Definitions

be of assistance

Writ of Assistance

The Writs of Assistance is a legal document that serves as a general search warrant.

Unlike the warrant, it is generally open-ended, and requires all parties to support the officer to whom it was issued. Its normal use is in support of customs and excise inspections. The writ authorizes an officer to search any person or place they suspect and it does not expire. They were legalized by the Townshend Act of 1767. While they were condemned in England in 1766, general writs of assistance continued to be issued until 1819.

Role in the American Revolution

The writs played an important role in the increasing difficulties that led to the American Revolution and the creation of the United States of America. In 1760, Great Britain began to enforce some of the provisions of the Navigation Acts by granting customs officers these writs. In the thirteen colonies these writs were only issued in the provinces of Massachusetts and New Hampshire. In New England, smuggling had become common. However, officers could not search a person's property without giving a reason. Colonists protested that the writs violated their rights as British citizens.

The colonists had several problems with these writs. They were permanent and even transferable: a writ holder could assign them to another. Any place could be searched at the whim of the holder, and searchers were not responsible for any damage they caused. This put anyone who had such a writ above the law.

All writs of assistance expired six months after death of the king, at which time new writs had to be obtained. With the death of King George II on 25 October 1760, all writs were set to expire on 25 April 1761. The “crisis” in writs of assistance began on 27 December 1760, when news of King George II’s death reached Boston and the citizens of Massachusetts learned that all writs faced termination.

Within three weeks, the writs were challenged by a group of 63 Boston Merchants represented by fiery Boston attorney James Otis. A countersuit was filed by a British customs agent Paxton, and together these are known as “Paxton’s case.” Otis argued the famous “writs of assistance case” on 23 February25 February 1761 and again on 16 November 1761. Although Otis technically lost, this oration was the first challenge to the authority of Parliament and was thus an important preliminary step to the revolution. Otis stated that the general writs violated the British unwritten constitution harkening back to the Magna Carta. Any law in violation of the constitution or “natural law” which underlay it, was void.

The arguments advanced colonial thinking about rights and their relation with Britain. While some use of the writs was suspended, their role in raising tax revenue was later supplemented by taxes on sugar, tea, and the Stamp Act. Further efforts to enforce them a decade later led to martial law. Boston was occupied and General Thomas Gage became the military governor in 1774.

In response to the much-hated writs, several of the colonies included a particular requirement for search warrants in their constitutions when they declared independence in 1776. Several years later, the Fourth Amendment also contained a particularity requirement that outlawed the use of writs of assistance (and all general search warrants) by the federal government. Later, the Bill of Rights was incorporated against the states via the Fourteenth Amendment, and writs of assistance were generally proscribed.

Canada

These have become an issue in Canada where they are usually issued to customs and Royal Canadian Mounted Police officers to enforce drug and import laws.

References

The only book length treatment of the writs, M.H. Smith’s, The Writs of Assistance Case, has been critiqued by William J. Cuddihy and others. See William J. Cuddihy, "A Man's House is His Castle…”. Smith’s book provides many valuable documents in its appendix.

  • MacDonald, William, Documentary Source of American History 1606-1913, 1923

Footnotes

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