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Writs of assistance were court orders that authorized customs officers to conduct general (non-specific) searches of premises for contraband. The exact nature of the materials being sought did not have to be detailed, nor did their locations.The writs were first introduced in Massachusetts in 1751 to strictly enforce the Acts of Trade, the governing rules for commerce in the British Empire. Merchants in much of New England were skillful at evading the system and many had become masters of smuggling.The powerful new court orders enabled officials to inspect not only shops and warehouses, but also private homes. It quickly became apparent to many colonists that their homes were no longer their castles.In 1761, James Otis represented Boston merchants in their challenge to the renewal of the writs. He failed to convince the court, but gained public prominence in arguing that the writs violated the colonists’ Natural Rights. He began his speech before the Superior Court of Massachusetts:
I was desired by one of the court to look into the (law) books, and consider the question now before them concerning Writs of Assistance. I have accordingly considered it, and now appear not only in obedience to your order, but likewise in behalf of the inhabitants of this town, who have presented another petition, and out of regard to the liberties of the subject. And I take this opportunity to declare that whether under a fee or not (for in such a cause as this I despise a fee) I will to my dying day oppose, with all the powers and faculties God has given me, all such instruments of slavery on the one hand and villainly on the other, as this Writ of Assistance is.
The writs of assistance again drew public attention with the enforcement of the Townshend Duties in 1767. Courts continued to uphold the constitutionality of the orders into the 1770s, but as time passed and popular passions heated, few officials had the courage to use them.The writs were one of a list of grievances that the Americans harbored against the Crown and contributed to the process of changing loyal colonists into advocates for independence.
See timeline of the American Revolution.
John Adams Looks Back on the Writs of Assistance Case
Adams was in the courtroom as a young lawyer in training. He took notes on the attorneys’ speeches and probably wrote up an “abstract” by 3 April, when his diary quotes some teasing from Col. Josiah Quincy of Braintree about it. Over the next decade Adams’s summary circulated in the Boston legal community.
In 1773, after Otis had fallen into intermittent mental illness, an Adams trainee named Jonathan Williams Austin published a version of the abstract in the Massachusetts Spy. Decades later, Adams complained that Austin had stolen the document and added erroneous commentary.
On 3 July 1776, as Adams told his wife Abigail about the Continental Congress’s vote for independence the previous day, he added:
So Otis’s argument did hold great meaning for him.
In the quarter-century that followed, Adams drafted the Massachusetts constitution, served as a diplomat in Europe, and was elected Vice President and then President of the United States. After being turned out of office, he looked back on his career, first in anger and then, in his manuscript “Autobiography,” with a little more nostalgia.
Around 1804 Adams once again described the writs of assistance case. But this time, more than four decades afterward, he declared that Otis’s arguments had made him foresee the same split with Britain whose suddenness had “surprized” him in 1776:
In February Mr. James Otis Junr. a Lawyer of Boston, and a Son of Colonel Otis of Barnstable, appeared at the request of the Merchants in Boston, in Opposition to the Writ. This Gentlemans reputation as a Schollar, a Lawyer, a Reasoner, and a Man of Spirit was then very high. Mr. [James] Putnam while I was with him [as a clerk] had often said to me, that Otis was by far the most able, manly and commanding Character of his Age at the Bar, and this appeared to me in Boston to be the universal opinion of Judges, Lawyers and the public.
Mr. Oxenbridge Thatcher whose amiable manners and pure principles, united to a very easy and musical Eloquence, made him very popular, was united with Otis, and Mr. [Jeremiah] Gridley alone appeared for [Customs official James] Cockle the Petitioner, in Support of his Writ.
The Argument continued several days in the Council Chamber [of the Town House], and the question was analized with great Acuteness and all the learning, which could be connected with the Subject. I took a few minutes, in a very careless manner. . . . I was much more attentive to the Information and the Eloquence of the Speakers, than to my minutes, and too much allarmed at the prospect that was opened before me, to care much about writing a report of the Controversy.
The Views of the English Government towards the Collonies and the Views of the Collonies towards the English Government, from the first of our History to that time, appeared to me to have been directly in Opposition to each other, and were now by the imprudence of Administration, brought to a Collision. England proud of its power and holding Us in Contempt would never give up its pretentions. The Americans devoutly attached to their Liberties, would never submit, at least without an entire devastation of the Country and a general destruction of their Lives. A Contest appeared to me to be opened, to which I could foresee no End, and which would render my Life a Burden and Property, Industry and every Thing insecure.
- making the right choice despite the many formidable obstacles and opponents ranged against…
- John Adams.
That changed in 1817, when a Virginia lawyer named William Wirt published his best-selling biography of Patrick Henry.
History and Scope of the 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.
