Petitioner for the Writ: James co*ckle, 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.
