Writs Of Assistance Trial: 1761

Petitioner for the Writ: James Cockle, a deputy customs official of Salem
Petitioners against the Writs: Merchants of Salem and Boston, Massachusetts Bay Colony
Attorney for the Customs Officials: Jeremiah Gridley
Attorneys for the Merchants: James Otis and Oxenbridge Thacher
Chief Judge: Thomas Hutchinson
Place: Boston, Massachusetts Bay Colony
Date: February 24, 1761
Verdict: Deferred until a legal opinion could be obtained from England

SIGNIFICANCE: The case was the first major judicial confrontation over the extent and limits of English authority over colonial affairs. The argument highlighted the growing American notion of fundamental "constitutional" laws that included inalienable rights. The case helped lay the ideological foundations for the American Revolution and the Fourth Amendment of the Bill of Rights, which banned abusive search and seizure.

Under England's navigation laws, which governed the British Empire's commerce, the American colonies faced prohibitions and restrictions on trading and manufacturing certain goods within and without the empire. The British West Indies could not produce the amount of molasses needed by the colonists to make rum, a major product, and New England merchants were troubled by the substantial duty on molasses purchased from outside Britain's island colonies. Need, as well as greed, contributed to colonial smuggling.

During the French and Indian War, some smugglers continued to trade with French territories, supplying the enemy with essential goods. The smugglers faced weak opposition. Customs officials seldom bothered to search ships while they lay at anchor. Many customs appointees lived in England and assigned their duties to poorly paid colonial deputies, who often did not do the work. Great Britain spent an average of 8,000 pounds to collect 2,000 pounds in duties.

As the French and Indian War wound down, England moved to combat illegal trade. Merchants feared the crackdown would rely heavily on writs of assistance. Such writs had been issued in the past in the colonies, but they were seldom used. Writs of assistance were essentially general search warrants of tremendous scope.

The writs offered more latitude than ordinary search warrants. Usually a search warrant was based on a sworn statement of legitimate suspicion and permitted officials to examine a specific place for specific goods. Writs of assistance permitted customs officers (or anyone holding the writ), to search shops, ships, homes, and warehouses at will during the day. Once issued, they could be used again and again.

Writs of assistance expired within six months after the death of a reigning monarch. When George II died, a battle arose in Massachusetts over the legality of issuing new writs. Colonial merchants, represented by James Otis and Oxenbridge Thacher, petitioned Superior Court to refuse applications by customs officials for new writs. Otis had been the king's advocate general of Boston's Vice-Admiralty Court and had resigned rather than argue for customs officials.

Writs Versus Rights

The case turned on interpretation of the legal basis for the writs. Jeremiah Gridley, acting for the customs officials, maintained that necessities of state justified limitations on traditional English rights:

It is true the common privileges of Englishmen are taken away in this Case, but even their privileges are not so in case of Crime and fine. 'Tis the necessity of the Case and the benefit of the Revenue that justifies this Writ. Is not the Revenue the sole support of Fleets & Armies abroad, & Ministers at home? without which the Nation could neither be preserved from the Invasion of her foes, nor the Tumults of her own Subjects. Is not this I say infinitely more important, that the imprisonment of Thieves, or even Murderers? yet in these Cases 'tis agreed Houses may be broken open.

Gridley included in his argument references to statutory precedents.

In rebuttal, Oxenbridge Thacher also referred to precedents. The colonial Superior Court's power was in the case of the writs being held comparable to that of the Court of Exchequer in England. Thacher reasoned there was no justification for such a comparison. He also criticized the longevity of the writs, stressing how their power could be abused by repeated use.

Following Thacher, James Otis spoke like "a flame of fire," according to John Adams. He, too, spoke of precedent. He built an elaborate argument that began with an individual's God-iven natural rights and the birth of societal compacts. He continued through old Saxon laws, Magna Carta, and actions taken over time to secure and confirm rights and principals of England's unwritten constitution.

Otis repeatedly attacked the writs as directly contrary to basic English liberties:

It appears 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.

Otis preferred "special warrants" which specified name, place, what was suspected, and by whom. Complaining of the unaccountability of those armed with writs of assistance, Otis said:

Every one with this writ may be a tyrant in a legal manner… Now 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.

