James Otis and the Writs of Assistance Case, 1761

Introduction: A Reluctant Revolutionary

In 1761, James Otis represented the merchants of Boston in a case regarding the legality of "writs of assistance" — documents that gave their holders the authority to enter and search any home or building in the then-colonies without any prior warning or stated justification, and compelled any British subject to assist in that search. Though he argued against the constitutionality of writs of assistance from the position of a loyal British subject, Otis was eventually lauded as the progenitor of the movement which eventually spawned the American Revolution a decade and a half later. The events which allowed a decidedly pro-monarchy reformist to eventually become the adopted standard of the revolutionary new democratic republic include not only the early formations of constitutional law in the courtroom of the Superior Court of Massachusetts, but also the enactment of private grudges between provincial politicians, the smuggling of French-supplied molasses out of a small Spanish port, and James Otis's own descent into madness resulting in the burning of all his records and papers, so that only the recollections of his biggest fans and detractors remained.

James Otis was appreciated most notably by John Adams, who witnessed Otis's five-hour speech before the Superior Court of Massachusetts and later published portions of Otis's argument along with his own additions and edits. Otis's own political beliefs were more complex than Adams's glowing characterization would suggest, and one must examine the history behind writs of assistance as well as Otis's work before and after the writs of assistance case in order to fully understand the legacy of his most famous speech. Although seemingly unaware of it at the time, Otis managed to encapsulate the simmering revolutionary sentiments of colonial America well before the idea of revolution was being openly discussed.

By arguing against writs of assistance, Otis was also implicitly denying the legitimacy of parliamentary rule over the colonies, even though he himself never advocated a break with the British government, but rather adequate representation within that government. The subsequent difficulties Otis had in his political career and the gap between his most famous speech and Adams's fond recollection of it can both be explained by Otis's own misunderstanding of the importance of his work. Though the Fourth Amendment of the United States Constitution can be directly traced to Otis's speech, the idea of the United States would likely have offended Otis's strong British loyalty. If James Otis's speech against writs of assistance was the point at which "the child Independence was born," then Otis himself was largely unaware of his entry into this new kind of fatherhood.

In order to understand how writs of assistance came to be such a contentious legal tool that they eventually helped spawn the American Revolution, it is useful to examine their gradual formation over the course of British history. Although writs of assistance are recorded as early as 1558 in the "so-called Parliament Pawns," which recorded the writs issued to summon various people to parliament, it was not until 1660, during the reign of Charles II, that they were formalized into the kind of search warrant ultimately condemned by James Otis a century later (Adair 1921, p. 357). Before that time, writs of assistance were issued in a variety of contexts, and it was not until they were applied as a way to instruct public officials to aid in the work of customs officers that they became the powerful tools of oppressive search and seizure that so incensed the colonists. When applied by the government of Charles II, writs of assistance were:

The History and Development of Writs of Assistance

warrants issued by a court, upon the application of the surveyor-general of the customs, to an inferior officer of the customs, authorizing him to search for "uncustomed" goods, or goods illegally imported. As "general" warrants available in any case where search was needed, they did not require that specific information in each instance be given previously to the court (Hickman 1932, pp. 83–84).

Specifically, writs of assistance called for sheriffs — and indeed anyone subject to British law — to assist customs officers in searching for smuggled or "uncustomed" goods (Gawalt 1979, p. 314). Writs of assistance were used in England from 1660 onwards but did not appear in the colonies for some time, as special warrants requiring "information given on oath that smuggled goods were hidden" in a place specified in the warrant sufficed for customs officers combating smuggling (Hickman 1932, pp. 84–85). These warrants were much less contentious; in fact, they were not functionally different from warrants commonly served by law enforcement today, although the particular standards for evidence have since changed.

It was not until 1755, when the legality of special warrants granted by colonial governors was challenged, that colonial customs officials began using writs of assistance to justify their searches. In her history of colonial writs of assistance, Emily Hickman suggests multiple reasons for this replacement of special warrants with the more open-ended writs of assistance. She proposes that "illegal traders, hoping to rid themselves of the hampering effects of the special warrants, may have protested against their illegality and so have opened the way to the request by American customs officers for the more stringent writ of assistance commonly used by customs officials in England" (Hickman 1932, p. 85).

However, this protestation was likely not sufficient on its own to force the introduction of writs of assistance into the colonies. Hickman proposes that "it may well be that the introduction of writs of assistance was part of the struggle of the British government to enforce the Acts of Trade and to prohibit commerce with the French during the Seven Years War," suggesting that "royal officials in their zeal to stamp out trade with the enemy may have suggested the substitution of the general writ for the special warrant" (p. 85). In a somewhat ironic twist, pressure from both sides of the smuggling operation — the smugglers and the customs officers — is what ultimately allowed for the introduction of general writs of assistance into the British colonies in the middle of the eighteenth century.

By 1755, writs of assistance had been first granted to colonial customs officials, and within six years they had nearly replaced special warrants as the legal justification of choice for government inspectors. It is necessary to note the timing of their introduction to the colonies, because this distinction between special warrants and the more powerful writs of assistance constitutes one of the many nuances of James Otis's strident opposition to the latter during the case of 1761. As Hickman dryly remarks, "merchants did not fear special writs, which required the publication of the informer's name in each case, for the business of informing was exceedingly unhealthful in Boston at that period" (p. 91). Only when writs of assistance increased as a result of colonial merchants' successful circumvention of rules prohibiting trade with the French did those merchants need to engage James Otis to argue against them.

Colonial Smuggling and the Road to the 1761 Case

By 1761, Massachusetts merchants had found a steady stream of income by transporting French goods from the Spanish port of Monte Cristi, labeling them as British goods and listing their ships' destinations as British ports in order to circumvent laws against trading with the French and the "exportation of colonial provisions during the war" (Hickman 1932, p. 87). This was in spite of the duties associated with the Molasses Act, and Hickman notes the success of these smuggling operations by pointing out the marked increase in revenue collected under that act from 1755 to 1761. Duties collected in the colonies from 1734 to 1755 averaged £259 a year; for the period 1756 to 1762, they rose to an average of £625, and for the years 1760 and 1761 "the respective amounts were £1170 and £1189" (p. 87).

As high import duties and special warrants were not enough to combat the thriving industry of smuggled goods, it follows that the application of writs of assistance to customs investigations increased as it did during the years between 1755 and 1761. Furthermore, the notable growth in the economy of imported goods demonstrates the strong financial motive for Massachusetts merchants to oppose writs of assistance, in addition to any philosophical or political opposition to their use in the colonies.

When news of the death of King George II arrived in Boston on December 27, 1760, it "terminated the existing writs of assistance" and "the officers of the customs would now be obliged to apply to the courts for new writs," which Hickman suspects prompted "The Society for Promoting Trade and Commerce within the Province" to enlist James Otis to protest "to the Superior Court against its issue of general writs of assistance" (Hickman 1932, pp. 90–91).