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".[1] Most often, a writ of assistance is "used to enforce an order for the possession of lands".[2] When used to evict someone from real property, such a writ is also called a writ of restitution or a writ of possession.[3] In the area of customs, writs of assistance were first authorized by an act of the English Parliament in 1660 (12 Charles 2 c. 29),[4] and 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.[5]

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 in the 1760s, 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.

In colonial America

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. The colonists had several problems with these writs. 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. This put anyone who had such a writ above the laws.

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.[6]

Paxton's case

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".[7] 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."[8][9][10][11]

The court ruled against the merchants. However, the case lit the fire that became the American Revolution. Otis's arguments were published in the colonies, and stirred widespread support for colonial rights. As a young lawyer, John Adams was observing the case in the packed courtroom, and was moved by Otis's performance and legal arguments. Adams later said that "Then and there the child Independence was born".[12][10][11][13]

In a pamphlet published three years later, 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.[14]

Malcom Affair

A writ of assistance was used in an incident known as the "Malcom Affair", which was described by legal scholar William Cuddihy as "the most famous search in colonial America."[15] The episode demonstrated a fundamental difference between the colonists' view of their rights and the official British view of imperial law. "The Malcom affair was a minor matter, a comedy of blundering revenue officers and barricaded colonials," wrote legal historian John Phillip Reid, "but were we to dismiss it in haste we might run the risk of dismissing much of the story of the American Revolution."

On 24 September 1766, customs officials in Boston, with a deputy sheriff, searched merchant Daniel Malcom's home, which was also his place of business. They claimed the authority to do so by a writ of assistance issued to customs official Benjamin Hallowell, and the information of a confidential informant. Malcom allowed them to search, but denied them access to a locked cellar, arguing that they did not have the legal authority to break it open. According to customs officials, Malcom threatened to use force to prevent them from opening the door; according to Malcom and his supporters, his threat specified resisting any unlawful forced entry.

The officials left and returned with a specific search warrant, only to find that Malcom had locked his house. A crowd supportive of Malcom had gathered around the house; Tories claimed that this "mob" numbered 300 or more people and was hostile to the customs officers, while Whigs insisted that this was a peaceful gathering of about 50 curious onlookers, mostly boys. No violence occurred, but reports written by Governor Francis Bernard and the customs officials created the impression in Britain that a riot had taken place. The incident furthered Boston's reputation in Britain as a lawless town controlled by "mobs", a reputation that would contribute to the government's decision to send troops in 1768.

Although British officials, and some historians, described Malcom as acting in defiance of the law, the constitutional historian John Phillip Reid argued that Malcom's actions were lawful—so precisely lawful, in fact, that Reid speculated that Malcom may have been acting under the advice of his lawyer, James Otis. According to Reid, Malcom and Otis may have been attempting to provoke a lawsuit so that they could once again "challenge the validity of writs of assistance" in court. This was one of several incidents when a Boston merchant resisted a search with a seemingly exact knowledge of the law; John Hancock would act in a similar manner when customs officials attempted to search his ship Lydia in 1768.[16]

End of colonial writs

Uncertainty about the legality of writs of assistance issued by colonial superior courts prompted Parliament to affirm that such writs were legal in the 1767 Townshend Acts. However, most colonial courts refused to issue general writs, and the Malcom case was apparently the last time a writ of assistance was issued in Boston.

Legacy

In response to the much-hated general writs, several of the colonies included a particularity requirement for search warrants in their constitutions when they established independent governments in 1776; the phrase "particularity requirement" is the legal term of art used in contemporary cases to refer to an express requirement that the target of a search warrant must be "particularly" described in detail.[17] Several years later, the Fourth Amendment to the United States Constitution also contained a particularity requirement that outlawed the use of writs of assistance (and all general search warrants) by the federal government.[18] Later, the Fourth Amendment was incorporated against the states via the Fourteenth Amendment,[19] and writs of assistance were proscribed

In the United Kingdom

Writs of assistance continue to have force in the United Kingdom and may be used by customs officers to enter any building by force and search and seize anything liable to forfeiture. The officer must have reasonable grounds to suspect that goods liable for forfeiture are kept on the premises and that the goods are likely to be removed, destroyed or lost before a search warrant can be obtained and executed. Writs of assistance are issued at the start of the monarch's reign and continue in force until six months after the end of the monarch's reign.[20]