Otis repeated a well-known story. A man named Ware held a writ which had been endorsed to him by a customs official. Ware was brought to court for swearing on the Sabbath. He took revenge on the judge and the constable who had arrested him. He used his writ to ransack their homes looking for smuggled goods.

Otis spoke for four hours. John Adams wrote:

Every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against Writs of Assistance.… Then and there, the child Independence was born. In fifteen years, i.e. in 1776, he grew up to manhood and declared himself free.

The court did not immediately issue the writs, although it was known that Chief Justice Thomas Hutchinson favored them:

The Court has considered the subject of writs of assistance, and can see no foundation for such a writ; but as the practice in England is not known, it has been thought best to continue the question to the next term, that in the mean time opportunity may be given to know the result.

The query was sent to the colonial agent for Massachusetts in England. Legal authority to issue the writs was upheld and the court quietly did so. But apparently no customs official had the temerity to use them.

—Teddi DiCanio

Suggestions for Further Reading

Adams, John. Charles Francis Adams, ed. Works. Boston: 1856.

Gipson, Lawrence Henry. The Coming of the Revolution, 1763-1775. New York: Harper & Row, 1954.

Hart, Albert B. and Edward Channing, eds. American Histoty Leaflets. New York: Simmons, 1892-1911.

Langguth, A.J. Patriots, The Men Who Started the American Revolution. New York: Simon & Schuster, 1988.

WRITS OF ASSISTANCE CASE

The Writs of Assistance case involved a legal dispute during 1761 in which 63 Boston merchants petitioned the Massachusetts Superior Court to challenge the legality of a particular type of search warrant called a writ of assistance. Also known as Paxton's Case, the Writs of Assistance case contributed to the Founding Fathers' original understanding of search and seizure law, planted the seeds of judicial review in the United States, and helped shape the U.S. concept of natural law.

Parliament created the writ of assistance during the seventeenth century. Once issued, the writ authorized government officials to look for contraband in private homes and businesses. Normally, the writ placed no limitations on the time, place, or manner of a given search. In the eighteenth century, customs officials in America used the writ to investigate colonial merchants who were suspected of smuggling goods into the country. The writ generally commanded all constables, peace officers, and nearby subjects to help customs officials carry out a search.

The Writs of Assistance case arose when James Paxton, a Massachusetts customs official, applied to the superior court for a writ of assistance. james otis jr., advocate general for the colony of Massachusetts, resigned his post to represent the merchants who opposed the writ. Appearing before Chief Justice Thomas Hutchinson, Otis and his co-counsel, Oxenbridge Thacher, made four arguments against the legality of the writ.

First, Thacher challenged the authority of the Massachusetts Superior Court to issue the writ. Thacher conceded that Parliament had passed a law in 1662 granting the English Court of Exchequer the power to issue the writ in Great Britain and passed a second law in 1696 enabling customs officials to apply for the writ in America. However, Thacher argued that neither law specified which courts in America could issue the writ. Thus, Thacher said that the Massachusetts Superior Court was never expressly delegated authority to issue the writ.

Second, Otis challenged the procedure by which the writs were issued. Otis argued that bare suspicion should not be enough to support an application for the writ. Otis maintained that no writ should be issued unless the official making the application is first placed under oath and made to disclose the evidence on which the application is based. Otis also suggested that every writ application should be carefully reviewed by an impartial third party and not the judges who had been appointed to the Massachusetts Superior Court. Those judges, Otis charged, were predisposed in favor of granting the writ.

Third, Otis challenged the writ applications for lack of specificity. A lawful writ application, Otis asserted, must identify the person, place, or thing to be searched. Under english law, customs officials were authorized to search for contraband in any house, shop, cellar, warehouse, room, or other place where uncustomed goods might be hidden. If colonial residents resisted, customs officials were authorized to break open doors, chests, trunks, and other packages that might lead to incriminating evidence. Because the duration of the writ was perpetual and could be executed at any time of the day or night, Otis said, the law failed to respect the sanctity of a person's home and private life.

