James Otis: Forgotten Founding Father

 

 

“The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail – its roof may shake – the wind may blow through it – the storm may enter – the rain may enter – but the King of England cannot enter.”

William Pitt, Earl of Chatham, March 1763, in his speech against warrantless searches allowed under the proposed Excise Bill before the British Parliament.

James Otis had a glittering career ahead of him.  At the age of 35 in 1760 he was Advocate General for the Admiralty Court in Boston.  His wife Ruth was heiress to a fortune worth ten thousand pounds.  He threw it all away and resigned his post to represent pro bono, he refused the fee they wished to pay him saying that in such a great cause he despised all fees,  colonial merchants subject to writs of assistance.  A writ of assistance was a court order that allowed British officials to search at whim houses and businesses of those suspected of smuggling without obtaining a search warrant.  These writs were in effect for the lifetime of the King during whose reign the writ was issued.  Bearers of writs of assistance were not responsible for any damage caused by their searches.  Otis viewed the writs to be a violation of Magna Carta, English case law and the traditional English legal doctrine that an Englishman’s home was his castle.

In a  five hour address that captivated listeners at the Boston State House on February 24, 1761, James Otis denounced the writs of assistance:

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.

Otis lost the case, but his bold stand was considered the start of the American independence movement.  John Adams was present during the speech and later wrote:

“The child independence was then and there born,[for] every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance.”

In the years to come he helped popularize the phrase, “No taxation without representation.”  Mental illness cut short his services to the American cause, illness exacerbated by his receiving a blow to his head from a British customs inspector in 1769.  In years to come he would have alternating periods of madness and lucidity.  His wife Ruth, although her personal political sympathies were Tory, loyally stood by her husband and cared for him.

Otis did not let his madness stop him from bearing arms.  Hearing the artillery bombardment preparatory to the battle of Bunker Hill, he snuck out of his house, got a rifle, and joined the American troops on Breed’s Hill.  After the battle he walked home.