The usual suspects went ballistic when AG Sessions cited Romans 13 to support Trump’s immigration policy; history shows that, as usual, they were wrong.
Jeff Sessions shocked the progressive left by citing the letter of the Apostle Paul at Romans 13 in support of enforcing immigration policy. According to the Daily Caller:
The Washington Post compared Attorney General Jeff Sessions to “slaveholders” after he quoted the Bible on Thursday while discussing his department’s policy of prosecuting all illegal immigrants who cross the border.
Sessions made the statement during a speech to law enforcement officers in Fort Wayne, Indiana.
WaPo ran a story entitled “Sessions cites Bible passage used to defend slavery in defense of separating immigrant families” by general assignment editor Keith McMillan and religion reporter Julie Zauzmer on Friday. Rather than detailing the statistics Sessions cited in the speech that explain the immigration policy, the story quoted John Fea, a history professor at Messiah College in Pennsylvania.
“This is the same argument that Southern slaveholders and the advocates of a Southern way of life made,” Fea said.
Specifically, Fea and the Wapo are referring to this statement by Sessions:
“I would cite you to the Apostle Paul and his clear and wise command in Romans 13, to obey the laws of the government because God has ordained the government for his purposes,” Sessions said. “Orderly and lawful processes are good in themselves. Consistent and fair application of the law is in itself a good and moral thing, and that protects the weak and protects the lawful.”
It is true that politics and religion meet at Romans 13. It was used by the Apostle Paul to admonish Christians to be good citizens on earth. But it is a section of the Bible misused by tyrants to support unlimited submission to government and it was misused by proponents of slavery in the run up to the Civil War. But virtually all of the Biblical admonitions towards government was to obey “good” government. A good government is one that respects everyone’s natural rights to life, liberty and property. Such rights are completely destroyed in the institution of chattel slavery. Thus Fea’s criticism of the Bible because it was misused is a slander.
I find all of this fascinating because, as many of you know, I am writing a book on life in the American colonies leading up to the American Revolution. Book 1 runs from 1760 to 1761, ending on two critical events. The first, the “morning gun of the revolution,” was Thomas Mayhew’s sermon on government given in 1750 that dealt explicitly with Romans 13. The second is the intersection between a biblical “good” government, Locke’s Two Treatises of Government, and chattel slavery, all of which came together in a legal argument made by James Otis, Jr before a Massachusetts Colonial Court in 1761.
I include four chapters of the book below (exponentially shorter than the first half of the book I put up here). Feel free to comment. [Note from Bookworm: You’re getting the very first look at the latest installment in Wolf Howling’s work, so we haven’t corrected any typos or done any really deep editing yet. This is all about substance, not style. For that reason, you also shouldn’t worry about footnotes, some of which are included here, and some of which are not. This material, drafty though it may be, is copyrighted, with all rights reserved to D. Wolf (2018).]
Sunday, February 22, 1761; Two days having passed
The West Church
Boston, Massachusetts Bay Colony
Rev. Mayhew, dressed all in black but for the white cravat marking him a minister, stood behind the raised pulpit. He smiled at his congregation, exchanging pleasantries before starting the service. Then holding up his hand for silence, he began speaking.
“We have with us today two fellow Congregationalists from Charleston, in the Southern Carolina colony, Dr. Andrew York and his son, Henry. They are here today as guests of John Adams. Do welcome them at the conclusion of the service.
“At John’s urging, today’s sermon will be for our guests. Those of you as old or older than John perhaps might remember when I originally gave A Discourse on Unlimited Submission.1 I am not going to repeat the entire sermon here today, but I shall speak to it.
“Eleven years ago – it then being the one hundred year anniversary of the execution of Charles I – I stood at this pulpit and gave that Discourse as a sermon. The Discourse answered two questions: What obedience do we, as good Christians, owe to government, and when do we, as good Christians, have a right to reclaim our government by force from a tyrant?
“I was moved to compose that sermon because the Anglicans, particularly those in Britain, were – and still are – portraying Dissenters as being traitors who sinned against God by rebelling against lawful authority. To hear them tell it, as they do every year on the anniversary of the execution of Charles I, Dissenters were responsible for the Civil War2 in England, then committed regicide when our ancestors beheaded Charles I.3 A King rules by divine right, they say, and as such, he is not constrained by earthly law. He can do no wrong.
