Warrants & Revolution

Declaration of Independence paintingWhile Bookworm is away at Disneyland, she’s tasked me to fill in for her.  I am going to try and do so without any mention of the names Trump, Cruz, Sanders or Hildabeast (more than once).  Instead this will be a historical post, but one that I hope resonates still today.

I’ve been researching the causes of the American Revolution, and while there were several, arguably the fuse of the American Revolution was first lit in 1756 Boston, when and where a  corrupt government customs official began to make use of a rare practice — a general search warrant coupled with a “Writ of Assistance” — to fill his pockets.  It raised the issue of the government’s power to search without any reasonable suspicion of a crime having been committed — essentially a fishing expedition easily abused to harass, punish or, in this instance, plunder — done without oversight by a magistrate.

The legal background was that, in 1662, in the wake of England’s Civil War and with its finances depleted, Parliament passed a bill giving the Court of the Exchequer, a uniquely English court that deals only with debts to the government, a right in England to issue a Writ of Assistance to its custom’s agents. This Writ authorized the agents to search anywhere — including private homes and other properties, locked or not — if the agents thought they might find items illegally imported or on which customs were not paid.  No magistrate or judge provided oversight in individual cases. Such general warrants under a Writ of Assistance would remain valid for the life of the King or Queen in power when such warrant was issued.

This was extended to the colonies, by very imprecise language, by an Act of 1696.  This law allowed “Courts of the Exchequer” in the colonies to issue such general search warrants.  This should have raised an immediate red flag since there were no Courts of the Exchequer in the colonies, but as the power went unused in the colonies for six decades, no one contested it.

The first Writ of Assistance issued by a colonial court was in 1756 in Boston.  It was issued to Charles Paxton, a mid-level customs agent who saw a chance to get wealthy, since the law also provided that any smuggled goods and ships used for smuggling taken by the government were to be auctioned off, with the proceeds split between the customs agent, the Royal Governor, and “the king’s share,” which went into the colony’s general fund.  Moreover, if the condemnation was done in an “Admiralty Court,” then the judge there also came in for a cut.  It was a system tailor made for abuse and corruption.  It would only get worse when Thomas Bernard was appointed as the Royal Governor in 1760, as he came to Boston with the same intent as Paxton, to become wealthy off the backs of the local colonists.  

Unfortunately, this all coincided with the French-Indian War / Seven Years War.  By the end of that war, the British government was heavily in debt and extremely miffed at the fact that colonists continued to trade illegally with the French Caribbean Islands, mostly for the cheap French molasses.  In 1760, this led Lord Pitt, then Prime Minister and the colonists best friend in British government, to demand that Royal Governors put an end to this illegal trade.  This really set the stage for the tightening of the screws on the colonies over the next decade.  It is ironic indeed that Pitt would be the initiator of it, since he did his best thereafter to protect the colonies and forestall war.  

As to smuggling, it is certainly true that there was a lot of smuggling going on in the colonies generally and Massachusetts in particular.  Colonial smuggling was our nascent nation’s great national pastime.  But such smuggling grew not out of greed, but rather, at least initially, out of economic necessity.  

The economy of Massachusetts Bay Colony, like all colonies in the British empire, was carefully circumscribed by a raft of trade laws to make sure the colony did not compete with British merchants on the mainland.  This was particularly problematic as to Massachusetts Bay Colony because that colony’s natural economy of corn, wool and the like overlapped significantly with Britain in what resources it could produce.  

One area not circumscribed was in the production of rum, a liquor made by the fermentation of molasses imported in huge quantities from the Caribbean Islands.  By 1756, rum production accounted for nearly a third of the economy of Massachusetts Bay Colony.  Not only was rum drunk throughout the colonies, where the average person consumed over 4 gallons of it a year (our progenitors were prodigious drinkers), but it was used in trade with Africa for slaves and other goods.  As to molasses itself, a homemade “small beer” (very low alcohol content) made from molasses was, along with tea, the most common drink in colonial households.

Unfortunately, the colonists lacked political influence, while many of the richest and most influential people in Britain were the owners of sugar cane plantations in the Caribbean Islands.  These sugar cane producers came into competition with the French, who had their own, much larger Caribbean holdings and who became far more efficient than their British counterparts, being able to undersell them significantly.  Rather than become more efficient to compete with the French sugar cane producers, the Brits did what all crony capitalists do best — they lobbied the British government for special legal protections.  Parliament responded in 1733 with the Molasses Act, placing a punitive customs duty on the importation of molasses from everywhere but the British island holdings.  Though cast as a revenue act, it was not that.  It was never meant to raise revenue, but merely to stifle free market trade to the benefit of a handful of wealthy Brits.  It’s sole effect was to make criminals out of otherwise law abiding British citizens.