History.—Few provisions of the Bill of Rights grew so directly out of the experience of the colonials as the Fourth Amendment, embodying as it did the protection against the use of the “writs of assistance.” But though the insistence on freedom from unreasonable searches and seizures as a fundamental right gained expression in the colonies late and as a result of experience, 1 there was also a rich English experience to draw on. “Every man’s house is his castle” was a maxim much celebrated in England, as Saman’s Case demonstrated in 1603. 2 A civil case of execution of process, Saman’s Case nonetheless recognized the right of the homeowner to defend his house against unlawful entry even by the King’s agents, but at the same time recognized the authority of the appropriate officers to break and enter upon notice in order to arrest or to execute the King’s process. Most famous of the English cases was Entick v. Carrington, 3 one of a series of civil actions against state officers who, pursuant to general warrants, had raided many homes and other places in search of materials connected with John Wilkes’ polemical pamphlets attacking not only governmental policies but the King himself. 4
Entick, an associate of Wilkes, sued because agents had forcibly broken into his house, broken into locked desks and boxes, and seized many printed charts, pamphlets, and the like. In an opinion sweeping in terms, the court declared the warrant and the behavior it authorized subversive “of all the comforts of society,” and the issuance of a warrant for the seizure of all of a person’s papers rather than only those alleged to be criminal in nature “contrary to the genius of the law of England.” 5 Besides its general character, the court said, the warrant was bad because it was not issued on a showing of probable cause and no record was required to be made of what had been seized. Entick v. Carrington, the Supreme Court has said, is a “great judgment,” “one of the landmarks of English liberty,” “one of the permanent monuments of the British Constitution,” and a guide to an understanding of what the Framers meant in writing the Fourth Amendment. 6
In the colonies, smuggling rather than seditious libel afforded the leading examples of the necessity for protection against unreasonable searches and seizures. In order to enforce the revenue laws, English authorities made use of writs of assistance, which were general warrants authorizing the bearer to enter any house or other place to search for and seize “prohibited and uncustomed” goods, and commanding all subjects to assist in these endeavors. Once issued, the writs remained in force throughout the lifetime of the sovereign and six months thereafter. When, upon the death of George II in 1760, the authorities were required to obtain the issuance of new writs, opposition was led by James Otis, who attacked such writs on libertarian grounds and who asserted the invalidity of the authorizing statutes because they conﬂicted with English constitutionalism. 7 Otis lost and the writs were issued and used, but his arguments were much cited in the colonies not only on the immediate subject but also with regard to judicial review.
1 Apparently the first statement of freedom from unreasonable searches and seizures appeared in The Rights of the Colonists and a List of Infringements and Violations of Rights, 1772, in the drafting of which Samuel Adams took the lead. 1 B. Schwartz, The Bill Of Rights : A Documentary History 199, 205–06 (1971).
2 5 Coke’s Repts. 91a, 77 Eng. Rep. 194 (K.B. 1604). One of the most forceful expressions of the maxim was that of William Pitt in Parliament in 1763: “The poorest man may in his cottage bid defiance to all the force of the crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter, the rain may enter—but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement.”
3 19 Howell’s State Trials 1029, 95 Eng. 807 (1705).
4 See also Wilkes v. Wood, 98 Eng. 489 (C.P. 1763) Huckle v. Money, 95 Eng. Rep. 768 (K.B. 1763), aff’d 19 Howell’s State Trials 1002, 1028 97 Eng. Rep. 1075 (K.B. 1765).
6 Boyd v. United States, 116 U.S. 616, 626 (1886).
7 The arguments of Otis and others as well as much background material are contained in Quincy’s Massachusetts Reports, 1761–1772, App. I, pp. 395–540, and in 2 Legal Papers Of John Adams 106–47 (Wroth & Zobel eds., 1965). See also Dickerson, Writs of Assistance as a Cause of the American Revolution, in The Era Of The American Revolution : Studies Inscribed To Evarts Boutell Greene 40 (R. Morris, ed., 1939).
Writs of Assistance - History
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Writ, in common law, order issued by a court in the name of a sovereign authority requiring the performance of a specific act. The most common modern writs are those, such as the summons, used to initiate an action. Other writs may be used to enforce the judgment of a court ( attachment, delivery) or to require a lower court to furnish certain records ( error) or perform a certain act (mandamus).
Writs can be traced back to the Anglo-Saxon kings, who used them primarily to convey grants of land, although they also made some effort to employ them for judicial purposes. Three main types of writ were in use by the early 13th century: charters, normally for grants of land and liberties in perpetuity letters patent, for grants of limited duration and for commissions to royal officials and letters close, to convey information or orders to a single person or to a definite group of people (differing from the other two types of writ in that the king’s seal authenticated and closed the document).
Writs began to be used in judicial matters by the Norman kings, who developed set formulas for them. The most important were original writs, for beginning actions in many instances they served much the same purpose as the modern summons. They were issued to the defendant, requiring that he make amends or else appear in court. Other important writs were those of assistance, for the transference of property, and entry, for the recovery of land from which one had been wrongfully dispossessed.
The European civil-law system never developed a series of clearly defined writs, although it found other means to accomplish the same ends.
