James Otis and the Writs of Assistance

James Otis and Writs of Assistance

In 1761, James Otis represented the merchants of Boston in a case regarding the legality of "writs of assistance," documents which gave their holders the authority to enter and search any home or building in the then-colonies without any prior warning or stated justification, and compelled any British subject to assist in that search. Though he argued against the constitutionality of writs of assistance from the position of a loyal British subject, Otis was eventually lauded as the progenitor of the movement which eventually spawned the American Revolution a decade and a half later. The events which allowed a decidedly pro-monarchy reformist to eventually become the adopted standard of the revolutionary new democratic republic include not only the early formations of constitutional law in the courtroom of the Superior Court of Massachusetts, but also the enactment of private grudges between provincial politicians, the smuggling of French-supplied molasses out of a small Spanish port, and James Otis' own descent into madness resulting in the burning of all his records and papers so that only the recollections of his biggest fans and detractors remained.

James Otis was appreciated most notably by John Adams, who witnessed Otis' five-hour speech before the Superior Court of Massachusetts and later published portions of Otis' argument along with his own additions and edits. James Otis' own political beliefs were more complex than Adams' glowing characterization would suggest, and one must examine the history behind writs of assistance as well as Otis' work before and after the writs of assistance case in order to fully understand the legacy of his most famous speech. Although seemingly unaware of it at the time, Otis managed to encapsulate the simmering revolutionary sentiments of colonial America well before the idea of revolution was being openly discussed.

By arguing against writs of assistance, Otis was also implicitly denying the legitimacy of parliamentary rule over the colonies, even though he himself never advocated a break with the British government, but rather adequate representation within that government. The subsequent difficulties Otis had in his political career and the gap between his most famous speech and Adams' fond recollection of it can both be explained by Otis own misunderstanding as to the importance of his work, and though the fourth amendment of the United States Constitution can be directly traced to Otis' speech, the idea of the United States would likely have offended Otis' strong British loyalty. If James Otis' speech against writs of assistance was the point at which "the child Independence was born," then Otis himself was largely unaware of his entry into this new kind of fatherhood.

In order to understand how writs of assistance came to be such a contentious legal tool that they eventually spawned the American Revolution, it will be useful to examine their gradual formation over the course of British history. Although writs of assistance are recorded as early as 1558 in the "so-called Parliament Pawns" which recorded the writs issued to summon various people to parliament, it was not until 1660, during the reign of Charles II, that they were formalized into the kind of search warrant ultimately condemned by James Otis a century later (Adair 1921, p. 357). Before that time, writs of assistance were issued in a variety of contexts, and it was not until they were applied as a way to instruct public officials to aid in the work of customs officers did they become the powerful tools of oppressive search and seizure that so incensed the colonists. When applied by the government of Charles II, writs of assistance were:

warrants issued by a court, upon the application of the surveyor-general of the customs, to an inferior officer of the customs, authorizing him to search for "uncustomed" goods, or goods illegally imported. As "general" warrants available in any case where search was needed, they did not require that specific information in each instance be given previously to the court (Hickman 1932, pp. 83-84).

Specifically, writs of assistance called for sheriffs, and indeed, anyone subject to British law, to assist customs officers in searching for smuggled or "uncustomed" goods (Gawalt 1979, p. 314). Writs of assistance were used in England from 1660 onwards, but did not appear in the colonies for some time, as the special warrants requiring "information given on oath that smuggled goods were hidden" in a place specified in the warrant sufficed for customs officers combating smuggling (Hickman 1932, p. 84-5). These warrants were much less contentious, and in fact they were not functionally different from warrants commonly served by law enforcement today, although the particular standards for evidence have changed.

It was not until 1755, when the legality of special warrants granted by colonial governors was challenged, did colonial customs officials begin using writs of assistance to justify their searches. In her history of colonial writs of assistance, Emily Hickman suggests multiple reasons for this replacement of special warrants with the more open-ended writs of assistance. Firstly, Hickman suggests that:

illegal traders, hoping to rid themselves of the hampering effects of the special warrants, may have protested against their illegality and so have opened the way to the request by American customs officers for the more stringent writ of assistance commonly used by customs officials in England (Hickman 1932, p. 85).

However, this protestation was likely not enough to force the introduction of writs of assistance to the colonies, and thus this argument against special warrants was aided by the British government's attempts to block trade between the British colonies and their French counterparts to north. Hickman proposes that "it may well be that the introduction of writs of assistance was part of the struggle of the British government to enforce the Acts of Trade and to prohibit commerce with the French during the Seven Years War," suggesting that "royal officials in their zeal to stamp out trade with the enemy may have suggested the substitution of the general writ for the special warrant" (p. 85). In a somewhat ironic twist, pressure from both sides of the smuggling operation, the smugglers and customs officers, is what ultimately allowed for the introduction of general writs of assistance into the British colonies in the middle of the eighteenth century.

