English colonists in America reached the point where they began to think differently than the folks back home. This was especially true in how they saw the acts of Parliament and of the king. What would have been tolerated in England they now saw as onerous and heavy-handed. Finally a situation arose where someone decided to openly defie the remote government.
Attempt to Enforce the Navigation Acts
In 1760, in an attempt to control the smuggling that was circumventing the Navigation Acts, the courts in America granted customs officers Writs of Assistance. These were essentially general search warrants without expiration, allowing customs officers to enter any property in connection with their duties. Although this was done by the American courts, the will of Parliament and the king were behind it.
This raised immediate concern in America. Many felt that general search warrants such as these violated both the unwritten British constitution and common law. Certain attributes of the Writs, such as their permanence and transferability, seemed especially unpalatable to a people who were finding the freedom of the New World especially precious. The way the writs were used by unscrupulous customs officials added to the problem.
Otis Called to Defend the Writs of Assistance
The writs were set to expire after the death of King George II. His successor, King George III, desired new writs of a similar nature to be issued. James Otis would have to defend the writs as an officer of the court for the king. He could not do so. He resigned his position and instead took up the case of those who opposed the Writs.
In his famous oral argument before the court in February 1761, Otis said, “I was desired by one of the Court to look into the books and consider the question…concerning ‘Writs of Assistance.” I have accordingly considered it, and now appear…in behalf of the inhabitants of this town who have presented another petition…. I will to my dying day oppose with all the powers and faculties God has given me all such instruments of slavery…and villainy….”
Otis was described as a fiery orator. He went on to say the Writs were an instrument of arbitrary power and would destroy English liberty and law. Although he was advocate general, he could not argue the king’s case. “I renounce that office, and I argue this cause from the same principle and I argue it with the greater pleasure. …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.” He did not mind the resentment. In fact, he said he would “gladly submit [himself] to every odious name for conscience’s sake….”
He argued the case from precedents in English law. While ancient court decisions might seem to support the Writs, more recent case law allowed only for specific search warrants, not general search warrants that would place, “the liberty of every man in the hand of every petty officer,” making every officer a tyrant. He also argued that, since the writ is granted by the court to one officer, but that officer could endorse the writ to his successor without action of the court, the court actually lost control of the situation. Plus, the language of the Writs made it such that searches were not restricted to customs officers; any citizen could search any other citizen’s house.
Otis’ Legacy
Otis swayed the court, and it was going to agree with his arguments. However, the chief judge, a political enemy of the Otis family, delayed any decision. Nine months passed, allowing the chief judge time to sway other judged. When the case was again heard in November 1761, the decision went against Otis’ side. The court said the new Writs were legal.
Otis continued to be opposed to the king. From this and other orations made in the 1760s and early 1770s, Otis helped to sway many of the colonists that they must seek independence from their mother country. For this Otis is frequently called the father of the American Revolution.
Source: The extant fragment of Otis' speech and John Adam's summary of the missing part from The Annals of America, Vol. 2, pages 74-77, Encyclopedia Brittanica, Inc. 1968.
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