The origin, development and role of writ petitions in England and India.
One of the most used legal instruments is the 'writ petition' in India. This article mostly discusses their history. The origin of writs in England and their import to India during British rule will be briefly discussed. Then, the application of writs both before and after independence in India will be discussed, with more focus on the developments post-independence in India.
History of writs in England:
The origin of writs can be traced back to the judicial system of medieval England. The local courts were administered by the baron of the estate in which the court was present. Above them were the royal courts which were administered and derived authority form the King. For a case to be tried in the King's court, one needed to have a 'writ' or a written formal royal order commanding him to be present at a particular date before the court to get justice. The writ would be purchased from the office of the king. The writs for common grievances slowly came to be known as 'writs of course'.
As England witnessed an increase in litigation, the barons protested against the cases going to the king's courts instead of the local courts thereby depriving them of the revenue they earned from administering the local courts. In 1258 the barons got the King to agree in the 'provisions of Oxford' to limit the various types of writs to the already established 'writs of course'. Any new type of writ had to be authorized by the King and the King's council.
This is the basis of the evolution of various writs in use today like the 'writ of Mandamus' or 'writ of Habeas Corpus'.
Introduction of writs in India:
Writs were first introduced in India in 1774 by a Royal Charter of Britain. During this period, The East India Company started to be subjected to parliamentary control. The Charter created a Supreme Court at Calcutta and conferred on it the right to issue all writs as were issued in England.
Subsequently, Supreme Courts of Judicature were added in Madras in 1800 and Bombay in 1823 with similar provisions.
Later, the three supreme courts were replaced by High courts in the same places by the Indian High Courts Act of 1861, but the power to issue writs was confined only to those three high courts and that too within their jurisdictions only for writs of prohibition and certiorari. The other high courts in India created under the Act did not have any power to issue writs. Slowly, the authority to issue writs of Habeas Corpus and Mandamus was curtailed and taken away .
This remained the scenario until 1950.
In 1950, the Constitution of India came into effect. The authority to issue writs of a certain nature was provided in the constitution to the Supreme Court under article 32 for the protection of Fundamental rights and to the High Courts under article 226 for the protection of fundamental rights as well as any other rights of any person.
Writs may be issued against any organ of the government or any statutory creation. On the Subject of who may file a writ petition, The Supreme court in the landmark case Satyanarayana Sinha v. Lal & Co. has given itself jurisdiction to determine whether any person or group has locus standi to file a petition.
The various types of writs permissible under the Constitution will now be enumerated and discussed.
Under the Constitution, the following kinds of writs can be issued by the courts: the writs of Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo Warranto.
Writ of Habeas Corpus:
Use: Habeas Corpus is used to question the legality of any person's detention. This remedy is available only when other ordinary legal remedies have been exhausted or are found inadequate.
Habeas Corpus has been celebrated as a bulwark of personal liberty and the 'first security of civil liberty'. The writ is remedial in nature and its objective is to secure the release of the illegally detained person.
Habeas Corpus may be applied for by any person who is not a 'stranger', i.e., any person who has any relation to the detainee,be it lawyer,relative, friend, family member, activist group, or even the detainee himself may apply for a writ of Habeas Corpus.
The writ of Habeas Corpus was famously used in India during the Emergency declared in 1975 to question the detainment of persons under the Maintenance of Internal Security Act, 1971. An example is the case Additional District Magistrate of Jabalpur v. Shiv Kant Shukla
Writ of Prohibition:
The writ of Prohibition is issued by a superior court to a court below it ordering it not to overstep its jurisdiction. One can apply for a writ of prohibition if one feels that the court which has taken on the case has no jurisdiction over it. On receiving the writ of prohibition, the court will not try the case. In this way, the case will be tried by the body which has jurisdiction to try the case. It is a preventive step. The Writ of Prohibition may only be used on judicial or quasi-judicial bodies.
The writ of prohibition has a very ancient history and was present in the 11th century in England.
In Hari Vishnu Kamath v. Ahmad Ishaaqe the Supreme Court explained the writ of Prohibition.
Writ of Quo Warranto:
The Writ of Quo Warranto is used to challenge the illegal occupation of a public office by any person. If the accused is unable to show that he or she has legitimately occupied the office, the person will be ordered to relinquish office.
Historically, the writ of Quo Warranto was used to check against the illegal use and occupation of any rights or authority conferred by the Crown. The accused would be asked to produce the order of the king certifying his appointment. If unable to do so, he would be dispossessed of the office or rights.
Quo Warranto may only be used when public offices are concerned. Any position in a private, i.e., non-governmental organization cannot be challenged by Quo Warranto.
The Supreme Court explained the Writ of Quo Warranto in University of Mysore v. Govinda Rao
Any person may file for writ of Quo Warranto if it is in the public interest . If however the writ is not being filed in the public interest, the person filing the writ must be personally aggrieved by the illegal occupation of the public office.
