AMERICA: 1763-1776
The
Writs of Assistance
ded to heighten their level of control over trade in the
colonies. Colonial assemblies had proven unable to stem trade with the French
West Indies, and certain ports, such as Boston and Newport, Rhode Island,
engaged heavily in trade with the enemy in the West Indies. Colonial smugglers
that traded with the West Indies, not only sustained the enemy, but avoided
duties imposed by the Molasses Act of 1733. The Molasses Act charged a duty of
six pence a gallon on molasses, nine pence on a gallon of rum, and five
shillings per 100 pounds of sugar on goods imported from non-British
territories. Smuggling thus not only aided Britain's wartime enemy, but also
deprived the British treasury of much needed revenue during the war.
In
response, the British officials in the colonies called for a crackdown on
smuggling. In 1760, governor Bernard of Massachusetts authorized the use by
revenue officers of writs of assistance. Writs of assistance were documents
which served as a general search warrant, allowing customs officials to enter
any ship or building that they suspected for any reason might hold smuggled
goods.
Writs
of assistance proved an immediately useful tool in the fight against smuggling,
and many buildings and ships were ransacked and seized. Shortly after their
implementation, Boston merchants, the group primarily responsible for smuggling
in the colonies, hired lawyer James Otis to challenge the constitutionality of
the writs before the Massachusetts supreme court, which he did in 1761, in what
is known as the Petition of Lechmere. A fiery orator, Otis argued that the
writs were "against the fundamental principles of law," and claimed that
even an act of Parliament "against the Constitution is void." It took
two and a half years before the ruling in the case was delivered. After
consulting extensively with authorities in Britain, and noting the use of
similar writs in England, the court, heavily influenced by the opinions of
Chief Justice Thomas Hutchinson, ruled against the Boston merchants and kept
the writs in place.
The
writs of assistance and Otis' arguments at trial convinced many that Britain
had overstepped its bounds, and objections to their use was commonly heard at
town meetings and in assemblies throughout the colonies. However, political
opposition to the writs ended with the Boston merchants' loss in the Petition
of Lechmere. It would take further impositions by the British government before
the colonists would begin to truly question parliamentary authority.
Commentary
Smuggling
was a major problem in the American colonies during and after the war. It is
clear that if there had been no smuggling the British government would have
taken in more revenue from customs duties. Additionally, later evidence has
shown that the influx of goods to the French West Indies provided by American
smugglers was a primary reason the French were able to sustain their war effort
in North America for as long as they did. During the war it was well known that
smuggling accounted for a significant part of American income, but in the midst
of the fighting the British found it nearly impossible to regulate trade
effectively. Thus, partially because they had few other options and partially
out of frustration and anger, the writs of assistance were granted and used.
Despite
the assertion by the Massachusetts supreme court that the writs of assistance
were within legal limits, most English authorities agreed that the writs
violated the Constitution. Colonists and Many British observers were outraged
at the blatant neglect of what had been traditionally considered British
liberties. Most notably, the writs allowed officials to enter and ransack
private homes without proving probable cause for suspicion, a traditional
prerequisite to a search.
Although
he lost the case against the writs of assistance, James Otis hit upon precisely
the ideological cornerstone that would lead the colonies up to and into revolution.
The British Constitution was not a written document; it was an unwritten
collection of customs and traditions guaranteeing certain rights, and therefore
an abstract and fungible thing. Most British subjects assumed that all laws
made by Parliament were incorporated into the Constitution, and thus that
Parliament could alter the Constitution as it wished, without question. The
government was the sole judge of the constitutionality of its actions. However,
Otis' primary argument in front of the supreme court centered on the growing
sentiment in the colonies that even Parliament could not infringe on certain
basic rights that stood at the core of the Constitution, often termed 'the
rights of Englishmen.' Otis contended that in the principles of government,
there existed certain limits, "beyond which if Parliaments go, their Acts
bind not." This claim echoed the growing conception of the great majority
of colonists as to the proper role of Parliament under the British
Constitution. In the years to come, the colonists continued to complain that
the British government had infringed upon this set of "inalienable"
rights. This infringement was commonly claimed as the motive for revolution.
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