interest prompted them to tax us to the quick.”

The nub of Otis’ argument was that, even if the writs of assistance had been authorized by an Act of Parliament, “an act against the Constitution is void. An act against natural equity is void; and if an act of Parliament should be made, in the very words of this petition, it would be void. The executive courts^∗ must pass such acts into disuse.” This contention—that Parliament was not omnipotent and could be restrained by the unwritten Constitution and a higher law—was a notion soon to be pushed further by John Adams and other members of the Massachusetts bar; the argument became familiar in the colonies well before the Declaration of Independence was adopted.

Measured by its effect on its auditors and its immediate impact on the majority of the court, Otis’ speech ranks among the most memorable in American history, alongside Patrick Henry’s fiery oration protesting the Stamp Act, Fisher Ames’ memorable defense of Jay’s Treaty in the House of Representatives, and Daniel Webster’s classic reply to Hayne. Had a decision been rendered on the spot, Otis and Thacher would have won, for all the judges save Thomas Hutchinson were against the writs; even from his opinion, carefully worded, opponents of the writs could take comfort: “The Court has considered the subject of writs of assistance,” the chief justice announced, “and can see no foundation for such a writ; but as the practice in England is not known [owing to the interregnum], it has been thought best to continue the question to the next term, and that in the meantime opportunity may be given to know the result.” But the crafty chief justice, aware that he stood alone among his colleagues, was merely buying precious time.

Another hearing was held in November, 1761. This time Robert Auchmuty joined Gridley in defense of

the writs. The arguments lasted “the whole day and evening,” covering much the same ground as the previous hearing. But the court had now before it information that under the new monarch, George III, writs of assistance were being issued in the mother country by the Court of Exchequer; the Massachusetts judges accordingly felt that they could no longer refuse to issue them too. Writing years later, John Adams recounted that “the Court clandestinely granted them.”

Thomas Hutchinson had won a pyrrhic victory. It was he who had talked the rest of the court into agreeing to a delay to learn what the English practice was and he who was chiefly responsible for granting the writs. He was to pay dearly in personal popularity. Moreover, at the younger Otis’ prompting, the legislature manifested its displeasure with the decision not only by reducing the salary of the judges of the Superior Court, but by cutting out entirely Hutchinson’s allowance as chief justice. And that was only the beginning. During the riots in Boston in 1765 over the passage of the Stamp Act, Hutchinson’s mansion was sacked and his library and papers scattered—out of revenge, Governor Bernard claimed, for his connection with the writs. Henceforward, Hutchinson was to be the leader of the Court party and a frank advocate of coercion to secure colonial obedience to Parliament.

As for James Otis, his initial attack upon the writs had made him the darling of the populace of Boston and the leader of the radical party. Taking the issue to the people at once—in May of 1761—he won election to the Massachusetts General Court. When the news of it reached Worcester, Brigadier Timothy Ruggles, then chief justice of the common pleas court and later a Tory exile, declared at a dinner party in John Adams’ presence, “Out of this election will arise a damned faction, which will shake this province to its foundation.”

Ruggles’ gloomy forebodings proved even more accurate than he could have expected, for the year 1761 triggered the Revolutionary movement, and the Otises, father and son, set off the chain reaction. That same year the father was re-elected Speaker of the House. Together they succeeded in pushing through an act forbidding the courts to issue any writ that did not specify under oath the person and place to be searched. On the advice of the justices of the Superior Court, Governor Bernard refused to approve the legislation; overoptimistically he stigmatized it as a “last effort of the confederacy against the customhouse and laws of trade.”

The constitutional views which Otis first expounded in the writs of assistance case were given more elaborate formulation in a forceful political tract, “A Vindication of the Conduct of the House of Representatives,” which he published in 1762. Therein he enunciated the Whig view that all men are naturally equal, and that kings are made to serve the people, not people the ends of kings.

It would be gratifying to

report that the man who had made a political career out of his opposition to the writs was in the forefront of the Revolution when the fighting actually got under way. Regrettably, he was not. Quick-tempered and tense, increasingly eccentric and even abusive, Otis simply was not cast in the heroic mold. Whether from self-interest, fear, expediency, irresponsibility, or family friction (his wife was a high Tory and a shrew), or from a combination of all five, Otis now followed a vacillating course that branded him a recreant to his own principles, loathed by his foes, deserted by his followers.