Writ of Certiorari:
The writ of Certiorari is used to verify the judgment of a particular case given by a lower court by a higher court. Certiorari acts as a supervisory role and not as an appellate role.
The Higher court orders the lower court to give a record of the case including evidence etc. to the higher court and if it then finds any lapses it has power to quash the judgment.
However, the writ of mandamus can be used if and only if the lower court has acted without jurisdiction or in excess of it.
Writ of Mandamus:
The writ of mandamus is a writ that is issued by a court compelling any person or governmental department to follow the law and perform any statutory duty required.
Mandamus cannot apply to any private organization unless it is concerned with the performance of any statutory authority.
The writ of mandamus has been used extensively for the protection or enforcement of rights or duties enjoined by statute.
However, mandamus cannot be used to direct the law-making process, it can only be used to enforce laws and check their constitutional validity.
Writ petitions have been used to enforce and protect the Fundamental rights of India. The makers of the constitution were nearly all for the implementation of writs to protect the fundamental rights of the citizens.
Writs have seen wide usage especially in the checking of the lawful operation of government apparatus. Especially in India, they have been used to deliver speedy and efficient justice and uphold the fundamental rights of citizens as enjoined in the Constitution.
THE HISTORY BEHIND THE 4TH AMENDMENT
In modern society, it is easy to forget where many of our freedoms come from. It is also dangerous to turn a blind eye to history. Civilizations, military commanders, and leaders of nations have ignored history with devastating results.
Because the 4th Amendment is so vitally important to America, it deserves a look into the history behind its inception into the Constitution. The 4th Amendment to the United States Constitution was added as part of the Bill of Rights on December 15, 1791. It deals with protecting people from the searching of their homes and private property without properly executed search warrants. The 4th Amendment specifically provides:
“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 Founders believed that freedom from government intrusion into one’s home was a natural right (one granted from God) and fundamental to liberty. The idea that citizens should be protected from unreasonable searches and seizures goes back far into English history. In 1604, Sir Edward Coke first identified this right. He said that “The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose.”
During the Colonial era, the King of England looked at the American colonies as simply a financial investment. Britain passed numerous revenue collection bills aimed at generating as much money from the colonists as possible. Obviously, the colonists resented this act by the King and began smuggling operations in order to circumvent the custom taxes imposed by the British Crown.
In response, King George began the use of the conveniently worded “writs of assistance.” These were legal search warrants that were extremely broad and general in scope. British agents could obtain a writ of assistance to search any property they believed might contain contraband goods. They could actually enter someone’s property or home with no notice and without any reason. Agents could interrogate anyone about their use of customed goods and force cooperation of any person. These types of searches and seizures became an egregious affront to the people of the colonies.
These actions by the British Crown would be one the precipitating factors leading to the American Revolution and the eventual forming of our Constitution.
When the 4th Amendment became part of the Constitution, it was originally only applied to the federal government. Later, it was applied to the states through the Due Process Clause of the 14th Amendment.
Of course, there are many common sense exceptions to the 4th Amendment right to have a properly executed search warrant issued before a search or seizure of private property can be conducted. They are too numerous to list in this column. However, two common examples are (1) a police officer may conduct a pat down search of someone if he or she has observed someone engaging in behavior that would give the officer reasonable, articulable suspicion that a crime has or is being committed and (2) if a police officer sees someone committing a crime, or believes that he or she has probable cause to suspect someone has committed a crime, the officer may arrest the suspect without a warrant.
Looking back at the reasoning behind liberties in cultures helps to preserve freedoms. It is only when we become disinterested or even indifferent to our Founders that we take a dangerous path toward civilizational decline. We cannot forget why Americans enjoy legal rights like the 4th Amendment.
Writs of Assistance - History
JAMES OTIS: Against Writs of Assistance
The Navigation Acts and the Writs of Assistance that accompanied them empowered customs officers with general search privileges, and resulted in a series of court cases, the most famous of which was tried in February 1761. In the following speech, James Otis, a Massachusetts lawyer, argued before the Superior Court of Massachusetts that the writs were unconstitutional. This "master of the laws of nature and nations," as John Adams called him, based his case on the theory of political and social rights that be found in English common law. His open opposition to the power of Parliament marked the beginning of Otis's prominence as a popular agitator against the Crown.
I WAS DESIRED by one of the Court to look into the books and consider the question now before them concerning "Writs of Assistance." I have accordingly considered it, and now appear not only in obedience to your order but likewise in behalf of the. inhabitants of this town who have presented another petition, and out of regard to the liberties of the subject. And I take this opportunity to declare that whether under a fee or not (for in such a cause as this I despise a fee), I will to my dying day oppose with all the powers and faculties God has given me all such instruments of slavery on the one hand and villainy on the other as this Writ of Assistance is.
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 lawbook. I must therefore beg Your Honors' patience and attention to the whole range of an argument that may 'perhaps appear uncommon In many things, as well as to points of learning that are more remote and unusual, that the whole tendency of my design may the more easily be perceived, the conclusions better descend. and the force of them be better felt, I shall not think much of my pains in this cause. as I engaged in it from principle.