I won’t even bother, beyond this brief mention, to address the immense hypocrisy of these bishops, charging us with sedition as to Charles I, yet wholly ignoring their own complicity, four decades later, when Anglicans and Dissenters alike acted to depose the Catholic tyrant, King James II.4
“And now these same Anglicans are trying to plant their religion on our shore, not merely as one religion among several to compete for our Christian souls, but as the State religion to which all must pay homage at the point of a sword. And as sure as the sun rises in the East, once planted, they will begin making laws to discriminate against and punish all of us who do not follow their profane religion, which is what drove us to these American shores in the first instance.
“After I gave that sermon eleven years ago, I printed it, distributed it among the colonies, and sent copies to King George II and his Anglican Bishops in Britain.” Smiling, Mayhew added, “It caused quite a stir.”
“Praise be to God that today one can speak freely of government and religion – that one can talk of liberty, the Bible, and common sense – in any part of the British dominions without being in danger either of the Bastille or the Inquisition.5 Unfortunately, there will always be some interested politicians and hypercritical zealots for a party to take offense at such freedoms. Their censure is praise; their praise is infamy.
“Many –” Mayhew stopped for a moment and cleared his throat. “One moment please” Mayhew said, reaching below the pulpit. Finding a cup of cider he had placed there earlier, Mayhew took a drink and cleared his throat again. Replacing the cup, Mayhew continued his sermon.
“Many people in the years since have criticized my Discourse. The first of those criticisms is that I used the pulpit to preach politics instead of Christ. However, to remove all prejudices of this sort, I beg it may be remembered, as 2 Peter 3:16 states, “all Scripture is profitable for doctrine, for reproof, for correction, for instruction in righteousness.” Why, then, should not those parts of Scripture which relate to civil government be examined and explained from the pulpit, as well as others?6
A second of those criticisms is that I borrowed ideas from the great philosopher John Locke7 in composing the sermon. I was always surprised by that charge, not because it was false – I certainly mentioned natural rights in my sermon – but that it should be leveled as a criticism.
“If one reads Locke’s work, one finds that he merely applied reason to the Bible, the bedrock foundation of Locke’s philosophy. We are all creatures of God. On the day we are born, we are born with equal God-given rights and duties that cannot be negated. Whether highborn or lowborn, whether King or peasant, we have, as Locke called it, ‘natural rights’ from God to our life, to our liberty, and to the fruits of our labor. Those are nothing more than truths inherent in the Book of Genesis.
“With those rights comes a duty not to harm others in their own enjoyment of their natural rights. That is what Locke calls ‘natural law.’ It is biblical law as well. In Leviticus 19:18, the Lord commands the Jews to ‘love thy neighbor as thyself.’ Our Lord and Savior Jesus Christ told us that it is Christian law too. At Matthew 7:12, our Lord says ‘whatsoever ye would that men should do to you, do ye even so to them . . .‘
“But mankind has the capacity to be sinful, and there are many who, without the likelihood of punishment on the earthly plane, would invade our natural rights for their benefit. Therefore, men gathered together into civil societies and formed governments to better protect themselves in the enjoyment of their natural rights to life, liberty and property.
“To create government, as Locke explains, we willingly ceded our control over our natural rights to a legislature charged with creating laws on our behalf and we appointed an executive to enforce the laws. But when we transferred our natural rights to government authority, there was always an inherent limit. The sole basis for which such laws could be made and executed — indeed, the sole function of government — is and must be to protect our God-given natural rights.
“It is true, of course, that the Bible does not dictate a specific form of government commanded by God.8 To that, I would say three things.
“One, while it is true that the Bible does not dictate a specific form of government, it is also true that there is not a single word in scripture to support the Anglican’s claim that British Kings rule by divine right. And until a British King descends from heaven in a golden chariot, surrounded by angels and bearing an appointment on which appears the seal of God, we should not credit it.
In the pews, a little boy of about four years of age turned asked his mother, “Do angels really come down with golden chariots?” as his mother held a finger to her lips, desperately trying to quiet him. At the pulpit, Mayhew laughed at the interruption.
“Shall you answer him or would you prefer I do it?” he kindly asked the woman, her cheeks a bright shade of red against the white of her bonnet. The woman shook her head, whispered something to her son, then again put her finger to her lips.
Mayhew resumed his sermon as if nothing had happened. “The claim of divine right of a King is not merely blasphemy, but it denies common sense to suppose that whole nations should be subjected to the arbitrary and capricious pleasure of one single man so that their estates, and everything that is valuable in life, and even their lives also, shall be absolutely at his disposal. What man can think that God made all to be thus subservient to the lawless pleasure and frenzy of one, that it shall always be a sin to resist him?
