My recent article on the police state elicited an educated response regarding the history of warrants in our land. In particular, a friend raised the name of one James Otis and related his heroic stand on the issue which led to our Fourth Amendment.
Our era of the “warrior cop,” no-knock warrants, sneak-and-peak warrants, door breaches, flash grenades, and SWAT raids on people’s homes has led many concerned Americans to fear that the Fourth Amendment is all but dead. The moment I learned of Mr. Otis’ work in this area, I knew I must track him down to get his perspective.
Apparently, through a mutual friend on Facebook, Mr. Otis heard I was looking for him. He visited me here at American Vision headquarters and offered me an interview with him. He was eager to retell his story, and what it means for every American who cares about freedom.
While some historical background needs to be explained, I thought it would be best to let Mr. Otis provide it for us as we go. I will add, lastly, that his answers reveal that he seems to have some sections of his famous tract Against Writs of Assistance memorized.
JM: Mr. Otis, thank you for joining us here today. You’ve been called a true American hero, and we’re honored. I understand you have expertise and experience regarding the abuse of search warrants.
JO: I am pleased to be here, Joel, for this is a topic which stirs me greatly, and for the liberties of which I have pledged my life. In light of the great compromises made in recent decades, I leapt at this opportunity to declare that 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.
JM: Slavery and villainy? Those are strong words.
JO: They are indeed, and none are more fitting.
JM: For our readers’ sake, what is a “Writ of Assistance”?
JO: Ahh, yes, of course. A Writ of Assistance was in the old days what your generation would call a “search warrant.” This is the heart of why we wrote the Fourth Amendment. We must fight to protect the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. That right shall not be violated. What part of “shall not be violated” do some of these courts and officers not comprehend?
And no Warrants—I say, no warrants!—shall be issued without an officer swearing an oath as to probable cause—not suspicion, but probable cause. And even when they can meet such a standard, the warrant must describe particularly the place to be searched, and the persons or things to be seized. There should be no general warrant as to places or things in general, or as to some blanket authority to seize whatever may be found otherwise in the process (I say “found,” loosely, because sometimes so-called evidence may be planted as well).
These rules are all part of our ancient common law—a man’s house is his castle. They were violated in my day in a crisis which prompted my most important work, and they are violated just as badly today. Any time governments and their agents begin to weaken and compromise the standards and the process of serving these “writs” as we say, then rest assured you no longer have freedom, but as I said, slavery and villainy!
Why not call it what it is? If government agents can so easily violate your home—even breaking down your door without knocking—with arms and explosives, what part of that do you call freedom? And if this happens a hundred times a day, and eighty thousand times a year, what part of that do you call a free people? I call it what it is: slavery. And the agents that pull it off are villains. They may possess legal immunity, but they are villains nonetheless.
And I will go further yet: these types of warrants and the legal doctrines erected upon them are the worst instrument of arbitrary power I have ever seen. They are the most destructive of liberty and the fundamental principles of law that ever was found in a law-book.
These are the reasons I was so passionate about this issue, as were, at the time, so many of my countrymen. These were the reasons we desired to bring the issue to the front of the public, as representatives of the public, and fight this issue in the open. And indeed, this is why I took the case!
JM: “The case” being the Paxton case, of course. This is what I hinted at was your experience in the matter. Please tell us about the case.
JO: In certain ways, the writs of my day were even more egregious than today—not in regard to the violence with which they were served, mind you, for in that aspect, today is far worse—but in regard to their nature. “General writs,” as they were called, allowed the possessing agent to search anywhere, anytime, upon mere suspicion. It was a power that placed the liberty of every man in the hands of every petty officer, and in fact, of even a neighbor!
But it is not too different today if you consider it. There are no such “general writs” issued by courts, but statutes give government agents in many cases broad latitude to search and seize, and even in cases where protections of our rights exist, police exploit ignorance, and in fact are allowed to lie to citizens in order to obtain “consent” to search homes, cars, and seize property, then make charges and arrest.
And in just as many cases, there is little recourse or remedy for a citizen whose rights are violated through such villainy. Even when rights are asserted and suits brought and won in court! There is ever little if any punishment or accountability to an offending officer or agent.
JM: This is a recipe tyranny.
JO: All justices, sheriffs, constables, marshals, and all other officers and citizens—anyone, but especially armed agents of the court or government, with such a warrant may play the tyrant. Even if these rules and standards be upheld as legal, they are still a tyrant, just in a legal manner. They may control, imprison, or murder anyone within their sights under such premises. And they are accountable to no person for their 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.
Where does it stop? A person with such a warrant or even with manufactured consent, in broad daylight, may enter all houses, shops, etc., at will, and compel others to assist him.
