General Warrants, NSA Spying, And America's Unappreciated Founding Father, James Otis, Jr.

James Otis, Jr., General Warrants, And NSA Spying

Today is a day when we Americans reflect on the people and principles that led to our founding. I'd like to write a bit about one of my favorite founding fathers, an 18th-century Boston lawyer named James Otis, Jr. Because he did most of his important work well before the American Revolution, Otis is often overlooked. But no less than John Adams credited Otis' activism with laying the philosophical foundation for American independence. Moreover, the specific abuses by the British crown that most outraged Otis are particularly relevant given the recent revelations about warrantless NSA spying and data collection.

Starting in the early 1760s, the British courts that had been established in the colonies began issuing a general warrant called a writ of assistance. General warrants authorize broad search powers. For example, a general warrant might give authorities permission to conduct searches to enforce an entire class of crimes rather than authorizing them to search a specific person or residence for evidence of a specific criminal act.

Writs of assistance were a type of general warrant issued specifically to inspect for smuggled goods.The writs gave customs officials the power to enter private homes and business to search for smuggled or untaxed goods. These warrants were first authorized by the British Parliament in 1660, but they were rarely utilized in Britain. And they weren't really issued in the colonies either until a century later, when England instituted a new round of taxes and import restrictions. Writs of assistance not only gave British customs agents the power to search for illegal imports, but as the name suggests, it allowed them to command other government officials -- and even private citizens -- to assist them. A writ also gave its holder the power to search any building or residence and confiscate any suspected contraband. He could also transfer the writ to another party. Compared to modern search warrants, writs of assistance were essentially permanent -- they remained in effect until six months after the death of the King in power when they were issued.

The colonist despised the writs, particularly in port cities, and particularly in Boston, a hub of revolutionary fervor. The Massachusetts legislature banned general warrants in 1756, but of course Massachusetts law was superceded by English law. And so English continued issuing and enforcing the warrants.

Aggrieved Bostonians eventually found a champion in Otis, a rising, blustery Boston attorney who had just resigned as Advocate General of the Admiralty Court. Significantly, that court had jurisdiction over ships containing import goods. Otis had resigned over his objection to the writs of assistance. When Otis then began advocating against the writs and offering free legal representation of Bostonians who challenged them, both Boston and the British took notice.

In 1761, Otis agreed to represent a group of prominent Boston merchants in a lawsuit aimed to publicize and generate opposition to the writs. Known as Paxton's Case, Otis used the platform of the court proceedings to deliver an impassioned, wide-ranging, five-hour polemic against the practice of general warrants. In one passage, he called writs of assistance “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.” Otis also invoked natural rights, the Magna Carta, and the Castle Doctrine. But pay special attention to his objections to the broadness and lack of specificity with general warrants:

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 . . .

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 . . .

Otis lost in court, as he expected he would. But his speech likely changed the course of history. Sitting in the courtroom gallery that afternoon was a 25-year-old attorney named John Adams. He would of course go on to become America's second president. Later in his life, Adam's recalled the enormous and lasting impact Otis' speech had on him. He praised Otis' grasp of history, his fiery defense of the rights of man, and pointed out that, quite ahead of his time, Otis even declared that black men had the same natural rights as white men, including the right to own property. Adams credited Otis and his diatribe against British abuses as the first knocks of the American Revolution. “Every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistants,” Adams wrote. “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.”

The next major fight over writs of assistance came in 1766, when British customs comptroller Benjamin Hallowell, deputy collector William Sheaffe, and Suffolk County deputy sheriff Benjamin Cudsworth attempted to serve a writ at the Boston home of Captain James Malcolm, a former ship captain who had retired to run a small mercantile out of his home.

The search was based on a tip from a confidential informant that Malcom possessed wine and spirits in violation of the Stamp Act. Malcolm permitted the search, but refused to allow Hallowell to search a locked cellar, which he said belonged to his business partner, William MacKay. When summoned for the key, MacKay objected, protesting that these were “very extraordinary proceedings to search private dwelling houses.” More men showed up from British customs, and MacKay and Malcolm grew agitated. As the discussion heated into a quarrel, Malcolm finally proclaimed that the customs officials had no legal authority to open the cellars, and if any one of the men tried, he'd “blow his brains out.” Malcolm then donned a sword and two pistols and repeated the threat. After a couple more hours of confrontation, the officials left. They came back in the afternoon, this time armed with a more specific warrant for the cellar. But by the time they returned, Malcolm had locked up his entire home, and refused to grant them entry. And now a crowd sympathetic to Malcolm had gathered around his home.

