Collected Political Writings of James Otis. Otis James

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СКАЧАТЬ 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

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      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.

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      I desire it may be further consider’d, that the custom house officers at home, are under certain checks and restrictions which they cannot be under here; and therefore the writ of assistance ought to be look’d upon as a different thing there, from what it is here. In England the exchequer has the power of controuling them in every respect; and even of inflicting corporal punishment upon them for mal-conduct, of which there have been instances; they are the proper officers of that court, and are accountable to it as often as it shall call them to account, and they do in fact account to it for money receiv’d, and for their BEHAVIOR, once every week—so that the people there have a short and easy method of redress, in case of injury receiv’d from them: but is it so here? Do the officers of the customs here account with the Superior Court, or lodge monies received into the hands of that court; or are they as officers under any sort of check from it?—Will they concede to such powers in the Superior Court? or does this court, notwithstanding these are powers belonging to the exchequer—notwithstanding it is said to be vested with ALL THE POWERS belonging to the exchequer—and further, notwithstanding this very writ of assistance is to be granted AS a power belonging to the exchequer, will the Superior Court itself, assume the power of calling these officers to account, and punish them for misbehavior? It would be a small consolation, if we could have one instance: Have we not seen already, ONE of those officers, and he an inferior one too, REFUSING to account to any power in the province, for monies receiv’d by him by virtue of his office, belonging to the province, and which we are assured by the JOINT DECLARATION of the three branches of the legislature, is UNJUSTLY as well as illegally detain’d by him? Does not every one then see that a writ of assistance in the hands of a custom house officer here, is in reallity a greater power, & more to be dreaded, than it is in England? greater because UNCONTROUL’D—and can a community be safe with an uncontroul’d power lodg’d in the hands of such officers, some of whom have given abundant proofs of the danger there is in trusting them with ANY?

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5. A Sample Writ of Assistance

      “Province of Massachusetts Bay.

      “GEORGE the Second by the Grace of God of Great Britain, France and Ireland King, Defender of the Faith &c—

      “To all and singular Justices of the Peace, Sheriffs and Constables, and to all other our officers and Subjects within said Prov. & to each of you Greeting—

      “Whereas the Commissioners of our Customs have by their Deputation dated the 8th day of Jany 1752, assignd Charles Paxton Esqr Surveyor of all Rates, Duties, and Impositions arising and growing due within the Port of Boston in said Province as by said Deputation at large appears, WE THEREFORE command you and each of you that you permit the said C.P. and his Deputies and Servants from Time to time at his or their Will as well in the day as in the Night to enter and go on board any Ship, Boat or other Vessel riding lying or being within or coming to the said Port, such Ship, Boat or Vessell then & there found to View & Search & strictly to examine in the same, touching the Customs and Subsidies to us due, And also in the day Time together with a Constable or other public officer inhabiting near unto the Place to enter and go into any Vaults, Cellars, Warehouses, Shops or other Places to search and see whether any Goods, Wares or Merchandises, in the same Ships, Boats or Vessells, Vaults, Cellars, Warehouses, Shops or other Places are or shall be there hid or concealed, having been imported, ship’t or laden in order to be exported from or out of the said Port or any Creeks or Places appertain’g to the same Port; and to open any Trunks, Chests, Boxes, sardells or Packs made up or in Bulk, whatever in which any Goods, Wares, or Merchandises are suspected to be packed or concealed and further to do all Things which of Rt and according to Law and Statutes in such Cases provided, is in this Part to be done: And We strictly command you and every of you that you, from Time to Time be aiding and assisting to the said C.P. his Deputies and Servants and every of them in the Execution of the Premises in all Things as becometh: Fail not at your Peril: WITNESS Stephen Sewell Esqr & c—”

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