SEARCH AND SEIZURE

WRITS OF ASSISTANCE

On 24th February 1761, 250 years ago today, James Otis Jr. and Oxenbridge Thacher argued a case before the Superior Court of Judicature of the Province of Massachusetts against the issuance of Writs of Assistance. These writs effectively allowed British customs officers to arbitrarily search people's premises.

The court was presided over by Chief Justice Thomas Hutchinson, a prominent Loyalist before the American Revolution, who went to England in exile in May 1774. As well as being Chief-Justice, he was lieutenant-governor of the Massachusetts Bay Province. The Governor, Sir Francis Bernard (1st Baronet) was especially instructed to see that the decrees of the English Board of Trade in regard to the collection of duties and the restriction of commerce were enforced.

The case arose when James Paxton, a Massachusetts customs official, applied to the superior court for a writ of assistance. 63 Boston merchants petitioned the Court to challenge the legality of these writs. James Otis Jr. advocate general for the colony, resigned his post to represent the merchants who opposed the writ.

First Oxenbridge Thacher challenged the authority of the Court to issue the writ as no statute specified which courts in American could issue such writs. Otis next challenged the procedure by which the writs were issued. Suspicion should not be enough. The person seeking the writ should be placed under oath and made to disclose the evidence on which the application was based. Secondly, he argued that an application must identify the person, place, or thing to be searched and thirdly Otis challenged Parliament's autocratic authority. He argued that no Parliament has power to pass legislation that is against fundamental principles of law.

In response lawyers for the Government asserted that the Superior Court had no discretion to deny Paton's application for the writ. Not surprisingly Chief Justice Hutchinson and his colleagues agreed with the government lawyers. They unanimously voted to grant Paxton's application.

Among the lawyers who were present on this important day was John Adams, then a fresh faced youth of 26, who had come from his home in Braintree to hear the case. He later wrote

"Round a great fire were seated five judges, with Lieutenant-Governor Hutchinson at their head as Chief-Justice, all arrayed in their new fresh rich robes of scarlet English broadcloth; in their large cambric bands and immense judi­cial wigs. At a long table were all the barristers-at-law of Boston and of the neighboring county of Middlesex, in gowns, bands and tie­-wigs. They were not seated on ivory chairs, but their dress was more solemn and more pompous than that of the Roman senate, when the Gauls broke in upon them. Two portraits of more than full length of King Charles the Second and of King James the Second, in splendid golden frames were hung up on the most conspicuous sides of the apartment. If my young eyes or old memory have not de­ceived me, these were as fine pictures as I ever saw;... they had been sent over without frames in Governor Pownall's time, but he was no admirer of Charles or James. The pictures were stowed away in a garret among rubbish until Governor Bernard came, who had them cleaned, superbly framed and placed in council for the admiration and imitation of all men, no doubt with the advice and concurrence of Hutchinson and all his nebula of stars and sat­ellites."

Then the Advocate of Freedom began to speak, confounding all his opponents by the splendour of his eloquence. "Otis," says John Adams, "was a flame of fire. With a plenitude 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 eye into futurity, and a torrent of impetuous eloquence, he hurried away everything before him!... Every man of a 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!"

Pretty heady stuff. It was from that case that the 4th Amendment to the Constitution was drawn:

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.

This is now fundamental to the rule of law. Few democratically elected representatives would seek to change this principle. Even in the UK, I think.