James Otis y el Writs of Assistance Case (1761)

Abstract

The famous Edward Coke Judge’s dictum formulated in the Bonham’s case did enunciate the constitutional theory of the judicial review of legislation. Even if the final meaning of the Coke’s dictum has been the object of a heated discussion, the Professor Plucknett was the first in upholding that «the solution which Coke found was in the idea of a fundamental law which limited Crown and Parliament indifferently».
The juridical thought of Coke would have a remarkable impact upon the American colonies. The men of the American Revolution were intellectually nourished for the Lord Coke’s writings, particularly for his Institutes. And his dictum was converted in the doctrine according which, a court could considerer void an act promulgated by a legislative assembly limited by a fundamental law when the court would consider that the act had transgressed his boundaries.
In the famous writs of assistance case (1761), James Otis should uphold in the colonies the Judge Coke’s doctrine. The Bostonian lawyer argued that the writs were of the nature of general warrants; that although formerly it was the practice to issue general warrants to search for stolen goods, yet, for many years, this practice had been altered, and the justices of the peace issued special warrants only for searching in places set forth in the warrants, and therefore, the writ was against the fundamental principles of law, it was particularly opposed to the privilege of house, because «a man, who is quiet, is as secure in his house, as a prince in his castle, notwithstanding all his debts, & civil processes of any kind». Finally, Otis shall label the general search warrant as «the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an England law-book».