Writ of assistance facts for kids

A writ of assistance was a special written order from a court that told a law enforcement officer, like a sheriff or tax collector, to do something. Think of it like a very old-fashioned instruction note from a judge!

Historically, these writs were often used to help someone take possession of land. If someone was being evicted from their home, a writ of assistance (also called a writ of restitution or writ of possession) would help the officials carry out the eviction.

But the most famous writs of assistance were used by customs officials. These writs helped them search for smuggled goods. They were called "writs of assistance" because they asked sheriffs and other people to "assist" (help) the customs officer do their job.

Unlike regular search warrants today, these customs writs were like "general search warrants." This meant they didn't expire, and officials could search almost anywhere for smuggled goods without needing a new, specific warrant each time.

These general writs became very controversial in British America between 1755 and 1760, especially in the Province of Massachusetts Bay. The arguments over these writs actually helped inspire the Fourth Amendment to the United States Constitution. This important amendment in the United States now stops the government from using general search warrants.

Some people in the colonies felt they were being treated unfairly compared to people in Britain. They believed the writs used in Britain were "specific" (for one place only), while theirs were "general" (for anywhere). This feeling of unfairness helped spark the American Revolution. John Adams, who later became a U.S. president, even said that the court battles over these writs were the "seeds of the American Revolution."

Writs in Colonial America

General writs of assistance played a big part in the growing problems that led to the American Revolution and the creation of the United States. In 1760, Great Britain started to enforce some of its trade laws, called the Navigation Acts, by giving customs officers these powerful writs.

In New England, many people were smuggling goods to avoid taxes. However, colonists believed that officials couldn't search their property without a good reason. They protested that the writs went against their rights as British subjects.

Colonists had several reasons for opposing the writs:

• They were permanent and didn't expire.
• The person holding the writ could even give it to someone else.
• Officials could search any place they wanted, whenever they wanted.
• Searchers were not responsible for any damage they caused during a search.

All writs of assistance would expire six months after the death of a king. When King George II died on October 25, 1760, all existing writs were set to expire on April 25, 1761. News of the king's death reached Boston on December 27, 1760, and the colonists realized their writs would soon be useless.

Paxton's Case: A Fight for Rights

Within three weeks of the news, a group of 63 Boston merchants decided to challenge the writs. They were represented by a passionate lawyer named James Otis Jr.. A British customs agent named Paxton filed a countersuit, and these cases together became known as "Paxton's case."

Otis argued against the writs at the Old State House in Boston in February 1761 and again in November 1761. He gave a powerful speech, talking about liberty, English law, and the idea that "a man's house is his castle." He also reminded everyone of the colonists' "rights as Englishmen."

The court eventually ruled against the merchants. However, Otis's arguments were printed and shared throughout the colonies. This helped many colonists understand and support the idea of their own rights. A young lawyer named John Adams watched the case. He was so impressed by Otis that he later said, "Then and there the child Independence was born."

In a pamphlet published in 1765, Otis further explained his argument. He said that the general writs went against the British "unwritten constitution" and even against the Magna Carta, a very old document that set limits on the king's power. He believed any law that went against the constitution or "natural law" (basic human rights) was not valid.

The Malcom Affair: A Famous Search

A writ of assistance was used in an event called the "Malcom Affair." One expert called it "the most famous search in colonial America." This event showed how differently colonists and British officials saw the law and people's rights.

On September 24, 1766, customs officials in Boston, along with a deputy sheriff, searched the home and business of a merchant named Daniel Malcom. They said they had the right to search using a writ of assistance given to customs official Benjamin Hallowell.

Malcom allowed them to search, but he wouldn't let them open a locked cellar. He argued they didn't have the legal right to break it open. Officials said Malcom threatened to use force to stop them. Malcom and his supporters said he only threatened to resist unlawful entry.

The officials left and came back with a specific search warrant, but Malcom had locked his house. A crowd gathered around the house. Some British officials said it was a "mob" of 300 hostile people. Colonists said it was a peaceful group of about 50 curious onlookers, mostly boys. No violence happened, but reports sent to Britain made it seem like a riot had occurred. This made Boston look like a lawless town to British officials, which later contributed to their decision to send troops there in 1768.

Even though British officials saw Malcom as breaking the law, some historians argue that Malcom's actions were actually lawful. Historian John Phillip Reid even thought Malcom might have been getting advice from his lawyer, James Otis. Reid believed Malcom and Otis might have been trying to cause a lawsuit so they could challenge the writs of assistance in court again. This wasn't the only time a Boston merchant resisted a search with a good knowledge of the law. John Hancock, a well-known merchant and smuggler, did something similar in 1768 when officials tried to search his ship, the Lydia.

End of Colonial Writs

Because there was so much confusion about whether writs of assistance issued by colonial courts were legal, the British Parliament passed the Townshend Acts in 1767. These acts tried to confirm that such writs were legal. However, most colonial courts still refused to issue general writs. The Malcom case was likely the last time a writ of assistance was issued in Boston.

The Legacy: Our Rights Today

Because of the widely disliked general writs, several colonies included a "particularity requirement" for search warrants in their new constitutions when they became independent in 1776. This meant that a search warrant had to describe "particularly" (in detail) what was being searched for.

Years later, the Fourth Amendment to the United States Constitution also included this particularity requirement. This amendment made writs of assistance (and all general search warrants) illegal for the federal government. Later, the Fourth Amendment's rules were also applied to state governments through the Fourteenth Amendment, making writs of assistance illegal everywhere in the U.S.

Writs in the United Kingdom

In the United Kingdom, writs of assistance still exist. Customs officers can use them to enter any building by force and search for and seize goods that can be taken by the government.

However, an officer must have good reasons to suspect that illegal goods are on the property. They also need to believe that the goods might be moved, destroyed, or lost before a regular search warrant can be obtained. These writs are valid from when they are issued and stop being valid six months after the end of the monarch's reign under whom they were issued.

Writs in Canada

Until 1985, writs of assistance were given to officers of the Royal Canadian Mounted Police (RCMP) and other federal officers in Canada. These writs were used for enforcing laws. The idea of a writ of assistance in Canadian law goes back to at least 1847.

These writs were described as "in effect, search warrants unrelated to any particular suspected offence and of continuing operation." This meant they were like a "blanket warrant" that allowed the holder to search for certain things anywhere and at any time.

However, a judge's permission was not needed for each search done with a writ of assistance. The Law Reform Commission of Canada noted in 1983 that these documents simply identified their holders as officers with special powers to search and seize without a warrant. Also, unlike regular search warrants, these writs didn't have to be specific about what they were searching for.

In 1984, the Ontario Court of Appeal said that these writs of assistance went against section 8 of the Canadian Charter of Rights and Freedoms, which protects against unreasonable search and seizure. Because of this, statutory writs of assistance were ended in Canada in 1985.