Writs of Assistance as a Legislative Matter

This posting returns to that dispute in Boston over writs of assistance, or general search warrants. In February 1761 James Otis, Jr., made a courtroom argument against them which later became famous—but in that year made hardly any waves. In May, Otis was elected to the Massachusetts House, and in November he reargued the question, only to have Chief Justice Thomas Hutchinson lead the Massachusetts Superior Court in ruling against him.

At some point in 1761, the House voted to define search warrants for the province of Massachusetts. Otis almost certainly took a leading role in writing this bill. It rejected the open-ended language of a writ of assistance. Instead, it required a Customs officer to seek a specific writ by swearing to “Information of the Breach of any of the Acts of Trade…that he verily believes or knows…to be true.”

The bill continued:

it shall be lawful in every such Case, for such Court or Justice, to whom Application may be made as aforesaid, upon reducing such Oath to Writing, with the Names of the Person Informing & ye Place informed against, and not otherwise, to issue a Writ or Warrant of Assistance…

The law specified how the writ should be written “with the name of the Person complained of.” That writ did not have to contain the name of the informer, but that name went into the justice of the peace’s records, and there was a fair amount of overlap between those gentlemen and the merchants who disliked Customs searches.

In early 1762 the upper house of the Massachusetts General Court, the Council, approved the same bill. The full legislature had already signaled its displeasure with the Superior Court by cutting the judges’ salaries.

Gov. Francis Bernard (shown above) consulted with his lieutenant governor—the same Thomas Hutchinson who was chief justice. Hutchinson told Bernard that the legislature’s bill would nullify the court’s November ruling. The governor therefore vetoed the bill, and there was no way for the legislature to override him. Bernard reported that this “occasioned a good deal of Murmuring.”

The General Court’s action made the fight against writs of assistance more respectable, I think. It was no longer a matter of a small interest group—merchants, many engaged in smuggling—trying to stymie law enforcement. The issue now involved two competing sources of governmental authority: a locally elected legislature, and Parliament in London working through appointed officials.

TOMORROW: Otis expands the argument beyond writs of assistance.