February 24, 2012

February 24: National Public Interest Law Day!

By February 24: National Public Interest Law Day!

Pacific Legal Foundation has unilaterally declared that today, February 24th, should be recognized as National Public Interest Law Day!  Here is why, from PLF’s Director of Litigation, James S. Burling:

When people think of the American Revolution, they don’t immediately think about lawsuits.  But if it were not for the tradition of public interest law that began 251 years ago this February 24 – and particularly the work of lawyer James Otis Jr. — the course of American history could have been very different.

By 1761, British officials were tightening the grip on colonists whom they accused of smuggling and evading import duties.  To enforce the taxes, British officers would frequently burst into homes and businesses to search for illegal goods, claiming authority under a device called a “writ of assistance.”

Portrait of James Otis, Jr., by Joseph Blackburn

It fell to 36-year-old James Otis, recently appointed Massachusetts’ Advocate General — the highest official post for a lawyer in the colony — to challenge the hated writs.  When the authoritarian Thomas Hutchinson became the colony’s Chief Justice, and Otis was ordered to defend the writs in court, he refused and resigned his post.  Instead, he agreed to take a case on behalf of a group of Boston merchants, to argue that the writs violated the British Constitution and deprived Americans of their liberty.  And in the tradition of public interest law, he did so without charge.  “For in such a cause as this,” he said, “I despise a fee.”

Otis was a brilliant advocate, and his argument impressed the young attorney John Adams.  Adams later remembered that Otis “was a flame of fire” who filled the packed courtroom with “a torrent of impetuous eloquence….  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 of independence was born.”

Otis’s argument was nearly five hours long, and much of it, sadly, is lost to history.  But according to Adams’ notes, Otis began by explaining why he chose to take the case.  “I was solicited to argue this cause as Advocate-General,” he said, “and, because I would not, I have been charged with desertion from my office.  To this charge I can give a very sufficient answer. I renounced that office and I argue this cause from the same principle; and I argue it with the greater pleasure, as it is in favor of British liberty….  The only principles of public conduct that are worthy of a gentleman or a man are to sacrifice estate, ease, health, and applause, and even life, to the sacred calls of his country.”

Then in words that future generations would long remember, Otis argued, that “one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege.”  The writs could be issued on the basis of hearsay or simply because a government official did not like the look of a person: “Custom-house officers may enter our houses when they please…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.”

Otis understood the critical role that property rights play in protecting individual liberty.  To violate private property rights endangers all other freedoms, because no person can then be assured that exercising freedom of speech or religion will not incur government retaliation.

But Chief Justice Hutchinson was unmoved.  He declined even to rule on Otis’s argument, putting the case off until the next term.  Yet the next term came and went without a decision, and, Adams remembered, “nothing was ever said in Court concerning writs of assistance” afterwards.  Rumors continued that the judges continued to issue the writs, but accoring to Adams, British officials had become so intimidated by the public outcry aroused by Otis that although “the custom-house officers had them in their pockets…I never knew that they dared produce them or execute them in any one instance.”

Otis’s case against the writs of assistance began the great tradition of public interest law in the United States.  He represented his clients for free and at great personal sacrifice, and his success helped protect the liberty and property of his clients for the benefit of all Americans.  As with many public interest lawsuits today that challenge overreaching government, Otis did not win a court judgment.  But — again like his modern-day descendants — he helped win a larger battle for freedom.

At Pacific Legal Foundation, we are inaugurating a celebration of February 24 as National Public Interest Law Day.  We look forward to seeing the commemoration grow as years go by, because America’s debt is great to the tradition that Otis founded 251 years ago — a tradition that remains robust today, as freedom-oriented legal foundations take a stand for liberty in courtrooms from coast to coast.

What to read next

Post

Motion for Preliminary Injuction – Taylor

Download PDF

Read more