In my day they were looking for inventory or goods that had not been taxed to benefit the crown. They can just as easily expand the list of contraband to include anything they want. And the more the agencies of government multiply like rats, the more we grow from officers of customs houses—as in my day—to millions of agents from the EPA, IRS, DEA, ATF, CPS, not to mention all State and local agencies as well. All of these bureaucracies are regulated by thousands of lines of US Code, and by thousands more lines of their own administrative regulations. So be warned that much of what you do, even unbeknownst to you, some code or regulation somewhere says is a crime. It would take little to no effort obtain such a nasty warrant for such a offense. But even so, the trend of court decisions respecting warrantless searches says if government employees bust down your door without a warrant and find (or plant) evidence of a crime, that search is “reasonable,” and thus avoids the Fourth Amendments “unreasonable search” standard.
So just as with British officers in my day, menial servants of bureaucrats may enter your home, papers, or effects. They can break locks, bars, and everything in their way. And in some cases, bare suspicion without oath is sufficient.
And since they are largely unaccountable, whether some these guys break in through malice or revenge, no man, no court can inquire. If an officer or bureaucrat holds a grudge, despises your politics or vote, or wants your property—again, whether malice or revenge, it matters not—he can probably find a way to break in legally and get away with it.
And that malevolent spirit spreads through all of society. 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 provoke such a visit. Some will do so out of self-defense, some out of self-interest; arbitrary exertion will provoke another, until society be involved in tumult and in blood.
If some nosy old maid despises her neighbors who homeschool, or a mother-in-law disagrees when her son-in-law spanks his children, a mere false claim—an outright lie!—is enough to have agents harassing innocent people in their home. Yet it is done anonymously, and the false claim is not traced or held accountable.
If someone has a fit because of a man wearing a firearm—legally, mind you—they can report to the police, anonymously, and the police will go to him, and often harass him to no end.
And let’s not even discuss the war on drugs!
JM: So, then, back to the case.
JO: Yes. The case was simple. These writs were from a plan of legislation that expired after a certain period, and it was up. A group of businessmen opposed, obviously, their renewal, and brought suit. At the same time, the government pushed back, filed countersuit through their customs agent, James Paxton. The affair came to be known as “Paxton’s case.”
I was at the time an Attorney General for the Admiralty Court (remind me to address that in a minute, by the way), and I was assigned to give the state counsel on the matter. I looked into it as a public servant, dutifully, at first, but upon growing enraged at the nature of abuses against what had long been our common law heritage of privacy and security against government searches, I immediately resigned my office and took the case to represent the businessmen and townspeople in general.
JM: You resigned from the post of an Attorney General? That was quite a sacrifice.
JO: I renounced that office and I argued the cause from the same principle, and I argued it with even greater pleasure, as it is in favor of Liberty. At a time when we hear the leaders in the greatest nation on earth declaring from their virtual thrones that they glory in the name of America and that the privileges of our people are dearer to them than the most valuable prerogatives of their seats—nonsense. We have swarms of officers breaking and entering with immunity, destroying homes, killing sometimes innocent people, and this is glory and privilege? I resigned and fought in opposition to this kind of power, the exercise of which in former periods of history cost one king of England his head and another his throne.
I took more pains in this cause than in anything else I ever did, though it raised much resentment and I was ridiculed feverishly. “Government agents and sympathizers (often somehow in the employ of the government) always hooted, “It should be no problem if you’ve got nothing to hide!” But this was about principle. Even some who formerly called me friend assaulted me with derision and labels such as “anarchist,” “libertarian,” and even “traitor.” But I think I can sincerely declare that I cheerfully submitted myself to every odious name for conscience’ sake, and from my soul I despised all those whose guilt, malice, or folly has made them my foes.
Young man, in the face of all such contests for the principles of law and liberty, 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.
JM: So this about principle over pragmatism?
JO: I am not quite so certain I could boast of always standing on principle and eschewing pragmatism, but this as nearly as anything ought to be a rule. So, yes. I mean, yes! Just think of how dear a thing Liberty is!
I gave it my all and my best. For five hours I lectured the court. And what is the principle? It is Liberty!
So, I told them one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle; and as long as he minds his own business, is peaceful, and injures no one, he is as well guarded as a prince in his castle.
But the abuse of warrants totally annihilates this privilege. Officers may enter our houses when they please; we are commanded to permit their entry. Then they can break the locks, etc. Or, in some cases, SWAT just shows up with a “no-knock” and blasts through anyway.
JM: So how did it go, the case?
JO: I actually pushed them in a corner. They knew not what to do. It took them days of deliberation afterwards. They knew I was correct in regard to the principles of common law and liberty, but they did not want to upset the crown. The justices admitted there was no foundation for their writs, but bought themselves some time by deferring decision to the next term. Nine months later we had to argue it again.
It really did not matter, though. We accomplished our goal. The people knew all about it, and the people fiercely opposed such wicked warrants. In the court of public opinion, we won a resounding victory.
JM: At that case was a young man, twenty six years old, who was inspired by your stand and your argument. A few decades later that young man would be the second president of the United States.
JO: Yes, John was a bright young man at the time. He took notes on the whole affair and later published it.
JM: Yes, and he would later write that there, with you, in that court room that day, American Independence was born. Let share with you from a letter of his that was later published:
American independence was then and there born; the seeds of patriots and heroes were then and there sown. . . . Every man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.
JO: I would complement John on how correct he was, but his powers of perception were hardly necessary. The spirit of every man was visibly moved with passion against the villainy.