“Two, as I pointed out at length in my Discourse, much if not all of what was written by the apostles about earthly government was written to correct the many newly-converted Christians soon after the death of Christ who believed that they, having embraced their faith in God and submitted themselves to His laws, now had no duty to obey the earthly laws of civil society or to pay taxes.
“That these new converts were wrong should have been apparent to them from the words of our Lord and Savior himself. Matthew 22:17 recounts the story of how the Pharisees came to Jesus and asked him, ‘Is it lawful to give tribute unto Caesar?’ Our Lord’s response, upon pointing out to the Pharisees that it was Caesar’s likeness on their coins, was ‘Render unto Caesar the things which are Caesar’s; and unto God the things that are God’s.‘
“And yet many of these turbulent Christians persisted in resisting. Thus did Paul, in his Epistle to the Romans at 13, counsels:
‘Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God.
‘Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation.
‘For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same:
‘For he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil.
‘Wherefore ye must needs be subject, not only for wrath, but also for conscience sake.
For this cause pay ye tribute also: for they are God’s ministers, attending continually upon this very thing.
‘Render therefore to all their dues: tribute to whom tribute is due; custom to whom custom; fear to whom fear; honour to whom honour.’
“The apostle Paul makes clear that God has ordained earthly government of society. And further, that we, as Christians, are required to be obedient to good government. Several times in the Bible the apostles direct obedience to government, but they do so in virtually all cases by expressing this sentiment in terms of ‘good’ government.9 A good government is one that exists to protect the people in their enjoyment of their God-given rights to life, liberty and property.
“Three, as to a specific form of government, while any form that functions to protect the natural rights of its citizens is theoretically acceptable, history teaches that only one form of government can be sustained in that function: that is one in which the people have a right to choose their legislature – those who write their laws and approve their taxes – and in which the government’s executive has no power as to laws or taxes other than to execute them.
“The prime exemplar of that truth is, of course, England itself, which, for all of its faults, has proven over centuries of time to have created the best government on earth for protecting the natural rights of its citizens. We have, for hundreds of years, had the right to freely choose men amongst ourselves to represent us in Parliament, and it is only our Parliament that has a right to pass the laws that are imposed upon us and to approve the taxes we must pay. For hundreds of years, we have had rights to be free from the crown’s interference in our life, liberty and property but by due process of law. Thus our lawful and natural rights are sacrosanct and protected from the depredations of government unless we ourselves commit some evil.
“Our kings hold their title to the throne solely by grant of a Parliament. It is the law that states, defines, and limits the crown’s rights and prerogatives. And it is only in this respect that it can be said that ‘the king can do no wrong.’ Being restrained by the law, he cannot, while he confines himself within those just limits, either injure and oppress his subjects. But should he set himself above the law, he loses the king in the tyrant. The same would be equally true of Parliament were it to exceed its authority.
“I talk not here of small mismanagement or even the occasional great mistake in our civil governments. But it is equally true, civil tyranny is usually small in its beginning – to quote Isaiah 40:15, it is like “the drop of a bucket” – till at length, like a mighty torrent, or the raging waves of the sea, it bears down all before it, and deluges whole countries and empires. At some point, do we not have a right to correct, by force if necessary, such tyranny?
“John Locke speaks to that:
‘Revolutions happen not upon every little mismanagement in public affairs. Great mistakes in the ruling part, many wrong and inconvenient laws, and all the slips of human frailty, will be borne by the people without mutiny or murmur. But if a long train of abuses, prevarications and artifices, all tending the same way, make the design visible to the people, and they cannot but feel what they lie under, and see whither they are going; it is not to be wondered at, that they should then rouse themselves, and endeavor to put the rule into such hands which may secure to them the ends for which government was at first erected.’
“Let us now turn to Charles I and our English Civil War. Are we here today the sons and daughters of seditious traitors who murdered a King? Or are we the progeny of forefathers who justly vindicated their God-given natural rights against a man who had, for sixteen years, engaged in a long train of abuses – a man who had, by his tyranny, unkinged himself?
“It would be endless, as well as needless, to give a particular account of all the illegal and despotic measures which Charles I took in his administration.. To name but a few:
“– He committed many illustrious members of both Houses of Parliament to the Tower for opposing his arbitrary schemes.
“- He levied many taxes upon the people without consent of Parliament, and then imprisoned great numbers of the principal merchants and gentry for not paying them.
“- He erected, or at least revived, several arbitrary courts, in which the most unheard-of barbarities were committed with his knowledge and approbation.
“- He supported that more-than-fiend, Archbishop Laud, and the clergy of his stamp, in all their church-tyranny and hellish cruelties.
