Part 2 – James Otis – “Against Writs of Assistance”

Under the reign of King George II, England had engaged in a number of wars, one being the Seven Years War” with the French for present day Nova Scotia and northern parts of New England.(73) England amassed a large amount of debt fighting these wars and in an effort to help increase government revenues to pay off debts, it created politically convenient legal instruments to help enforce trade laws that were not being followed by colonial merchants because enforcement proved difficult for the British.(74) The British also felt it was the colonists responsibility to pay for the military efforts that protected them, whether the colonists agreed or not with the military campaigns.(75)

One of the most infamous legal instruments known was a “Writ of Assistance” which were issued to British Customs officers and were invasive and prone to abuse by officials.(76) While most people would reasonably agree to meaningful taxes and duties, the creation of Writs of Assistance as an enforcement mechanism created an undercurrent of resentment and contempt by powerful and influential colonists.(77) Some, if not most, of whom were merchants that you may recognize by name but in general many of them can be referred to as “Founding Fathers”.(78)

A Harvard educated attorney named James Otis, Jr. was the Advocate-General of the Crown in Boston at the time these new trade laws and “Writs of Assistance” were created.(79) As Advocate General for the Crown, Otis was required to obtain these “Writs of Assistance” for the officials and enforce them in a court of law.(80) Otis was a loyal subject to the crown.(81)

Part 1 - James Otis

To Otis these Writs violated the common rights of Englishmen, especially their rights to privacy in the home; therefore, he resigned his lucrative post as Advocate-General in 1760 so that he would not have to enforce these abuses of arbitrary power.(82) Upon hearing about his resignation, a group of Boston merchants asked him to represent their case against the Writs.(83) Otis did so, however declined any financial compensation for doing it. He simply felt it was the right thing to do, because he could, and most importantly it was there to be done.(84)

In what was called a dramatic four-hour speech in February 1761, Otis defended American Colonists rights against illegal search as provided under the English constitution.(85) His arguments were so persuasive that Thomas Hutchinson; the Chief Justice postponed the court’s ruling until the following year, so that he could get clarification from England.(86) To the citizenry of Massachusetts Otis had won and was propelled as a leader and patriot for a nation that was on the cusp of being born.

The tenets of Otis’s arguments were the following:(87)

  • A man’s house is his castle; and whilst he is quiet, he is 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 may inquire. Bare suspicion without oath is sufficient.
  • 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 for self-defense; one arbitrary exertion will provoke another, until society be involved in tumult and in blood.

Otis’s arguments grounded the American colonies current and future anti-tax interests in the “natural rights” philosophy that was prominent in British intellectual thinking.(88) In his arguments of a mans home and the “information” within it is his castle and he should be free from fear of government without probable cause used English “natural law” based on the unofficial English constitution, the Magna Carta, written in 1215.(89) It is important to note that Otis also argued that “Writs of Assistance” while do infringe on our Natural Rights, are necessary when reasonable probable cause exists.(90) Otis whether intentionally or not was also successful in linking the political concepts of “no taxation without representation”. Even though he didn’t use those exact words.(91)

Let’s now explore the threats illuminated by the authors of The Federalist Papers and James Otis in more detail.

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