This was problematic for several reasons.  British Caribbean holdings did not produce near enough molasses to satisfy the needs of the colonies — let alone Mass. Bay Colony — all of whom used molasses in bulk.  This available supply contracted even further when the British plantation owners figured out that they could make their own rum, and thus began using themselves a significant percentage of the molasses they were producing.  Most importantly, having to pay the very high duties on foreign molasses would have wiped out the economy of Mass. Bay Colony — and that in turn would have rippled throughout the colonies and Britain itself.

A last contextual note — the British system of customs enforcement set up in 1696 allowed for smuggling cases to be brought in a local Court of Admiralty, ancient British courts sitting without a jury designed to hear commercial questions, such as a merchant’s case against a sea captain over goods or a seaman’s suit for wages.  These Courts existed throughout the colonies, but played almost no role in smuggling cases through 1763 because they were inferior to the local colonial Superior Courts.  If a Customs agent brought a case of smuggling to an Admiralty Court, defendant inevitably made a motion to transfer jurisdiction to the local colonial superior court, sitting with a jury, which virtually never convicted.  Colonial juries were notorious for jury nullification in smuggling cases by 1760.  Parliament would eventually respond by making Admiralty Courts the only court in which colonial smuggling cases could be tried, but that was still several years off.

Having now set the stage, back to the narrative of events.  By 1760, the many merchants in Boston were greatly angered by Paxton.  When King George II died that year, it ended the validity of all previously issued Writs of Assistance.  When Paxton applied for a new one, that is when the merchants brought suit, they being represented by James Otis Jr, probably the most brilliant legal mind in Boston but a man notoriously mercurial who would, in a few years time, go completely insane. Here is a part of Otis’s four hour long argument before the Superior Court, as recorded by John Adams:

[This Writ of Assistance] appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English lawbook. I must therefore beg Your Honors’ patience and attention to the whole range of an argument that may ‘perhaps appear uncommon In many things, as well as to points of learning that are more remote and unusual, that the whole tendency of my design may the more easily be perceived, the conclusions better descend. and the force of them be better felt, I shall not think much of my pains in this cause. as I engaged in it from principle.

Your Honors will find in the old books concerning the office of a justice of the peace precedents of general warrants to search suspected houses. But in more modern books you will find only special warrants to search such and such houses, specially named, in which the complainant has before sworn that he suspects his goods are concealed, and will find it adjudged that special warrants only are legal. In the same manner, I rely on it that the writ prayed for in this petition, being general, is illegal. It is a power that places the liberty of every man in the hands of every petty officer. I say I admit that special writs of assistance, to search special places, may be granted to certain persons on oath; but I deny that the writ now prayed for can be granted, for I beg leave to make some observations on the writ itself before I proceed to other acts of Parliament.

In the first place, the writ is universal, being directed “to all and singular justices, sheriffs, constables, and all other officers and subjects”; so that, in short, it is directed to every subject in the King’s dominions. Everyone, with this writ, may be a tyrant; if this commission be legal, a tyrant in a legal manner, also, may control, imprison, or murder anyone within the Realm. In the next place, it is perpetual, there is no return. A man is accountable to no person for his doings, Every man may reign secure in his petty tyranny and spread terror and desolation around him, until the trump of the archangel shall excite different emotions in his soul. In the third place, a person with this writ, in the daytime, may enter all houses or shops, at will, and command all to assist him. Fourth, by this writ, not only deputies but even their menial servants are allowed to lord it over us. What is this but to have the curse of Canaan with a witness on us; to be the servant of servants, the most despicable of God’s creations.

Now, one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle; and while he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Customhouse officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient.

This wanton exercise of this power is not chimerical suggestion of a heated brain. I will mention some facts. Mr. Pew had one of these writs, and when Mr. Ware succeeded him, he endorsed this writ over to Mr. Ware, so that these writs are negotiable from one officer to another; and so Your Honors have no opportunity of judging the persons to whom this vast power is delegated. Another instance is this: Mr. Justice Walley had called this same Mr. Ware before him, by a Constable, to answer for a breach of the Sabbath-Day acts, or that of profane swearing. As soon as he had finished, Mr. Ware asked him if he had done. He replied, “Yes.” “Well, then,” said Mr. Ware, “I will, show you a little of my power, I command you to permit me to search your house for uncustomed goods”; and went on to search the house from the garret to the cellar; and then served the constable in the same manner!

But to show another absurdity in this writ, if it should be established, I insist upon it every person-by the 14th Charles II-has this power as well as the customhouse officers. The words are, “It shall be lawful for any person or persons authorized. What a scene does this open! Every man prompted by revenge, Ill humor, or wantonness to inspect the inside of his neighbor’s house, may get a writ of assistance. Others will ask it from self-defense; one arbitrary exertion will provoke another, until society be involved in tumult and in blood. . . .