It all started with what looked suspiciously like a deal. In 1764 Governor Bernard appointed Otis Senior chief justice of the Court of Common Pleas and judge of probate in Barnstable County, in that same year the son issued his “Rights of the British Colonies Asserted and Proved,” the most inlluential American pamphlet published prior to John Dickinson’s “Letters from a Farmer in Pennsylvania.” Written in opposition to the Sugar Act, Otis’ tract took the position that Parliament had no right to tax the colonies and that taxation was “absolutely irreconcilable” with the rights of the colonists as British subjects—indeed, as human beings. Nevertheless, it gave comfort to the Court party by affirming the subordination of the colonies to Great Britain and the right of Parliament to legislate for them in matters other than taxation. Hailed by the Whigs in England, the pamphlet elicited a grudging compliment from Lord Mansfield, who quickly pounced on Otis’ concession of the supremacy of the Crown. When someone said that Otis was mad, Mansfield rejoiced that in all popular assemblies “madness is catching.” The evidence that the younger Otis’ more conciliatory tone was the quid pro quo for his father’s appointment is at best circumstantial, but informed people felt that the connection was obvious.

Otis pursued his irresolute, even self-contradictory course during the Stamp Act controversy. In his “Vindication of the British Colonies” he reversed his earlier position: Parliament did have the authority to impose taxes, he said, though he questioned whether the taxes imposed were fair. In two subsequent tracts he again shifted his ground. Arguing against the writs of assistance, he had decried laws enacted “by a foreign legislature, without our consent.” Now he even accepted the theory of “virtual representation”—the fiction that the colonies were virtually represented in Parliament, in the sense that the interests of all Englishmen were theoretically represented by the whole body of Parliament—though propertyless subjects could not vote, though many Members represented “rotten boroughs,” and though many English cities had no Member at all. “Representation,” Otis conceded, “is now no longer a matter of right but of indulgence only.” But in the second tract he swung completely around again, denied the right of taxation without representation, and demanded actual representation in Parliament.

Considering his erratic and equivocal wanderings, it is little wonder that when Otis ran again for

the House he was attacked in a bit of doggerel appearing in the Boston Evening Post and attributed to a customs official not noted for his sobriety:

So Jemmy rail’d at upper folks while Jemmy’s Dad was out, But Jemmy’s Dad has now a place, so Jemmy’s turn’d about.… And Jemmy is a silly dog, and Jemmy is a tool, And Jemmy is a stupid cur, and Jemmy is a fool.…

The attack outraged the voters’ sense of decency and “Jemmy” was elected to the House by a small majority. When he had thought himself ruined, Otis ruefully admitted, “the song of a drunkard saved me.”

Sent as a Massachusetts delegate to the Stamp Act Congress in New York in 1765, Otis had the satisfaction of seeing his constitutional doctrine of no taxation without representation embodied in the Resolves adopted by that body. But the radical leaders refused to incorporate his demand for actual representation of the colonies in the House of Commons. Most of them were wary of a trap, for a grant of token representation to the colonies could not have checked the anticolonial course of the majority in Parliament.

Although far more moderate on the Stamp Act issue than either Patrick Henry or Daniel Dulany, Otis plucked up his courage and under the pseudonym “John Hampden” published in the Boston press a sweeping denial of Parliament’s right to tax the colonies. But by now his waverings had placed him under suspicion. Forced to defend himself at a Boston town meeting held in the spring of 1766, and to deny charges that his behavior was the result of “weak nerves” or “cowardice,” he offered to meet George Grenville in single combat on the floor of Faneuil Hall to settle the whole issue. Again returned to the House with his popularity temporarily restored, Jemmy was humiliated when Governor Bernard vetoed his selection by his colleagues as Speaker as simply “impossible.” Thenceforward for several years he collaborated with Sam Adams in directing the radical party in the House.

