“Then and there the child Independence was born"

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Aware that the ground was now cut from under them, the Lords of Treasury saw to it that the Townshend Acts passed in 1767 contained a clause specifically authorizing superior or supreme courts in the colonies to grant writs of assistance. Significantly, the American Board of Commissioners of Customs set up under the act sought between 1767 and 1773 to obtain writs in each of the thirteen colonies, but succeeded fully only in Massachusetts and New Hampshire. But as late as 1772 charges were made in Boston that “our houses and even our bed chambers are exposed to be ransacked, our boxes, chests, and trunks broke open, ravaged and plundered by wretches, whom no prudent man would venture to employ even as menial servants.”

In other colonies the issue was stubbornly fought out in the courts. New York’s Supreme Court granted the writs when the customs officers first applied for them in 1768, though not in the form the applications demanded; finally, the court flatly refused to issue the writs at all. In Pennsylvania the Tory Chief Justice, William Allen, refused also on the ground that it would be “of dangerous consequence and was not warranted by law.” The writs were denied, too, in every southern colony save South Carolina, which finally capitulated and issued them in 1773. Significantly, the courts, though often manned by royal appointees, based their denials on the grounds advanced by Otis in the original Paxton case, going so far as to stigmatize the writs as unconstitutional.

What is important to remember throughout the controversy in which Otis played so large a part is that the colonists were seeking to define personal liberties—freedom of speech, the press, and religion—which even in England, right up to the eve of the American Revolution, were not firmly enshrined in law. Indeed, the issues of whether a person could be arrested under a general warrant or committed to prison on any charge by a privy councillor were not settled until the 1760’s. Then Lord Camden took a strong stand for freedom from police intrusion. Less dramatically perhaps than in the colonies, similar issues of civil liberties were being thrashed out in the mother country, but in the colonies this struggle laid the groundwork upon which the new Revolutionary states, and later the federal government, built their safeguards for civil liberties.

In Virginia, where the issue was contested most bitterly, writs of assistance were condemned in the Bill of Rights of June 12, 1776, as “grievous and oppressive.” Condemnation was also reflected in the clauses in the Declaration of Independence denouncing the King because he had made judges dependent for their tenure and their salaries upon his will alone. Five other states soon followed Virginia in outlawing the writs. Of these, Massachusetts in her constitution of 1780 provided the most explicit safeguards. The relevant section of the state constitution, notable because it served as the basis for Madison’s later incorporation of such a guarantee in the federal Bill of Rights, reads as follows:

XIV. Every subject has a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure; and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws.

John Adams, who wrote that constitution, had remembered his lessons very well indeed.

More succinctly than the guarantee in the Massachusetts constitution, the Fourth Amendment to the federal Constitution affirmed “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and declared that “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.”

In our own day, several members of a Supreme Court heavily preoccupied with safeguarding personal liberty have conspicuously defended the guarantees in the Fourth Amendment. It was the late Justice Louis Brandeis who, in his dissenting opinion in a wiretapping decision of 1928 ( Olmstead v. U.S. ) opposing police intrusion without a search warrant, championed “the right to be let alone—the most comprehensive of rights and the right most valued by civilized man. … To protect that right,” he asserted, “every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.”