British Tyranny, the Fourth Amendment The Origins of the Bill of Rights (Part 3:)

Saturday, June 4, 2011

British Tyranny, the Fourth Amendment The Origins of the Bill of Rights (Part 3:)

Much like the first three Amendments, the Fourth Amendment can be directly related to the conduct of the British during Colonial Rule. Through much of the Colonial time warrants from a judge were required to search a person or their property, similar to today. But this was not always the case, at times a broad warrant would be issued not specifying a person, place or even subject matter for the reason of a search or seizure. The Fourth Amendment was designed to prevent this.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures , shall not be violated, and 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.

Writ of Assistance For the Fourth Amendment the most direct association is to the Writ of Assistance the British used in Colonial times. The Writ of Assistance was used both in English and American Colonial history. It was a general search warrant issued by superior provincial courts to assist the British government in enforcing trade and navigation laws. Such warrants authorized customhouse officers (with the assistance of a sheriff, justice of the peace, or constable) to search any house for smuggled goods without specifying either the house or the goods. Smuggling was certainly an issue for Britain in the Colonies, with many entrepreneurs involved in the smuggling business, including John Hancock (President of 2nd Continental Congress and signer of the Declaration of Independence). Smuggling in the Colonies was a lucrative business, and in time would be a means to help the Colonists circumvent British import policy.

The Writ of Assistance was not a new policy, but became a strong issue in 1761 with its renewal. It would be James Otis of Massachusetts that would make this a pivotal issue in the growing Revolution beginning to take place. James Otis would argue that the Writ of Assistance was unconstitutional under British Law. Even though Britain did not have a written Constitution, it did operate under British Common Law, and the accumulation of Court judgments would determine what law is, and historical limits of what Parliament of the King could do. In Otis’ view, the Writ of Assistance went beyond what the government was empowered to do. Though he lost, his argument was passionate and well received by the Colonists.

The Writ of Assistance allowed the government to search a person, homes, business or other properties without specific approval to do so. The warrants issued were vague and broad, and did not need to contain a specific location person, or even a suspected good. The use of the Writ of Assistance gave the British a legal avenue to search any home, property of person desired who fell under the broad aspects of the Writ. This allowed for the search and seizure of persons and property without specific approval to that person or property, with no oath or evidence given to support such a search. This inevitably resulted in the search or seizure of persons or property who had not committed any crime, not had evidence or an oath presented to even suspect a crime had been committed.

Taking searches of persons and property who were not suspect of any crime or where no evidence existed to suggest a crime had occurred, and searches being conducted on desire to ensure no crime in fact had happened, with the passionate arguments of James Otis lead to an environment unaccepting of such a practice. Most all aspects of the Writ of Assistance in regards to how a warrant must be issued to what it can be executed against are addressed in the Fourth Amendment, to prohibit such a Writ from occurring in the United States.