Causes > Writ of Assistance

Writ of Assistance

Background

A writ of assistance in colonial America was a written legal order known as a writ that was issued by a judge that instructed a law enforcement official to carry out a court related duty. These included authorized agents such as tax collectors and sherifs to enforce the law and ensure citizens were paying their taxes. Writs of assistance were commonly used to confiscate property or evict persons. These such writs were more specifically known as writs of restitution of possession.

Writs of assistance were first authorized for use by the British Parliament in 1767 and were issued by the Court of Exchequer to aid customs officials in intercepting smuggled goods into the colonies. During this time the taxes imposed on many goods such as sugar and tea were being used to help pay for the French and Indian Wars however, were not favored by many of the colonists. Therefore there was a lot of smuggling and these writs were designed to help law enforcement aid customs officials in thwarting smugglers.

Seen as predecessors to the modern search warrant, writs of assistance did not expire and allowed customs officials to search anywhere they pleased for goods. When they were issued in colonial America especially in Province of Massachusetts Bay in the 1760's they soon became controversial and became one of the major factors that contributed to American Revolutionary War.

The founding fathers would later address these writs of assistance in the Bill of Rights of the Constitution of the United States where they added the Fourth Amendment which forbade general search and seizure within the United States. The unchecked ability of the government to search wherever is a characteristic of totalitarian governments which is why the founding fathers saw it so important to make it the fourth amendment being freedom of speech, assembly, the press, and gun rights.

British America

General writs of assistance played an important role in the increasing tensions that led to American Revolutionary War and the creation of the United States of America. In 1760, Great Britain began to enforce some of the provisions of the Navigation Acts by granting customs officers these writs. In New England, smuggling had become common. However, officers could not search a person's property without giving a reason. Colonists protested that the writs violated their rights as British subjects. The colonists had several problems with these writs. They were permanent and even transferable; the holder of a writ could assign it to another. Any place could be searched at the whim of the holder, and searchers were not responsible for any damage they caused. This put anyone who had such a writ above the laws. All writs of assistance expired six months after death of the king, at which time new writs had to be obtained. With the death of King George II in October 1760, all writs would expire on 25 April 1761. The crisis began on 27 December 1760 when news of King George II's death reached Boston and the people of Massachusetts learned that all writs faced termination.[6]

Paxton's Case

Within three weeks, the writs were challenged by a group of 63 Boston merchants represented by fiery Boston attorney James Otis, Jr. A countersuit was filed by a British customs agent Paxton, and together these are known as "Paxton’s case".[7] Otis argued the famous writs of assistance case at the Old State House in Boston in February 1761 and again on 16 November 1761. Although Otis technically lost, his challenge to the authority of Parliament made a strong impression on John Adams, who was present, and thereby eventually contributed to American Revolutionary War. In a pamphlet published three years later, in 1765, Otis expanded his argument that the general writs violated the British unwritten constitution hearkening back to Magna Carta. Any law in violation of the constitution or "natural law" which underlay it, was void.[8]

Malcom Affair

One of the major legal cases that helped cause American Revolutionary War was known as Malcom Affair and involved a writ of assistance. During this event the dichotomy between the views of the colonists regarding their rights and the British view of their imperial law was defined. While it was only a minor facet of American Revolutionary War it is no less important a contributing factor than any other.

The British Parliament was initially uncertain about the legality of the writs of assistance however, after passing the 1767 Townshend Acts they reaffirmed their authorization. Despite this they were not issued by many colonial courts with the last writ of assistance issued in Boston being during the Malcom Affair.

Legacy

In response to the much-hated general writs, several of the colonies included a particularity requirement for search warrants in their constitutions when they established independent governments in 1776; the phrase "particularity requirement" is the legal term of art used in contemporary cases to refer to an express requirement that the target of a search warrant must be "particularly" described in detail.[21] Several years later, the Fourth Amendment to the United States Constitution also contained a particularity requirement that outlawed the use of writs of assistance (and all general search warrants) by the federal government.[22] Later, the Bill of Rights was incorporated against the states via the Fourteenth Amendment,[23] and writs of assistance were generally proscribed.

Revolutionary War Causes

Causes List

Bibliography

Primary Sources

Secondary Sources

"Amendment IV: Writs of Assistance 1761--72". University of Chicago.

Knollenberg, Bernhard. Growth of American Revolutionary War, 1766–1775. New York: Free Press, 1975. ISBN 0-02-917110-5.

MacDonald, William. Documentary Source Book of American History, 1606–1913. New York: Macmillan, 1920. Reid, John Phillip. In a Rebellious Spirit: The Argument of Facts, the Liberty Riot, and the Coming of American Revolutionary War. University Park: Pennsylvania State University Press, 1979. ISBN 0-271-00202-6.

Smith, M. H. The Writs of Assistance Case. Berkeley: University of California Press, 1978. ISBN 978-0-520-03349-8. The only full-length book on Paxton's case, it reprints many original documents.