British Constitution. The colonial troops carried the King's colors as their flag until 1777. Indeed it is said that until near the close of the Revolution independence was advocated only by an aggressive minority.

James Otis's speech against the use of writs of assistance, in Boston, in 1761, marks the beginning of the struggle in which as yet the colonists sought merely the rights of Englishmen. The dispute with England originated in an attempt to regulate American commerce. The Navigation Acts of the British Parliament had required Americans to trade with the English only, and consequently to import only goods which paid a duty to the Mother Country. Both to avoid the expense of these duties and as a protest against the injustice of the trade laws the colonists had encouraged smuggling and had carried on an illicit trade with the Dutch. Not half the goods imported into America paid the duty. It cost the British government $35,000 to collect a revenue of $7,500. John Adams estimated that the loss of revenue by smuggling on molasses alone was $125,000 a year.

In 1761, in the hope of obtaining evidence that would convict the smugglers, the British government invoked writs of assistance. These writs had previously been used for other purposes in both England and America but had fallen into disuse. They were general warrants that in spite of the common law protecting the privacy of a man's home, authorized customs agents to make "diligent and complete" search of the property of suspected persons.

The advocate general at this time whose duty it was as the representative of the British Crown to support the writs of assistance was James Otis. He was not only a lawyer of great ability, but he was a man

of lofty principle and was a commanding figure among the colonists. That he might be free to oppose the dangerous and detested writs, he resigned his office. In their favor, however, his successor, Jeremy Gridley, presented an argument to a court who sat under Governor Hutchinson in the council chamber of the old Town House, Boston. About the massive table were ranged the five judges, clad in their rich robes of scarlet English broadcloth and wearing their large cambric bands and immense judicial wigs. Behind them were full length portraits of Charles II and James II arrayed in royal splendor. After Gridley had spoken, Oxenbridge Thatcher gave the argument for the people. Then Otis, the former officer of the Crown, arose to support Thatcher. The words of Adams gave most adequately the effect of his speech: "Otis was a flame of fire! With a promptitude of classical allusions, a depth of research, a rapid summary of historical events and dates, a profusion of legal authorities, a prophetic glance of his eye into futurity, and a torrent of impetuous eloquence, he hurried away everything before him. American independence was then and there born; the seeds of patriots and heroes was then and there sown. Every man of a crowded audience appeared to go away, as I did, ready to take up arms against the writs of assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain."

At the conclusion of his speech Otis immediately found himself the leader of public thought in New England and the champion of constitutional rights in the colonies.

WRITS OF ASSISTANCE

JAMES OTIS

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 was ever found in an English law book. I must, therefore, beg your honors' patience and attention to the whole range of argument that may, perhaps, appear uncommon in many things, as well as the 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.

1

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 the 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 3 and another his throne. 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. But I think that I can sincerely declare that I cheerfully submit myself to every odious name for conscience's sake; and from my soul I despise all those whose guilt, malice, or folly has made them my foes. 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.

These manly sentiments, in private life, make the good citizen; in public life, the patriot and the hero. I do not say that when brought to the test I shall be invincible. I pray God I may never be brought to the melancholy trial; but if I ever should, it will be then known how far I can reduce to practice principles which I know to be founded in truth. In the meantime I will proceed to the subject of this writ.

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 that 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 proIceed 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. Every one with this writ may be a tyrant; if this commission is legal, a tyrant in a legal manner, also, may control, imprison, or murder any one 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 4 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 while 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