Writs of Assistance Case

AuthorJeffrey Lehman, Shirelle Phelps

Page 430

The Writs of Assistance case involved a legal dispute during 1761 in which 63 Boston merchants petitioned the Massachusetts Superior Court to challenge the legality of a particular type of SEARCH WARRANT called a writ of assistance. Also known as Paxton's Case, the Writs of Assistance case contributed to the Founding Fathers' original understanding of SEARCH AND SEIZURE law, planted the seeds of JUDICIAL REVIEW in the United States, and helped shape the U.S. concept of NATURAL LAW.

Parliament created the writ of assistance during the seventeenth century. Once issued, the writ authorized government officials to look for contraband in private homes and businesses. Normally, the writ placed no limitations on the time, place, or manner of a given search. 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.

The Writs of Assistance case arose when James Paxton, a Massachusetts customs official, applied to the superior court for a writ of assistance. JAMES OTIS JR., advocate general for the colony of Massachusetts, resigned his post to represent the merchants who opposed the writ. Appearing before Chief Justice Thomas Hutchinson, Otis and his co-counsel, Oxenbridge Thacher, made four arguments against the legality of the writ.

First, Thacher challenged the authority of the Massachusetts Superior Court to issue the writ. Thacher conceded that Parliament had passed a law in 1662 granting the English Court of Exchequer the power to issue the writ in Great Britain and passed a second law in 1696 enabling customs officials to apply for the writ in America. However, Thacher argued that neither law specified which courts in America could issue the writ. Thus, Thacher said that the Massachusetts Superior Court was never expressly delegated authority to issue the writ.

Second, Otis challenged the procedure by which the writs were issued. Otis argued that bare suspicion should not be enough to support an application for the writ. Otis maintained that no writ should be issued unless the official making the application is first placed under oath and made to disclose the evidence on which the application is based. Otis also suggested that every writ application should be...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT