The Writs of Assistance Case 1761
George II (1683–1760), James Otis Jr. (1725–1783)
Americans were protesting to the British government’s seemingly unlimited ability to inspect private property via writs of assistance more than thirty years before the Fourth Amendment to the Constitution barred arbitrary searches and seizures. The Revolutionary War was sparked by opposition to such writs.
Following the French and Indian War—the Seven Years’ War’s North American theater—Britain became worried about the colonies’ commercial trade with foreign countries. The British used writs of assistance, which are similar to general warrants, to combat smuggling.
A writ gave a customs officer nearly complete freedom to examine ships, warehouses, businesses, and people’s residences after it was issued. Writs may be executed several times, and their length was only limited by the life span of the king who issued them. They also lacked any specificity requirements, allowing police to look for any imports for which a duty had not been paid.
The death of King George II in October 1760 gave colonists the opportunity to dispute the writs. The British petitioned the Massachusetts Superior Court to extend writs that were due to expire six months after the king’s death. Charles Paxton, surveyor of the Port of Boston, was one of the writs up for renewal. Several businesses hired famous Boston lawyer James Otis Jr. to help them in their fight against the writs. Otis’s final court appearance lasted more than four hours. He argued that the writs were incompatible with the Magna Carta, calling them “the worst tool of arbitrary authority, the most destructive of English liberty and basic legal principles ever discovered in an English law book.”
The court withheld decision until it could obtain an opinion on how the writs functioned in England. After receiving an opinion as to the writs’ legality, the court issued new writs ten months later. Although Otis lost the case, he won the favor of John Adams, who had observed his argument and later wrote: “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.”
The U.S. Constitution (1787);
The Bill of Rights (1791).
The Law Book: From Hammurabi to the International Criminal Court, 250 Milestones in the History of Law (Sterling Milestones) Hardcover – Illustrated, 22 Oct. 2015, English edition by Michael H. Roffer (Autor)