who is the colonial lawyer who argued the writs of assistance

Who legalized writs of assistance in the colonies?

Townshend specifically legalized writs of assistance in the colonies in 1767. …to the British-imposed writs of assistance—general search warrants designed to enforce more strictly the trade and navigation laws in North America.

Who was the lawyer who challenged the writs of Confederation?

Shortly after their implementation, Boston merchants, the group primarily responsible for smuggling in the colonies, hired lawyer James Otis to challenge the constitutionality of the writs before the Massachusetts supreme court, which he did in 1761, in what is known as the Petition of Lechmere.

Who challenged the writs of assistance in 1761?

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 in February 1761 and again on 16 November 1761.

What was the writ of writ used for in the colonies?

In the eighteenth century, customs officials in America used the writ to investigate colonial merchants who were suspected of smuggling goods into the country. The writ generally commanded all constables, peace officers, and nearby subjects to help customs officials carry out a search.

Who argued the writs of assistance 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.

Who challenged the writs of assistance?

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 ."

What is the particularity requirement for search warrants?

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

What is a writ of assistance?

Jump to navigation Jump to search. 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".

When was the last time a writ of assistance was issued in Boston?

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.

What was the role of the writs of assistance in the American Revolution?

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.

How long are Writs of Assistance valid?

Writs of assistance are valid from the date of issue and cease to be valid six months after the end of the reign of the monarch under which the order was issued.

Who was the Boston customs agent who used the Writs of Assistance?

The case was named for Charles Paxton, a Boston customs agent who used the Writs of Assistance to carry out numerous invasive and causeless general searches of colonists’ homes and businesses. Bostonians were so enraged by Paxton’s abusive inspections that a mob set out to burn down his home. When Paxton’s landlord dissuaded them, they instead vandalized the property of a prominent Boston judge who issued the general warrants that authorized the searches.

Why did the British use writs of assistance?

To collect more tax revenue from the colonies, the British customs officials began seeking “Writs of Assistance” from local courts under an English act of Parliament. These writs gave British soldiers the power to search colonists’ homes for smuggled or untaxed goods, without specific warrants. This policy of so-called “general searches” meant that officials could weaponize investigations against political and personal opponents, who had no recourse against government agents wildly rummaging through their homes and personal belongings without cause.

What did Otis argue about the rights of the British colonies?

Otis also published a treatise in 1764 titled The Rights of the British Colonies Asserted and Proved, where he contended that “general warrants” like the Writs of Assistance violated the colonists’ property rights by exposing their homes and businesses to perpetual searches without justification. The right to exclude others from your property, including the government, is a fundamental right inherent in property ownership.

What did Adams say about Otis?

Adams went on to explain how the audience, after hearing Otis speak, “appeared to go away, as I did, ready to take up arms against the Writs of Assistants.” While many today consider the first shots fired at the battles of Lexington and Concord or Bunker Hill to have begun the revolution, Adams explained that Otis’ argument in Paxton’s Case “was the first scene of the first act of opposition to the arbitrary claims of Great Britain.” And indeed, open defiance against England’s rule over the colonies became more pronounced in the months and years to come.

What is the right of the people to be secure in their persons, houses, papers, and effects?

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

What was James Otis's role in the American Revolution?

Within a few years, James Otis would become a founding member of The Sons of Liberty, the secret order of political leaders who would lay the groundwork for the American Revolution, which included the likes of John and Samuel Adams, Patrick Henry, Paul Revere, and John Hancock.

What was the tension in Boston during the winter of 1761?

During the winter of 1761, tensions were high in Boston. American colonists were getting fed up with their English rulers, and England was seemingly doing everything it could to stoke the discord between government and governed.

Who was the lawyer who challenged the Constitutionality of the Writs?

Shortly after their implementation, Boston merchants, the group primarily responsible for smuggling in the colonies, hired lawyer James Otis to challenge the constitutionality of the writs before the Massachusetts supreme court, which he did in 1761, in what is known as the Petition of Lechmere. A fiery orator, Otis argued ...

Why were writs of assistance granted?

Thus, partially because they had few other options and partially out of frustration and anger, the writs of assistance were granted and used. Despite the assertion by the Massachusetts supreme court that the writs of assistance were within legal limits, most English authorities agreed that the writs violated the Constitution.

What was the purpose of the Writs of Assistance?

In 1760, governor Bernard of Massachusetts authorized the use by revenue officers of writs of assistance. Writs of assistance were documents which served as a general search warrant, allowing customs officials to enter any ship or building that they suspected for any reason might hold smuggled goods.

How long did it take for the Boston writs to be ruled?

It took two and a half years before the ruling in the case was delivered. After consulting extensively with authorities in Britain, and noting the use of similar writs in England, the court, heavily influenced by the opinions of Chief Justice Thomas Hutchinson, ruled against the Boston merchants and kept the writs in place.

What is a Writ of Assistance?

Writ of assistance, in English and American colonial history, a general search warrant issued by superior provincial courts to assist the British government in enforcing trade and navigation laws.

What does Otis say about the writ?

The writ, Otis said—promising to oppose its like until his dying day—“ appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English lawbook.”.

When were the writs renewed?

In common use since the reign of Charles II, the writs did not arouse controversy until a renewal attempt was made in 1761. James Otis. James Otis, portrait by J. Blackburn, 1755; in the Library of Congress, Washington, D.C. Courtesy of the Library of Congress, Washington, D.C.

Who was the king of Great Britain and Ireland in 1660?

Charles II , king of Great Britain and Ireland (1660–85), who was restored to the throne after years of exile during the Puritan Commonwealth. The years of his reign are known in English history as the Restoration period.…

How long did the Townshend Acts last?

When similar warrants were expressly reauthorized by the Townshend Acts (1767), they were challenged for five years in every superior court in the 13 colonies and refused outright in 8 of them. Thus, writs of assistance became a major colonial grievance in the pre-Revolutionary period.

Who challenged the writs of assistance?

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 in February 1761 and again on 16 November 1761. Although Otis technically lost, his challenge to the authority of Parliament made a strong impression on John Adams, who was present, and thereby eventually contributed to the American Revolution. In a pamphlet published three years later, in 1765, Otis expanded his argument that the general writs violated the British unwritten constitution harkening back to Magna Carta. Any law in violation of the constitution or " natural law " which underlay it, was void.

What were the problems of the writs of assistance?

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: a writ holder could assign them 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 law.

What was the 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."

What is a 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, 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 were first authorized by an act of the English Parliament in 1660 (12 Charles 2 c. 29), 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.

When did the writs of assistance expire?

With the death of King George II in October 1760, all writs were set to 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.

Who was the merchant who was forced to open his home?

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.

Was Malcom's actions lawful?

Although British officials, and some historians, described Malcom as acting in defiance of the law, 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.