Thus, in 1755 writs of assistance were first granted to colonial customs officials, and in six years they had nearly replaced special warrants as the legal justification of choice for government inspectors. It is necessary to note the time of the introduction of these writs to the colonies because this distinction between special warrants and the more powerful writs of assistance makes up one of the many nuances of James Otis' strident opposition to the latter during the case of 1761, and as Hickman dryly remarks, "merchants did not fear special writs, which required the publication of the informer's name in each case, for the business of informing was exceedingly unhealthful in Boston at that period" (p. 91). Only when writs of assistance increased as a result of colonial merchants' successful circumvention of rules prohibiting trade with the French did they need to engage James Otis to argue against said writs.

By 1761, Massachusetts merchants had found a steady stream of income by transporting French goods from the Spanish port of Monte Cristi, labeling them as British goods and listing their ships' destinations as British ports in order to circumvent laws against trading with the French and the "exportation of colonial provisions during the war" (Hickman 1932, p. 87). This was in spite of the duties associated with the Molasses Act, and Hickman notes the success of these smuggling operations by pointing out the marked increase in revenue collected from the Molasses Act from 1755 to 1761:

Duties collected in the colonies under this act from 1734 to 1755 averaged £259 a year. For the period 1756 to 1762, they rose to an average of £625, and for the years 1760 and 1761 "the respective amounts were £1170

and £1189 (p. 87).

As high import duties and special warrants were not enough to combat the thriving industry of smuggled goods, it only makes sense that the application of writs of assistance to customs investigations increased as it did during the years between 1755 and 1761, and furthermore, the notable growth in the economy of imported goods demonstrates the strong financial motive for merchants of Massachusetts to oppose writs of assistance, in addition to any philosophical or political opposition to their use in the colonies.

When the news of the death of King George II arrived in Boston on December 27, 1760, it "terminated the existing writs of assistance" and "the officers of the customs would now be obliged to apply to the courts for new writs," which Hickman suspects prompted "The Society for Promoting Trade and Commerce within the Province" to enlist James Otis to protest "to the Superior Court against its issue of general writs of assistance" (Hickman 1932, p. 90-1).

To see why James Otis was the ideal candidate to challenge writs of assistance in the name of the colonial merchants in February 1761, it will be necessary to examine his role in colonial politics before this time, and specifically, his tumultuous relationship with both the governor of Massachusetts, Francis Bernard, and Chief Justice of the Superior Court of Massachusetts, Thomas Hutchinson. In addition, a brief look at his family history is required, because the political fortunes of James Otis' father directly influenced the trajectory of his own career.

James Otis was part of the fifth generation in a family that first arrived in the colonies looking for economic opportunity, and James Otis' grandfather, John Otis III, was the first in the family who went beyond business into politics (Waters 1968 & Halko 1969, p. 609-10). In 1760 James Otis was appointed advocate general of the Admiralty Court, which was the court responsible for dealing with smuggled goods seized in the colonies (Hickman 1932, p. 89.) When the protest launched by the Society for Promoting Trade and Commerce within the Province made its way to court, James Otis would have been responsible for defending the legality of writs of assistance, but instead he resigned his post and took up the cause of the merchants.

Although his strident argument against writs of assistance suggests a strong personal conviction against their use, it has occasionally been suggested that Otis resigned in protest after his father, James Otis Sr., was passed over for a position on the Massachusetts Superior Court in favor of Thomas Hutchinson (National Humanities Institute 1998, Halko 1969, p. 610, & Smith 1978, p. 213). As Maurice Smith puts it in his book the Writs of Assistance Case:

The proposition is that Otis's resignation was precipitated by hostile influence bearing down from on high. From the man, that is to say, whom Otis probably had in mind when denying that refusal to argue for the writ of assistance constituted a desertion of office, namely, Governor Francis Bernard (Smith 1978, 323).

After describing Bernard's maneuvering in January of 1761 as an attempt to keep Otis from arguing in the writs of assistance case, Smith concludes that "the gubernatorial ill will thus evinced in January 1761, after Otis had ceased to officiate as advocate general, probably went far enough back to have played some part in his resignation" (p. 323). Regardless of the ultimate reason for his departure from the post of advocate general, Otis' abrupt reversal lent his argument an extra weight, and although the protest was ultimately unsuccessful, Otis' previous position on the side of the government and subsequent rejection of it undoubtedly lent some extra credibility in the eyes of the merchants and the colonial public (at least for a while).