I was solicited to argue this cause as advocate general, and because I would not, I have been charged with desertion from my office. To this charge I can give a very sufficient answer. I renounced that office, and I argue this cause from the same principle and I argue it with the greater pleasure as it is in favor of British liberty, at a time when we hear the greatest monarch upon earth declaring from his throne that he glories in the name of Britain, and that the privileges Of his people are dearer to him than the most valuable prerogatives of his Crown, and as it is in opposition to a kind of power, the exercise of which, in former periods of. history, cost one king of England his head and another his throne. I have taken more pains in this cause than I ever will although my engaging in this and another popular cause has raised much resentment. But I think I can sincerely declare that I cheerfully submit myself to every odious name for conscience's sake, and from my soul I despise all those whose guilt, malice, or folly has made them my foes. Let the consequences be what they am determined to proceed. The only principles of public conduct that are worthy of a gentleman or a man are to sacrifice estate, ease, health, and applause, and even life, to the sacred calls of his country.
These manly sentiments in private life make the good citizen in public life, the patriot and the hero. I do not say that when brought to the test I shall be invincible, I pray God I may never be brought to the melancholy trial, but if ever I should, it will be then known how far I can reduce to practice principles which I know to be founded in truth. In the meantime I will proceed to the subject of this writ.
Your Honors will find in the old books concerning the office of a justice of the peace precedents of general warrants to search suspected houses. But in more modern books you will find only special warrants to search such and such houses, specially named, in which the complainant has before sworn that he suspects his goods are concealed, and will find it adjudged that special warrants only are legal. In the same manner, I rely on it that the writ prayed for in this petition, being general, is illegal. It is a power that places the liberty of every man in the hands of every petty officer. I say I admit that special writs of assistance, to search special places, may be granted to certain persons on oath but I deny that the writ now prayed for can be granted, for I beg leave to make some observations on the writ itself before I proceed to other acts of Parliament.
In the first place, the writ is universal, being directed "to all and singular justices, sheriffs, constables, and all other officers and subjects" so that, in short, it is directed to every subject in the King's dominions. Everyone, with this writ, may be a tyrant if this commission be legal, a tyrant in a legal manner, also, may control, imprison, or murder anyone within the Realm. In the next place, it is perpetual, there is no return. A man is accountable to no person for his doings, Every man may reign secure in his petty tyranny and spread terror and desolation around him, until the trump of the archangel shall excite different emotions in his soul. In the third place, a person with this writ, in the daytime, may enter all houses or shops, at will, and command all to assist him. Fourth, by this writ, not only deputies but even their menial servants are allowed to lord it over us. What is this but to have the curse of Canaan with a witness on us to be the servant of servants, the most despicable of God's creations
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 while 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. Customhouse officers may enter our houses when they please we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient.
This wanton exercise of this power is not chimerical suggestion of a heated brain. I will mention some facts. Mr. Pew had one of these writs, and when Mr. Ware succeeded him, he endorsed this writ over to Mr. Ware, so that these writs are negotiable from one officer to another and so Your Honors have no opportunity of judging the persons to whom this vast power is delegated. Another instance is this: Mr. Justice Walley had called this same Mr. Ware before him, by a Constable, to answer for a breach of the Sabbath-Day acts, or that of profane swearing. As soon as he had finished, Mr. Ware asked him if he had done. He replied, "Yes." "Well, then," said Mr. Ware, "I will, show you a little of my power, I command you to permit me to search your house for uncustomed goods" and went on to search the house from the garret to the cellar and then served the constable in the same manner!
But to show another absurdity in this writ, if it should be established, I insist upon it every person-by the 14th Charles II-has this power as well as the customhouse officers. The words are, "It shall be lawful for any person or persons authorized. What a scene does this open! Every man prompted by revenge, Ill humor, or wantonness to inspect the inside of his neighbor's house, may get a writ of assistance. Others will ask it from self-defense one arbitrary exertion will provoke another, until society be involved in tumult and in blood.
Writs of Assistance - History
Against Writs of Assistance
The "Writs of Assistance" were general warrants allowing officials to search for smuggled material within any suspected premises. James Otis was Advocate-General when the legality of these warrents was attacked, but promptly resigned his office when called upon to defend that legality. The Boston merchants then retained him as their counsel to oppose the writs before the Superior Court of Massachusetts. Otis refused the fee they offered, saying that in such a cause he despised all fees. In a five-hour speech, which was witnessed by a young John Adams, Otis argued that the writs were unconstitutional. He based his case on the rights guaranteed in English common law. The ultimate response to this abuse was the Fourth Amendment to the Constitution for the United States.