In Canada

Until 1985,[21] four federal statutes in Canada—the Customs Act, Excise Tax Act, Food and Drugs Act, and Narcotic Control Act—provided that writs of assistance were to be granted to officers of the Royal Canadian Mounted Police and other federal officers, on a mandatory basis, for enforcement purposes.[22][23] The notion of a writ of assistance in Canadian statute dates back at least to 1847, when a statute of the Province of Canada was passed providing for writs of assistance in customs enforcement; a statute of Nova Scotia referred to such a writ in 1834, while a New Brunswick statute dated to 1846.[24][25]

Statutory writs of assistance were described by the Exchequer Court of Canada (now the Federal Court) as "in effect, search warrants unrelated to any particular suspected offence and of continuing operation, which are issued to members of the Royal Canadian Mounted Police and other officers in the service of the Government of Canada to have effect as long as the holder continues to hold the position by virtue of which the writ was issued to him."[26] Perhaps more concisely, one commentator described the legal effect of a writ of assistance as, "to all intents and purposes, a blanket warrant" which "authorizes the holder to search for particular things (e.g., controlled drugs or smuggled goods) anywhere and at any time."[27]

However, since judicial authorization was not required for any given search conducted pursuant to a writ of assistance, this characterization is somewhat misleading. Rather, as noted by the Law Reform Commission of Canada in a 1983 report, "[i]n essence, they are documents that identify their holders as members of a specific class of peace officers with special powers of warrantless search and seizure."[28] Moreover, although search warrants are subject to various common law requirements of particularity, the same was not evidently true for statutory writs of assistance.[29]

In 1984, the Ontario Court of Appeal declared statutory writs of assistance to be contrary to section 8 of the Canadian Charter of Rights and Freedoms.[30] Statutory writs of assistance were repealed in Canada in 1985.[21][31]

Notes

1. "Amendment IV: Writs of Assistance 1761–72". University of Chicago.
2. Merriam-Webster's Dictionary of Law (Springfield, Massachusetts: Merriam, -Webster, 1996), 538.
3. "Writ of Assistance Law & Legal Definition". U.S. Legal, Inc.
4. George Elliott Howard, Preliminaries of the revolution, 1763–1775 (1906), 73.
5. Smith, Writs of Assistance Case, 29–34.
6. These facts are established by many sources including Thomas Hutchinson, The History of the Colony of Massachusetts Bay (3 vols. 1764–1828; 1765–1828)
7. Court files Suffolk vol. 572 March 1765 no 100.5156 Application merchants 19 January 1761
8. Sabine, Lorenzo. The American Loyalists, pp 328–9, Charles C. Little and James Brown, Boston, Massachusetts, 1847.
9. Monk, Linda R. The Words We Live By, p 158, Hyperion, New York, New York, 2003. ISBN 0-7868-6720-5.
10. Nash, Gary B. The Unknown American Revolution, pp 21–23, Viking, New York, New York, 2005. ISBN 0-670-03420-7.
11. Miller, John C. Origins of the American Revolution, pp 46–7, Little, Brown & Company, Boston, Massachusetts, 1943.
12. Monk, Linda R. The Words We Live By, p 158, Hyperion, New York, New York, 2003. ISBN 0-7868-6720-5.
13. Burns, Eric. Infamous Scribblers: The Founding Fathers and the Rowdy Beginnings of American Journalism, pp 141–2, 201, Public Affairs, New York, New York, 2006. ISBN 978-1-58648-334-0.
14. Josiah Quincy Reports of Cases...In the Superior Court of Judicature...Between 1761 and 1772, at 479–482 and in Appendix (Samuel Quincy, 1865)
15. Otis H. Stephens and Richard A. Glenn, Unreasonable Searches and Seizures: Rights and Liberties under the Law (ABC-CLIO, 2006), 39.
16. Reid, Rebellious Spirit,12 – 32, 57 – 59, 135–36n32; Knollenberg, "Growth", 215
17. See, e.g., Maryland v. Garrison, 480 U.S. 79 (1987).
18. Smith, Writs of Assistance Case, 5.
19. Stanford v. Texas, 379 U.S. 476 (1965).
20. "Customs and Excise Management Act 1979". National Archives.
21. Burchill, John W. (2019). "Persistence and Variability of DNA: Penile Washings and Intimate Bodily Examinations in Sex-Related Offences". Manitoba Law Journal. 42 (4): 81 – via CanLII.
22. Trasewick, E. W. (1962–1963). "Search Warrants and Writs of Assistance". Criminal Law Quarterly. 5: 341 – via WestlawNext Canada.
23. Stuart, Don (2000). "Time to Recodify Criminal Law and Rise above Law and Order Expediency: Lessons from the Manitoba Warriors Prosecution". Manitoba Law Journal. 28 (1): 103–04 – via CanLII.
24. Parker, "Extraordinary Power," 709–10, citing 10 & 11 Vic. c. 31, s. 69; 4 Wm. IV c. 50, s. 6; and 9 Vic. c. 2, s. 13.
25. Walz, Jay (6 September 1970). "'No-Knock' Writs Issue in Canada". The New York Times. Retrieved 14 June 2020.
26. Re Writs of Assistance, [1965] 2 Ex CR 645, 1965 CarswellNat 337 (Exchequer Court) at para 2.
27. Faulkner, John (1971). "Writs of Assistance in Canada". Alberta Law Review. 9: 386.
28. Law Reform Commission of Canada, Police Powers, section 84 (p. 35).
29. Law Reform Commission of Canada, Police Powers, section 90 (p. 37).
30. R v Noble (1984), 48 OR (2d) 643, 1984 CanLII 2156 (Ont CA).
31. R.S.C 1985, c. C-40, s. 132; R.S.C. 1985, c. E-12; R.S.C. 1985, c. F-27, s. 37(1)(a); R.S.C. 1985, c. N-1, s. 10(1)(a). See Criminal Law Amendment, 1985, R.S.C. 1985 C-19, ss. 190, 191, 196, 200. See also s. 211.