“– He refused to call any Parliament at all for the space of twelve years together, during which time he governed in an absolute, lawless, and despotic manner.
“- He took all opportunities to encourage the Papists, and to promote them to the highest offices of honor and trust.
“- He sent a large sum of money, which he had raised by his arbitrary taxes, into Germany, to raise foreign troops, to prevent rebellion in England. When remonstrated by Parliament, the king’s insolent reply was, ‘I owe the account of my actions to God alone!’ and then dissolved Parliament.
“– Towards the end of his tyranny he came to the House of Commons with an armed force, and demanded five of its principal members to be delivered up to him. This was a prelude to that civil war which he soon after levied against his own dutiful subjects, whom he was bound, by all the laws of honor, humanity, piety, and, I might add, of interest also, to defend and cherish with a paternal affection.”
An infant began crying near the back of the church. Mayhew paused until a woman, the infant in its arms, left the Church, most likely to change its soiled diaper. Once the door closed behind them, Mayhew resumed his sermon.
I will freely admit that the court by which Charles I was at last tried and condemned was a mere mockery of justice.10 I will contest though, the idea that Charles I was still King when he was tried, condemned and executed.
“The Anglicans have made of Charles I a saint not because he was in his life a good man, but because he supported the Anglican Church. And they have made of him a martyr in his death, not because he bravely suffered death in the cause of truth and righteousness, but because he died an enemy to liberty and the rights of conscience; i. e., not because he died an enemy to sin, but to Dissenters. We can only hope that the life and death of Charles I will prove a standing memento that Britons will not be slaves, and a warning to all corrupt counselors and ministers not to go too far in advising to arbitrary, despotic measures.
“To conclude: Let us all learn to be free and to be loyal; let us not profess ourselves vassals to the lawless pleasure of any man on earth; but let us remember, at the same time, government is sacred, and not to be trifled with. It is our happiness to live under a prince who is satisfied with ruling according to law, as every other good prince will. We enjoy under his administration all the liberty that is proper and expedient for us.
“And, while I am speaking of loyalty to our earthly prince, suffer me just to put you in mind to be loyal also to the Supreme Ruler of the universe. To Him, be all honor and praise, dominion and thanksgiving, through Jesus Christ our Lord. Amen.”
1The sermon, published as a pamphlet, was 51 typed pages of single line spacing. [See Endnote 17]
2The English Civil War lasted from 1642 to 1651, pitting King Charles I and the Anglican Church against Parliament and the Dissenters.
3Charles I ruled England as King from 1625 to 1649. Parliamentary forces captured Charles I in 1645. In 1648, having won the war in England, the Parliamentary Army put Charles I on trial and then executed him on January 30, 1749.
4King James II was a deeply unpopular Catholic King of Britain who, after taking the throne in 1685, began to rule in a despotic manner. Several English Lords convinced the Dutch Prince, William of Orange, and his wife, Mary, the Protestant daughter of James II, to take the throne by conquest. They landed on English shores with an army in 1688 to that purpose. King James II’s army, though, deserted him on the field of battle. James II himself ran away and England had its second Revolution of the 17th century, this one bloodless and known as the Glorious Revolution of 1688. [See Endnote 20]
5The Bastille was a French prison. The Inquisition commonly refers to Catholic punitive and judicial efforts to suppress heresy. [See Endnote 21]
6[See Endnote 22]
7John Locke was the most influential philosopher of the English Enlightenment. His theories of God-given natural rights, natural law, and the purpose and limits on government, are expressed in his seminal work, Two Treatises On Government (1689).
8[See Endnote 9]
9[See Endnote 10]
10The House of Commons indicted Charles I for all of the deaths and destruction of property that had occurred as a result of the Civil War. When the three law Lords and the House of Lords both refused to honor the indictment, the House drafted a law denying the Courts or House of Lords any say in its passing, and used that obviously unconstitutional law to proceed with the trial, then execution of Charles I.
SKIPPING AHEAD SEVERAL CHAPTERS
State House, King Street
Boston, Province of Massachusetts Bay
The room fell silent as a bailiff12 dressed in a royal blue top coat and breeches entered the chambers and walked to the front of the room.
“All rise!” he commanded loudly.
Five justices, all dressed in scarlet robes and long horse-hair wigs extending a few inches below their shoulders, ceremoniously filed into the room. Justices Lynde and Cushing took the seats on the far right, behind the cloth-covered table in front of the fireplaces. Justices Russel and Oliver took the seats at the left end, leaving the center seat for the Chief Justice Hutchinson.