Fourth, Otis challenged Parliament's autocratic authority. Parliament has no power to pass legislation, Otis claimed, that is against fundamental principles of law. When Parliament enacts legislation that contravenes fundamental principles of reason and equity, such legislation must be struck down by the courts. Otis contended that Parliament was not above the law and that any parliamentary act against the constitution was void.

In response to these arguments, lawyers for the government asserted that the Massachusetts Superior Court possessed no discretion to deny Paxton's application for the writ. Parliament had granted the English Court of Exchequer the power to issue the writ in Great Britain and authorized customs officials to apply for the writ in America. Parliament also gave the Massachusetts Superior Court the same powers as the English Court of Exchequer. Because the Court of Exchequer had been lawfully issuing the writ for years in Great Britain, lawyers for the government argued, the Massachusetts Superior Court enjoyed the same legal authority.

Chief Justice Hutchinson and his colleagues agreed with the lawyers for the government. They unanimously voted to grant Paxton's application in this particular case and affirmed the legality of the writ across Massachusetts. Although Otis, Thacher, and their clients lost the case, they transformed the writ into a rallying cry of the American Revolution. Colonial opposition to the writ quickly evolved from civil disobedience to armed resistance. By 1769 many colonial courts had grown reluctant to issue the writ. This series of events prompted john adams to exclaim that the Writs of Assistance case gave birth to the "Child Independence!"

In addition to fueling the revolutionary spirit in the colonies, the Writs of Assistance case presented the first formidable challenge to general search warrants in the colonies. Otis thought that more restrictions should be placed on the government's authority to intrude upon places ordinarily kept private by homeowners and business proprietors. In America, Otis argued, the law should require that all searches be conducted pursuant to a lawful warrant that is obtained by an official who is placed under oath before a neutral third party and compelled to disclose the precise nature of any incriminating evidence. Any warrant that might be issued should fully describe the person or premises to be searched. The fourth amendment to the U.S. Constitution established these principles as a permanent part of U.S. criminal procedure.

The Writs of Assistance case also planted the seeds of judicial review in the United States. Judicial review is the power of the judiciary to invalidate legislative acts that violate a constitutional provision or principle. The English system of government did not recognize judicial review during the eighteenth century. Neither a common-law court nor the crown possessed the power to overturn a law duly enacted by Parliament. In the United States, Otis suggested in the Writs of Assistance case, legislative acts that contravene the Constitution must be struck down by courts of law.

Finally, the Writs of Assistance case helped shape the form of natural law in the United States. Some people believe in natural law, a body of unwritten principles derived from religion, morality, and secular philosophy. In certain instances natural law is said to transcend the written rules and regulations that are enacted by government. During the Writs of Assistance case, Otis argued that the written laws of Parliament are limited by unwritten principles of reason and equity. The "constitution" to which Otis referred was itself an unwritten body of English common-law principles. (The United States Constitution was not ratified until 1787.)

further readings

Bailyn, Bernard. 1992. The Ideological Origins of the American Revolution. Cambridge: Harvard Univ. Press.

Klein, Irving J., et al. 1994. Principles of the Law of Arrest, Search, Seizure, and Liability Issues. South Miami, Fla: Coral Gables Publishing.

Levy, Leonard. 1988. Original Intent and the Framers' Constitution. New York: Macmillan.

Smith, M. H. 1978. The Writs of Assistance Case. Berkeley: Univ. of California Press.

Stoner, James. 1992. Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism. Lawrence: Univ. Press of Kansas.

cross-references

Contraband; Fourth Amendment; Judicial Review; Search Warrant; Warrant.

Writs of Assistance

Source

Accepted Policy. In the eighteenth century Britain’s trade and navigation laws reflected the mercantilist theory that a colony’s main function was to be a source of raw materials for the mother country and a market for its manufactured goods. These advantages were meant to

benefit the mother country and were denied to all foreign commercial rivals. Trade was conducted on British or colonial ships, and commerce between the colonies and non-British ports was limited to specific types of goods. Import duties were designed primarily to complement these trade objectives as well as to raise revenue.

