Writ of Assistance
A
Writ of Assistance is a legal document that serves as a general
search warrant.
Unlike the warrant, it is generally open-ended, and requires all parties to support the officer to whom it was issued.Its normal use is in support of customs and excise inspections.The writ authorizes an officer to search any person or place and does not expire.
These have become an issue in
Canada where they are usually issued to customs and RCMP officers to enforce drug and import laws.Controversy surrounds their use to seize pornographic and gay rights literature at the Canadian border.
The writs played an important role in the increasing difficulties that led to the
American Revolution and the creation of the
United States of America.In
1760,
England began to enforce some of the provisions of the
Navigation Acts by granting customs officers these writs.In
New England, smuggling had become common.
Massachusetts' new governor,
Sir Francis Bernard, ordered the writs be created for the customs collectors.While the Navigation Acts might affect only external commerce, the customs duties were viewed as an internal tax.
The colonists had several problems with these writs as they were applied.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.When the writs were challenged in court, Bernard's attorney general
James Otis resigned rather than defend them.In fact, Otis became the lead attorney for the other side.
[M.H. Smith, The Writs of Assistance Case (Berkeley: University of California Press, 1978): 323. Smith argues that when one looks at other sources from the period (apart from John Adams' abstract of Otis's celebrated argument) the truth was that another factor behind Otis's resignation was his personal dislike of Governor Bernard.]The arguments advanced colonial thinking about rights and their relation with Britain.While some use of the writs was suspended, their role in raising tax revenue was later supplemented by taxes on sugar, tea, and the
Stamp Act.Further efforts to enforce them a decade later led to martial law.
Boston was occupied and
General Thomas Gage became the military governor in
1774.
In response to the much-hated writs, several of the colonies included a particularity requirement for search warrants in their constitutions when they
declared independence in 1776. Several years later, the
Fourth Amendment to the United States Constitution also contained a particularity requirement that completely outlawed writs of assistance (and all general search warrants) in the United States.
[Smith, 5.]