Henry examined Hutchinson in particular as the Justices took their seats. He was a thin, slight man with a weak chin and narrow face. “So you are the infamous man of many hats,” Henry thought to himself, recalling Adams’ complaint that Hutchinson was at once Chief Justice of the high court and Lieutenant Governor of the Province of Massachusetts Bay.
Once all five were seated, the bailiff announced “Hear ye! Hear ye! The Superior Court of Province of Massachusetts Bay is now in session, Honorable Chief Justice Thomas Hutchinson presiding Take your seats, please.”
After all were seated, Hutchinson spoke from his chair, his voice crisp and business-like. “This matter is before us on suit brought by sixty-three of our local merchants and a countersuit brought by Mr. Paxton, one of our colony’s Royal customs agents.13 At issue is the legality of Writs of Assistance.
“The recent death of King George II discharged all Writs made under his authority. Upon application by the customs agent, Mr. Paxton, I recently renewed a Writ of Assistance under the authority of King George III. This suit followed.”
Looking at the two men seated at the counsel’s table directly opposite, Hutchinson said, “Representing the Crown today is Mr. Gridley. And council for the merchants is Mr. Otis. Gentlemen, are you ready to proceed?”14
After both men responded in the affirmative, Hutchinson asked, “Mr. Gridley, do you have an opening statement?”
“I do, your honor,” said an older gentleman, his gray hair showing at the margins of his wig, “though it be short.” Standing, he said “Quite simply, we intend to show the Court that Writs of Assistance have been authorized under a law passed by Parliament over six decades ago. There is nothing unlawful about them. They are authorized at law, they apply to the colonies, and they are justified by the necessity to collect the King’s revenue.”
After Gridley sat down, Hutchinson nodded to Otis, who rose from his seat and addressed the court. Even with his back turned to Henry, Otis’s deep baritone voice carried throughout the courtroom.
“Your honors, the Writ of Assistance is, put simply, an abomination to our natural rights and to our rights as British citizens. I will,” he said, his voice rising, “to my dying day, your honors, oppose all such instruments of slavery on the one hand and villainy on the other. These Writs appear 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.
“I intend to show your honors that these general warrants violate our natural rights to quiet enjoyment of life, liberty and property.
“And I intend to show your honors that these Writs violate our Constitutional rights as British citizens, rights that we have had for hundreds of years, to be free from government interference but by due process of law.
These writs of assistance, by their terms, aren’t limited to the normal custom of inspecting ships at port. They go far beyond that, and if they go an inch, then they have transgressed an unconstitutional inch too far.
Otis, grim faced, resumed his seat.
Chief Justice Hutchinson looked to the other Justices and asked whether they had any questions before starting the arguments.
The Common Law of England
A man’s house is his castle — et domus sua cuique est tutissimum refugium.
Edward Coke, Institutes of the Laws of England (1628)
State House, King Street
Boston, Province of Massachusetts Bay
Hutchinson whispered to the Justices on his left, both of whom leaned in to hear him. Henry could not make out what they were saying. After the Justices nodded, Hutchinson did the same to those on his right, then addressing Otis, he said “You may proceed.”
Walking from behind his seat at the counsel’s table, Otis stopped in the middle of the open floor before the five justices. “Let me first begin by explaining why these Writs of Assistance, bearing with them as they do a general warrant to search, are unconstitutional.
“To do that, and for the benefit of those perhaps not learned in the law,” Otis said, his gaze settling for a long moment on Chief Justice Hutchinson before he turned and gestured to Henry and Andrew, “let me explain to you what due process of law means, for it wholly informs the unconstitutionality of Writs of Assistance.”
Hutchinson, his pursed mouth reflecting his anger and annoyance, said nothing. Henry glanced over to John Adams, seeing a smile play on his lips.
Otis walked to the far right of the bench until he stood directly in front of Justice Lynde. “Due process of law, Justice Lynde, is a right we have had since time immemorial.”
Continuing his walk to stand in front of Justice Cushing, Otis said, “It appears as a right of British freemen first in the Magna Carta of 1215, when the tyrant King John was imprisoning men and extorting from them their lands and possessions. British Parliament has reaffirmed the Magna Carta as the law of land over fifty times during the five-hundred forty-six years since King John first signed it at Runnymede.”
Now in front of Justice Russel, Otis said, “It appears in writing again, sir, this time as a right of all British citizens in the Petition of Right of 1628, when Charles I was imprisoning men and even executing some for no other reason than to take their lands and estates.”