When James Otis addressed the Superior Court of Massachusetts in 1761, the Chief Justice was Thomas Hutchinson, who had been elevated to the post instead of Otis' own father. Although the animosity between Hutchinson and the Otises is well documented (Maurice Smith dedicates an entire chapter to it in his history of the writs of assistance case), in his presentation before the court James Otis Jr. remains deferential to the British monarchy and the court which represents it, even if he does attempt to play one off of the other, as suggested by Tim Borchers in his rhetorical analysis of Otis' speech (Borchers 2000).

Because Otis' speech before the court was so instrumental in solidifying arguments against parliamentary control over the colonies, it will be useful to examine each portion of the speech in order to chart Otis' argument. The speech itself was noted by John Adams, and formulated into an abstract that now serves as the primary record of Otis' arguments. Otis opens by acknowledging his previous duty to examine and defend writs of assistance before explaining that he stood before the court "in behalf of the inhabitants of this town" stating:

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 law-book. 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.

After his somewhat inflammatory introduction, Otis is careful to address the possible incrimination undoubtedly readied to discredit his arguments; that is, his decision to resign his post as advocate general and instead argue against the very position he was meant to defend. The purpose of this is twofold. Firstly, it protects Otis from accusations of treason or sedition, both literally as a means of protecting his own continued livelihood and as a way of keeping his arguments from being discounted out of hand as the embittered ranting of a former employee.

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. I have taken more pains in this cause than I ever will take again, although my engaging in this and another popular cause has raised much resentment. But I think I can sincerely 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 them my foes. Let the consequences be what they will, I am determined to proceed. The only principles of public conduct that are worthy of a gentleman or a man are to sacrifice estate, ease, health, and applause, and even life, to the sacred calls of his country.

Almost immediately Otis demonstrates a dedication and fealty to both the monarchy and Britain that complicates the image of James Otis as proto-revolutionary while suggesting that his later critics, who claimed Otis "had betrayed the cause of American liberty," perhaps missed some crucial aspects of Otis' character when evaluating his arguments against writs of assistance (Ferguson 1979, p. 194). In fact, James Otis was a hearty supporter of the monarchy and British government in general, and saw any problems as the result of individual, corrupted officials rather than indicative of a systemic problem with the entire structure of imperial governance. Understanding this part of Otis' character further illuminates the motivations behind his unhappiness with Governor Bernard as well as Chief Justice Hutchinson; far from desiring to rebel against the king or the British colonial government, Otis saw it as his duty to expose those corrupt leaders who he thought used their positions improperly, and writs of assistance must have appeared to much too powerful a legal instrument to be left in the hands of leaders so visibly (to him) corrupt.

As Tim Borchers observes, Otis "portrayed himself on the side of the kings," and argued that his opposition to writs of assistance was instead a position directly in line with the monarchy's stated desires, which placed "the privileges of his people" above "the most valuable prerogatives of the crown," prerogatives that could easily include restricting trade with the French and disrupting the transfer of smuggled goods (Borchers 2000). This further implies that should the court rule against him, they will be implicitly counteracting the will of the king. It is a subtle threat, and it seems likely Otis included it both to bolster his own position as well as rattle Chief Justice Hutchinson, among others: "for all his display of shock and anguish at the general writ of assistance and the enormities it stood for, Otis must have rather enjoyed putting Chief Justice Hutchinson through the hoops" (Smith 1978, p. 330). The personal grudges at work during the trial undoubtedly motivated Otis to pay special attention to any accusations regarding his own allegiances or quality of character, and jump at the chance to throw in a few subtle accusations of his own.

Furthermore, by pointing out the charge against him and stating "let the consequences be what they will," Otis manages to defang any possible incriminations of his character, at least in regards to the specific argument being made. By preemptively demonstrating an indifference to insult or criticism, Otis renders the eventual enactment of that insult and criticism powerless. Put another way, he makes any criticism of his following argument that is based on his "desertion" of his post appear mundane or else somehow petty, effectively forcing his opponents to confront the case on his terms, and thus manages to define the parameters of the debate before he even begins making his actual argument. Furthermore, according to Maurice Smith:

Since it is at least possible that he had been pressured out of office by Governor Bernard, Otis's resentment at having been charged with deserting it, reflected in the Abstract rendition of his writs of assistance speech, may have been all the more bitter (Smith 1978, 327-8).

Thus, Otis used the opportunity to subtly impugn and refute his enemy the governor while simultaneously giving his arguments the authority of conscientious objection to legal injustice.

