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A writ of assistance is a written order (a
writ In common law, a writ (Anglo-Saxon ''gewrit'', Latin ''breve'') is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs, subpoenas, a ...
) issued by a
court A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in acco ...
instructing a law enforcement official, such as a
sheriff A sheriff is a government official, with varying duties, existing in some countries with historical ties to England where the office originated. There is an analogous, although independently developed, office in Iceland that is commonly transla ...
or a tax collector, 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 Eviction is the removal of a tenant from rental property by the landlord. In some jurisdictions it may also involve the removal of persons from premises that were foreclosed by a mortgagee (often, the prior owners who defaulted on a mortgag ...
someone from
real property In English common law, real property, real estate, immovable property or, solely in the US and Canada, realty, is land which is the property of some person and all structures (also called improvements or fixtures) integrated with or aff ...
, such a writ is also called a ''writ of restitution'' or a ''writ of possession''. In the area of customs, writs of assistance were a product of enactments of the British Parliament beginning with the Customs Act of 1660 (12 Charles II c.11, sec. 1) though the first mention of the phrase was in the follow-up Customs Act of 1662 (14 Charles II, c.11, sec.4). The writs of assistance were issued by the Court of Exchequer to help customs officials search for
smuggled Smuggling is the illegal transportation of objects, substances, information or people, such as out of a house or buildings, into a prison, or across an international border, in violation of applicable laws or other regulations. There are various ...
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. In general, customs writs of assistance served as general
search warrant A search warrant is a court order that a magistrate or judge issues to authorize law enforcement officers to conduct a search of a person, location, or vehicle for evidence of a crime and to confiscate any evidence they find. In most countries, ...
s that did not expire, allowing customs officials to search anywhere for smuggled goods without having to obtain a specific warrant. These writs became controversial when they were issued by courts in
British America British America comprised the colonial territories of the English Empire, which became the British Empire after the 1707 union of the Kingdom of England with the Kingdom of Scotland to form the Kingdom of Great Britain, in the Americas fro ...
between 1755 and 1760 (then mirroring like writs having previously been issued, and being enforced, in the motherland by Britain's Exchequer Court), especially the
Province of Massachusetts Bay The Province of Massachusetts Bay was a colony in British America which became one of the thirteen original states of the United States. It was chartered on October 7, 1691, by William III and Mary II, the joint monarchs of the kingdoms of ...
. Controversy over these general writs of assistance inspired the
Fourth Amendment to the United States Constitution The Fourth Amendment (Amendment IV) to the United States Constitution is part of the Bill of Rights. It prohibits unreasonable searches and seizures. In addition, it sets requirements for issuing warrants: warrants must be issued by a judge o ...
, which forbids general search warrants in the United States of America. Though generally these colonial writs were no more onerous than the ones enforced in Britain, a fallacious 1760 ''London Magazine'' article asserted the writs issued in the motherland "...were ''specific'', not ''general"'' thereby generating the perception in the colonies that the colonists were being treated unfairly. John Adams was to later assert that the ensuing court battle was the "seeds of the American Revolution."


In colonial America

General writs of assistance played an important role in the increasing tensions that led to the
American Revolution The American Revolution was an ideological and political revolution that occurred in British America between 1765 and 1791. The Americans in the Thirteen Colonies formed independent states that defeated the British in the American Revoluti ...
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 New England is a region comprising six states in the Northeastern United States: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. It is bordered by the state of New York to the west and by the Canadian provinces ...
, 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 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.These facts are established by many sources including Thomas Hutchinson, ''The History of the Colony of Massachusetts Bay'' (3 vols. 1764–1828; 1765–1828)


