Wonky History Post: So, this 'get a warrant thing,' is that new?

[TayTay]

Not really, it was one of those things that led to the American Revolution and the Bill of Rights. (Little stuff like that, you know.)

"Writs of assistance were court orders that authorized customs officers to conduct general (non-specific) searches of premises for contraband. The exact nature of the materials being sought did not have to be detailed, nor did their locations.

The writs were first introduced in Massachusetts in 1751 to strictly enforce the Acts of Trade, the governing rules for commerce in the British Empire. Merchants in much of New England were skillful at evading the system and many had become masters of smuggling.

The powerful new court orders enabled officials to inspect not only shops and warehouses, but also private homes. It quickly became apparent to many colonists that their homes were no longer their castles.

In 1761, James Otis represented Boston merchants in their challenge to the renewal of the writs. He failed to convince the court, but gained public prominence in arguing that the writs violated the colonists’ natural rights.

The writs of assistance again drew public attention with the enforcement of the Townshend Duties in 1767. Courts continued to uphold the constitutionality of the orders into the 1770s, but as time passed and popular passions heated, few officials had the courage to use them.

The writs were one of a list of grievances that the Americans harbored against the Crown and contributed to the process of changing loyal colonists into advocates for independence."

http://www.u-s-history.com/pages/h1205.html


This is the case that was argued in the Old State House in Boston that prompted John Adams, who was a very young lawyer present at the hearing to state that "Then and there, the child independence was born." Resisting this type of tyranny is part of what gave birth to America. (Hey GRLMGC: Remember that wicked old building I showed you in Boston? Yeah, that's where, in effect, the 4th Amendment was born.)

Here is James Otis speech against the Writs of Assistance. Make the language a bit more modern and you got yourself a clean case against King George IV, the new American tyrant.

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. Every one with this writ may be a tyrant; if this commission be legal, a tyrant in a legal manner, also, may control, imprison, or murder any one 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, shops, etc., at will, and command all to assist him. Fourthly, by this writ not only deputies, etc., 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 servants of servants, the most despicable of God's creation?

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 whilst 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. Custom-house 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 a 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!

Wonky as I want to be!

[Blaukraut]

1. fascinating, TayTay

It certainly seems like we are going backwards in time, as JK said we would - all the way to 1761! You can certainly use Otis' speech and apply it to the current king george. I wonder - will John Kerry be our modern day James Otis?

[ProSense]

2. I'm impressed

that you read that.

Seriously: This is good stuff.

Bush is definitely regressing.

[TayTay]

3. It really is interesting.

This stuff about the Pres having near unchecked power to do whatever he wants is deeply against American tradition. This nation was founded on the idea of having checks on the power of the state. It was a major cause of the American Revolution. Bush is trying to reverse centuries of law and custom here and reverse what we think American civil liberties, in essence, are. That is about as frightening a thing as I can think of.