The case was seen by many as an important forerunner to the rising tide of revolutionary sentiment in the 1760s. John Adams seemed to have thought so. Later in life he described the case saying, “...then and there the child Independence was born.”
Writs of AssistanceEdit
A writ of assistance is a written order given by a court to an official, such as a customs commissioner, to perform a task. Several different types exist, but in the area of customs, writs were first authorized by English Parliament in 1660. The Court of Exchequer was instructed to issue these writs to customs officials to search for smuggled goods. These particular writs were called “writs of assistance” because they required sheriffs and non-official loyal subjects to “assist” the customs official to carry out the search.
In Colonial AmericaEdit
In colonial America writs of assistance were issued by the courts to custom officials, appointed to their position, for the purpose of finding smuggled goods. Smuggling had become a problem in America and especially New England after Great Britain’s Parliament passed the Navigation Act passed in 1651 and the Molasses Act passed in 1733.
The Navigation Act limited trade out of America to the rest of the world, re-routing shipments through England so that taxes could be levied on the goods. The Molasses Act put a tax on molasses, which was used in New England to make rum, a lucrative trade here. New Englanders wanted to buy less expensive, tax-free molasses from the French West Indies. The Molasses Act made it illegal to get it there, by requiring merchants to buy molasses from the English West Indies and pay the tax. Many merchants chose instead to smuggle illegal tax-free molasses to New England.
The American Colonists felt these writs of assistance violated their rights as Englishmen. The writs allowed customs officials to search homes and businesses, even merchant ships, at their whim and with no probable cause. The people assisting the holder of the writ during the search were not responsible to pay for any damages caused by the search. When issued to an individual these writs never had to be returned and the person who held a writ could transfer them to another person of their choice. That means the person issuing the writs may not have control over who eventually holds the writ.
Writs only expired 6 months after the death of a King. When King George the II passed in October of 1760, all writs were scheduled to expire in April of 1761. The news of King George II’s death reached Boston on December 27, 1760 and within three weeks James Otis Jr. filed a suit against the writs.
James Otis JrEdit
James Otis Jr. was born February 5, 1725 to James Otis, Sr. and Mary Allyne Otis in Barnstable, Massachusetts. He was elder brother to famed author Mercy Otis Warren. He graduated from Harvard and became a lawyer in Boston. He was well known in his profession and in 1760 was appointed to the position of Advocate General of the Admiralty Court. The Advocate General was an officer of the royal customs, so he would have to uphold the writs, no matter how he personally felt about the writs. He was asked to represent Charles Paxton, a customs agent, in his petition to receive a new writ after the death of King George II. Otis promptly resigned his appointment, and refused to represent Paxton. Upon hearing this, 63 merchants asked Otis to represent them in their petition against the writs. He agreed to represent the merchants free of charge. The case became known then as “Paxton’s case,” and Paxton was represented by a teacher of James Otis Jr., named Jeremiah Gridley.
In the Council Chamber of the Old State House Museum, James Otis Jr. gave a four-hour impassioned argument against the writs of assistance in 1761 to Governor Sir Francis Bernard and the high judges, including a rival of Otis, Chief Justice Thomas Hutchinson. Rivalry between Otis’s father and Chief Justice Thomas Hutchinson may also have motivated his position on the writs. Otis’s father had been promised the position of Chief Justice, but was passed over by Governor Bernard for Hutchinson.
Otis had four main arguments against the writs of assistanceEdit
1. That in Britain the Court of Exchequer had the legal right to distribute general writs of assistance, but in America, where a Justice of the Peace was distributing the writs, the writs had to be more specific.
2. That the writs were too general because they did not specify who is being searched, what is being looked for and in what place the searcher is looking.
3. That the writs, once issued, would not expire for lengthy periods of time. They were also transferrable from one person to another.
4. That the person who held a writ was above the law, since they could search anyone’s home or business without reasonable cause. There were two sessions that discussed the writs of assistance. After James Otis Jr. presented his argument, Chief Justice Hutchinson wanted to write to England and see what Parliament and the King would decide on the case. He wrote to them between the two sessions. The answer has not been recorded, however the King’s answer can be deciphered through Hutchinson’s decision.
James Otis Jr. was not successful in convincing Governor Bernard, the high judges, or Chief Justice Hutchinson that the writs were illegal. Hutchinson ruled at the second session that the writs were legal. Otis argued against the writs in 1761, and they were still used up until 1766 when there is the last recorded use of the writs.
Why is this Important?Edit
John Adams, a twenty-five year old law student, was in the room when James Otis Jr. gave his speech to the Governor and he later wrote:
“But Otis was a flame of fire; with a promptitude of classical allusions, a depth of research, a rapid summary of historical events and dates, a profusion of legal authorities, a prophetic glance of his eyes into futurity, and a rapid torrent of impetuous eloquence, he hurried away all before him. American Independence was then and there born. The seeds of patriots and heroes, to defend the Non sine diis animosus infans, to defend the vigorous youth, were then and there sown. Every man of an immense crowded audience appeared to me to go away, as I did, ready to take arms against Writs of Assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.”
In his speech James Otis Jr. planted part of the idea for American democracy evidenced by the Fourth Amendment to the United States Constitution. These ideas were characteristic of the Enlightenment philosophy popular at the time. Ideas, such as man’s right to his own property, which no one else has a right, inspired James Otis Jr., who’s voice would reach the framers of the constitution. The Fourth Amendment to the United States Constitution is as follows:
“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.”