Wednesday, April 23, 2014

Arbitrary Power and the Demise of Liberty by James Otis

Prior to the Revolution, James Otis worked as advocate-general in Boston for the King of England.  In 1760, the King’s revenue officers demanded Otis to supply search warrants that would give them the authority to enter and search anyone’s house for smuggled goods.  Otis refused to comply with the demand.  On February 24, 1761, Otis gave a speech that lasted five hours defending the natural law and rights of man stating, “A man’s house is his castle.”  The following excerpt comes from his speech that became the precursor to the Declaration of Independence in 1776:

“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 founded in an English lawbook…”

Otis explains the difference between general and special warrants for search and seizures:

“Your honors will find in the old books concerning the office of 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 placed the liberty of every man in the hands of every petty officer.

Here Otis describes how the use of power through the writ is an abuse of the individual’s liberty:

“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 all allowed to lord it over us.”

“…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 inquireBare suspicion without oath is sufficient.”

Tragically, only part of Otis’s speech went recorded but what is available offers great insight to what he considered legal and illegal search based on natural law and the rights of man.  

*My emphasis added.

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