J. L. BELL is a Massachusetts writer who specializes in (among other things) the start of the American Revolution in and around Boston. He is particularly interested in the experiences of children in 1765-75. He has published scholarly papers and popular articles for both children and adults. He was consultant for an episode of History Detectives, and contributed to a display at Minute Man National Historic Park.

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Thursday, October 29, 2009

“A Knock at the Door” Panel, 4 Nov. at the Old State House

And speaking of writs of assistance, as I did yesterday, next Wednesday I’ll be on a public panel discussing how those fit into American legal history. Here’s the announcement of that event from the Bostonian Society:

A Knock at the Door: Three Centuries of Governmental Search and Seizure
Wednesday, November 4, 2009, 6:30 p.m., at the Old State House
Free and open to the public

The protection against unreasonable governmental search and seizure has long been considered a fundamental American right. This concept has its roots in patriot James Otis’s 1761 legal petition opposing the Writs of Assistance and general property searches, a case heard in Old State House.

Even though guaranteed by the Fourth Amendment to the U.S. Constitution, this right has been challenged and debated many times throughout our history. Today we are confronted with new debates over wiretapping, immigration raids, and school drug searches.

Join our panelists, public historian J.L. Bell, legal scholars Frederick Lane and Joseph McEttrick, and Kurt Opsahl, in a discussion of the historical origins of this concept, as well as modern challenges to this long-cherished protection of our rights.
The “writ of assistance” that Customs Comptroller Benjamin Hallowell tried to use to search Capt. Daniel Malcom’s house was an open-ended authorization to search for smuggled goods. As the Massachusetts Superior Court under Chief Justice Thomas Hutchinson (shown above) interpreted British law of the time, Hallowell didn’t have to appear before a judge and describe the specific evidence pointing to smuggled goods in Malcom’s house.

Instead, a Customs officer granted such a writ had all the authority he needed to demand assistance from a local magistrate, whom citizens were bound to obey. But, as the September 1766 stand-off outside Malcom’s house demonstrated, local justices of the peace could be reluctant to force the issue, or force open doors. And citizens were even less cooperative.

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