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NOTE 5. Writs of Assistance in Massachusetts

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Part 2. Enforcement of Mercantilism. Volume 3, Chapter 5. Ritz of Assistance in Massachusetts.

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Having secured its army in America, the Grenville administration proceeded to a comprehensive

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plan of enforcing its mercantilist restrictions and imposing its imperial power. The various

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These regulations, so long a dead letter because of the policy of salutary neglect, were now

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to be imposed in all their rigor.

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The Navigation Act, the Wool Act, the Hat Act, the Sailcloth Act, the Iron Act, the

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White Pine Act, the particularly crippling Molasses Act, all were now to be enforced

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and some to be strengthened and updated. Actually the first crisis of tightened enforcement

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had begun earlier during the French and Indian War. The Crown was frantically trying to stamp

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out the flourishing illegal commerce with the French and Spanish West Indies. To this

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end the government ordered the customs officers in Massachusetts to use general writs of

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of Assistance, that terrible menacing monster, as John Adams labeled it.

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The writs of assistance authorized customs officers to break into and enter warehouses,

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stores, and even private homes to search for smuggled goods without having to present any

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grounds for being reasonably suspecting contraband to be there.

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In short, warrants could be general rather than specific, and a virtual carte blanche

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was given to the customs officers who needed to be accompanied only by a local constable

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to invade private property at will.

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In contrast, special writs of assistance, as in common law or in present-day search

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Search Warrants required specific evidence to be presented to a judge before the writs

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could be issued. The Massachusetts merchants, the citizens most harassed by these writs,

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did not protest the original writs issued from 1756 on, but they became alarmed by the

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petition of customs officers to renew the writs after the death of George II in October

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1760 Under British law, these general writs automatically

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expired six months after the death of a king. A renewal would continue writs of assistance

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long past the end of the war and throughout the reign of the new king. Besides, the end

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of the war was already clearly on the horizon. The threat to liberty and property was evidently

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and 63 Boston merchants banded together to oppose renewal of General Ritz.

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The merchants retained as their lawyers, Oxenbridge Thatcher and James Otis, Jr.,

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who was in this capacity to assume the leadership of the new Popular Party, or Smuggler's Party, in the colony.

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It was Otis who, according to the charge of the Tories, first broke down the barriers

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of government to let in the hydra of rebellion.

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To take up the cause, Otis resigned a lucrative post as the King's Advocate General of the

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Boston Vice Admiralty Court, where he had been engaged in prosecuting such merchants.

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In hearings before the Massachusetts Superior Court in February 1761, Otis soared beyond

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and beyond narrow legalisms to base his opposition on unconstitutionality, and on the right of the courts to supersede an unconstitutional act of parliament, and beyond even that to base his opposition to general writs on the law of man's nature.

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Otis based his ultimate argument on the great early 17th century liberal Chief Justice Koch's

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declaration, even then falling into disuse under the pressure of Tory statism, that when

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an act of parliament is against common right and reason, the common law will control it

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and a judge such act to be void.

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As Otis declared, an act against the Constitution is void, an act against natural equity is

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void, and if an act of Parliament should be made, it would be void.

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Although the majority of judges of the Superior Court agreed with Otis and stood ready to

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prohibit General Ritz, Chief Justice Thomas Hutchinson managed to persuade the Court to

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to uphold the writs and to continue them in force.

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The Massachusetts Legislature passed a law in February 1762 prohibiting colonial courts

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from issuing general writs, but Governor Francis Bernard vetoed the bill. Despite this veto,

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the furor over writs of assistance died down for a few years since they were not used again

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until 1766. However, the agitation catapulted Otis into the leadership of the popular party.

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Massachusetts now split into two camps, the court, or prerogative party, headed by Thomas

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Hutchinson and the Tory governor Bernard, and the liberals, headed by James Otis, Jr.

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and Samuel Adams. Hutchinson, a wealthy Boston merchant, was lieutenant governor, president

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of the Council and Chief Justice and gathered power into the hands of himself and his friends.

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He dominated the executive, legislative and judicial functions in Massachusetts and used

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them to erect a formidable political machine and to control the province. Shortly after

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his speech against General Ritz, Otis was sent by Boston to the House and became head

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of the Liberal Party, Otis was motivated partly by revenge. The prerogative party had passed

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over his father, James Senior, Speaker of the House, for preferment to the Chief Justice

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Post in favor of the non-lawyer Hutchinson. Samuel Adams was Otis's right-hand man in

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whipping up agitation among the people. Adams's father, Samuel Deacon Adams, had himself been

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and a wealthy Boston merchant and brewer and a leader of the popular liberals. Now the

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younger Adams, an impoverished Boston office-holder, showed himself to be a consummate radical

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liberal agitator. Adams obtained an M.A. from Harvard in 1743, and while there he read deeply

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such liberal or republican thinkers as John Locke, James Harrington, and Samuel Pufendorf.

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His M.A. address declared it lawful to resist superior magistrates to preserve the Commonwealth.

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Adams employed as his major political arm the recently founded newspaper The Boston

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Gazette, as well as several eager political clubs of Boston, the Boston Caucus Club, which

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packed town offices, the Merchants Club, the Monday Night Club, and the Boston Masonic

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The clubs met either in the garret of one of their members or in a Boston tavern. Taverns,

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the centers of meeting and discussions, were critical in Massachusetts politics in that

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era, and the tavern keeper was a power in local politics. Sam Adams' Boston Caucus Club,

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for example, met regularly at the Green Dragon Tavern. At the other end of the cultural spectrum,

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Otis also mobilized allies, not the least being the Black Regiment of Congregational

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Ministers, who lent spiritual force to the new ideologies. Particularly ardent in this

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This movement was the Reverend Dr. Samuel Cooper, the pastor of Samuel Adams.