Evasion. Smuggling of foreign products into the colonies, in order to get needed goods or to avoid having to pay the import taxes, had long been a common practice and was almost respectable. The laws had not been tightly enforced, and some colonists, John Hancock among them, had done quite well by evading the restrictions and the taxes. However, as overseas trade grew enormously during the 1750s and the commercial competition with France turned into war, Britain sought to enforce the restrictions against trading with the French and to raise revenue to pay for the war.

New Restrictions. In 1756 the Privy Council issued an order to all colonial governors that they stop all trade with the French. Four years later Prime Minister William Pitt issued a circular letter to all the colonial governors complaining of the lack of response to the repeated reports of trade with the French. He pointed out that this trade was sustaining the enemy’s war effort, and he demanded that the governors take every legal step to stop the trade and punish the offenders. This would require customs officers in the colonies to search ships and warehouses to find and seize illegal goods.

Legality. Writs of assistance were court orders some-what similar to search warrants in that they allowed government officials to search private property. They had first been authorized in England by an act of Parliament about one hundred years earlier, and their application was extended to the colonies by another act of Parliament in 1696. Since a customs officer, by his commission, was ordered to search for and seize smuggled goods, the writ was thought to be a means of protecting property owners from abuses by customs officials. The writ requested the court to direct a court officer to accompany the customs official to any place where he suspected smuggled goods might be stored and to assist the customs official in gaining entry. If the customs officer found goods that he suspected to be untaxed or from an illegal source, he could seize them. Seized goods would be sold by the customs officers, who kept a share of the proceeds for themselves and used a portion to pay their informers. The abuses were outrageous.

Controversy. A writ of assistance was a general authorization to search in that it did not have to describe the places to be searched or the goods to be sought, nor did it require the customs officer to convince a judge that he had probable cause that any suspect items might be present. A writ of assistance, once issued, stayed in effect for the life of the reigning monarch and for six months after his death. When George II died in October 1760, the chief British customs officer in the colonies applied for a new writ. Writs of assistance had been issued on several previous occasions by the court in Boston, but the climate in 1761 was ripe for a controversy. The chief justice of the superior court responded to the application by saying that he did not know whether it was proper for him to issue such a writ and asked for arguments to be presented in court in February 1761. The merchants of Boston were anxious to oppose the granting of new writs and hired James Otis to oppose their issuance.

Otis. The courtroom was crowded when the court met to hear the arguments. The lawyer for the Crown presented a quiet argument in favor of the issuance of the writ, based on the relevant points of law. When Otis rose to argue in opposition, he ignored the narrow points of law and embarked upon a four-hour oration, arguing that the writ was against the fundamental principles of English law and that such an act of Parliament was illegal. The obligation of the court in such instances, according to Otis, was to declare such laws to be void. Otis argued passionately that there was a body of fundamental law that was above Parliament: “Every man, merely natural, was an independent sovereign, subject to no law but the law written on his heart and revealed to him by his Maker . . . . His right to his life, his liberty, no created being could rightfully contest. Nor was his right to his property less contestable.” As for a writ of assistance, Otis stated: “I will to my dying day oppose . . . all such instruments of slavery... and villainy . . . . And as it is in opposition to a kind of power . . . which in former periods of English history cost one King of England his head and another his throne, I have taken more pains in this cause than ever I will take again.” The chief justice declared that he could see no foundation for granting the writ but deferred his decision until he could study the English practice on the subject. What he learned was that in England, writs were routinely issued. In November 1761 he finally issued the requested writ.

Significance. The political theories that Otis presented had been occasionally expressed in the writings of the time—the idea of fundamental law that Parliament could not violate and that if Parliament overstepped its authority, a court could check it by declaring such a law to be void. The real significance of the case was the impact Otis’s argument had on his listeners because of the setting (the crowded courtroom in Boston) and his powerful delivery. Although Otis lost the case, as John Adams later described the event: “Otis was a flame of fire. . . . He hurried away all before him. . . . Every man of an immense crowded audience seemed to go away, as I did, ready to take up arms against Writs of Assistance. 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 Independence was born.”

Source

O. M. Dickerson, The Navigation Acts and the American Revolution (Philadelphia: University of Pennsylvania Press, 1951);

Lawrence Henry Gipson, The Coming of the Revolution, 1763-1775 (New York: Harper, 1954);

Hiller B. Zobel, The Boston Massacre (New York: Norton, 1970).

