During a break in the meeting today, I met two friends from Memphis to go to the site of the 1770 Boston Massacre at the Old State House in Boston. We toured the building, and it turned out that the Council Chamber on the second floor was used as a courtroom and there, in 1761, James Otis, Jr., then a lawyer only eleven years, argued the famous case against the Writs of Assistance that John Adams wrote fifty years later “breathed into the nation the breath of life.” Treatise, § 1.19 at n. 36. From the exhibit: "This Writ is against the fundamental Principals [sic] of the law.--The Privilege of House. A Man is as secure in his house, as a prince in his castle...."
As Adams recounted it:
“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 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 lawbook. 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. 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. . . .
“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 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. Everyone with this writ may be a tyrant; if this commission be legal, a tyrant in a legal manner, also, may control, imprison, or murder anyone within the 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, until the trump of the archangel shall excite different emotions in his soul. 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. What is this but to have the curse of Canaan with a witness on us; to be the servant of servants, the most despicable of God’s creation? Now, one of 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. Customhouse 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 everything 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 indorsed 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 garrett 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 that every person, by the 14th of Charles II, has this power as well as the customhouse officers. The words are: ‘It shall be lawful for any person or persons authorized,’ etc. 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-defense; one arbitrary exertion will provoke another, until society be involved in tumult and in blood. . . .”
Even today, parts of this argument can be adapted for a policy argument for a particular application of the Fourth Amendment or one's state search and seizure provision.
For a Fourth Amendment buff, it was humbling to just be in the room where one of the seeds of both the American Revolution and the Fourth Amendment were sown 245 years earlier. I just had to sit there and picture who was standing where, where the bench was, where counsel tables were, where Otis stood, where John Adams sat in the audience, and what was going through Otis' mind as he prepared and made the argument. What was his body language, his voice inflection? How emotional did he get?
The judges were troubled by the sheer weight of the argument, and they had to write to England for direction, and, of course, Otis ultimately lost the case, but he helped turn the colonists against the Crown for its unrestrained searches and seizures under the Writs of Assistance.
Despite the traffic outside and the subway underneath, this room seemed like a hallowed place, like courtrooms where all major trials have been held that altered the course of the law, even when the lawyer lost on that day. This room is special for another reason: from the balcony outside the middle window of that room, the Declaration of Independence was first read to the public on July 18, 1776.
Little is known about Otis' argument except for what Adams shared 50 years later because Adams took copious notes, producing a near transcript. Otis is often a forgotten figure in the history of the American Revolution and the Bill of Rights, but his picture appears numerous times in the building. Bostonians remember, even today.
And what were you doing as a lawyer after eleven years?
Update: David McCollugh wrote in John Adams (2001), at 62, that, by 1765, Otis had apparently become senile. What a waste.
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—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
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—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
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— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
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—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
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—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
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bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
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protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
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—Pepé Le Pew
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"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)