In 1761 the merchants of Boston hired attorney James Otis to give a speech against the writs of assistance. Young attorney John Adams, who later became the second President of the United States, heard the speech, and was so inspired by it that he wrote a provision for the Massachusetts Declaration of Rights based on the arguments Mr. Otis made. The language later formed the basic language of the Fourth Amendment to the United States Constitution. The battle against the writs of assistance, and the Otis speech, was one of the major opening chapters in the American colonists' struggles against tax tyranny that led to the American Revolution. The speech generated much excitement.

A writ of assistance was a general warrant which was issued for the life of the sovereign to search "any House, shop, Cellar, Warehouse or Room or other Place." Customs officers could ask anyone to help with the writ, which was the reason for its name. George II had died, and George III came to power. A Massachusetts customs officer filed a petition for a new writ of assistance that had previously not been widely used in the American colonies. The case is known as Paxton's Case.

James Otis was a man of great conscience. He regarded the law as a noble calling. In those days, a good attorney had to develop his own method to study the law because it was not in an easily found form. James Otis took his study very seriously and made a name for himself as an excellent attorney and an honest man. He was appointed the crown's local Advocate General. As such, it was his duty to argue that the writ should issue. Mr. Otis believed so strongly that the writ was unconstitutional and against natural justice, that he quit his good paying job rather than argue something that was against his conscience and learning. The merchants asked him to represent them, and Mr. Otis refused to take a fee to make his five-hour argument. Mr. Otis was an outstanding orator. All that remains of the speech is mostly taken from Mr. Adams' notes and a draft Mr. Adams made from his notes many years later.

James Otis argued that there could be special writs, directed to special officers to search certain buildings specifically mentioned. There had to be a proper oath amounting to more than mere suspicion that uncustomed goods could be found in the building. A man's house is his castle, said Mr. Otis. The British constitution was not one written document, but a body of understanding. No law could violate natural justice as this one would if the writ was allowed, Mr. Otis argued.

The oath had to be made before a learned person authorized to decide, and who would judge whether the person receiving the warrant was of suitable character. The liberty of every man could not be placed in the hands of every petty officer, Mr. Otis declared. The writs could be given from one officer to another, so that judges would not be able to judge their character. "Every one with this writ may be a tyrant." Society would be "involved in tumult and in blood," Otis predicted. No one could be called to account, because there was no return - a requirement that what was taken be documented before the court after the seizure.

These basic principles became part of the Fourth Amendment. Mr. Adams wrote "no warrants" so that executive branch or judicial branch warrants might be authorized. Our law recognizes that there must be a judicial warrant for searches and seizures whenever possible or the search will not be reasonable as the Fourth Amendment requires.

When the United States Congress debated provisions for the Bill of Rights, a Senator from Virginia named Richard Henry Lee insisted that "possessions" be changed to "effects" (in "persons, houses, papers, and effects). This gives bank accounts and things you own but don't have in your immediate possession, Fourth Amendment protection.

Mr. Otis lost the argument on February 24, 1761, and the writ issued in Massachusetts. The Chief Justice hearing the case was understood to sympathize more with the crown than with the people and also held the executive branch office of Lieutenant-Governor. This abuse contributed to the establishment of the separation of powers doctrine. Judges in the other colonies generally refused to issue the writ after the Otis speech. A South Carolina judge said it "trenched too severely and unnecessarily upon the safety of the subject secured by Magna Charta."

Otis may have lost a battle that day, but other judges agreed later, and because his speech led to the Fourth Amendment, he earned a place of great honor in history. Mr. Otis is known to have coined the expression, "No taxation without representation." (Interestingly, some patriot leaders were angry with him for conceding too much, as they believed, and in English history, one could not be taxed without his individual consent.) James Otis' career was cut short when he suffered brain damage in an assault by a British officer.

James Otis is one of the intellectual giants of the American Revolution. The history of the Fourth Amendment shows that great people - Mr. Otis, Mr. Adams, and Mr. Lee - contribute from learning and conscience, appreciate and build on the work of others, and work and fight for what they believe.

Written by Virginia L. Cropsey, J.D., Red Hen Resources, 520 West Fourteen Mile #117, Troy, MI 48083. Especially suitable for class instruction with young people and for newspaper columns. For more information: www.getawarrant.com. Permission for publication granted with proper attribution.