Writs of Assistance

WRITS OF ASSISTANCE. Writs of assistance were general search warrants that authorized customs officers to search private warehouses and homes for contraband during daylight hours, and to call on provincial officers for assistance. The imperial government authorized their use in the colonies in 1755 to combat widespread smuggling to the French West Indies and the evasion of the Molasses Act of 1733, but they were not widely used until 1760, when customs officers began a wide-scale seizure of illicit cargoes in Boston.

Writs of assistance were valid only during the reign of the incumbent monarch (George II) and expired on his death in October 1760. Customs officials applied for a renewal of these general search warrants, but Boston merchants opposed a renewal and retained James Otis Jr., and Oxenbridge Thacher to represent them in a suit before the Massachusetts Superior Court. Otis made the most important argument against the writs, on constitutional grounds. If the writs were made legal by act of Parliament, then the act of Parliament was wrong because Parliament could not make any act that violated a citizen's natural rights. The argument, while unsuccessful, helped to lay the foundation for the transfer of the locus of sovereignty from statute law to a more nebulous concept of natural law, which Americans would refine and draw on for the next thirty years. The controversy over the legality of these writs was so toxic that customs officials never again applied for a general writ of assistance in Massachusetts.

The imperial government extended the use of the general writs of assistance to the other colonies in Section 10 of the Townshend Revenue Act of 1767, but colonial courts narrowly construed the provision to require only the granting of so-called particular or special writs that specified the object of the search. This way of finessing the law allowed the other colonies to avoid the situation Massachusetts had faced in 1760 and 1761.

SEE ALSO Otis, James; Townshend Revenue Act.

BIBLIOGRAPHY

Jensen, Merrill, ed. English Historical Documents. Volume IX: American Colonial Documents to 1776. David C. Douglas, general editor. New York: Oxford University Press, 1955.

Knollenberg, Bernard. Growth of the American Revolution, 1766–1775. Indianapolis, Ind.: Liberty Fund, 2002.

――――――. Origin of the American Revolution, 1759–1766. 1960. Revised, Indianapolis, Ind.: Liberty Fund, 2002.

Thomas, Peter D. G. British Politics and the Stamp Act Crisis: The First Phase of the American Revolution, 1763–1767. Oxford, U.K.: Oxford University Press, 1975.

                              revised by Harold E. Selesky

WRITS OF ASSISTANCE

WRITS OF ASSISTANCE were general search warrants issued to the customs officers by the colonial superior courts. They were first issued in Massachusetts in 1751 and remained fairly uncontroversial until 1761, when the old writs expired and customs officers had to apply for new ones to replace them. James Otis, an attorney who represented merchants who opposed the new writs, argued that they were unconstitutional, but he lost his case. Eventually, the courts issued new writs after the British government supported their legality. That closed the issue in Massachusetts.

The controversy resurfaced in 1767 when the Townshend Revenue Act authorized writs of assistance. Under the act, customs officers prepared the writs themselves and requested the attorney general in each colony to secure these writs from the superior court. This action made writs of assistance an issue in the superior court of every American province. Many judges objected to the form of the writs and questioned their constitutionality. In most courts, the issue dragged through 1772. This delay resulted in a direct refusal by most colonial courts, although many judges offered to issue writs of assistance in particular cases "as directed by law." Finally, in 1772, the customs officers reported that they had secured writs in East Florida, West Florida, South Carolina, Bahama, Bermuda, New Hampshire, Nova Scotia, and Quebec. Because the controversy over the writs of assistance surfaced in the superior court of every Anglo-American colony, it became a common grievance that merited attention in the Declaration of Independence.

BIBLIOGRAPHY

Bailyn, Bernard. The Ideological Origins of the American Revolution. Cambridge, Mass.: Belknap Press of Harvard University Press, 1967.

Cook, Don. The Long Fuse: How England Lost the American Colonies, 1760–1785. New York: Atlantic Monthly Press, 1995.

O. M.Dickerson/s. b.

See alsoSearch and Seizure, Unreasonable ; Townshend Acts andvol. 9:The Writ of Assistance, 1762 .