Collected Political Writings of James Otis. Otis James

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СКАЧАТЬ Court, and no other can grant it; 4 Inst. 103; and that no other Officers but such as constitute that Court can grant it. 2 Inst. 551. That this

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      Court is no such a one, vid. Prov. Law. This Court has in the most solemn Manner disclaimed the Authority of the Exchequer; this they did in the Case of McNeal of Ireland & McNeal of Boston. This they cannot do in Part; if the Province Law gives them any, it gives them all the Power of the Exchequer Court; nor can they chuse and refuse to act at Pleasure. But supposing this Court has the Power of Exchequer, yet there are many Circumstances which render that Court in this Case an improper Precedent; for there the Officers are sworn in that Court, and are accountable to it, are obliged there to pass their Accounts weekly; which is not the Case here. In that Court, there Cases are tried, and there finally; which is another Diversity. Besides, the Officers of the Customs are their Officers, and under their Check, and that so much that for Misbehaviour they may punish with corporal Punishment. 3 & 4 Car. 2 § 8. 7 & 8 W. & M. does not give the Authority.

      (Mr. Otis was on the same Side, but I was absent, while he was speaking, most of the Time, and so have but few Notes.)

      Mr. Otis. 12 Car. 2, 19. 13 & 14 Car. 2, p. 56. Let a Warrant come from whence it will improperly, it is to be refused, and the higher Power granting it, the more dangerous. The Exchequer itself was thought a Hardship in the first Constitution. Vid. Rapin, Vol. 1st, p. 178, 386, 403, 404. Vol. 2, 285, 375.

      It is worthy Consideration whether this Writ was constitutional even in England; and I think it plainly appears it was not; much less here, since it was not there invented till after our Constitution and Settlement. Such a Writ is generally illegal. Hawkins, B. 2, ch. 1, Of Crim. Jur. Viner, Tit. Commission, A. 1 Inst. 464. 29 M.

      Mr. Auchmuty. Bacon. 4 Inst. 100. From the Words of the Law, this Court may have the Power of the Exchequer. Now the Exchequer always had that Power; the Court cannot regard Consequences, but must follow Law. As for the Argument of Non-user, that ends whenever the Law is once executed; and this Law has been executed in this Country, and this Writ granted, not only by the Governor, but also from this Court in Ch. Justice Sewall’s Time.

      Mr. Gridley. This is properly a Writ of Assistants, not Assistance; not to give the Officers a greater Power, but as a Check upon them. For by this they cannot enter into any House, without the Presence of the Sheriff or civil Officer, who will be always supposed to have an Eye over and be a Check upon them. Quoting History is not speaking like a Lawyer. If it is Law in England, it is Law here; it is extended to this Country by Act of Parliament. 7 & 8 Wm. & M. ch. 18. By Act of Parliament they are entitled to like Assistants; now how can they have like Assistants, if the Court cannot grant them it; and how can the Court grant them like Assistance, if they cannot grant this Writ. Pity it would be, they should have a like Right, and not like

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      Remedy; the Law abhors Right without Remedy. But the General Court has given this Court Authority to grant it, and so has every other Plantation Court given their Superiour Court.

      The Justices were unanimously of Opinion that this Writ might be granted, and some Time after, out of Term, it was granted.

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3. John Adams’s Reconstruction of Otis’s Speech in the Writs of Assistance Case

      “MAY IT PLEASE YOUR HONORS,

      “I was desired by one of the Court to look into the books, and consider the question now before them concerning writs of assistance. I have accordingly considered it, and now appear, not only in obedience to your order, but likewise in behalf of the inhabitants of this town, who have presented another petition, and out of regard to the liberties of the subject. And 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 villany 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 discerned, 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. 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 English 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

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      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. These manly sentiments, in private life, make the good citizen; in public life, the patriot and the hero. I do not say, that when brought to the test, I shall be invincible. I pray God I may never be brought to the melancholy trial; but if ever I should, it will be then known how far I can reduce to practice principles, which I know to be founded in truth. In the mean time I will proceed to the subject of this writ.

      “In the first place, may it please your Honors, I will admit that writs of one kind may be legal; that is, special writs, directed to special officers, and to search certain houses, &c. specially set forth in the writ, may be granted by the Court of Exchequer at home, upon oath made before the Lord Treasurer by the person who asks it, that he suspects such goods to be concealed in those very places he desires to search. The act of 14 Charles II. which Mr. Gridley mentions, proves this. And in this light the writ appears like a warrant from a Justice of the Peace to search for stolen goods. Your Honors will find in the old books concerning the office of a 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 you 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 places the liberty of every man in the hands of every petty officer. 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 can be granted, for I beg leave to make some observations on the writ itself, before I proceed to other acts of Parliament. 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 СКАЧАТЬ