Now one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege.

James Otis, 1761

James Otis, Jr. (1755)

In February, 1761, in a Boston courtroom, what should have been a fairly dry, administrative procedure became the foundation of one of Americans’ most prized rights. This foundation was laid by one of the attorneys present, James Otis, Jr., and memorialized by John Adams, the future second president of the United States. The issue which prompted the case was a suit brought against Writs of Assistance – a form of general search warrant usually applied in customs cases.

“Authorized and Enabled”: General Search Warrants

The first recorded instance of the English state authorizing a form of general search can be dated to 1335. In what has become a depressingly familiar behavior to those of us living in the twenty-first century, Parliament outsourced its power by requiring innkeepers in the country’s ports to search their guests for imported foreign money. Although this power was not extensively used in subsequent centuries, it did not go away.

More than 200 years later, the English crown created a further avenue for general search warrants, again outsourcing the power of the state. In 1557, Queen Mary granted a monopoly to the Stationer’s Company (a trade association) over the publishing industry in England. Part of the grant authorized the Company to,

make search wherever it shall please them in any place, shop, house, chamber, or any building of any printer, binder, or bookseller whatever within our kingdom of England or the dominions of same for any books or things printed, or to be printed, and to seize, take, hold, burn …  all and several those books and things which are or shall be printed contrary to the form of any statute, act, or proclamation made or to be made.

 In subsequent decades, similar powers were granted to other monopoly companies, to various courts, and to the infamous Star Chamber. The use of general search warrants ebbed and flowed, but, by the first half of the eighteenth century, they were quite common. Although more intrusive than we would expect of modern search warrants, they were not quite as odious as we might imagine. They could only be issued in reaction to the commission of a crime. The warrants allowed officers of the king to enter a person’s property, to search all rooms, storage areas, etc. and seize all their writings. But, they did not allow for ongoing searches of the same premises in subsequent days nor did they allow for the property of associates to be searched.

“No Doors in General Can Be Broken Open to Execute Any Civil Process”

The good burghers of Britain were not supine in the face of general search warrants. Pushback came fairly on – and not just from those out of power. William III advocated repeal of the so-called “hearth tax”—because he considered the searches associated with it to be too extensive. In 1733, parliament refused to enact a wine and tobacco tax because of the search provisions incorporated therein.

More important, in the long run, were a number of legal scholars who wrote against the idea of open-ended searches. In the first half of the seventeenth century, Edward Coke wrote, “One or more Justices of Peace cannot make a Warrant upon a bare surmise to break [into] any mans house to search for a felon, or for stolen goods for they…have no such authority granted unto them…” Coke argued that only an indictment was sufficient grounds for a search warrant. In the early eighteenth century, Sir Matthew Hale argued that warrants to search for stolen goods could only be granted on the oath of a person with knowledge of the location of stolen goods. Furthermore, declared Hale, “a general warrant to search in all suspected places is not good, but only to search in such particular places” identified in the oath.

The most widely read manual for use by Justices of the Peace (the lynchpins of local justice in Britain and its colonies) cited a number of legal scholars in declaring that, “a general search warrant to search in all suspected places, is not good.” William Blackstone addressed search warrants in his monumental Commentaries. Although first published in 1765, Blackstone had been preparing them for decades and they reflected a general understanding of English common law. Blackstone declared that:

the law of England has so particular and tender a regard to the immunity of a man’s house, that it stiles it his castle, and will never suffer it to be violated with impunity… For this reason no doors can in general be broken open to execute any civil process.

“Every one With this Writ may be a Tyrant”

Despite these challenges, governments in both Britain and its colonies continued to issue general search warrants. In the first half of the eighteenth century, Massachusetts had quite happily issued general warrants to British impressment gangs who used them to invade private homes and taverns to seize able-bodied men for the navy. Even more hostility developed in the colony over a series of new excise laws—and their attendant search provisions—promulgated in the 1750s.

Customs and excise laws had first emerged in the seventeenth century, reflecting the increase in England’s commercial activities. In 1662, Parliament issued a law designed for “preventing Frauds and regulating Abuses in His Majesties Customes.” Article III of the act declared:

And be it hereby alsoe enacted That the said person or persons which are or shall be appointed for managing the Customes and Officers of His Majesties Customes and theire Deputies are hereby authorized and enabled to goe and enter aboard any Ship or Vessel as wel Ships of War as Merchant Ships and from thence to bring on shoar all Goods prohibited or uncustomed except Jewels.

Furthermore, Article XXX of the same act enjoined essentially all legal officers of the crown to assist customs officers if necessary. It was this latter proviso which gave these general search warrants for smuggled goods the name by which they became known in American history: Writs of Assistance.