M AY it please your Honors: I was desired by one of the court to look into the books, and consider the question now before them concerning Writs of Assistance. I have accordingly considered it, and now appear not only in obedience to your order, but likewise in behalf of the inhabitants of this town, who have presented another petition, and out of regard to the liberties of the subject. And I take this opportunity to declare that whether under a fee or not (for in such a cause as this I despise a fee) I will to my dying day oppose, with all the powers and faculties God has given me, all such instruments of slavery on the one hand and villainy on the other as this Writ of Assistance is.
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. I must therefore beg your Honors' patience and attention to the whole range of an argument that may perhaps appear uncommon in many things, as well as to points of learning that are more remote and unusual, that the whole tendency of my design may the more easily be perceived, the conclusions better descend, and the force of them be better felt. I shall not think much of my pains in this cause, as I engaged in it from principle.
I was solicited to argue this cause as Advocate-General and, because I would not, I have been charged with desertion from my office. To this charge I can give a very sufficient answer. I renounced that office and I argue this cause from the same principle and I argue it with the greater pleasure, as it is in favor of British liberty, at a time when we hear the greatest monarch upon earth declaring from his throne that he glories in the name of Briton and that the privileges of his people are dearer to him than the most valuable prerogatives of his crown and as it is in opposition to a kind of power, the exercise of which in former periods of history cost one king of England his head and another his throne. I have taken more pains in this cause than I ever will take again, although my engaging in this and another popular cause has raised much resentment. But I think I can sincerely declare that I cheerfully submit myself to every odious name for conscience' sake and from my soul I despise all those whose guilt, malice, or folly has made them my foes. Let the consequences be what they will, I am determined to proceed. The only principles of public conduct that are worthy of a gentleman or a man are to sacrifice estate, ease, health, and applause, and even life, to the sacred calls of his country.
These manly sentiments, in private life, make good citizens in public life, the patriot and the hero. I do not say that, when brought to the test, I shall be invincible. I pray God I may never be brought to the melancholy trial but, if ever I should, it will then be known how far I can reduce to practice principles which I know to be founded in truth. In the meantime I will proceed to the subject of this writ.
Your Honors will find in the old books concerning the office of a justice of the peace precedents of general warrants to search suspected houses. But in more modern books you will find only special warrants to search such and such houses, specially named, in which the complainant has before sworn that he suspects his goods are concealed and will find it adjudged that special warrants only are legal. In the same manner I rely on it, that the writ prayed for in this petition, being general, is illegal. It is a power that places the liberty of every man in the hands of every petty officer. I say I admit that special Writs of Assistance, to search special places, may be granted to certain persons on oath but I deny that the writ now prayed for can be granted, for I beg leave to make some observations on the writ itself, before I proceed to other Acts of Parliament.
In the first place, the writ is universal, being directed "to all and singular justices, sheriffs, constables, and all other officers and subjects" so that, in short, it is directed to every subject in the King's dominions. Every one with this writ may be a tyrant if this commission be legal, a tyrant in a legal manner, also, may control, imprison, or murder any one within the realm. In the next place, it is perpetual there is no return. A man is accountable to no person for his doings. Every man may reign secure in his petty tyranny, and spread terror and desolation around him, until the trump of the Archangel shall excite different emotions in his soul. In the third place, a person with this writ, in the daytime, may enter all houses, shops, etc., at will, and command all to assist him. Fourthly, by this writ not only deputies, etc., but even their menial servants, are allowed to lord it over us. What is this but to have the curse of Canaan with a witness on us: to be the servants of servants, the most despicable of God's creation?
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. Custom-house officers may enter our houses when they please we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient.
This wanton exercise of this power is not a chimerical suggestion of a heated brain. I will mention some facts. Mr. Pew had one of these writs, and, when Mr. Ware succeeded him, he endorsed this writ over to Mr. Ware so that these writs are negotiable from one officer to another and so your Honors have no opportunity of judging the persons to whom this vast power is delegated. Another instance is this: Mr. Justice Walley had called this same Mr. Ware before him, by a constable, to answer for a breach of the Sabbath-day Acts, or that of profane swearing. As soon as he had finished, Mr. Ware asked him if he had done. He replied, "Yes." "Well then," said Mr. Ware, "I will show you a little of my power. I command you to permit me to search your house for uncustomed goods" and went on to search the house from the garret to the cellar and then served the constable in the same manner!
But to show another absurdity in this writ: if it should be established, I insist upon it every person, by the 14th Charles Second, has this power as well as the custom-house officers. The words are: "It shall be lawful for any person or persons authorized," etc. What a scene does this open! Every man prompted by revenge, ill-humor, or wantonness to inspect the inside of his neighbor's house, may get a Writ of Assistance. Others will ask it from self-defence one arbitrary exertion will provoke another, until society be involved in tumult and in blood.
