JAMES OTIS: Against Writs of Assistance
Disturbed by the amount of smuggling going on in the American colonies and in need of revenue to support and pay for the wars it had fought, Parliament authorized the use of Writs of Assistance, which were general search warrants empowered customs officials to search without what we now call "probable cause" any time they suspected the presence of good on which duties had not been paid. These writs aroused considerable indignation and resulted in a number of court cases, the most famous of which was tried in February 1761. In this case Massachusetts attorney James Otis, a friend of John Adams, argued that the writs were unconstitutional. This “master of the laws of nature and nations,” as John Adams described him, based his case on precedents from English common law. His opposition to the power of Parliament was one of the first rhetorical shots fired against the Crown in the coming of the American Revolution. Because he was no longer active in public affairs by the time the revolution began, he has been forgotten by many. Here is an excerpt from his argument in the Superior Court of Massachusetts.
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. …
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. Everyone, with this writ, may be a tyrant; if this commission be legal, a tyrant in a legal manner, also, may control, imprison, or murder anyone 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 or shops, at will, and command all to assist him. Fourth, by this writ, not only deputies 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 servant of servants, the most despicable of God’s creations?
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 while 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. Customhouse 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 chimerical suggestion of a heated brain. … [To] show another absurdity in this writ, if it should be established, I insist upon it every person—by the 14th Charles II—has this power as well as the customhouse officers. The words are, “It shall be lawful for any person or persons authorized.” 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 in blood.