Skipping Hutchinson and placing himself in front of Justice Oliver, Otis said, “And most recently, it appears in the English Bill of Rights of 168915, signed freely by King William III after the Glorious Revolution, it being a condition of Parliament granting him the throne.”
Finally moving to the center of the room and addressing Hutchinson, Otis said, “During and in between the signing of those three documents, an OCEAN . . . of English blood has been spilled to vindicate our rights. One of those rights is our right to due process of law. We must have due process to protect our natural rights to life, liberty and property.
“So what composes that right of ours, for which one King was executed and all others made to submit?”
Turning on his heel, Otis walked leisurely back to the counselors table before turning once again to face the Justices.
“QUIS CUSTODIET IPSOS CUSTODES?!!!” Otis thundered, One could have heard a pin drop in the silence of the room. After a moment, Otis said more conversationally, “Quis custodiet ispsos custodes Who watches the watchers?”
“That is the question that goes to the heart of due process of law. Indeed, it goes to the heart of our entire Constitutional system. And it is a question philosphers and governments have been trying to answer for millennia.
“You can read Plato wrestling with the question two thousand years ago in his book, The Republic. Juvenal asked that same question in ancient Rome several hundred years later.
“Plato’s answer to that question was to train the watchers so that they operated without bias or greed.” With a cyncical laugh, Otis said, “All two millennia of history since, from Nero in Rome to Justinian in Byzantium to our own Charles I in England has proved that solution completely unworkable.16
“For instance, our new Governor, Francis Bernard, even without someone to hold him honest and liable, may be an honorable man who would never act from improper motives or from greed, but what of Governor Francis Bernard the Second, thirty years on. Queen Elizabeth was a wonderful queen who respected the rights of her citizens, but what of Charles I, fifty years on?
“We as English learned well over a millennium ago, before William the Conqueror ever set foot on English shores, that we could not forever trust in the inherent honesty and fairness of Crown officials, regardless of who they were or who was in power at the moment. They are only human, as likely as any of us to act out of greed or jealousy or even more base motives if they could succeed in doing so.
The only way to protect our natural rights was to create processes of governing that would result in always having someone to watch the watchers. So before any British citizen is disturbed in his right to peaceful enjoyment of his natural rights to life, liberty and property, many neutral people, people with no bias, motivation of avarice or hatred, will have to look and approve what any officer of the King proposes.
“When an officer of the Crown proposes to arrest someone, assuming for the moment it is not someone caught redhanded, the officer must meet with a prosecutor and provide him the evidence.
“Only if that prosecutor agrees that defendant violated a valid law does he then take the next step in the process and present the facts to a grand jury.
“Only if the Grand Jury agrees with the prosecutor can a magistrate then review the charges and issue a warrant to arrest. So by then, already, the process has involved 20 or more people, all of whom have had look at the evidence and agree with the officer of the Crown.
“After arrest, the defendant must be brought before a Court and the charges read against him in front of a neutral magistrate.
“The defendant then has several additional rights of process to insure that he is treated fairly, the most important of which is the right to trial by a petit jury of his peers. At trial’s end, only if agreed to by that jury, after it has heard all of the facts and after watching the defendant confront his accusers, then and then only . . . can the Crown invade the defendant’s God-given rights to life, liberty and property.
“Lastly, if a person feels he has been wrongly jailed, that the entirety of due process just discussed has failed or been denied, he can bring an action of Habeus Corpus – that being Latin for ‘produce the body.’ It is an ancient right to thwart all tyrants and despots on British lands who would throw a political opponent in jail to rot without charge or trial.
“Upon a writ of Habeus Corpus, the jailer must bring the defendant before a new judge who must then review the case and determine whether the Crown has complied with the due process of law and has rightly jailed the defendant.
“Quis custodiet ispsos custodes, gentlemen. Our right to due process of law means that there MUST be neutral parties, preferably many neutral parties, always to watch the watcher.
“It really is no different throughout the British government. The House of Commons may pass a bill, but it does not become law until approved by the House of Lords, then the King. No one group of people in government can or should EVER be allowed to act alone or without a watchful eye upon them. They must always be checked and their powers balanced against each other.
“So let us apply that to Writs of Assistance with their General Warrants to search” Walking to the far right side of the room, Otis leaned against a table, letting his hands hang loosely at his sides as he spoke.
“Suppose an officer of the Crown believes someone has committed a crime — let’s say in this case they have received Port wine on which duties have not been paid. In the normal course of events the Crown officer would approach the magistrate and present his evidence. Only if the magistrate determined that the officer of the Crown’s belief was reasonable based on the facts would he then issue a warrant to search. The form of this specific warrant is well established within the law of due process.