[The remainder of the speech exists only in the following summary by John Adams:]
A dissertation on the rights of man in a state of nature. He asserted that every man, merely natural, was an independent sovereign, subject to no law but the law written on his heart and revealed to him by his Maker, in the constitution of his nature and the inspiration of his understanding and his conscience. His right to his life, his liberty, no created being could rightfully contest. Nor was his right to his property less incontestable. The club that he had snapped from a tree, for a staff or for defense, was his own. His bow and arrow were his own if by a pebble he had killed a partridge or a squirrel, it was his own. No creature, man or beast, had a right to take it from him. If he had taken an eel or a smelt or a sculpin, it was his property. In short, he sported upon this topic with so much wit and humor, and at the same time with so much indisputable truth and reason, that he was not less entertaining than instructive.
He asserted that these rights were inherent and inalienable. That they never could be surrendered or alienated but by idiots or madmen and all the acts of idiots and lunatics were void and not obligatory, by all the laws of God and man. Nor were the poor Negroes forgotten. Not a Quaker in Philadelphia or Mr. Jefferson in Virginia ever asserted the rights of Negroes in stronger terms. Young as I was and ignorant as I was, I shuddered at the doctrine he taught and I have all my life shuddered, and still shudder, at the consequences that may be drawn from such premises. Shall we say that the rights of masters and servants clash and can be decided only by force? I adore the idea of gradual abolitions! but who shall decide how fast or how slowly these abolitions shall be made? From individual independence he proceeded to association. If it was inconsistent with the dignity of human nature to say that men were gregarious animals, like wild geese, it surely could offend no delicacy to say they were social animals by nature, that there were natural sympathies, and, above all, the sweet attraction of the sexes, which must soon draw them together in little groups, and by degrees in larger congregations, for mutual assistance and defense And this must have happened before any formal covenant, by express words or signs, was concluded. When general councils and deliberations commenced, the objects could be no other than the mutual defense and security of every individual for his life, his liberty, and his property. To suppose them to have surrendered these in any other way than by equal rules and general consent was to suppose them idiots or madmen whose acts were never binding. To suppose them surprised by fraud or compelled by force into any other compact, such fraud and such force could confer no obligation. Every man had a right to trample it underfoot whenever he pleased. In short, he asserted these rights to be derived only from nature and the Author of nature that they were inherent, inalienable, and indefeasible by any laws, pacts, contracts, covenants, or stipulations which man could devise. These principles and these rights were wrought into the English constitution as fundamental laws. And under this head he went back to the old Saxon laws and to Magna Carta and the fifty confirmations of it in Parliament and the executions ordained against the violators of it and the national vengeance which had been taken on them from time to time, down to the Jameses and Charleses, and to the position of rights and the Bill of Rights and the revolution.
He asserted that the security of these rights to life, liberty, and property had been the object of all those struggles against arbitrary power, temporal and spiritual, civil and political, military and ecclesiastical, in every age. He asserted that our ancestors, as British subjects, and we their descendants, as British subjects, were entitled to all those rights by the British constitution as well as by the law of nature and our provincial character as much as any inhabitant of London or Bristol or any part of England, and were not to be cheated out of them by any phantom of "virtual representation" or any other fiction of law or politics or any monkish trick of deceit and hypocrisy.
He then examined the Acts of Trade, one by one, and demonstrated that, if they were considered as revenue laws, they destroyed all our security of property, liberty, and life, every right of nature and the English constitution and the charter of the province. Here he considered the distinction between "external and internal taxes," at that time a popular and commonplace distinction. But he asserted that there was no such distinction in theory or upon any principle but "necessity." The necessity that the commerce of the Empire should be under one direction was obvious. The Americans had been so sensible of this necessity that they had connived at the distinction between external and internal taxes, and had submitted to the Acts of Trade as regulations of commerce hut never as taxations or revenue laws. Nor had the British government till now ever dared to attempt to enforce them as taxations or revenue laws.
The Navigation Act he allowed to be binding upon us because we had consented to it by our own legislature. Here he gave a history of the Navigation Act of the first of Charles II, a plagiarism from Oliver Cromwell. In 1675, after repeated letters and orders from the King, Governor Leverett very candidly informs His Majesty that the law had not been executed because it was thought unconstitutional, Parliament not having authority over us.
James Otis Jr.
James Otis Jr. was a Massachusetts lawyer who became a leading colonial political activist in the 1760s. His constitutional challenge to British governance of the colonies in the WRITS OF ASSISTANCE CASE in 1761 was one of the most important legal events leading to the American Revolution. A brilliant speaker and writer, Otis faded from the revolutionary scene as he struggled with alcoholism and mental illness.
Otis was born on February 5, 1725, in West Barnstable, Massachusetts. His father, James Otis Sr., was a prominent merchant and political figure in the colony. Otis graduated from Harvard College in 1743 and was admitted to the bar in 1748. He moved his law practice from Plymouth, Massachusetts, to Boston in 1750 and was appointed advocate general of the Boston vice-admiralty court in 1756. He served until 1761, when the furor over writs of assistance pushed Otis into becoming an opponent of the colonial government he served.