Writing many years later, John Adams would opine that “Otis was a flame of Fire! With the promptitude of Classical Allusions, a depth of Research, a rapid Summary of Historical Events and dates, a profusion of legal Authorities, a prophetic glare of his eyes into futurity, and a rapid Torrent of impetuous Eloquence, he hurried away all before him; American Independence was then and there born.”

Nonetheless, eight months after the initial hearing, in late 1761, the Superior Court of Massachusetts Bay Colony would finally rule in the case that the Writs of Assistance, with the power of general warrant and lasting during the lifetime of the King, were legal.

The Chief Judge at the hearing was none other than the recently appointed Thomas Hutchinson, a man who would play a pivotal role in causing the Revolution when he was appointed Governor of Massachusetts Bay Colony.  Hutchinson strongly believed in the overarching power of government, irrespective of ancient British rights.  Many suspected at the time that he was appointed to his seat on the Superior Court by Gov. Bernard just so that he, Hutchinson, could save the Writs of Assistance, they being so central to Bernard’s personal revenue.  This marked the start of the general hatred for Hutchinson that would spill over into the revolution.

Hutchinson discounted all arguments from Otis but for one, that Britain no longer issued such general warrants, and he convinced all of the other justices, all of whom were inclined to rule against the Writs, to wait for him to clarify.  Hutchinson wrote not to any legal authority in Britain for clarification, but to the agent for Mass. Bay colony, another “king’s man,” who wrote back that the Court of the Exchequer still in fact issued Writs of Assistance as general warrants remaining in good standing throughout the life of the monarch.  Thus Hutchinson convinced the other judges to rule for the Writs.  It was a decision soon called into question.

First, the issue of the legality of general warrants was playing out in Britain, where the ancient right to be free in one’s home and possessions from government search, absent particularized justification and the approval of an appropriate authority, had its roots in ancient Anglo Saxon law as well as the Magna Carta of 1215.  Sir Edward Coke, the famed 17th century jurist, wrote in The Institutes of the Laws of England, 1628: “For a man’s house is his castle, et domus sua cuique est tutissimum refugium [and each man’s home is his safest refuge].”  And indeed, Lord Pitt, in 1763, would write the most ringing restatement of this principal:  “The poorest man in his cottage may bid defiance to all the forces of the Crown. It may be frail – its roof may shake – the wind may blow through it – the storms may enter – the rain may enter – but the King of England cannot enter — all his forces dare not cross the threshold of the ruined tenement.”

In Britain, the issue of general warrants was raised in the case of John Wilkes, an English member of Parliament and printer who so angered the two King Georges (II and III) with his biting criticism.  King George III, in 1761, had his Sec. of State issue a general warrant to search Wilkes’ home to fish for evidence of sedition.  It was a cause celebre in the states because of our own issues with Writs of Assistance.  John Wilkes became a household name throughout the colonies and he received great support from the colonies in his problems with the King.  The colony of South Carolina went so far as to vote a large grant of money from its treasury to help Wilkes pay his legal bills.  And to add as an aside, you may have heard of a descendant of John Wilkes who became infamous near the end of our own Civil War.

In 1763, Britain’s highest court ruled on John Wilkes case, coming down clearly against the use of general warrant, though not in the context of Writs of Assistance.  The opinion in the Wilkes case was a strange mixture of law and question of fact that the highest judge in Britain put to the jury for final decision — the jury agreeing with the judge in the end.  As it was written in the report of the trial:

His Lordship [the Chief Judge] then went upon the warrant, which he declared was a point of the greatest consequence he had ever met with in his whole practice. The defendants claimed a right, under precedents, to force persons houses, break open escrutores, seize their papers, &c. upon a general warrant, where no inventory is made of the things thus taken away, and where no offenders names are specified in the warrant, and therefore a discretionary power given to messengers to search wherever their suspicions may chance to fall. If such a power is truly invested in a Secretary of State, and he can delegate this power, it certainly may affect the person and property of every male in this kingdom, and is totally subversive of the liberty of the subject.  And as for the precedents, will that he esteemed law in a Secretary of State which is not law in any other magistrate of this kingdom? If they should be found to be legal, they are certainly of the most dangerous consequences;….

As to Writs of Assistance themselves, their legality in the colonies was raised again, this time in Connecticut, also in 1763.  The Conn. High Court sent a letter to Britain’s highest legal authority, the King’s Advocate General, William de Grey, asking his opinion about the legality of the Writs.  De Gray replied that, because the terms of the statute were clear that the Writs could only be authorized by a Court of the Exchequer, and there being no such courts in the colonies, no lawful Writs of Assistance could be issued to customs agents in the colonies.  This was a bombshell, as up and down all of the colonies now, the customs agents had become exponentially more aggressive in fighting smuggling.