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".Court files Suffolk vol. 572 March 1765 no 100.5156 Application merchants 19 January 1761 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."Nash, Gary B. ''The Unknown American Revolution'', pp 21–23, Viking, New York, New York, 2005. .Miller, John C. ''Origins of the American Revolution,'' pp 46–7, Little, Brown & Company, Boston, Massachusetts, 1943. 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 John Adams (October 30, 1735 – July 4, 1826) was an American statesman, attorney, diplomat, writer, and Founding Fathers of the United States, Founding Father who served as the second president of the United States from 1797 to 1801. Befor ...
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 (Medieval Latin for "Great Charter of Freedoms"), commonly called (also ''Magna Charta''; "Great Charter"), is a royal charter of rights agreed to by King John of England at Runnymede, near Windsor, on 15 June 1215. First drafted by t ...
. Any law in violation of the constitution or "
natural law Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature, and based on values intrinsic to human nature that can be deduced and applied independently of positive law (the express enacte ...
" which underlay it, he said, was void.Josiah Quincy Reports of Cases...In the Superior Court of Judicature...Between 1761 and 1772, at 479–482 and in Appendix (Samuel Quincy, 1865)


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 A Tory () is a person who holds a political philosophy known as Toryism, based on a British version of traditionalism and conservatism, which upholds the supremacy of social order as it has evolved in the English culture throughout history. The ...
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 John Hancock ( – October 8, 1793) was an American Founding Father, merchant, statesman, and prominent Patriot of the American Revolution. He served as president of the Second Continental Congress and was the first and third Governor o ...
, 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 warrant A search warrant is a court order that a magistrate or judge issues to authorize law enforcement officers to conduct a search of a person, location, or vehicle for evidence of a crime and to confiscate any evidence they find. In most countries, ...
s in their constitutions when they established independent governments in 1776; the phrase "particularity requirement" is the legal
term of art Jargon is the specialized terminology associated with a particular field or area of activity. Jargon is normally employed in a particular communicative context and may not be well understood outside that context. The context is usually a partic ...
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 The Fourth Amendment (Amendment IV) to the United States Constitution is part of the Bill of Rights. It prohibits unreasonable searches and seizures. In addition, it sets requirements for issuing warrants: warrants must be issued by a judge o ...
also contained a particularity requirement that outlawed the use of writs of assistance (and all general search warrants) by the federal government.Smith, ''Writs of Assistance Case'', 5. Later, the Fourth Amendment was incorporated against the states via the Fourteenth Amendment, and writs of assistance were proscribed.


In the United Kingdom

Writs of assistance continue to have force in the United Kingdom and may be used by customs officers to enter any building by force and search and seize anything liable to forfeiture. The officer must have reasonable grounds to suspect that goods liable for forfeiture are kept on the premises and that the goods are likely to be removed, destroyed or lost before a search warrant can be obtained and executed. 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.


