Collected Political Writings of James Otis. Otis James
[print edition page 15]
4. Essay on the Writs of Assistance Case, Boston Gazette, January 4, 1762
To the PRINTERS.
SINCE the advancement of so great a lawyer as the Hon. Mr. H——TCH——NS——N to the first J——st——s seat, it would be deem’d the highest impertinence for any one to express the least surprize, that the Superior Court of this province, should after solemn hearing adjudge themselves authoriz’d to grant such a writ as the WRIT OF ASSISTANCE; or even to doubt, whether by law, they have power so to do: I hope however, I may say without offence, especially as I am inform’d that this writ is not yet given out, that I heartily wish it never may.—
It seems necessary to preface all our objections against such a power being given to the custom house officers, with a formal declaration against an illicit trade; for to bear any spirited testimony against their abuse of power, and especially to offer such abuse as the strongest reason why they ought not to be trusted with more, has been represented by these very persons and THEIR PATRONS, as if we had combin’d to break thro’ all the just restraints of the laws of trade, and to force a free port.—I do therefore from principle declare against an illicit trade; I would have it totally suppress’d, with this proviso only, that it may have the same fate in the other governments; otherwise all the world will judge it unequitable: it is because we only are severely dealt with, that we complain of unreasonable treatment: and the writ of assistance, being a further degree of severity, will give us still further reason to complain.—
BUT it is not trade only that will be affected by this new severity: every housholde, in this province, will necessarily become less secure, than he was before this writ had any existence among us; for by it, a custom house officer or ANY OTHER PERSON has a power given him, with the assistance of a peace officer, to ENTER FORCEABLY into a DWELLING HOUSE, and rifle every part of it, where he shall PLEASE to suspect uncustomed goods are long!—Will any man put so great a value on his freehold, after such a power commences as he did before?—every man in this province, will be liable to be insulted by a petty officer, and threatned to have his house ransack’d,
[print edition page 16]
unless he will comply with his unreasonable and impudent demands: Will any one then under such circumstances, ever again boast of british honor or british privilege?—I expect that some little leering tool of power will tell us, that the publick is now amus’d with mere chimeras of an overheated brain: but I desire that men of understanding, and morals, would only recollect an instance of this sort; when a late comptroller of this port, by virtue of his writ of assistance FORCEABLY enter’d into and rummag’d the house of a magistrate of this town; and what render’d the insolence intollerable was, that he did not pretend a suspicion of contraband goods as a reason for his conduct, but it was only because the honest magistrate had the day before taken the liberty to execute a good and wholesome law of this province against the comptroller.—
IT is granted that upon some occasions, even a brittish freeholder’s house may be forceably opened; but as this violence is upon a presumption of his having forfeited his security, it ought never to be done, and it never is done but in cases of the most urgent necessity and importance; and this necessity and importance always is, and always ought to be determin’d by adequate and proper judges: Shall so tender a point as this is, be left to the discretion of ANY person, to whomsoever this writ may be given! shall the jealousies and mere imaginations of a custom house officer, as imperious perhaps as injudicious, be accounted a sufficient reason for his breaking into a freeman’s house! what if it shall appear after he has put a family which has a right to the kings peace, to the utmost confusion and terror; what, if it should appear, that there was no just grounds of suspicion; what reparation will he make? is it enough to say, that damages may be recover’d against him in the law? I hope indeed this will always be the case;—but are we perpetually to be expos’d to outrages of this kind, & to be told for our only consolation, that we must be perpetually seeking to the courts of law for redress? Is not this vexation itself to a man of a well disposed mind? and besides, may we not be insolently treated by our petty tyrants in some ways, for which the law prescribes no redress? and if this should be the case, what man will hereafter think his rights and privileges worth contending for, or even worth enjoying.
THE people of this province formerly upon a particular occasion asserted the rights of englishmen; and they did it with a sober, manly spirit: they were then in an insulting manner asked “whether english rights were to follow them to the ends of the earth”—we are now told, that the rights we contend for “do not belong to the English”—these writs, it is said, “are frequently issued from the exchequer at home, and executed, and the people do not complain of it—and why should we desire more freedom than they have in the mother country”—such is the palliating language of the great patrons of
[print edition page 17]
this writ—and who claims more liberty than belongs to us as British subjects? we desire no securities but such as are deriv’d to us from the british constitution, which is our glory—no laws but what are agreeable to the true spirit of the british laws, to which we always have, and I hope always shall yield a chearful obedience—these rights and securities, we have with other british subjects gloriously defended against foreign invasions, and I hope in God we shall always have spirit enough to defend them against all other invasions.—Is there then any express act of parliament authorizing the exchequer to issue such writs? for if there is not plain law for such a power, the practice of one court against law, or which is the same thing, without law, can never be deem’d a good precedent for another, allowing there is no reason to doubt, the one is legally vested with all the power and jurisdiction of the other: but if ALL this be matter of uncertainty, ought it not then forever to be determin’d in favor of common right and liberty? and would not every wise man so determine it?
BUT admitting there is such a practice at home, and that it is not disputed, even at this time, when there is so warm a sense of liberty there; it may nevertheless be an Infringement upon the constitution: and let it be observ’d, there may be at some times a necessity of conceeding to measures there, which bear hard upon liberty; which measures ought not to be drawn into precedent here, because there is not, nor can be such necessity for them here; and to take such measures, without any necessity at all, would be as violent an infraction on our liberties, as if there was no pretence at all to law or precedent. It is idle then, to tell us we ought to be content under the same restrictions which they are under at home, even to the weakning of our best securities, when it is tolerated then only thro’ necessity, and there is no necessity for it here.—In England something may be said for granting these writs, tho’ I am far from saying that anything can justify it. In England the revenue and the support of government, in some measure, depend upon the customs; but is this the case here? are any remittances made from the offices here? has the king’s revenue, or the revenue of the province ever received the addition of a farthing, from all the collections, and all the seizures that have been made and forfeited, excepting what has been remitted by the late worthy collector Mr. B——r——ns?—I assert nothing: but if no benefit accrues to the publick, either here or at home, from all the monies that are receiv’d for the use of the publick, Is not this PECULATION? and what reason can there be, that a free people should be expos’d to all the insult and abuse, to the risque and even the fatal consequences, which may arise from the execution of a writ of assistance, ONLY TO PUT FORTUNES INTO PRIVATE POCKETS.
[print edition page 18]
I desire it may be further consider’d, that the custom