This in turn had several effects.  One was to make the people of Mass. Bay Colony even more radicalized and willing to challenge the authority of Gov. Bernard over Writs.  In 1766, several customs officers and the local constable descended on the house of retired sea captain Daniel Malcolm, allegedly having been informed that Malcolm had received an illegal shipment of wine.  With a Writ of Assistance in hand, they claimed the authority to break into a locked room in his home.  Malcolm, whose attorney was James Otis, Jr. and probably at Otis’s urging, set the stage for a confrontation.  He armed himself with a sword and a brace of pistols, then threatened to kill anyone who would try to conduct an “unlawful search” in his home.  A large crowd gathered and the customs agents backed down.  Gov. Bernard complained to the Board of Trade that the people of Boston were riotous — untrue — and had no respect for the King’s laws.  This played into the preconceived notions of the British governing elite, who were rapidly coming to see the plebian colonists as children who need a good hard smack.

Two, no other court in the colonies were willing now to issue Writs of Assistance, their legality being directly at issue.  This maddened the Board of Trade who asked the Attorney General to change his opinion.  De Grey refused so the Board took the matter to the then Prime Minister, Charles Townshend.

Prime Minister Townshend drew up a whole new set of draconian revenue laws to impose upon the colonies — the so called Townshend Acts of 1767.  Included in there was a passage stating that it was and always had been the the intent of Parliament that Writs of Assistance be lawful in the colonies, though curiously repeating the language of the 1696 Act, which included the stipulation that only Courts of the Exchequer could issue such Writs.  Parliament was trying to thread the needle.  If they changed the language to authorize colonial superior courts to issue such Writs, they would be admitting, in light of de Grey’s opinion, that all writs issued in the colonies prior to 1767 were unlawful.  It would open up the local Royal Governors and all of the customs agents to ruinous suits for trespass and wrongful seizure.  Their solution was to ignore the de Grey opinion and pretend that the plain language of the statute did not mean what it clearly said.  The effort was not enough for the colonial judges, who absent a clear mandate, had no intention of issuing such an unpopular Writ and risk physical violence from an increasingly restive population.

The last instance where the Writs of Assistance controversy played a part in bringing about the Revolution occurred in 1768, when customs agents relied on such a writ issued years earlier in Boston to attempt to force entry onto a ship owned by John Hancock, the ship being named, ironically enough, The Liberty.  Again, as in the Malcolm Case, the customs agents were initially threatened with violence if they tried to conduct an unlawful search.  They eventually brought enough force of their own to bear to be able to seize the ship, bringing a case against it and John Hancock in Vice Admiralty Court.  The two problems with the case were, one, the case was based on easily provable falsehoods.  Two, it became a cause celebre, with the falsehoods as well as the incredibly draconian nature of Admiralty Courts was on full display daily in newspapers from Georgia through Massachusetts.  Admiralty Courts were, themselves, another contributor to the revolution.  Those courts did away with the British right to a jury trial, they reversed the burden of proof so it was the defendant who had to prove his innocence, the court assuming guilt by the mere lodging of charges, and the Court’s allowance for the state to use secret evidence that it did not have to share with defendants.  The Admiralty Courts, which functioned well for small commercial disputes, were a travesty when applied to smuggling cases.

Ultimately, the American response to all of this controversy over general warrants was enshrined by our Founders in the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

And, as a final postscript, Britain itself did away with the general warrant authority associated with Writs of Assistance in, I believe it was about 1817.

At any rate, while all of this may seem remote, it is, I would argue, very relevant in many of its particulars to our world today.  For instance, the recent question of whether the NSA should be able to collect meta-data on all Americans goes directly to the issue of our right to be free of generalized government intrusion.  The evils and dangers of crony capitalism, so alive and well under the progressive left, could not be made more stark than by the Molasses Act of 1733.  Virtually all of the events surrounding the Writs of Assistance should be a cautionary tale whose central warning is that government and individual agents will misuse their power if not constantly checked.  

The examples of that today are numerous, from Lois Lerner to our former AG Eric Holder to Obama himself.  Then there is the importance of the Courts and their fidelity to the law.  Britain was stymied in their attempt to radically misuse the Writs of Assistance by a single jurist, Britain’s Attorney General, who resisted political pressure to interpret the law according to its plain language.  

Today we are saddled with a Supreme Court that makes political decisions, not legal decisions, with one of the worst being the decision of John Roberts not merely to ignore the plain language of the Obamacare law in order to claim that it passed Constitutional muster, but to in essence judicially rewrite the statute.  And as to politicians who misuse their positions to enrich themselves at the expense of the public, Bill, Hillary and the Clinton Foundation are prime examples.  

The reality is that it is more important than ever that we understand why we fought a revolution and what the Founders were attempting to write in stone with the Constitution.  Only then can we see the contours of the problems we face and understand the necessity of fighting back.