A writ of assistance was a general SEARCH WARRANT that allowed customs officers to command the assistance of any local public official in making entry and seizing contraband goods. Goods seized by use of the writ were brought before the vice-admiralty court, which determined if the goods had been imported lawfully. SMUGGLING had bedeviled the colonial government for many years, but the need for tax revenue during the course of the French and Indian War led to a crackdown. The use of the writ made revenue collection easier, but it upset the merchant community of Boston.
Otis resigned his position on the vice-admiralty court and agreed to represent the merchants in challenging the legality of the writs of assistance. At trial Otis argued that the writs were a form of tyranny. He coined the phrase "A man's home is his castle" to describe the sanctity and privacy that a citizen deserved from his or her government.
More important, he argued that the writs were unconstitutional under British law. Though England did not have a written constitution, Otis referred to the accumulation of practices and attitudes throughout English history that set limits on the power of government. In his view there were traditional limits beyond which the Parliament or the king could not legitimately go. The writs exceeded these bounds and were therefore null and void. Though he lost
James Otis Jr.
LIBRARY OF CONGRESS
the Writs of Assistance case, his theory caught the public's attention. It provided justification for an increasing number of protests against taxation without representation. The case also elevated Otis as a radical colonial leader.
In May 1761 he was elected to the General Court of Massachusetts. This body, which served as the provincial legislature, gave Otis a platform to expound his radical political views. In 1762 he published A Vindication of the Conduct of the House of Representatives of the Province of Massachusetts Bay. In the pamphlet he defended the legislature's refusal to pay for ships that England had sent to protect the colony from pirates. He wrote numerous papers to the other colonies and to the government in England arguing for political freedom. His ideas became a part of the address that the STAMP ACT Congress of 1765 sent to the House of Commons protesting taxation of the colonies.
As the colonies moved closer to breaking away from England, Otis's influence faded, the result of alcoholism and mental illness. In 1769 he was struck in the head by a customs officer who disliked Otis's views. This injury left him mentally incapacitated and unable to continue in public life. For the remainder of his life, Otis had few lucid moments. He died on May 23, 1783, in Andover, Massachusetts, after being struck by lightning.
How many instances of the Writs of Assistance were there? Are there any documented instances?
I have been in general frustrated by the lack of easily available documentation surrounding the 1760 Writs of Assistance, and the Writs of Assistance as they appear today in UK legislation, as pointed out below. Readily available is the following:
- They were general search warrants issued to combat smuggling
- No standard of probable cause was necessary
- James Otis didn't like them ("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.") and gave up his government position to fight them in court
- He failed legally, but his five-hour oration was the moment when "Child Independence was born," according to the riveted John Adams.
- Today, with small alterations, the Writs are alive and well in the UK.
All of these general statements are fine and helpful, but I can't find out things like:
A Brief Legal Overview: The All Writs Act and Why It Is Being Applied to Apple
There is a brief provision in the United States Code at 28 U.S.C. Sec 1651, commonly called the All Writs Act, which simply states:
"(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction."
A "writ" is a court order. A "rule nisi" is essentially a court order that is in some manner conditioned on an event. While this provision has a long history, the present language of the Act dates from 1948 and 1949 amendments. Essentially it is a blanket provision allowing court orders to enforce judicial actions.
Assistant United States Attorneys sought and received from Sheri Pym, United States Magistrate Judge for the U.S. District Court for the Central District of California, on February 16 an "Order Compelling Apple, Inc. to Assist Agents in Search." The Magistrate Judge based her authority to act on the All Writs Act. The order specifically identifies the cell phone in question and further orders Apple to provide specified types of technical assistance "to assist law enforcement agents in obtaining access to the data on the SUBJECT DEVICE." Apple is granted five days to appeal if it believes "that compliance with this order would be unreasonably burdensome."
While hundreds of court decisions have addressed the All Writs Act, only a very few U.S. Supreme Court decisions specifically mention this legislative provision. One may readily suppose that the Apple order might ultimately be heard by the U.S. Supreme Court.
A 1977 divided U.S. Supreme Court decision required New York Telephone Company to provide technical assistance to the government in installing pen registers (recording numbers called) on telephones (U.S. v. New York Telephone Company). That decision described the application of the All Writs Act as flexible and determined that requiring the assistance by the telephone company was not unreasonably burdensome since the company was already engaged in this activity for its internal purposes. Furthermore, the required assistance required minimal effort and would not be disruptive to the company's operations. The only privacy mention in that opinion was in passing reference to Congressional legislation. Of course, this decision also predates Justice Scalia's tenure on the Court.
Consequently, a very quick takeaway is that there is Supreme Court precedent for requiring a company to provide technical assistance related to telephones. However, the Apple order requires the company to provide more than minimal assistance and penetrates much deeper into the device. Privacy considerations abound.
My quickly formed legal intuition is that Apple may well win this case on several legal grounds including the amount of compelled assistance and privacy concerns. Of course, we will know the result in due course.
This comment provides a very brief and incomplete overview of a complex topic and is not intended to provide legal advice. Always consult an experienced attorney in specific situations.