Once upon a time, a man's home was his castle

As of late Friday, July 5, the We the People website of the White House had 127,756 signatures on the petition to pardon Edward Snowden, surpassing the 100,000 minimum needed to qualify for a response. I doubt that anyone signed it with the expectation that Snowden might actually get pardoned.

In a sense one can’t blame the White House for failing to pardon him.  They’re the guilty party.  Whatever law or laws he might’ve broken are nothing compared to the flagrant constitutional violations of the federal government.  Like it or not, in this country, in 2013, the Constitution is still the supreme law, and the Fourth Amendment says the government will not mess with our privacy or come stomping into our “castle” without a warrant issued by a judge on suspicion of a specific crime.  By virtue of Katz v. United States, 389 U.S. 347 (1967), in which the Supreme Court ruled that the unreasonable search and seizure clause of the Fourth Amendment includes immaterial intrusion with technology, the American surveillance state is grossly unconstitutional.  The guilty do not issue pardons. 

The right to privacy is sometimes captured in the phrase, “a man’s home is his castle.”  Where did this idea come from?

Most Americans regard George Washington as the father of their country, but few realize James Otis, Jr. was the father of the American Revolution.  Long before Lexington and Concord, Otis’s fight for civil liberty gave rise to the heart and soul of the rebel cause.  According to Wikipedia,

Otis graduated from Harvard in 1743 and rose meteorically to the top of the Boston legal profession. In 1760, he received a prestigious appointment as Advocate General of the Admiralty Court. He promptly resigned, however, when Governor Francis Bernard failed to appoint his father to the promised position of Chief Justice of the province's highest court; the position instead went to longtime Otis opponent Thomas Hutchinson. In a dramatic turnabout following his resignation, Otis instead represented pro bono the colonial merchants who were challenging the legality of the "writs of assistance" before the Superior Court, the predecessor of the Massachusetts Supreme Judicial Court. These writs enabled British authorities to enter any colonist's home with no advance notice, no probable cause and no reason given.

Prior to the court challenge, British Prime Minister William Pitt had decided to raise Crown revenue by enforcing the six pence per gallon tax on molasses rather than imposing a new tax.  Since the passage of  the Molasses Act in March, 1733, which was an attempt to protect molasses exporters in the British West Indies from their more competitive rivals on other islands, smuggling, bribery, and intimidation of customs officials had effectively rendered the Act null and kept the huge continental rum industry alive. In August 1760, Pitt sent a letter to each colonial governor conveying this new policy, emphasizing the need to put a stop to all smuggling.

Massachusetts’ Governor Bernard knew that to catch smugglers his customs men would have to make heavy use of the “blank check” search warrants.  As governor he would get a cut of all confiscated smuggled goods sold at auction.  To uphold the legality of the warrants, he put Hutchinson in charge of the Superior Court.

Hutchinson agreed that for trade to flourish the tax would have to be less than three pence per gallon of molasses, but he raised no objections.  The sixty rum distilleries in the province were in danger of ruin, and the loss of business would disrupt trade throughout the colony.

“Something profound changed in America”

The merchants’ challenge was argued on February 24, 1761 before Hutchinson and four other justices.  Jeremiah Gridley served as counsel for the customs office.  Otis and his associate, Oxenbridge Thatcher, represented sixty-three prominent Boston merchants, in opposition to the writs.

Gridley opened for the Crown by arguing that the Court of Exchequer was issuing such general writs in England.  If they were legal in England they would certainly be legal in England’s colonies.  He further argued that such warrants were necessary in the collection of taxes and in protecting the state from foreign and domestic subversives.  In any society, he said, individual liberties must give way to certain restrictions.

Thatcher, 41, spoke first for the merchants.  Gaunt, tired, and suffering from tuberculosis, Thatcher spoke briefly then turned the defense over to his partner.  In wig and black gown, Otis rose to speak, and as historian A. J. Langguth puts it, “something profound changed in America.”

One critic described Otis as "a plump, round faced, smooth skinned, short necked, eagle eyed politician," but the young John Adams, who attended the trial and wrote down the account in his diary and again some fifty years later, claimed, "Otis was a flame of fire!"

Otis, who read voraciously and had an almost flawless memory, spoke for over four hours.  He relied on English law books to prove that only special warrants were legal and attacked the writs as "instruments of slavery."  Defending the right to privacy, he proclaimed that the power to issue general search warrants placed "the liberty of every man in the hands of every petty officer." In perhaps his most moving passage, Otis declared,

A man’s home is his castle, and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it is declared legal, would totally annihilate this privilege. Custom house office may enter our houses when they please and we are commanded to permit their entry. . . What a scene does this open! Every man, prompted by revenge, ill humor, or wantonness to inspect the inside of his neighbor’s house, may get a writ of assistance. Other’s will ask it from self-defense; one arbitrary action will promote another, until society be involved in tumult and blood.

Otis said man’s right to life, liberty, and property, “were inherent and inalienable: that they never could be surrendered or alienated,” except by the mentally incompetent.  He claimed these rights applied to all men, including Negro slaves.

The individual is sovereign, not the state

Speaking directly to Gridley, Otis said the principle of man’s rights took precedence over everything, even the survival of the state.  Lawyers in the room scribbled madly, jotting down phrases “that would be used to establish the literature of the revolution.” (Three Men of Boston, John R. Galvin, p, 32)

When Otis was through, Hutchinson said he would write to England to get more information. 

While Boston waited for clarification, Otis got elected to the House and opened five more cases against customs officials.  Then in November, Hutchinson convened Superior Court with a copy of a writ used in London.

Once again, Gridley took to the defense, claiming the writs did not violate liberty because they required a sheriff to accompany a customs official.

Then Otis rose from his chair.  He said simply if this writ were valid in England, then Parliament had made a mistake.  Writs were contrary to the constitution, the colony’s charter, and man’s rights, and were therefore illegal the instant they were created.

Though the presence of a sample writ allowed the court to rule for the Crown, Otis and Thatcher continued to oppose the writs, and thanks to the efforts of judges and lawyers writs were seldom used.

Conclusion

If our elected representatives were actually guarding our rights, they would be arranging a ticker-tape parade for Edward Snowden, and the words “treason” and “traitor” would be used only in reference to the countless guilty in government.  That they’re hunting him down like a dog reminds us yet again that this government in no way represents what patriots like Otis regarded as the American vision of freedom.

It’s a sorry mark of this country’s about-face that the original ticker-tape parade spontaneously erupted in New York City on October 28, 1886, during the dedication of the Statue of Liberty.