In February, 1768, Sam Adams drew up a circular letter denouncing Lord Townshend’s external tax measures—import duties on such items as glass, lead, paper, and tea—enacted by Parliament. Lord Hillsborough, Secretary of State for the colonies, promptly denounced Adams’ letter, ordered the Massachusetts legislature to rescind it, and instructed the colonial governors that the assemblies of other colonies be prevented, by dissolution if necessary, from endorsing it. Otis launched into an abusive two-hour tirade against Hillsborough, ridiculing king’s ministers who, like Hillsborough, had been educated by travel on the European continent as “the very frippery and foppery of France, the mere outside of monkeys.” Although he withheld criticism of George III, he delivered an encomium on Oliver Cromwell and defended the execution of Charles I. That same year, following the arrival in Boston of two regiments of redcoats, Otis

wrote to an English correspondent: You may ruin yourselves, but you cannot in the end ruin the colonies. Our fathers were a good people. We have been a free people, and if you will not let us remain so any longer, we shall be a great people, and the present measures can have no tendency but to hasten [with] great rapidity, events which every good and honest man would wish delayed for ages, if possible, prevented forever.

Unfortunately for his continued effectiveness as a political leader, no checkrein could be placed on Otis’ abusive conduct toward others. “If Bedlamism is a talent, he has it in perfection,” commented Tory Judge Peter Oliver, and even friendly critics agreed that Otis was unbalanced. The dispatch of troops to Boston heightened tempers. In 1769 Otis got into a coffeehouse brawl with John Robinson, a customs official. It is charitable to conclude that the caning he received accelerated his mental disintegration. In any event, two years later his family and friends requested he be examined by a sanity commission; as judge of probate, his old foe, Hutchinson, had the satisfaction of appointing its members, who found Otis to be a lunatic. Although he had intermittent lucid spells thereafter, he played no role at all during the Revolution. Instead, it was his brother Joseph who fought at Bunker Hill. James’ death was appropriately dramatic. On May 23, 1783, he was standing in the doorway of a farmhouse in Andover when he was struck down by lightning. “He has been good as his word,” commented Hutchinson. “Set the province in a flame and perished in the attempt.”

A whole generation passed before John Adams, in a series of letters to the newspapers in 1818, established the legend of James Otis’ heroic role. Even Virginians came to speak reverently of the “god-like Otis,” and perhaps it is only fitting that he should be judged by his most brilliant and seminal achievement rather than by the sadder years when darkness fell upon him. It is only proper, too, that we recognize the writs of assistance case for what it was in fact—first of a series of crises which culminated at Lexington and Concord.

The attack against the writs, initiated by Otis, developed into a notable series of legal battles, fought not only in Massachusetts but throughout the colonies. Local justices of the peace in the Bay Colony refused in 1765 to grant them on the ground that they were repugnant to the common law. They continued to be issued by that province’s Superior Court, but individuals sometimes managed to defy them: in 1766 a merchant named Daniel Malcolm, presumably on the advice if not at the instigation of Otis, refused to admit the customs officials into part of his cellar, even though they were armed with writs of assistance, and warned them that he would take legal action against them if they entered. The customs men backed down.

Meantime opposition to the

writs was spreading to other colonies. In 1766 the customs collector of New London, Connecticut, sought legal advice as to his power of search and seizure, but the judges at New Haven felt that in the absence of a colonial statute they could make no determination. The collector referred the matter to the Commissioner of Customs in England, who in turn asked the advice of Attorney General William de Grey. His opinion came as a shock to the customs officials, for he found that the Courts of Exchequer in England “do not send their Processes into the Plantations, nor is there any Process in the plantations that corresponds with the description in the act of K[ing] W[illiam].”

Aware that the ground was now cut from under them, the Lords of Treasury saw to it that the Townshend Acts passed in 1767 contained a clause specifically authorizing superior or supreme courts in the colonies to grant writs of assistance. Significantly, the American Board of Commissioners of Customs set up under the act sought between 1767 and 1773 to obtain writs in each of the thirteen colonies, but succeeded fully only in Massachusetts and New Hampshire. But as late as 1772 charges were made in Boston that “our houses and even our bed chambers are exposed to be ransacked, our boxes, chests, and trunks broke open, ravaged and plundered by wretches, whom no prudent man would venture to employ even as menial servants.”

In other colonies the issue was stubbornly fought out in the courts. New York’s Supreme Court granted the writs when the customs officers first applied for them in 1768, though not in the form the applications demanded; finally, the court flatly refused to issue the writs at all. In Pennsylvania the Tory Chief Justice, William Allen, refused also on the ground that it would be “of dangerous consequence and was not warranted by law.” The writs were denied, too, in every southern colony save South Carolina, which finally capitulated and issued them in 1773. Significantly, the courts, though often manned by royal appointees, based their denials on the grounds advanced by Otis in the original Paxton case, going so far as to stigmatize the writs as unconstitutional.