JM: But did anything come of that? Was it just typical moment of political anger thrown away by complacent and pessimistic people?
JO: No. When I said “let the consequences be what they will, I am determined to proceed,” I could have said that applied to all our members after this. Several came to me ready to take action. So we determined to take action.
JM: What did you do?
JO: I am going to tell you something I never got to tell the public later. I’ll tell you what some men, however, have long suspected: we thereafter instigated the whole thing. We wanted more of these cases in court. We hoped, of course, for a victory. We had already despaired of convincing the King’s admiralty courts which enjoyed the King’s employ and enjoyed their power, but we knew the more we fought, the more public opinion would stand against the swarms of officers, and the more support we would draw from an army of merchants.
And indeed, merchants began seeking me out. I would train them precisely how to draw in customs agents for the sole purpose of forcing their hand. One of my clients, Daniel Malcom, was suspected of holding untaxed goods. Some snitch who was protected by the agents, never named and never held accountable, informed customs agents that Malcom had hidden the good in his house. They showed up with their writs, and found a compliant Malcom, as I taught him. He let them search the whole house, but as planned, refused to let them into one locked cellar. The agents returned later with another warrant and ready to bust in the cellar, but this time Malcom refused to let them in the house at all. It was locked. But better yet, word had spread by this time, and dozens of townspeople gathered around to see a fiasco. The agents grew frightened and feared if they broke in the door, a mob would attack them.
We had other clients and friends who used such tactics to resist the tyranny. Even ol’ Johnny Hancock used our tactic. Of course, all we did was follow the precedents of common law as strictly as possible and stand for our rights. With the people on our side, these overreaches of government power through bureaucrats, administrative courts, and admiralty law had to decide between playing their power game and facing consequences from the people.
In the end, it didn’t matter what decision came back out of Britain. The courts grew too afraid to issue the warrants any longer, and the practice soon faded.
JM: You mentioned the admiralty courts again, which reminds me to remind you to explain that. What is different here? Are there multiple courts?
JO: Yes. Briefly, American freedom was built on the ancient Common Law system of England. This was a simple system based on simple rules of law, many of which came straight from Holy Scripture. People remained secure in their persons and property, and liberty, pretty much as long as they harmed no one. No long lists of rules, statutes, and legislation need exist. No bureaucracies and agents to enforce them, etc. Courts existed to decide cases of harm, injury, real crime, etc. And they did so based upon deep histories of previous court decisions in similar cases. It was simple, it was stable.
Admiralty court, on the other hand, comes from a different tradition of law called “civil law.” It is Babylonian and Roman in origin. It is just the opposite: it consists of endless bureaus, endless statutes and regulations, and agents can accuse, charge, and draw you before courts for countless, even trivial, reasons. Courts here exist to continue process and procedure to conduct business for the executive government, and they hold grievous burdens of laws, fees, fines, and punishments over peoples’ heads through this massive system.
While America was built on a common law tradition, all kings and tyrants everywhere love systems like civil law and admiralty courts as tools of expanding their executive power and enriching themselves and their cronies. That’s exactly what the crown of Britain was doing. It was all about collecting taxes and fees, duties and tariffs, and our businessmen wanted only to be free and trade in free markets. But the crown wanted to force all business to be done through the crown and forbidden to be done with the rest of the globe.
Free men in America did what free men everywhere do: they started creating black markets and smuggling to evade the tyranny. The crown responded to lost revenue by creating more powerful warrants and protecting informants, so they could more easily search more places for “untaxed goods.” Then comes the right to break down doors and search homes. The desire to control the markets for gain ended up in the destruction of the people’s liberties, and the government was willing to destroy property and kill people to keep that control.
JM: Unbelievable. You’re saying that when the government mandates to control certain goods, trade, services, or substances, that leads to black markets, tax evasion, and smuggling. You’re saying that the endeavor to keep markets free in those ways is met by the government with ever-increasing power and ever-decreasing rights for people. And you’re saying that at some point, this cycle leads to the destruction of our most basic principles of law and liberty. People’s homes are destroyed, property destroyed, and sometimes lives are taken, all because the government claims control over the markets and substances.
JO: I am saying more than that, as you put it in the abstract. I am saying that’s exactly what happened in real life in my day, and I am saying that is exactly what takes place in real life in America today.
JM: Well, Mr. Otis, I have to say I don’t like to dwell on the negatives. I need a positive view for action, and I find one in your court case. I mean, we can at least be thankful that you won he case, right? So we could win again in our day.
JO: No, no, Joel, don’t be so naïve.
JM: What do you mean?
JO: I never said we won the case. We won the people’s hearts, but we never won the case. We shut down the efficiency of the system is what we did. The Courts were afraid to issue the warrants. But we lost the case on paper, and the tyrants remained in the seats of power, as did the law and the desire to impose it when possible. And that was hardly the end of it.
JM: Do tell.
JO: Remember the rest of the history, Joel. I’ll leave you and your readers only with this: We lost the case. We had to fight a Revolution to win the liberty back.