“The warrant must name the person and place to be searched. It must state the time and date in which the search could be executed, It must state the type of evidence for which the official could search.
“What this means is that an officer with a warrant to search my warehouse could do so, but he could not also search my house or any other place that I own.
“It means that an officer with a warrant to search my warehouse tomorrow could do so on that date, but not put the warrant in his pocket to search my warehouse at any other time, nor to search it repeatedly on multiple dates.
“It means that an officer with a warrant to search my warehouse for contraband Port wine could not break open my desk and rifle through my papers or take away my documents.
“It also means that an officer who exceeds the terms of the warrant could be personally sued for trespass and damages.
“All of the above constitute due process of law for British citizens when it comes to a warrant to search.
“But what of our rights are protected against a customs officer armed with a Writ of Assistance?
Otis paused for a moment, walking to the middle of the room before thundering “NONE of those rights are protected.”
Again he paused before dramatically shaking his head. “There is no one to watch the watcher when he has been given a general warrant that lasts the lifetime of our monarch! That violates our rights to due process under the Magna Carta, under the Petition of Right, AND . . . under the English Bill of Rights.
“A customs officer with this general warrant can break into anyone’s home, their bedrooms, their most private areas in the middle of the night, with no need of ever having to show the barest suspicion that contraband is there.
No, Sirs. Our homes have been our castles against government intrusion since the days of Alfred the Great.17 That is at issue on the mainland of Britain today every bit as much as it is in this Court in the colony of Massachussets. Perhaps Mr. Pitt said it best in a speech before Parliament recently on the issue of customs officers and general warrants. To quote him:
‘The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement!’18
“So said Mr. Pitt. Are to we believe, then, that the King and his armies may never enter our frail cottage without suspicion and a specific warrant, but the King’s Customs officers may invade it at their leisure and without having to prove to a watcher the slightest suspicion!?
“The mere proposition is ludicrous,” Otis said, as he walked back to his chair and sat.
Slavery versus Natural Rights
Nor were the poor Negroes forgotten. Not a Quaker in Philadelphia or Mr. Jefferson in Virginia ever asserted the rights of Negroes in stronger terms. Young as I was and ignorant as I was, I shuddered at the doctrine [Otis] taught; and I have all my life shuddered, and still shudder, at the consequences that may be drawn from such premises. Shall we say that the rights of masters and servants clash and can be decided only by force? I adore the idea of gradual abolitions! but who shall decide how fast or how slowly these abolitions shall be made?
John Adams, commenting upon an argument made by James Otis, Jr. during the 1761 hearing on Paxton’s Case, The Works of John Adams (1854)
State House, King Street
Boston, Province of Massachusetts Bay
Henry had found the first two hours of the hearing fascinating. Otis was a tremendous orator with a grasp of history that rivaled that of his tutor, Professor Smith, back home in Charleston. Moreover, Otis had a sense of drama and control over his voice’s modulation to rival that of any stage actor Henry had ever seen. Henry found himself hanging on Otis’s every word. Nor was he the only one so affected. Whenever Henry glanced towards John Adams, he saw Adams display such intense concentration it almost appearing as if Adams was trying to commit each phrase and sentence of Otis to memory.
Still, after a half hour’s break, the next two hours of legal argument had been too difficult for Henry to understand. The three lawyers had begun reading and arguing about a long series of laws that were so repetitive and verbose that Henry had trouble making any sense of them. At one point, John Adams, noting Henry’s plight, whispered to him.
“These laws are hard even for trained lawyers to understand, Mister Henry. It takes me an hour or two and several pieces of parchment to make notes before I can. The problem is that the Crown pays its scriveners and clerks by the word.”
Adams almost laughed at the shock and surprise on Henry’s face. It was obvious the boy had grasped how such a system would incline the clerks to line their pockets by making the laws as densely written as possible. Adams gave an ironic half smile and nodded his head as if to say “it’s as asinine as it is true.”
Turning his attention back to the lawyers arguing at the front of the room, Henry gathered that at some point before 1700, Parliament passed a law authorizing Writs of Assistance and had said it was to apply in Britain and the colonies, but in Britain there was a court of the . . . checker or exchequer, Henry wasn’t quite sure. That court on the British mainland in fact controlled the customs agents and “watched the watcher.” But Massachusetts didn’t have a court of the . . . whatever it was. Henry yawned and was about to close his eyes and give up when Mr. Gridley resumed his seat.