From a purely bureaucratic point of view, general search warrants designed to catch smuggling made a great deal of sense. In the time it would take for customs agents to figure out which ship or warehouse held illegal goods, then have a specific warrant sworn out, the goods would be long gone. Nonetheless, it is clear that general search warrants associated with customs laws were far more intrusive than those associated with other criminal enquiries.

Excise and customs laws were fairly common in the colonies. In 1754, the Massachusetts Legislature passed an excise law which allowed virtually unlimited interrogation of subjects in order to determine whether the correct excise tax had been paid. Following a torrent of literary opposition, a 1756 law required someone to swear on oath that they knew of an infringement of the law and that the searches be conducted in daylight. Nonetheless, anger over the excise laws were exacerbated when the governor began issuing writs of assistance for the enforcement of the excise acts.

State action against smuggling was ramped up in 1760, in the midst of the French and Indian War. British Prime Minister William Pitt issued instructions to colonial officials to bring an end to colonial trade with the French. Pitt ordered the officials to “take every Step, authorized by Law, to bring all such heinous Offenders to the most exemplary and condign punishment.”

The first petition for a Writ of Assistance was submitted in the Massachusetts Superior Court in November, 1760. There is evidence for increasing unease among legal offices in the colony over the validity of general search warrants. Chief Justice Stephen Sewell—who had died in September—had harbored doubts, and his doubts had gained sympathy among other members of the court. There had also been a brief public flurry of opposition to general warrants, led by London Magazine which had published an article asserting that writs of assistance from the treasury required some kind of sworn oath identifying a specific location for contraband. Within this context, a group of merchants hired James Otis, Jr. to argue against the issuance of the writs, with the hearing scheduled for February 1761.

In the three months between the filing of the petition and the case itself, there was a degree of turmoil in Massachusetts’s political-judicial climate. First, Sewell’s replacement had to be appointed. The role was eventually given to Thomas Hutchinson. There was almost certainly some personal animosity between Hutchinson, Governor Francis Bernard, and Otis although the full reasons and role which it played in the crisis have never been clear. Then, after Hutchinson’s appointment, but before he actually sat on the bench, word reached Boston that George II had died. Under British law, all writs of assistance were due to expire in April, 1761 (six months after the death of the monarch).

Faced with this, the Surveyor-General of the Customs, Thomas Lechmere, applied to the court to have Writs of Assistance granted to customs officers “as usual.” The hearing opened with Jeremiah Gridley—probably the most distinguished attorney in Boston and the mentor of both James Otis and John Adams—representing the crown. Gridley argued that the writs should be issued as there was ample historical precedence for their legality. The second person to speak was Oxenbridge Thacher who most likely played the role of local legal expert, briefing the court on the history of the issues in question. Thacher argued that, in fact, there was no precedent for general search warrants (exactly how he came to this conclusion is unknown since there is little doubt that Gridley was correct about their use in the past). Thacher also argued that the Massachusetts court did not have jurisdiction since the customs officers, once empowered, were answerable only to the Exchequer Court in London.

Otis followed Thacher. According to John Adams, Otis spoke for somewhere between four and five hours. He began with arguments from legal history and from precedent. Otis declared Writs of Assistance “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 law-book.” As proof of this Otis claimed that “Every one with this writ may be a tyrant; if this commission be legal, a tyrant in a legal manner also may control, imprison, or murder any one within the realm.” For Otis, this contradicted one of the foundations of English liberty, “the freedom of one’s house. A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege.”

All of this was fairly daring. Aggressive, but not revolutionary. But then Otis moved on to make the arguments that, although not determinative in the case at hand, had profound effects moving forward. The English constitution, declared Otis, spoke against the writs. Even had the law been found in law books, “it would have been illegal. All precedents are under the control of the principles of law… No Acts of Parliament can establish such a writ; though it should be made in the very words of the petition, it would be void. An act against the constitution is void.” This was one of the first, if not the first, times that a real life legal argument had specifically challenged the constitutionality of a law.

In the end the court punted. Hutchinson, probably the only member of the bench in favor of the writs, declared that it was unclear what was taking place in England (because of the interregnum). For this reason, the court deferred making a decision. The next case on search warrants would not be held in Massachusetts until November, 1763. By then it was clear that the Court of Exchequer, under George III, was issuing Writs of Assistance with frequency, so Massachusetts followed suit.