After safely shrouding himself in the trappings of a loyal British subject, Otis continues on to the meat of his argument, which is actually twofold: "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 [general writs of assistance] can be granted." As mentioned before, special warrants were of much smaller concern to colonial merchants, and at any rate, Otis granted that they served a useful purpose, and being limited as they were by the necessity of sworn testimony, presented a much smaller affront to liberty than the general writs of assistance.

By making this distinction early on, Otis grants his argument some further legitimacy, because the position he takes does not argue for a total freedom from the search and seizure of goods, something which the merchants he was representing would undoubtedly desired. (Recall that the introduction of writs of assistance to the colonies was partially facilitated by colonial merchants' protests against the legitimacy of the very special warrants Otis supports here). In this way, Otis presents the writ of assistance as a unique infringement on the rights of British citizens, instead of simply the most extreme form of legal oppression employed by the representatives of the British government, a characterization undoubtedly favored by the more revolution-inclined colonists of the time.

Otis divides his argument against writs of assistance into four points, but each point is a constituent part of the central problem; namely, that writs of assistance require no reason to be deployed other than the whim of the writ holder and that they may be deployed universally, allowing "every man [to] reign secure in his petty tyranny." He describes the different facets of the problem in the following manner:

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 […] in the next place, it is perpetual; there is no return. A man is accountable to no person for his doings […] 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.

Although Otis' fourth point may seem less striking or relevant than the others, taken together they constitute the core of his argument against general writs of assistance, and even the point regarding servants serves a special purpose. As Borchers notes, Otis argues that the fact "that the writs would allow 'the menial servants' of customs agents to 'lord it over us' by using the writs as they pleased" means that they "violated God's natural order" because "what is this but to have the curse of Canaan with a witness on us: to be the servants of servants, the most despicable of God's creation?" (Borchers 2000). Thus Otis blends notions of political and spiritual rights into his overall arguments against the writs of assistance. He then follows this outlining of the problem with a short, comical narrative demonstrating it in practice:

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 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 garret to the cellar; and then served the constable in the same manner!

Although Otis' story and argument is deployed in a relatively straightforward way, he nonetheless offered a complex assertion about the rights of every human being. Although he argued specifically that writs of assistance "conflicted with the fundamental rights of all British subjects," considering his previously stated undying opposition to "all such instruments of slavery on the one hand and villainy on the other" it seems reasonable to suggest that Otis' concerns went beyond those of strictly British citizens (Breen 1998, p. 379). This is likely also the cause for his later adoption into the history of the American Revolution, because just as that effort drew its justification from an authority higher than any monarch, so too did Otis appeal to a sense of unalienable rights in order to make his case.

The effect of James Otis' arguments on the immediate circumstances of the colonies is debatable; although his speech was undoubtedly rousing, the court put off the question of legality until November, when it decided that writs of assistance were in fact valid. Furthermore, "no court stenographer made a record of the proceedings, nor did Otis ever write out the address he had presented before a small professional audience." Instead:

It was John Adams, awed by the implications of the forensic drama he witnessed in the Superior Court that day, who, from a few notes he took during the hearing, crafted an abstract of Otis' address. But Adams' abstract gathered dust for more than a decade before it first appeared in print, and not until after the American Revolution, amidst the earliest efforts to chronicle and document the great struggle for Independence, did Adams take up the cause of James Otis in earnest and launch his campaign to transform an impassioned forensic argument of local interest into a revered oration of national and historical significance (Farrell 2006, p. 534).

Although Otis' argument against writs of assistance gained him some notoriety and admiration such that he was elected to the House of Representatives, "more than once between 1761 and 1765, however, Otis fell under suspicion of defection to the British administration" and "although his contemporaries cleared him of the charge of toryism," Adams "did not, however, feel 'entire satisfaction' with a vindication of himself Otis which Otis presented in the House of Representatives" regarding some of the claims against him (Brennan 1939, p. 692 & Samuelson 1999, p. 494). Otis never fully recovered from his various misadventures, and he was regularly lambasted for the perceived "desertion" of his ideals regarding representative taxation and freedom for the colonies.

Joseph Frese states that according to an "entry in Adams' diary it would seem that his manuscript notes of the speech of Otis were circulated at least among his friends," but this does not necessarily refute Farrell's position that Adams did not really take up the task of making Otis's speech the site where "the child Independence was born" until well after the fact (Frese 1957, p. 498). Instead, it suggests that while Adams may have seen the value in Otis' speech from the beginning, in his own lifetime, Otis did not seem to realize just how revolutionary he appeared to the general public.