Writs of Assistance Case

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.