In Canada

Until 1985, four federal statutes in Canada—the ''Customs Act'', ''Excise Tax Act'', ''
Food and Drugs Act The ''Food and Drugs Act'' (the ''Act'') (formal title ''An Act respecting food, drugs, cosmetics and therapeutic devices'') is an act of the Parliament of Canada regarding the production, import, export, transport across provinces and sale of f ...
'', and ''
Narcotic Control Act The ''Narcotic Control Act'' (the ''Act''), passed in 1961, was one of Canada's national drug control statutes prior to its repeal by the 1996 ''Controlled Drugs and Substances Act.'' It implemented the provisions of the Single Convention on Nar ...
''—provided that writs of assistance were to be granted to officers of the
Royal Canadian Mounted Police The Royal Canadian Mounted Police (RCMP; french: Gendarmerie royale du Canada; french: GRC, label=none), commonly known in English as the Mounties (and colloquially in French as ) is the federal and national police service of Canada. As poli ...
and other federal officers, on a mandatory basis, for enforcement purposes. The notion of a writ of assistance in Canadian statute dates back at least to 1847, when a statute of the
Province of Canada The Province of Canada (or the United Province of Canada or the United Canadas) was a British colony in North America from 1841 to 1867. Its formation reflected recommendations made by John Lambton, 1st Earl of Durham, in the Report on the ...
was passed providing for writs of assistance in customs enforcement; a statute of Nova Scotia referred to such a writ in 1834, while a New Brunswick statute dated to 1846. Statutory writs of assistance were described by the Exchequer Court of Canada (now the Federal Court) as "in effect,
search warrant A search warrant is a court order that a magistrate or judge issues to authorize law enforcement officers to conduct a search of a person, location, or vehicle for evidence of a crime and to confiscate any evidence they find. In most countries, ...
s unrelated to any particular suspected offence and of continuing operation, which are issued to members of the Royal Canadian Mounted Police and other officers in the service of the Government of Canada to have effect as long as the holder continues to hold the position by virtue of which the writ was issued to him." Perhaps more concisely, one commentator described the legal effect of a writ of assistance as, "to all intents and purposes, a blanket warrant" which "authorizes the holder to search for particular things (e.g., controlled drugs or smuggled goods) anywhere and at any time." However, since judicial authorization was not required for any given search conducted pursuant to a writ of assistance, this characterization is somewhat misleading. Rather, as noted by the Law Reform Commission of Canada in a 1983 report, " essence, they are documents that identify their holders as members of a specific class of peace officers with special powers of warrantless search and seizure." Moreover, although search warrants are subject to various common law requirements of particularity, the same was not evidently true for statutory writs of assistance. In 1984, the Ontario Court of Appeal declared statutory writs of assistance to be contrary to section 8 of the ''
Canadian Charter of Rights and Freedoms The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part ...
''. Statutory writs of assistance were repealed in Canada in 1985.R.S.C 1985, c. C-40, s. 132; R.S.C. 1985, c. E-12; R.S.C. 1985, c. F-27, s. 37(1)(a); R.S.C. 1985, c. N-1, s. 10(1)(a). See Criminal Law Amendment, 1985, R.S.C. 1985 C-19, ss. 190, 191, 196,
200 __NOTOC__ Year 200 ( CC) was a leap year starting on Tuesday (link will display the full calendar) of the Julian calendar. At the time, it was known as the Year of the Consulship of Severus and Victorinus (or, less frequently, year 953 ''Ab ur ...
. See also s. 211.


Notes


References

*Law Reform Commission of Canada. ''Police Powers — Search and Seizure in Criminal Law Enforcement''. Ottawa, Ontario: Minister of Supply and Services Canada, 1983. . *Knollenberg, Bernhard. ''Growth of the American Revolution, 1766–1775.'' New York: Free Press, 1975. . *MacDonald, William. ''Documentary Source Book of American History, 1606–1913''. New York: Macmillan, 1920. *Parker, G. E. "The Extraordinary Power to Search and Seize and the Writ of Assistance." ''University of British Columbia Law Review'' 1, no. 6 (April 1963): 688–728. Via HeinOnline. *Reid, John Phillip. ''In a Rebellious Spirit: The Argument of Facts, the ''Liberty'' Riot, and the Coming of the American Revolution''. University Park: Pennsylvania State University Press, 1979. . *Smith, M. H
''The Writs of Assistance Case.''
Berkeley: University of California Press, 1978. . The only full-length book on Paxton's case, it reprints many original documents.


Further reading

*Clancy, Thomas K., "The Importance of James Otis," 82 Miss. L.J. 487 (2013), discussing significance of Otis's argument for development of the Fourth Amendment. *Cuddihy, William J. "'A Man's House is His Castle': New Light on an Old Case", review of ''The Writs of Assistance Case'' by M. H. Smith. ''Reviews in American History'' 7, no. 1 (March 1979), 64–69. * *Dickerson, Oliver M. "Writs of Assistance as a Cause of the American Revolution". In Richard B. Morris, ed., ''The Era of the American Revolution'' (1939), 40–75. Argues that the writs did not play a major role in the coming of the American Revolution. *Frese, Joseph. "James Otis and the Writs of Assistance". ''New England Quarterly'' 30 (1957): 496–508. *Wolkins George G. "Daniel Malcom and Writs of Assistance". ''Massachusetts Historical Society Proceedings'' 58 (1924), 5–87. *Wolkins George G. "Writs of Assistance in England". ''Massachusetts Historical Society Proceedings'' 66 (1941), 357–64. {{Authority control British laws relating to the American Revolution Legal documents Warrants
Assistance Assistance is an act of helping behavior. Assistance may also refer to: Types of help * Aid, in international relations, a voluntary transfer of resources from one country to another * Assistance dog, a dog trained to aid or assist a person ...
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