Writs of Assistance Trial: 1761

The case turned on interpretation of the legal basis for the writs. Jeremiah Gridley, acting for the customs officials, maintained that necessities of state justified limitations on traditional English rights:

It is true the common privileges of Englishmen are taken away in this Case, but even their privileges are not so in case of Crime and fine. 'Tis the necessity of the Case and the benefit of the Revenue that justifies this Writ. Is not the Revenue the sole support of Fleets & Armies abroad, & Ministers at home? without which the Nation could neither be preserved from the Invasion of her foes, nor the Tumults of her own Subjects. Is not this I say infinitely more important, that the imprisonment of Thieves, or even Murderers? yet in these Cases 'tis agreed Houses may be broken open.

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Gridley included in his argument references to statutory precedents.

In rebuttal, Oxenbridge Thacher also referred to precedents. The colonial Superior Court's power was in the case of the writs being held comparable to that of the Court of Exchequer in England. Thacher reasoned there was no justification for such a comparison. He also criticized the longevity of the writs, stressing how their power could be abused by repeated use.

Following Thacher, James Otis spoke like "a flame of fire," according to John Adams. He, too, spoke of precedent. He built an elaborate argument that began with an individual's God-iven natural rights and the birth of societal compacts. He continued through old Saxon laws, Magna Carta, and actions taken over time to secure and confirm rights and principals of England's unwritten constitution.

Otis repeatedly attacked the writs as directly contrary to basic English liberties:

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.

Otis preferred "special warrants" which specified name, place, what was suspected, and by whom. Complaining of the unaccountability of those armed with writs of assistance, Otis said:

Every one with this writ may be a tyrant in a legal manner… 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.

Otis repeated a well-known story. A man named Ware held a writ which had been endorsed to him by a customs official. Ware was brought to court for swearing on the Sabbath. He took revenge on the judge and the constable who had arrested him. He used his writ to ransack their homes looking for smuggled goods.

Otis spoke for four hours. John Adams wrote:

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, the child Independence was born. In fifteen years, i.e. in 1776, he grew up to manhood and declared himself free.

The court did not immediately issue the writs, although it was known that Chief Justice Thomas Hutchinson favored them:

The Court has considered the subject of writs of assistance, and can see no foundation for such a writ; but as the practice in England is not known, it has been thought best to continue the question to the next term, that in the mean time opportunity may be given to know the result.

The query was sent to the colonial agent for Massachusetts in England. Legal authority to issue the writs was upheld and the court quietly did so. But apparently no customs official had the temerity to use them.