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.
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". 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.
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." 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, a prominent merchant and well-known smuggler, would act in a similar manner when customs officials attempted to search his ship
Lydia in 1768.
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 period cases to refer to an express requirement that the target of a search warrant must be "particularly" described in detail. 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. Later, the Fourth Amendment was
incorporated against the states via the
Fourteenth Amendment, and writs of assistance were proscribed. ==In the United Kingdom==