Writs of Assistance
Aiton's Encyclopedia (1910)
in Colonial history, general search warrants issued in 1761. The writs grew out of the difficulty experienced by the British custom house authorities in preventing smuggling into American ports. England was keen not only to prevent the importation of manufacturing machinery into the colonies, but to require the colonists to buy British goods only. In order to have some check on receipts of merchandise and to know what was going on, the British government placed nominal duties on goods imported into the colonies, and British custom officers were stationed at American seaports to collect the duties and prevent smuggling, especially the bringing in of goods from countries other than Great Britain . These officers spent about $35,000 a year in collecting $10,000 of customs and were unable to put a stop to smuggling. The British Lords of Trade fell back on a statute passed during the reign of Charles II and directed their American agents to apply to the courts for writs of assistance, or general search warrants, authorizing them to search ships, warehouses, and homes indiscriminately. On the first application to the court at Boston, James Otis, a fiery young lawyer, was retained to oppose the issuance of the writs. This he did in a brilliant plea in which he urged that the act of Parliament in question was unconstitutional: "Reason and the constitution are both against this writ. . . All precedents are under the control of the principles of law. . . No acts of Parliament can establish such a writ. . . An act against the constitution is void." This was a novel plea. Otis boldly denied the supremacy of Parliament. Nowadays the courts of the United States do not hesitate to declare a legislative act unconstitutional and void, but in that day the doctrine was new. The court took the application under consideration and subsequently issued the writs desired. It does not appear, however, that the writs were used. An officer endeavoring to make use of so obnoxious a document would have been mobbed. The controversy divided the colonists into a royal party and a colonial party. See Search Warrant
What Has Changed in the Last Century
When Aiton's wrote this in 1910 the writs were treated mainly as a stirring episode in the coming of the Revolution, capped by James Otis's 1761 plea that "an act against the constitution is void." The legal legacy is now the larger point: the hatred of general warrants fed directly into the Fourth Amendment of 1791, with its demand for probable cause and particular description of the place to be searched, and American courts still invoke the writs when limiting searches — the Supreme Court reached back to them in Riley v. California (2014) in requiring a warrant to search a mobile phone. Historians are also more cautious than Aiton's about the speech itself, since Otis's words survive largely through notes and later recollections by John Adams, who wrote that "then and there the child Independence was born." Aiton's remark that the writs were apparently never used is now qualified: writs were granted and used in Massachusetts during the 1760s, and Parliament expressly authorised them again in the Townshend legislation of 1767, when most colonial courts balked at issuing them.
Written for this edition, 2026.