On 23 Feb 1761, two and a half centuries ago, James Otis, Jr. (shown here), and Oxenbridge Thacher stood before the top court of Massachusetts and argued that the colonial government did not have the constitutional power to grant the Customs service a “writ of assistance.” Representing the government in what is now the Old State House was Attorney General Jeremiah Gridley, who had trained both his opponents.
Otis and Thacher’s clients were the import merchants of Boston. At best, those men comprised a narrow special interest. At worst, they were a bunch of privileged whiners trying to stymie the lawful authorities’ power to curb their habitual smuggling.
Otis himself had worked for the royal government not long before, as Advocate General in the Vice Admiralty Court. He switched sides, everyone acknowledged, at least in part because the new governor, Francis Bernard, had not given his father the judicial appointment that the previous governor had promised.
A writ of assistance was general and open-ended. Having received one, Customs officials did not need to provide evidence of what smuggled goods they were looking for and where. And a writ of assistance lasted until the king died—which is why the writs issued under George II (1683-1760) were no longer valid.
Young lawyer John Adams took notes on the case, which survive in sketchy form, and afterward wrote out a more detailed and dramatic abstract of the event. That quoted Otis making this case against the writ:
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.Having invoked class privilege against “menial servants,” Otis went on to warn, “This wanton exercise of this power is not a chimerical suggestion of a heated brain.” Loyalists complained that Otis did have an overheated brain, and by the end of the decade he actually had a mental breakdown. But the writs of assistance case had started an argument that eventually led to American independence.
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.
In the third place, a person with this writ, in the daytime, may enter all houses, shops, &c. at will, and command all to assist him.
Fourthly, by this writ not only deputies, &c., but even their menial servants, are allowed to lord it over us. 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.
TOMORROW: The outcome and results of the Massachusetts writs of assistance case.