What is important to remember throughout the controversy in which Otis played so large a part is that the colonists were seeking to define personal liberties—freedom of speech, the press, and religion—which even in England, right up to the eve of the American Revolution, were not firmly enshrined in law. Indeed, the issues of whether a person could be arrested under a general warrant or committed to prison on any charge by a privy councillor were not settled until the 1760’s. Then Lord Camden took a strong stand for freedom from police intrusion. Less dramatically perhaps than in the colonies, similar issues of civil liberties were being thrashed out in the mother country, but in the colonies this struggle laid the groundwork upon which the new Revolutionary states,

and later the federal government, built their safeguards for civil liberties.

In Virginia, where the issue was contested most bitterly, writs of assistance were condemned in the Bill of Rights of June 12, 1776, as “grievous and oppressive.” Condemnation was also reflected in the clauses in the Declaration of Independence denouncing the King because he had made judges dependent for their tenure and their salaries upon his will alone. Five other states soon followed Virginia in outlawing the writs. Of these, Massachusetts in her constitution of 1780 provided the most explicit safeguards. The relevant section of the state constitution, notable because it served as the basis for Madison’s later incorporation of such a guarantee in the federal Bill of Rights, reads as follows:

XIV. Every subject has a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure; and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws.

John Adams, who wrote that constitution, had remembered his lessons very well indeed.

More succinctly than the guarantee in the Massachusetts constitution, the Fourth Amendment to the federal Constitution affirmed “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and declared that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In our own day, several members of a Supreme Court heavily preoccupied with safeguarding personal liberty have conspicuously defended the guarantees in the Fourth Amendment. It was the late Justice Louis Brandeis who, in his dissenting opinion in a wiretapping decision of 1928 ( Olmstead v. U.S. ) opposing police intrusion without a search warrant, championed “the right to be let alone—the most comprehensive of rights and the right most valued by civilized man. … To protect that right,” he asserted, “every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.”

More recently Justice Felix Frankfurter has opposed searches conducted as an incident to a warrant of arrest. In a notable dissent ( Harris v. U.S., 1946) he pointed out that the decision turned “on whether one gives the [Fourth] Amendment a place second to none in the Bill of Rights, or considers it on the whole a kind of nuisance, a serious

impediment in the war against crime. … How can there be freedom of thought or freedom of speech or freedom of religion,” he asked, “if the police can, without warrant, search your house and mine from garret to cellar merely because they are executing a warrant of arrest?” He went on to warn: “Yesterday the justifying document was an illicit ration book, tomorrow it may be some suspect piece of literature.” Again, in a more recent case ( United States v. Rabinowitz , 1950), Justice Frankfurter dissented from a decision authorizing federal officers to seize forged postage stamps without search warrant but as an incident to arrest. He said pointedly:

It makes all the difference in the world whether one recognizes the central fact about the Fourth Amendment, namely, that it was a safeguard against recurrence of abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution, or whether one thinks of it as merely a requirement for a piece of paper.

Once it was a powerful monarch concerned about securing every shilling of customs revenue. Today it is a great republic legitimately concerned about the nation’s security. Once it was the knock on the door. Today it is wire tapping or other electronic devices. The circumstances and techniques may differ. As the tragic James Otis would have realized, the issue remains the same.

^*By “executive courts” he meant the regular courts of law as distinguished from the Massachusetts legislature, known as the General Court. Otis’ argument presaged a special and unique role for the United States Supreme Court, the exercise of the power to declare laws unconstitutional.

 

^**In 1957 Mrs. Dollree Mapp of Cleveland, Ohio, was arrested for possessing obscene literature seized in her home by police, apparently without a warrant. Her subsequent conviction was upheld by two state appeal courts, but on June 19, 1961, the Supreme Court reversed the conviction, declaring that evidence obtained by search and seizure in violation of the Fourth Amendment is inadmissible in a state court, as it is in a Federal court. On the other hand, in the case of Burton N. Pugach of New York City, accused of conspiring to maim the girl who had rejected him, the Supreme Court on February 27, 1961, had upheld the right of state officials and state courts to use evidence obtained by wire tapping, a modern method of gathering evidence which many feel also violates a citizen’s privacy. So the historic conflict between private right and the public good goes on.