“The Writs Were Ordered to Be Issued”

Yesterday I quoted from James Otis, Jr.’s argument in the writs of assistance case, as set down afterward by John Adams. Otis and his colleague, Oxenbridge Thacher, represented Boston’s merchants in arguing that the Massachusetts court should not issue an open-ended writ allowing the local Customs office to search anywhere for smuggled goods.

They lost.

For Chief Justice Thomas Hutchinson (shown here as a younger man), the case hinged on whether his court was a “Court of Exchequer” and whether similar courts in England issued writs of assistance. Hutchinson, in addition to being a probate judge and Lieutenant Governor, was the colony’s leading historian. Referring to himself in the third person, he provided this account of the case:

The court was convinced that a writ, or warrant, to be issued only in cases where special information was given upon oath, would rarely, if ever, be applied for, as no informer would expose himself to the rage of the people.

The statute of the 14th [year of the reign] of Charles II. authorized issuing writs of assistance from the court of exchequer in England. The statutes of the 7th and 8th of William III. required all that aid to be given to the officers of the customs in the plantations, which was required by law to be given in England. Some of the judges, notwithstanding, from a doubt whether such writs were still in use in England [because of an article reprinted from a London magazine], seemed to favour the exception, and, if judgment had been then given, it is uncertain on which side it would have been.

The chief justice was, therefore, desired, by the first opportunity in his power, to obtain information of the practice in England, and judgment was suspended. At the next town [where the court met], it appeared that such writs issued from the exchequer, of course [i.e., as a matter of course], when applied for; and this was judged sufficient to warrant the like practice in the province. A form was settled, as agreeable to the form in England as the circumstances of the colony would admit, and the writs were ordered to be issued to customhouse officers…

The Massachusetts court issued writs of assistance to Customs officials in that province. The court in New Hampshire, which usually followed Massachusetts’s lead, did the same.

However, as Oliver M. Dickerson described in “Writs of Assistance as a Cause of the Revolution,” his chapter in Richard B. Morris’s The Era of the American Revolution, the judges in other American colonies resisted the Customs service’s requests for open-ended writs. Judges delayed rulings, they sent for advice from London and then ignored the results, they asked other colonies’ courts what they had done, they lost the paperwork, they reworded the writs to be less general.

Furthermore, in Boston the Customs officials had a hard time enforcing their writ, particularly in an attempted search of merchant Daniel Malcom’s warehouse in 1766. Malcom refused to unlock a room for the searchers, no justice of the peace would cooperate, and a grumpy crowd gathered.

Charles Townshend’s Revenue Act of 1767, which established new taxes, also explicitly authorized writs of assistance. The Customs Commissioners based in Boston had forms printed up and distributed to other colonies. But they still didn’t get the broad powers they sought. Though the Massachusetts court had decided otherwise, American society came to regard open-ended writs as unconstitutional.

Eventually Otis and Thacher’s argument became institutionalized in the U.S. Constitution’s Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The new republic thus rejected Hutchinson’s fear that “a writ, or warrant, to be issued only in cases where special information was given upon oath, would rarely, if ever, be applied for.”

TOMORROW: The political effect of the writs case.