Malcolm then defended himself with specific recitations of British common law. Some historians havesuggested that the standoff was orchestrated, and that Malcolm and other merchants were working with Otis to mount another legal challenge to the writs. This seems likely, given that Otis was Malcolm's personal attorney.

The standoff continued, and the crowd swelled. Once night fell, the customs officials and Cudsworth left, since the warrants couldn't be served after dark. Malcolm had won, at least for the moment. He celebrated by sharing his wine with the crowd.

The standoff at Malcolm's home was portrayed in London as a riot, and the crowd that had gathered there as a mob. But it also won some favor with British officials. The English attorney general denied Hallowell's appeal, argued by Otis, and ruled that colonial courts did not have the authority to issue writs of assistance. But Malcolm's stand also further increased tensions between the Crown and the colonies, and in part paved the way for more hated laws, including the Townshend Acts of 1767, which in addition to expanding the Crown's power to tax the colonies, also reaffirmed the legality of writs of assistance.

An interesting little side note: By some accounts, the informant against Malcolm was Ebenezer Richardson, notorious around Boston as a prolific snitch for British customs. In February of 1770, a crowd protesting the Townshend acts turned its anger on Richardson, by then well known for giving up his fellow Bostonians, and began throwing stones at his house. Richardson responded by firing his musket into the crowd, killing 11-year-old Christopher Seider. The child Seidel's funeral was attended by 2,000 Bostonians, including Patrick Henry and John Adams. Samuel Adams covered the costs of the funeral for Seider's family. Seidel's death stoked tensions to a flame, culminating in the Boston Massacre two months later. After the war, some early American writers dubbed Seider the first martyr of the American Revolution.

A slow mental deterioration that began in the mid-1760s, eventually ended James Otis, Jr.'s fight against the writs of assistance. His “lunacy,” as it was diagnosed at the time, may have been accelerated by a 1769 coffeehouse brawl with a British customs official which ended with the official striking Otis' head with a cane. Otis was killed by a bolt of lightning in 1783.

Writs of assistance and the customs bureaus that carried them out would be among the specific complaints the signers of the Declaration of Independence laid out against King George III: “He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.”

The Virginia Declaration of Rights, written mostly by George Mason in 1776, also included a specific prohibition against general warrants, calling them “grievous and oppressive.” Massachusetts followed in 1780 with a ban in its own declaration of rights, written by John Adams. Anger from the colonists' experience with the writs continued to linger for more than a decade, well after the American Revolution, until in 1791 the Fourth Amendment was added to the U.S. Constitution as part of the Bill of Rights. The amendment prohibits general warrants (at the federal level, later applied to the state through the Fourteenth Amendment) by requiring that warrants not be issued without reason and probable cause, that they be sworn with an oath and affirmation, and that they include particular information about the place to be searched, and the person and items to be seized.

A number of commenters and privacy advocates have argued in recent weeks that the power the NSA has claimed to vacuum up enormous swaths of information from millions of unnamed citizens for an unspecified list of crimes is merely a more modern incarnation of the general warrant, including the Electronic Frontier Foundation, Digital Fourth, and the ACLU.

The ACLU in fact notes the strikingly similar circumstances faced by Otis and Edward Snowden. Otis, remember, gave up a prestigious, high-paying job with the British government in order to expose and argue against what he felt were egregious abuses committed by that government. As did Edward Snowden. From Kade Crockford at the ACLU of Massachusetts:

Why did James Otis throw away his career as the top lawyer in the colony, risking his future and his family’s stability?

“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,” he told the court.

That sounds eerily familiar to what Edward Snowden said yesterday. When asked what he would tell people like him, “in a position to leak classified information that could improve public understanding of the intelligence apparatus of the USA and its effect on civil liberties,” Snowden simply replied:

“This country is worth dying for.”

Mark Twain once wrote, "patriotism is supporting your country all the time, and your government when it deserves it." Independence Day isn't for celebrating the American government and whoever happens to be currently running it, but for celebrating the principles that make America unique. And in fact, celebrating the principles that animating the American founding often means celebrating the figures who have defended those principles in spite of the government. Today, the American government is hunting down Edward Snowden. My guess is that a generation or two from now, we'll think of him more as a James Otis than a Benedict Arnold.

Note: Portions of this post were taken from my forthcoming book from my forthcoming book Rise of the Warrior Cop: The Militarization of America's Police Forces, available in stores July 8th.

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