References

• Law Reform Commission of Canada. Police Powers — Search and Seizure in Criminal Law Enforcement. Ottawa, Ontario: Minister of Supply and Services Canada, 1983. ISBN 0-662-52277-X.
• Knollenberg, Bernhard. Growth of the American Revolution, 1766–1775. New York: Free Press, 1975. ISBN 0-02-917110-5.
• MacDonald, William. Documentary Source Book of American History, 1606–1913. New York: Macmillan, 1920.
• Parker, G. E. "The Extraordinary Power to Search and Seize and the Writ of Assistance." University of British Columbia Law Review 1, no. 6 (April 1963): 688–728. Via HeinOnline.
• Reid, John Phillip. In a Rebellious Spirit: The Argument of Facts, the Liberty Riot, and the Coming of the American Revolution. University Park: Pennsylvania State University Press, 1979. ISBN 0-271-00202-6.
• Smith, M. H. The Writs of Assistance Case. Berkeley: University of California Press, 1978. ISBN 978-0-520-03349-8. The only full-length book on Paxton's case, it reprints many original documents.

Further reading

• Clancy, Thomas K., "The Importance of James Otis," 82 Miss. L.J. 487 (2013), discussing significance of Otis's argument for development of the Fourth Amendment.
• Cuddihy, William J. "'A Man's House is His Castle': New Light on an Old Case", review of The Writs of Assistance Case by M. H. Smith. Reviews in American History 7, no. 1 (March 1979), 64–69.
• Cuddihy, William J. The Fourth Amendment: Origins and Original Meaning, 602–1791. Oxford University Press. ISBN 978-0-19-536719-5.
• Dickerson, Oliver M. "Writs of Assistance as a Cause of the American Revolution". In Richard B. Morris, ed., The Era of the American Revolution (1939), 40–75. Argues that the writs did not play a major role in the coming of the American Revolution.
• Frese, Joseph. "James Otis and the Writs of Assistance". New England Quarterly 30 (1957): 496–508.
• Wolkins George G. "Daniel Malcom and Writs of Assistance". Massachusetts Historical Society Proceedings 58 (1924), 5–87.
• Wolkins George G. "Writs of Assistance in England". Massachusetts Historical Society Proceedings 66 (1941), 357–64.