The History and Rationale of the Fourth Amendment (Part 2)
Following Paxton's Case several public acts of civil disobedience took place against the unpopular Writs of Assistance. Find out what influence they had on the ratification of the Fourth Amendment.
This article uses William J Cuddihy’s excellent historical reference titled The Fourth Amendment: Origins and Original Meaning 602-1791. This excellent reference was recommended by Daniel J. Solove. He is John Marshall Harlan Research Professor of Law, George Washington University Law School.
Solove points out this historical reference is used by US Supreme Court to review interpretations of the Fourth Amendment. For this reason Solove concludes it is indispensable to understand the origins of the US Fourth Amendment.
For those of you that have a university library account I strongly urge you to use that to purchase the book either at a discount or ideally for free as I did myself. Otherwise the Amazon affiliate link is the only other way to acquire the text.
The Polly Affair
After news spread of James Otis Jr.’s rebuttal of the Writs of Assistance few Massachusetts colonial members were sympathetic to them. And the Polly Affair is just one of several that made that clear.
The H.M.S. Maidstone
British customs officer, John Robinson, seized the famous sloop boat named Polly since it carried more molasses than the captain of the ship said was legal—a suspicion of smuggling. In response many of the colonists aboard the ship booed the writ of assistance and repeated Otis’s rebuttal of general warrants made during Paxton’s Case.
Robinson tried to get colonial justices to grant him a general warrant. However almost all colonial justices refused! Robinson next tried to get the colonial justices to grant him a specific warrant. Even that failed. One of the reasons for that was Robinson offered no court-viable evidence of suspicion for smuggling. Robinson did not even try to put his complaints in writing or even so much as swear his complaints under oath—crucial things you are supposed to do in a case for a warrant. Robinson’s behavior is a classic case of “unreasonable search and seizure”.
Eventually the judges finally allowed Robinson to search properties after Governor Francis Bernard, governor of Massachusetts, demanded the colonial justices assist him—even without a warrant. Even after that the colonial justices said he can only search properties without a warrant but with the local sheriff as a witness and a watchdog.
At first Robinson was successful in finding some smuggled molasses in John McWorter’s home—as much as ten percent of Polly’s cargo. Charles Paxton, the man featured in Paxton’s Case arrived to help Robinson with the search. But by the time Paxton arrived with a valid writ of assistance nightfall had come and the two had to wait a few more days before the search could resume. Of course by the time the search took place several days later the smuggled goods were gone.
An enraged Robinson stormed to the highest court of appeals in Massachusetts. He first charged the colonial justices with “not yielding him proper assistance”. In refutation the colonial justices complained Robinson was arrogant for refusing to first obtain a warrant or even a writ of assistance before searching someone’s property.
The colonial justices then let Chief Justice Hutchinson and Attorney General Edmund Trowbridge to make a final verdict. Both upheld the decision of the colonial justices.
To be fair it was Robinson’s fault that he was not patient enough to first at least get a writ of assistance before searching for the smuggled molasses. Unfortunately Robinson did not learn his lesson.
Instead he resorted to violence: fatal mistake. Robinson next presented his victims of search and seizure with armed militia. Unfortunately for Robinson angry mobs armed with swords and cutlasses began hunting for Robinson and Antrobus in retaliation!
Even Robinson admitted he escaped death by not being present where the mobs were.
Without even being present James Otis Jr proved influential here once again.
Assemblies of local magistrates have made up their minds to adopt Otis’s thesis: only specific search warrants were legal whereas general ones were not.
There were several more incidents of British customs officers attempting to search and seize smuggled goods under the The Writs of Assistance that I will skip here. Usually such attempts only landed with increased civil unrest and public outrage at the behavior of the British government. And rarely did The Writs ever succeed in convicting smugglers. Smugglers were usually smart enough to barricade or remove their smuggled goods in time before the authorities could find proof of them. Even if they were smuggled British customs officers surprisingly often failed to keep possession of them long enough to use them in trial (remember during the Polly Affair John McWorter simply removed the rest of the molasses even after they have been found in-between investigations).
Other colonies, inspired by Massachusetts, followed Massachusetts’s lead starting from 1767. And to prove that the British Public Record to this day record many writs of assistance but almost nothing to show the writs were exercised on the colonies before 1767. By 1768 British authorities admitted their search and seize attempts were failures. Back in Massachusetts British customs officers were welcomed with tar and feathering, angry mobs that freed seized items from the hands of the officers, and magristrates were threatened if they cooperated with the British.
By 1776 it was public knowledge smugglers in the colonies defiantly continued to smuggle goods even amongst the British customs officers. Smugglers like Malcom from the Malcom Affair publicly posted armed guards to deter anyone who dared mess with his merchandise. At which point the British customs officers made up their minds to not bother with such searches.
In summary Massachusetts lead the colonies by resisting the Writs by any means necessary—from legal parries to opening arms. Most colonies like Connecticut and Pennsylvania followed suit where jurists followed James Otis Jr’s interpretation of Coke’s words against home intrusion by declaring general warrants illicit and that they must be replaced with specific ones instead. The British found in dismay that all the Writs had done is weaken their own political support in the colonies. No doubt the judicial decisions and angry mobs presented in the Polly Affair were a major step towards the ratification of the Fourth Amendment.
Smuggled goods were not the only reason for resistance to the Writs of Assistance.
Up Next: The Wilkes Affair
In the next newsletter I will demonstrate that perceived threats to political dissension is a second reason the colonists resisted general warrants. The Wilkes Affair is an outstanding case study of just that. Although the Wilkes Affair took place in Great Britain I will demonstrate how news of the scandal spread amongst the colonists like wildfire.