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Writs of Assistance Trial: 1761

Writs Versus Rights

Petitioner for the Writ: James Cockle, a deputy customs official of Salem
Petitioners against the Writs: Merchants of Salem and Boston, Massachusetts Bay Colony
Attorney for the Customs Officials: Jeremiah Gridley
Attorneys for the Merchants: James Otis and Oxenbridge Thacher
Chief Judge: Thomas Hutchinson
Place: Boston, Massachusetts Bay Colony
Date: February 24, 1761
Verdict: Deferred until a legal opinion could be obtained from England

SIGNIFICANCE: The case was the first major judicial confrontation over the extent and limits of English authority over colonial affairs. The argument highlighted the growing American notion of fundamental "constitutional" laws that included inalienable rights. The case helped lay the ideological foundations for the American Revolution and the Fourth Amendment of the Bill of Rights, which banned abusive search and seizure.

Under England's navigation laws, which governed the British Empire's commerce, the American colonies faced prohibitions and restrictions on trading and manufacturing certain goods within and without the empire. The British West Indies could not produce the amount of molasses needed by the colonists to make rum, a major product, and New England merchants were troubled by the substantial duty on molasses purchased from outside Britain's island colonies. Need, as well as greed, contributed to colonial smuggling.

During the French and Indian War, some smugglers continued to trade with French territories, supplying the enemy with essential goods. The smugglers faced weak opposition. Customs officials seldom bothered to search ships while they lay at anchor. Many customs appointees lived in England and assigned their duties to poorly paid colonial deputies, who often did not do the work. Great Britain spent an average of 8,000 pounds to collect 2,000 pounds in duties.

As the French and Indian War wound down, England moved to combat illegal trade. Merchants feared the crackdown would rely heavily on writs of assistance. Such writs had been issued in the past in the colonies, but they were seldom used. Writs of assistance were essentially general search warrants of tremendous scope.

The writs offered more latitude than ordinary search warrants. Usually a search warrant was based on a sworn statement of legitimate suspicion and permitted officials to examine a specific place for specific goods. Writs of assistance permitted customs officers (or anyone holding the writ), to search shops, ships, homes, and warehouses at will during the day. Once issued, they could be used again and again.

Writs of assistance expired within six months after the death of a reigning monarch. When George II died, a battle arose in Massachusetts over the legality of issuing new writs. Colonial merchants, represented by James Otis and Oxenbridge Thacher, petitioned Superior Court to refuse applications by customs officials for new writs. Otis had been the king's advocate general of Boston's Vice-Admiralty Court and had resigned rather than argue for customs officials.

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