“I have a final argument, your honors” said Otis. Hutchinson nodded silently, bidding Otis to continue. Because he had found Otis’s earlier arguments so lucid, Henry abandoned his plan for a quick, quiet nap, and focused his attention on Otis.
Once Otis began his argument, Henry immediately recognized the logic and reasoning. He had heard it sitting in the West Church. Otis was arguing John Locke’s thesis of natural rights and natural law, the law Reverend Mayhew had said was biblical law. Henry made a mental note to himself to ask his father to purchase of a copy of Locke’s Two Treatises of Government to read on the return voyage to Charleston.
Otis spoke at length on the rights of man in a state of nature. He asserted that every man at birth was an independent sovereign, subject to no law but the law written on his heart and revealed to him by his Maker. No one created by God could contest his right to his own life or liberty. Nor was his right to his property less incontestable. The club that he had snapped from a tree, for a staff or for defense, was his own. His bow and arrow were his own; if by a pebble he had killed a partridge or a squirrel, it was his own. No creature, man or beast, had a right to take it from him. It was his property.
Otis called these natural rights inherent and inalienable. These are rights that never would be surrendered by a sane man, nor ever could be surrendered, sold or given away, but by idiots or madmen and all the acts of idiots and lunatics were void by all the laws of God and man. But then Otis said something that drew audible gasps from the crowd.
“And these natural rights to life, liberty and justice are just as strong in every single person on these shores, be they black or white, be they free men or slaves.”
When he heard the gasps from behind him, Otis turned on his heel and pointed an accusing finger at the entire assembly. He exclaimed “The ARROGANCE, for any man, to think that God created a person whose soul is in any way inferior to their own – to think that because of that, they are justified in stealing away a black’s right to liberty and property, if not life itself – is blasphemy worthy of The Old Deluder, Satan himself.
“We have many free blacks in this colony, and no one contests but that they have the same British rights and natural rights as do all of us. They are British citizens on this shore and loyal subjects of the King.
“But we also hold many Africans in chattel slavery. Upon what possible law of God do we do so?
“We have no more right to hold Africans in chattel slavery and deny them their God-given rights to life, liberty and property than Pharaoh had to do the same to the Israelites.
“Our natural rights come from God with but a single, corresponding natural law – that being not to disturb others in their life, liberty or property without just cause. What just cause is served by taking the liberty of a black?
“There is none. The only causes are unjust. They are our own mortal sins of greed and sloth.
“To allow slavery to continue on our Christian lands is to violate natural law. It is to damn our own souls and to invite upon our heads brutal violence and bloodshed. For slavery cannot last. We know it from the Bible as sure as we know it from out our own English history and the bloody revolt of Wat Tyler against our own then version of slavery, serfdom.19 We may abolish slavery now in respect to God, or God will see to it Himself in his own time, as he did by sending forth Moses and by bringing death and destruction upon the Pharaohs of Egypt.20”
The room was completely silent as Otis walked back to middle of the room, bowed his head and took a moment to order his thoughts. Henry was shocked, coming as he did from a place where slavery was so common that there were more black slaves in the colony than there were free whites (and free blacks, some of whom owned black slaves as well). But he had no doubt – indeed, he felt it viscerally – that Otis’s argument was just and right, and Otis’s dire warning a prophecy. Henry turned to see his father, his face a cipher, looking at him, studying his reaction. The moment was broken only when Otis began again to speak.
11Sir Anthony van Dyck was a Flemish Baroque artist who became the leading Royal Court painter in 17th century England.
12A bailiff is an officer responsible for security in the courtroom. The office of bailiff dates back to medieval times in England.
13[See Endnote 3]
14 A third attorney was also present for the argument that day, a Mr. Thatcher, but there is sparse record of any points he argued.
15The Britain Constitution is often called “unwritten” because it is not consolidated in a single document. In 1760, virtually everyone believed that the rights of British citizens were spelled out in the Magna Carta of 1215, the Petition of Right of 1628, and the English Bill of Rights of 1689, as well as a few other fundamental rights at common law.
16Nero was Emperor of Rome from 54 to 68 A.D. Justinian was Emperor of Byzantium from 527 to 565 A.D. Charles I was King of England from 1625 to 1649 A.D. All three men were ruthless tyrants.
17Alfred the Great was Anglo-Saxon rulet of the Kingdom of Wessex in England from 871 A.D. to 899 A.D. [See Endnote 6]
18William Pitt the Commoner, sometimes Prime Minister of England, was a Member of Parliament when he gave the above speech. [See Endnote 7]
19Wat Tyler led what is known today as the Peasant’s Revolt in 1381 A.D. [See Endnote 8]