Summary
Even before the French and Indian War ended,
the British decided 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.
