History Rhymes

Guest Post by poputonian


Boston attorney James Otis was especially offended. The British were free people. When he argued in 1761 against the Writ of Assistance, that scurrilous document which allowed the British government access to a citizen's home and personal records -- without having first obtained a court issued warrant -- Otis used the British constitution as evidence that the writs were illegal.

He did not make any claims that Americans were unique and deserved special freedoms, but instead asserted the rights of the British citizen, of which he and the others in Massachusetts Bay colony were one. There was no thought of rebellion or independence. At trial on February 24, 1761, Otis argued against his own government that the writs were…


"…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 will to my dying day oppose, with all the powers and faculties God has given me, all such instruments of slavery and villainy as this Writ of Assistance is."



Otis spoke before the five judge panel in opposition to his own government for more than four hours. He cited English law and the precedents against entering someone’s home:


"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."

"Custom-house officers may enter our houses when they please; we are commanded to permit their entry. They 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."



Otis continued by calling the general writs a "wanton exercise of power" and warned the Royal Court in Massachusetts about what happens to political tyrants who wrap themselves double-speak:


"I argue 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 that 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."



At this point Otis shifted to the natural liberties of man, which, along with the Magna Charta formed the foundation of English law. Although no transcript exists, another Boston lawyer, twenty-five year John Adams, was in the courtroom and described Otis’ dissertation:


"Otis asserted these rights 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 the Magna Charta 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."

"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 orany 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."


Historian John Galvin in a work titled "Three Men of Boston" summarized Otis' court room speech:


"But it was not simply because of the dangers involved that the writs of assistance should be rejected. Otis assured the court that the greatest legal minds had supported the assertion that any act contrary to the unwritten British constitution was void. British law was based on the Magna Charta and the undeniable rights of man. Parliament, as a part of the scheme of this constitution, had to act with reason and justice, and could not be arbitrary. It had the power to create laws but had to frame its legislation within the bounds of equity and reason set by the constitution and natural law. It was therefore simple enough for any man to see: if writs violated the natural law, the basis of the British constitution, no amount of approvals, imprimaturs, or precedents could make them legal."

"Since every barrister for miles around had been present in the room, Otis’ words were prime news in Boston and the province for days. He had detailed the drift away from charter rights, constitutional principles, and most of all from the former respect for individual rights. He had illuminated for all to see the movement of arbitrary power away from the traditional democratic bases of British government."



Next, a most important point from Galvin:

"In these aspects Otis was not at all revolutionary; in fact, he was calling for a reestablishment of ancient liberties under common law and saying that power was dangerous when it became arbitrary, overtopping the bounds of the constitution. It was soon clear to perceptive political thinkers that he had seized on theories that could match the power of parliamentary decrees. No single arbitrary act, he said, could stand against the constitutional history of the country or against the rights of free men." [Galvin, Three Men of Boston, Washington, 1976, 33-34]



Otis wasn't revolutionary at that moment, but because his government continued, and accelerated its act of coercion, Otis' disagreement with his government indeed became a revolutionary cause. Recalling the emotions he felt watching Otis on February 24, 1761, John Adams pinpointed that day as the beginning of a chain of causation:


"Otis was a flame of fire; with a promptitude of classical allusions, a depth of research, a rapid summary of historical events and dates, a profusion of legal authorities, a prophetic glance of his eyes into futurity, and a rapid torrent of impetuous eloquence, he hurried away all before him."

"American Independence was then and there born. The seeds of patriots and heroes were then and there sown. Every man of an immense crowded audience appeared to me to go away, as I did, ready to take arms against Writs of Assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain."




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