james otis the pre-revolutionist-第26章
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y。 Their menial servants may enter； may break locks； bars； and everything in their way； and whether they break through malice or revenge； no man； no court can inquire。 Bare suspicion without oath is sufficient。 This wanton exercise of this power is not a chimerical suggestion of a heated brain。 I will mention some facts。 Mr。 Pew had one of these writs； and when Mr。 Ware succeeded him； he endorsed this writ over to Mr。 Ware； so that these writs are negotiable from one officer to another； and so your Honours have no opportunity of judging the persons to whom this vast power is delegated。 Another instance is this： Mr。 Justice Walley had called this same Mr。 Ware before him； by a constable； for a breach of the Sabbath…day Acts； or that of profane swearing。 As soon as he had finished； Mr。 Ware asked him if he had done。 He replied； 〃Yes。〃 〃Well； then；〃 said Mr。 Ware； 〃I will show you a little of my power。 I command you to permit me to search your house for uncustomed goods；〃 and went on to search the house from garret to cellar； and then served the constable in the same manner！ But to show another absurdity in this writ； if it should be established； I insist upon it every person； by the 14 Charles II。； has this power as well as the Custom…house officers。 The words are； 〃it shall be lawful for any person or persons authorized； etc。〃 What a scene does this open！ Every man prompted by revenge； ill…humor or wantonness to inspect the inside of his neighbour's house； may get a Writ of Assistance。 Others will ask it from self defence； one arbitrary exertion will provoke another； until society be involved in tumult and in blood！
Again； these writs are not returned。 Writs； in their nature； are temporary things。 When the purposes for which they are issued are answered； they exist no more； but these live forever； no one can be called to account。 Thus reason and the constitution are both against this writ。 Let us see what authority there is for it。 Not more than one instance can be found of it in all our law…books； and that was in the zenith of arbitrary power； namely； in the reign of Charles II。； when star…chamber powers were pushed to extremity by some ignorant clerk of the exchequer。 But had this writ been in any book whatever； it would have been illegal。 All precedents are under the control of the principles of law。 Lord Talbot （the Earl of Shrewsbury； an English peer of the era of William and Mary） says it is better to observe these than any precedents； though in the House of Lords the last resort of the subject。 No Acts of Parliament can establish such a writ； though it should be made in the very words of the petition； it would be void。 An act against the constitution is void。 But this proves no more than what I before observed； that special writs may be granted on oath and probable suspicion。 The act of 7 and 8 William III。 that the officers of the plantations shall have the same powers； etc。； is confined to this sense； that an officer should show probable ground； should take his oath of it； should do this before a magistrate； and that such magistrate； if he think proper； should issue a special warrant to a constable to search the places。 That of 6 Anne can prove no more。
＇4＇ Otis's opponenthis legal preceptorwho argued in favor of the Writs。
JAMES OTIS ON THE STAMP ACT。 An Oration Delivered Before the Governor and Council In Boston； December 20； 1765。
It is with great grief that I appear before your Excellency （Governor Hutchinson） and Honours （of the City Council） on this occasion。 A wicked and unfeeling minister （Earl Grenville） has caused a people； the most loyal and affectionate that ever king was blest with； to groan under the most insupportable oppression。
But I think； Sir； that he now stands upon the brink of inevitable destruction； and trust that soon； very soon； he will feel the full weight of his injured sovereign's righteous indignation。 I have no doubt； Sir； but that the loyal and dutiful representations of nine provinces； the cries and supplications of a distressed people； the united voice of all his Majesty's most loyal and affectionate British…American subjects； will obtain all that ample redress which they have a right to expect； and that erelong they will see their cruel and insidious enemies； both at home and abroad； put to shame and confusion。
My brother Adams has entered so largely into the validity of the act； that I shall not enlarge on that head。 Indeed； what has been observed is sufficient to convince the most illiterate savage that the Parliament of England had no regard to the very first principles of their own liberties。
Only the preamble of that oppressive act is enough to rouse the blood of every generous Briton。〃We your Majesty's subjects； the commons of Great Britain； etc。； do give and grant〃What？ Their own property？ No！ The treasure； the heart's blood of all your Majesty's dutiful and affectionate British…American subjects。
But the time is far spent。 I will not tire your patience。 It was once a fundamental maxim that every subject had the same right to his life； liberty； property； and the law that the King had to his crown； and 'tis yet； I venture to say； as much as a crown is worth； to deny the subject his law； which is his birthright。 'Tis a first principle 〃that Majesty should not only shine in arms； but be armed with the laws。〃 The administration of justice is necessary to the very existence of governments。 Nothing can warrant the stopping the course of justice but the impossibility of holding courts； by reason of war； invasion； rebellion； or insurrection。 This was law at a time when the whole island of Great Britain was divided into an infinite number of petty baronies and principalities； as Germany is； at this day。
Insurrections then； and even invasions； put the whole nation into such confusion that justice could not have her equal course； especially as the kings in ancient times frequently sat as judges。 But war has now become so much of a science； and gives so little disturbance to a nation engaged； that no war； foreign or domestic； is a sufficient reason for shutting up the courts。 But if it were； we are not in such a state； but far otherwise； the whole people being willing and demanding the full administration of justice。 The shutting up of the courts is an abdication； a total dissolution of government。 Whoever takes from the king his executive power； takes from the king his kingship。 〃The laws which forbid a man to pursue his right one way； ought to be understood with this equitable restriction； that one finds judges to whom he may apply。〃
I can't but observe that cruel and unheard…of neglect of that enemy to his king and country； the author of this Act； that； when all business； the very life and being of a commercial state； was to be carried on by the use of stamps； that wicked and execrable minister never paid the least regard to the miseries of this extensive continent； but suffered the time for the taking place of the Act to elapse months before a single stamp was received。 Though this was a high piece of infidelity to the interest of his royal master； yet it makes it evident that it could never be intended； that if stamps were not to be had； it should put a stop to all justice； which is； ipse facto； a dissolution of society。
It is a strange kind of law which we hear advanced nowadays； that because one unpopular Act can't be carried into execution； that therefore there shall be an end of all law。 We are not the first people who have risen to prevent the execution of a law； the very people of England themselves rose in opposition to the famous Jew…bill； and got that immediately repealed。 And lawyers know that there are limits； beyond which； if parliaments go； their acts bind not。
The king is always presumed to be present in his courts； holding out the law to his subjects； and when he shuts his courts； he unkings himself in the most essential point。 Magna Charter and the other statutes are full； 〃that they will not defer； delay； nor deny any man justice〃； 〃that it shall not be commanded by the Great Seal； or in any other way； to disturb or delay common right。〃 The judges of England are 〃not to counsel； or assen
