Dr. Tim Borchers Writings

"Against Writs of Assistance"

by James Otis

(First printed, Massachusetts Spy, April 29, 1773)

"May it please your honors,"

"I was desired by one of the court to look into the books, and consider the questions now before the court, concerning Writs of Assistance. I have accordingly considered it, and now appear not only in obedience to your order, but also in behalf of the inhabitants of this town, who have presented another petition, and out of regard to the liberties of the subject. And I take this opportunity to declare, that whether under a fee or not, (for in such a cause as this I despise a fee) I will to my dying day oppose, with all the powers and faculties God has given me, all such instruments of slavery on the one hand, and villainy on the other, as this writ of assistance is. It appears to me (may it please your honors) the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of the constitution, that ever was found in an English law book. I must therefore beg your honors patience and attention to the whole range of argument, that may perhaps appear uncommon in many things, as well as points of learning, that are more remote and unusual, that the whole tendency of my design may the more easily be perceived, the conclusions better descend, and the force of them better felt.

"I shall not think much of my pains in this cause as I engaged it from principle. I was sollicited to engage on the other side. I was sollicited to argue this cause as Advocate-General, and because I would not, I have been charged with a desertion of my office; to this charge I can give a very sufficient answer, I renounced that office, and I argue this cause from the same principle; and I argue it 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, the exercise of which in former periods of English history, cost one king his head and another his throne. I have taken a more pains in this cause, than I ever will take again: Although my engaging in this and another popular cause has railed much resentment; but I think I can fiercely declare, that I cheerfully submit myself to every odious name for conscience sake; and from my soul I despise all those whose guilt, malice or folly has made my foes. Let the consequences be what they will, I am determined to proceed. The only principles of public conduct that are worthy a gentleman, or a man are, to sacrifice estate, case, health and applause, and even life itself to the sacred calls of his country. These manly sentiments in private life make the good citizen, in public life, the patriot and hero.-I do not say, when brought to the test, I shall be invincible; I pray God I may never be brought to the melancholy trial; but if ever I should, it would be then known, how far I can reduce to practice principles I know founded in truth.-In the mean time I will proceed to the subject of the writ. In the first, may it please your Honours, I will admit, that writs of one kind, may be legal, that is, special writs,directed to special officers, and to search certain houses, &c. especially set forth in the writ, may be granted by the Court of Exchequer at home, upon oath made before the Lord Treasurer by the person, who asks, that he suspects such goods to be concealed in THOSE VERY PLACES HE DESIRES TO SEARCH (emphasis original). The Act of 14th Car. II [Charles II] which Mr. Gridley mentions proves this. And in this light the writ appears like a warrant from a justice of peace to search for stolen goods. Your Honours will find in the old book, concerning the office of a justice of 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 he suspects his goods are concealed; and you will find it adjusted 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 houses, may be granted to certain persons on oath; but I deny that the writ not 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' &c. 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 is legal, a tyrant may in a legal manner also, may controul, imprison, or murder any one within the realm.

"In the next place, it is perpetual, there's no return, a man is accountable to not 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 arch-angel shall excite different emotions in his soul.

"In the third place, a person with this writ, in the day time may enter all houses, shops, &c. at will, and command all to assist.

"Fourthly, by this, not only deputies, &c. 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 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 every things 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 power is no chimerical suggestion of a heated brain.-I will mention some facts. Mr. Pew had one of these writs, and when Mr. Ware succeeded him, he endorsed this writ over to Mr. Ware, so that, these writs are negotiable from one officer to another, and so your Honours have no opportunity of judging the persons to whom this vast power is delegated. Another instance is this.-Mr. Justice Wally had called this same Mr. Ware before him by a constable, to answer for a breach of the Sabbath-day acts, or that of profane swearing. As soon as he had done, Mr. Ware asked him if he had don, he replied, yes. Well then, says he, I will shew you a little of my power-I command you to permit me to search your house for uncustomed goods; and went on to search his house from the garret to the cellar; and then served the constable in the same manner. But to shew another absurdity in this writ, if it should be established, I insist upon it every person by the 14th Car. II has the power as well as the Custom-house officers; the words are, "it shall be lawful for any person or persons authorized, &c."-What a scene does this open! Every man prompted by revenge, ill humour, or wantonness to inspect the inside of his neighbour's house, may get a writ of assistance; others will ask it from self-defence; one arbitrary exertion will provoke another, until society be involved in tumult and in blood-Again these writs ARE NOT RETURNED. Writs in their nature are temporary things; when the purposes for which they are issues are answered, they exist no more; but these monsters in the law live forever, no one can be called to account. Thus reason and the constitution are both against the writ. Let us see what authority there is for it. No more than one instance can be found of it in all our law books, and that was in the zenith of arbitrary powers, viz. In the reign of Car. II. when star-chamber powers were pushed to extremity by some ignorant clerk of the Exchequer.-But had this writ been in any book whatever it would have been illegal. ALL PRECEDENTS ARE UNDER THE CONTROUL OF THE PRINCIPLES OF THE LAW. Lord Ta'bot says, it is better to observe these than any precedents though in the House of Lords, the last resort of the subject.-No Acts of Parliament can establish such a writ: though it should be made in the very words of the petition it would be void, "AN ACT AGAINST THE CONSTITUTION IS VOID." Vid. Viner. But these prove no more than what I before observed, that special writs may be granted on oath and probable suspicion. The Act of 7th, and 8th of William III. that the officers of the plantations shall have the same powers, &c. is confirmed to this sense, that an officer should show probable grounds, should take his oath on it, should do this before a magistrate, and that such magistrate, if he thinks proper should issue a special warrant to a constable to search the places. That of 6th of Anne can prove no more."