History of the first 13 Colonies and how they became the United States
The early government in Colonial America: James Otis and the Writs of Assistance (Search Warrants)
Writs of Assistance - Search Warrants
Writs of Assistance Definition: The English Parliament created the writ of assistance during the seventeenth century. Writs of Assistance were search warrants issued by superior provincial courts to assist the British government in enforcing anti-smuggling provisions, trade and Navigation Laws in Colonial America. Writs of Assistance, or search warrants, authorized customhouse officers, with the assistance of a sheriff, justice of the peace, or constable, to search any house for smuggled goods without specifying either the house or the goods. And in a case of resistance, to break open doors, chests, trunks, and other packages (see provisions in 1767 Townshend Acts).
Reason why Writs of Assistance were Introduced
As the American colonies grew in importance and profitability the British government attempted to make American trade profitable to British merchants by interfering in the government of the colonies. The colonists disobeyed the navigation laws and Britain 'turned a blind eye' due to its policy of Salutary Neglect. However, the benevolent period of Salutary Neglect all changed after the French and Indian War (aka Seven Years War 1755-1763) when the British were left with a massive war debt. To pay the war debt the British ended their policy of Salutary Neglect in the colonies. The British intended to end illegal trading, enforce the Navigation Acts and impose new taxes and the Writs of Assistance, or search warrants, would help them to do this.
The Use of Writs of Assistance
The British reversed their policy of Salutary Neglect but it was much easier to order the laws to be carried out than it was to implement them. It was almost impossible for the customs officers to prevent goods from being smuggled into the colonies. And equally difficult to seize them. The custom officers therefore asked the judges to give them writs of assistance to search the premises of suspects.
Writs of Assistance were open to Abuse
Custom officials used the Writs of Assistance to investigate colonial merchants who were suspected of Smuggling goods into the country.
- Writs of Assistance, or search warrants, were issued to Custom Officers upon request
- Custom Officers were not required to produce any evidence on which the application was based - they merely had to have suspicions that smuggling and the non payment of taxes was associated with a particular person
- Writs of Assistance therefore enabled British Custom Officers to enter any colonist's home without giving any warning, any cause and any reason
- The Writs of Assistance were permanent and even transferable - a writ holder could assign them to another
- A Writ of Assistance could be used at any time, day or night
- The Custom Officers were able to demand support from all constables, peace officers and nearby subjects to help customs officials to carry out a search
- If colonists resisted, customs officials were authorized by the Writ of Assistance to break open doors, chests, trunks, and other packages that might lead to incriminating evidence
- Neither the Custom Officer nor the searchers were not responsible for any damage they caused
The Writs of Assistance gave Custom Officers the opportunity to abuse the system and harass colonists. Armed with a Writs of Assistance a Customs official could go to the house of a man he did not like and search it from attic to cellar, turn everything upside down and break open doors and trunks at anytime, day or night.
James Otis and the Writs of Assistance
James Otis Jr. (February 5, 1725 – May 23, 1783) was a Harvard educated lawyer and in 1756 was appointed to the prestigious post of advocate general for the Admiralty Court in the colony of Massachusetts. The role of advocate general was the highest official post for a lawyer in the colony and it would have been part of his job to prosecute the smugglers. His father, James Otis Sr, was also a prominent lawyer and militia officer. James Otis Sr had been promised the position of Chief Justice of the Massachusetts Supreme Judicial Court, but the position went instead to Thomas Hutchinson. The James Otis Jr. resigned from his position of of advocate general. His resignation enabled him to opposed the granting of the Writs of Assistance.
James Otis opposes the Writs of Assistance
James Otis was completely opposed to the granting of the Writs of Assistance. He was appalled at the misuse of the Writs of Assistance and based his strong objections on the following reasons:
- He objected to the use of Writs of Assistance because they enabled a customs officer to become a tyrant
- James Otis argued that it made no difference whether Parliament had said that the Writs of Assistance were legal because Parliament could not make an act of tyranny legal
- To make an act of tyranny legal was beyond the power even of the British Parliament
James Otis opposes the Writs of Assistance and Paxton's Case
With the death of King George II in October 1760, all Writs of Assistance were set to expire on 25 April 1761 and new writs had to be obtained from the new king. The legality of the hated Writs of Assistance and the search and seizure powers of the King were challenged by a group of 53 Boston merchants, represented by James Otis. A countersuit was filed by a British customs agent called James Paxton, and together these are known as "Paxton’s case". The case was heard on Tuesday, February 24, 1761.James Otis argued that British custom officials armed with a Writ of Assistance:
"...may enter our houses when they please - may break locks, bars and every thing in their way
and whether they break through malice or revenge, no man, no court, can inquire..."
At the trial James Otis argued that the Writs of Assistance were a form of tyranny. He coined the phrase "A man's home is his castle" to describe the sanctity and privacy that a citizen deserved from his or her government.
"...one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle..."
The Speech of James Otis Against the Writs of Assistance
On Tuesday, February 24, 1761 James Otis made a 5 hour speech at the Boston Old State House against the Writs of Assistance, which was witnessed by a young John Adams . James Otis argued that the Writs of Assistance were unconstitutional. He based his case on the rights guaranteed in English common law. Read the words and short Text of the Speech Against the Writs of Assistance.
Writs of Assistance and the American Revolution
James Otis lost the case relating to the Writs of Assistance but he impressed the colonists and prominent leaders such as John Adams. John Adams later said that the role of James Otis in contesting the British sovereign’s power and the Writs of Assistance was:
“...the spark in which originated the American Revolution .... breathed into the nation the breath of life”.
James Otis became a colonial leader and in May 1761 he was elected to the General Court of Massachusetts. He wrote numerous papers for the Committee of Correspondence to the other colonies and to the government in England arguing for political freedom, just as he opposed the Writs of Assistance.
Writs of Assistance
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