Today is the 251st anniversary of James Otis’s famous five-hour oration against King George II’s Writs of Assistance at the Boston Old State House in  Paxton’s Case. In this case, 53 Boston merchants who challenged the search and seizure powers of the King were countersued by a British customs agent named Paxton; the case was heard Tuesday, February 24, 1761. From a historical sense, it was but a minor setback that the judge ruled against Otis in this case; his words would be heard by the young John Adams, who would say later that Otis’s role in contesting the British sovereign’s power was “the spark in which originated the American Revolution” and that this speech by Otis “breathed into the nation the breath of life”.

Background

On the 27th of December, 1760, colonial Bostonians received news of the October death of  King George the II. This news held great import; it meant that the legal writs of assistance granted by George II would expire in April 1761 (six months after the death of the Kin), and that customs officers for the King enforcing the anti-smuggling provisions in the Navigation Acts would have to obtain new writs of assistance from the new King.

It is important to describe the powers conferred upon customs agents through these writs. Once an agent of the King obtained a writ of assistance, he could search any place without having to state a formal reason for the search. Since the writ was permanent, the King’s agent did not have to obtain permission for individual searches; the writ allowed him to search anyplace, anywhere, anytime, at will, without any impediment. Indeed, the King’s agent could even unilaterally transfer this power to any other person, and could compel by law the assistance of any other public servant or “loyal subject” in the execution of this search. Additionally, these agents of the government were shielded from liability if they damaged any property during the search. Finally, these agents had broad seizure powers,  including civil forfeiture laws that allowed the King, the prosecutor’s office, and any informants or assistants to receive a share of the spoils.

A speech for the ages

Against these powers, which resulted in an epidemic of general searches by the King’s men, Otis argued on Tuesday, February 24, 2761:

“May it please your honors, I was desired by one of the court to look into the books and consider the question now before them concerning writs of assistance. I have, accordingly, considered it, and now appear not only in obedience to your order, but likewise 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 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 lawbook. I must, therefore, beg your honors’ patience and attention to the whole range of an argument, that may, perhaps, appear uncommon in many things, as well as to 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 be better felt. I shall not think much of my pains in this cause, as I engaged in it from principle. I was solicited to argue this cause as Advocate General; and because I would not, I have been charged with desertion from 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 history, cost one king of England his head and another his throne. . . .

“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. 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, 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 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. 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 a 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 indorsed this writ over to Mr. Ware; so that these writs are negotiable from one officer to another; and so your honors have no opportunity of judging the persons to whom this vast power is delegated. Another instance is this: Mr. Justice Walley 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 finished, Mr. Ware asked him if he had done. He replied: ‘Yes.’ ‘Well, then,’ said Mr. Ware, ‘I will show you a little of my power. I command you to permit me to search your house for uncustomed goods’; and went on to search the house from the garrett to the cellar, and then served the constable in the same manner! But to show another absurdity in this writ, if it should be established, I insist upon it that every person, by the 14th of Charles II, has this power as well as the customhouse officers. The words are: ‘It shall be lawful for any person or persons authorized,’ etc. 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. . . .”

Where are we now?

Last year, I was fortunate to visit the Boston Old State House, and sit in the council chambers where James Otis argued before the British judge. I regret to say that I was at the Old State House for another hearing where angry citizens came to air their grievances to a Congressional inquest into the general powers of search and seizure used by law enforcement agents enforcing the Magnuson-Stevens Act at the National Oceanic and Atmospheric Association.

More generally, however, general search warrants and the unbridled powers which they vest with the government have returned. Americans now face persecution under a vast power of executive search and seizure which allows agents of many different state, federal, and local governments to search as if at whim, without liability for damages, using violent, military force. Worse, the legislative and judicial functions of government have failed to meaningfully check executive power; often this is because of political or regulatory capture of institutions by special interests. Key factors can also be viewed through an economic lens, as cartel-driven barriers to the practice of law price ordinary people out of the market for legal services, and forfeiture laws allow the government to bankrupt people before an attorney can be retained for those who can find the resources to pay.

James Otis is important because his argument is at the core of why property rights are important and why it is necessary to enact limitations on the ability of the government to perform its duties. At the core of Otis’s argument is the notion that society itself cannot exist in a world where the general powers of search and seizure exist unchecked; otherwise, society will tear itself apart. In this sense, these powers are anarchic powers; they are incompatible with the notion of the rule of law itself. In this light, it is easy to understand John Adam’s statement that Otis “breathed into the nation the breath of life” by challenging the Sovereign to be bound by the law, and not stand above it.

Links: FourthAmendment.com (here and here), NACDL 2010 press release, Orin Kerr at Volokh, David Steinberg (SSRN).