James Otis, Jr., tragically, spent much of his later life suffering from mental illness. Although embracing the patriot cause, his erratic behavior was noted in the 1760s. His condition worsened after 1769 when he was hit in the head by a tax collector’s cudgel. He mostly withdrew form public life after this and died in 1783, aged 58, after being struck by lightning.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated

The defense of private property was at the core of the American Revolution. And it was all private property, not just that belonging to a handful of wealthy merchants. It has become somewhat fashionable to suggest that the main supporters of the American Revolution were a handful of wealthy merchants and landowners. Although such men were certainly important, this argument comes nowhere close to the whole truth. To illustrate the importance of property to men from other walks of life, let us turn to Concord, Massachusetts in 1775 as the British troops conducted house-to-house, warrantless, searches for weapons. The militia companies were standing ready just outside town when they saw fires, started by British carelessness, begin to burn in the town. Members of the militia, not the officers, “resolved to march into the middle of the town to defend their homes or die in the attempt.” And so the militia companies set off, the beginning of their march described in one of the most poignant paragraphs I’ve read in the hundreds of history books I’ve consumed:

Isaac Davis’s Acton company was in the front line, followed by the Minutemen units of David Brown and Captain Miles. As they marched, David Brown, along with Purchase [Brown], passed right by his own house…In that remarkably warm spring, the grain already stood green in his fields. And the apple trees were beginning to blossom. All that Brown defended lay about him: the British were trespassing on his home. Every single one of the Minutemen could have said the same.

The Fourth Amendment to the United States Constitution enshrines the right of the individual against state trespass on his property. And that Amendment can be traced to Otis’s argument in Massachusetts in 1761. Otis’s legacy survived mainly because of John Adams. Although Adams did not record proceedings word for word, he apparently kept some kind of short-hand record of the trial which enabled him to reconstruct much of it for later audiences. In his most famous statement on the trial, Adams declared that, during Otis’s argument, “then and there the child Independence was born.”

Adams enshrined this in the Fourteenth Article of the 1780 Massachusetts Declaration of Rights. It is the most particularized right in the document and was authored by Adams:

Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order…to make search in suspected places, to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest or seizure and no warrant ought to be issued but in cases and with the formalities, prescribed by the laws

When the US Constitution was published in 1788, a great deal of opposition centered around demands for a Bill of Rights (BoR). The need for a provision on search and seizure was often at the forefront of such demands. Historians have little doubt that, as Madison drafted the Fourth Amendment, he drew heavily from the Massachusetts Declaration of Rights. But Madison went one step further, eschewing the weaker construction “ought” for the much stronger “shall not.”

The influence of the Fourth Amendment was felt even before the BoR was ratified. At the time (1789) that Madison brought his recommendation to Congress to debate the BoR, Congress had recently passed a customs bill which essentially authorized general search warrants for ships and specific search warrants for warehouses. And, even the specific search warrants could be issued based on suspicions of a tax collector rather than on the independent judgment of the judiciary. But, in 1791 when Congress crafted a new customs bill, they did so with an eye to the soon to be ratified Fourth Amendment. The 1791 bill required a magistrate to determine whether a warrant should be issued. The magistrate was to base his decision on a sworn statement by a collections officer who was to identify the specific location of the contraband and the evidence he had for its presence.

The Fourth Amendment, drafted by Madison, drawing on Adams’s specific language, had arrived. More than thirty years after he’d presented his arguments, James Otis had finally won his case.

References

1. Available Online

Akhil Reed Amar, “The Fourth Amendment, Boston, and the Writs of Assistance,” Yale Law School, Legal Scholarship Repository (Amar take a contrary position on most aspects of the history of the Fourth Amendment. His arguments are rigorous but, as someone who is not a legal scholar, I am persuaded by the interpretations of his rhetorical opponents. RN).

James M. Farrell, “The Child Independence Is Born: James Otis and the Writs of Assistance,” University of New Hampshire, Scholars Repository

Richard B. Morris, Then and There the Child Independence Was Born,” American Heritage, Vol. 13, No. 2 (February, 1962).

James Otis’s speech summarized, National Humanities Institute

David Snyder “The NSA’s General Warrants,” Electronic Frontier Foundation (pdf)

2. Subscription Services

James M. Farrell, “The Writs of Assistance and Public Memory: John Adams and the Legacy of James Otis,” New England Quarterly, Volume 79, No. 4

Andrew J. Gildea & David J. Weiler, “Unreasonable Searches and Seizures,” American Criminal Law Review, Volume 26, No. 4

Leonard W. Levy, “Origins of the Fourth Amendment,” Political Science Quarterly, Volume 114, No. 1

Jeanne N. Lobelson, “The Warrant Clause,” American Criminal Law Review Volume 26, No. 4

David A. Sklansky, “The Fourth Amendment and the Common Law,” Columbia Law Review, Volume 100, No. 7

David E. Steinberg, “The Uses and Misuses of Fourth Amendment History,” Journal of Constitutional Law, Volume 10, No. 3

Silas J. Wasserstrom, “Fourth Amendment’s Two Clauses,” American Criminal Law Review Volume 26, No. 4