A “Flame of Fire” for Every Age: James Otis and the Writs of Assistance

The surviving beginning of James Otis’s speech in opposition to writs of assistance deserves a wide reading because of the speech’s significance in American history, its rhetorical force, and its arguments in favor of the natural rights of life, liberty, and property. So, too, do John Adams’s recollections of the remainder of Otis’s remarks. 

Authorized by Parliament for the lifetime of the monarch, writs of assistance were general warrants that permitted customs officers and others to search properties at will for smuggled goods. The death of King George II in October 1760 led to applications for renewal of the writs, which in turn sparked opposition from Boston merchants and led to the writs of assistance trial.

Otis, an attorney for the merchants, was thirty-six when he spoke for four or five hours before the Massachusetts Superior Court in the Old State House on February 24, 1761. 

“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,” he said. “It appears to me 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.”

In arguing against the writs of assistance, Otis appealed to reason, the principles of English liberty, and English law itself. Otis was careful to distinguish the hated writs of assistance, with their general authorization for searches, from court-authorized search warrants that were “directed to special officers, and to search certain houses, etc.”

John Adams recalled that “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 every thing before him.”

In a subsequent letter, Adams recalled Otis’s “dissertation on the rights of man in a state of nature”:

He asserted that every man, merely natural, was an independent sovereign, subject to no law, but the law written on his heart, and revealed to him by his Maker in the constitution of his nature and the inspiration of his understanding and his conscience. His right to his life, his liberty, no created being could rightfully contest. Nor was his right to his property less incontestable. The club that he had snapped from a tree, for a staff or for defence, was his own. 

Otis “was not less entertaining than instructive,” Adams commented. “He asserted that these rights were inherent and inalienable. That they never could be surrendered or alienated but by idiots or madmen, and all the acts of idiots and lunatics were void, and not obligatory by all the laws of God and man.” 

Otis, in Adams’s recollection, then delivered an impassioned defense of the natural rights of persons who had been enslaved. Adams, who favored a more gradual abolition of slavery, confessed that he “shuddered at the doctrine he [Otis] taught.”

Otis expressed a willingness “to sacrifice estate, ease, health, and applause, and even life to the sacred calls of his country” — foreshadowing the willingness of the signers of the Declaration of Independence to pledge their lives, their fortunes, and their sacred honor. Adams, with the benefit of over five decades’ hindsight, saw Otis’s speech as the birth of American independence.

“American independence was then and there born; the seeds of patriots and heroes were then and there sown,” Adams wrote. “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. In fifteen years, namely in 1776, he grew up to manhood, and declared himself free.”

To help students appreciate the importance of what was at stake, high school teachers and college professors could give “writs of assistance” to a handful of students and instruct them to search part of the classroom — a cabinet, a closet, a desk drawer — before asking the other students if they would like their own backpacks, purses, and wallets searched. The inevitable objections to the potential search lend themselves to a discussion of Otis’s claim that man has inherent, inalienable, and natural rights to life, liberty, and property.

Otis “asserted that the security of these rights to life, liberty, and property, had been the object of all those struggles against arbitrary power, temporal and spiritual, civil and political, military and ecclesiastical, in every age,” Adams recalled. Otis’s speech is a window to the past, but not simply that: It is a tonic for those who encounter arbitrary power in any age.

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