Collected Political Writings of James Otis. Otis James

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СКАЧАТЬ realm. 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

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      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. Custom-house officers may enter our houses, when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and every thing in their way; and whether they break through malice or revenge, no man, no court, can inquire. Bare suspicion without oath is sufficient. This wanton exercise of this power is not a chimerical suggestion of a heated brain. I will mention some facts. 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 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 his house from the garret to the cellar; and then served the constable in the same manner. But to show another absurdity in this writ; if it should be established, I insist upon it, every person by the 14 Charles II. has this power as well as custom-house officers. The words are, ‘It shall be lawful for any person or persons authorized,’ &c. What a scene does this open! Every man, prompted by revenge, ill humor, or wantonness, to inspect the inside of his neighbor’s house, may get a writ of assistance. Others will ask it from self-defence; one arbitrary exertion will provoke another, until society be involved in tumult and in blood.

      “Again, these writs are not returned. Writs in their nature are temporary things. When the purposes for which they are issued are answered, they exist no more; but these live forever; no one can be called to account. Thus reason and the constitution are both against this writ. Let us see what authority there is for it. Not more than one instance can be found of it in all our law-books; and that was in the zenith of arbitrary power, namely, in the reign of Charles II., when star-chamber powers were pushed to extremity by some ignorant clerk of the exchequer. But had this writ been in any book whatever, it would have been illegal. All precedents are under the control of the principles of law. Lord Talbot says it is better to observe these than any precedents, though in the House of Lords, the last resort of the subject. No Acts of Parliament can establish such a writ; though it should be made in the very words of the petition, it would be void. An act against the constitution is

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      void. (vid. Viner.) But these prove no more than what I before observed, that special writs may be granted on oath and probable suspicion. The act of 7 & 8 William III. that the officers of the plantations shall have the same powers, &c. is confined to this sense; that an officer should show probable ground; should take his oath of it; should do this before a magistrate; and that such magistrate, if he think proper, should issue a special warrant to a constable to search the places. That of 6 Anne can prove no more.”

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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,

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      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 СКАЧАТЬ