Writ of assistance

A writ of assistance is a written order (a writ) issued by a court instructing a law enforcement official, such as a sheriff or a tax collector, to perform a certain task. Historically, several types of writs have been called "writs of assistance". Most often, a writ of assistance is "used to enforce an order for the possession of lands". When used to evict someone from real property, such a writ is also called a writ of restitution or a writ of possession. In the area of customs, writs of assistance date from Colonial times. They were issued by the Court of Exchequer to help customs officials search for smuggled goods. These writs were called "writs of assistance" because they called upon sheriffs, other officials, and loyal subjects to "assist" the customs official in carrying out his duties.

In general, customs writs of assistance served as general search warrants that did not expire, allowing customs officials to search anywhere for smuggled goods without having to obtain a specific warrant. These writs became controversial when they were issued by courts in British America between 1755 and 1760 (then mirroring like writs having previously been issued, and being enforced, in the motherland by Britain's Exchequer Court), especially the Province of Massachusetts Bay. Controversy over these general writs of assistance inspired the Fourth Amendment to the United States Constitution, which forbids general search warrants in the United States of America. Though generally these colonial writs were no more onerous than the ones enforced in Britain, a fallacious 1760 London Magazine article asserted the writs issued in the motherland "...were specific, not general" thereby generating the perception in the colonies that the colonists were being treated unfairly. John Adams was to later assert that the ensuing court battle was the "seeds of the American Revolution."

General writs of assistance played an important role in the increasing tensions that led to the American Revolution and the creation of the United States of America. In 1760, Great Britain began to enforce some of the provisions of the Navigation Acts by granting customs officers these writs. In New England, smuggling had become common. However, officers could not search a person's property without giving a reason. Colonists protested that the writs violated their rights as British subjects.

Among the grounds for which the colonists opposed the writs were that they were permanent and even transferable; the holder of a writ could assign it to another; any place could be searched at the whim of the holder; and searchers were not responsible for any damage they caused.

All writs of assistance expired six months after the death of the king, at which time new writs had to be obtained. With the death of King George II on 25 October 1760, all writs would expire on 25 April 1761. The crisis began on 27 December 1760 when news of King George II's death reached Boston and the people of Massachusetts learned that all writs faced termination.

Within three weeks, the writs were challenged by a group of 63 Boston merchants represented by fiery Boston attorney James Otis Jr. A countersuit was filed by a British customs agent Paxton, and together these are known as "Paxton's case". Otis argued the famous writs of assistance case at the Old State House in Boston in February 1761 and again on 16 November 1761. Otis gave the speech of his life, making references to liberty, English common law, "a man's house is his castle," and the colonists's "rights as Englishmen."

The court ruled against the merchants. However, Otis's arguments were published in the colonies, and stirred widespread support for colonial rights. As a young lawyer John Adams observed the case in the packed courtroom. Moved by Otis's performance and legal arguments, he later declared that "Then and there the child Independence was born".

In a pamphlet published in 1765, Otis expanded his argument that the general writs violated the British unwritten constitution hearkening back to the Magna Carta. Any law in violation of the constitution or "natural law" which underlay it, he said, was void.