Illegal Searches and Seizures — in 1761

Part of a series on the Road to the American Revolution

By Nancy Spannaus

July 14, 2025—Since the ratification of the Constitution’s Bill of Rights on December 15, 1791, the people of the United States have had the right “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.”

In proclaiming this right, our republic was seeking to protect itself from some of the acts of tyranny which had spurred the Revolutionary movement as early as the 1760s. It would seem important that we revisit that issue today.

The Writs of Assistance

Among the Crown’s clampdowns against the British American colonies in the mid-18^th century was the expanded use of writs of assistance. A writ was a legal document issued by a magistrate ordering, or empowering, compliance with a court order. When the court was ordering a search – say, for illegal imports or goods that had evaded taxation – the writ was called a search warrant.  It generally required testimony on probable cause for believing that a specific person, and/or a specific location, contained some specified illegal goods, and therefore was subject to search. (While such warrants were generally for goods, they could apply to individuals as well.)

Yet, in their determination to get tough with the Americans, the British authorities frequently found these requirements too restrictive. In Boston, for example, seizures were often resisted by local citizens. Force was necessary – and expanded powers. The British authorities then applied for “writs of assistance,” which gave the local authorities the power to search at will, and to mandate that all sheriffs, local authorities, and even “subjects” cooperate in the search and seizure. No specifics needed.

Taking up the case most effectively was Boston revolutionary lawyer James Otis, who argued that these general warrants were illegal both by the British Constitution and natural law.

By natural law, Otis meant the God-given rights owed to every individual of the realm, including the subsequent definition of those rights in the Declaration of Independence: the rights to life, liberty, and the pursuit of Happiness.[1]

Otis challenged the legality of the writs – which permitted the search of homes, warehouses, and other properties in pursuit of illegally obtained goods without any specification of the goods being sought – in a major court case in 1761. While he lost the case, his argument was written up by the younger attorney (and future President) John Adams, and widely circulated throughout the British American colonies. There it helped galvanize further resistance to the Crown, as the writs were being exercised up and down the coast.

Three years later, Otis wrote a more extensive defense of the “rights of Englishmen” which expanded the battle lines even further. John Adams credited his efforts as one of the major contributors to the birth of the “Child Independence.”

Otis’s Core Argument

The American Constitution Center has chosen the following selection from Otis’s speech as representative of his argument:

This Writ is against the fundamental Principles of Law.—The Priviledge of House. A Man, who is quiet, is as secure in his House, as a Prince in his Castle—notwithstanding all his Debts, & civil processes of any Kind. …

It appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book. …

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. In the third place, a person with this writ, in the daytime, may enter all houses, shops, &c. at will, and command all to assist him. Fourthly, by this writ not only deputies, &c., but even their menial servants, are allowed to lord it over us. 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. …

No Acts of Parliament can establish such a writ; though it should be made in the very words of the petition, it would be void. An act against the constitution is void.

Elaborating the Writ

At first glance, Otis’s argument may seem far-fetched. Why would a criminal have the right to be secure in his home?

But Otis is not talking about warrants to search the homes or businesses of known criminals. Instead, he is objecting to warrants which specify no individual to be apprehended, or illegal goods to be found, but rather give agents of the court (any old agent or various agents) the right to rummage around the possessions of an individual based on no prior evidence. This is what today is called a “fishing expedition,” a license for legal authorities to carry out unlimited searches, in hopes of finding something which justifies the search.

The exercise of such a practice can result in the most atrocious violations of law, Otis argued. He cites a case where one merchant’s rival used his friendship with the authorities to get a warrant against another, resulting in not only the ruin of his business, but his physical abuse. Even worse acts of villainy could be imagined.

Britons versus Colonists?

In asserting the colonists’ rights to be free of such illegal searches, Otis assumed that such freedom was generally granted to residents of Great Britain, and the American colonists were being discriminated against. He thus put a heavy emphasis on his argument that the colonists should have the same rights as Englishmen.  But he also shocked his audience by extending the concept of natural rights far beyond national boundaries.

The following few paragraphs from his 1761 legal argument give you a taste of his reasoning:

In order to form an idea of the natural rights of the Colonists, I presume it will be granted that they are men, the common children of the same Creator with their brethren of Great-Britain. Nature has placed all such in a state of equality and perfect freedom, to act within the bounds of the laws of nature and reason, without consulting the will or regarding the humor, the passions or whims of any other man, unless they are formed into a society or body politic.

This it must be confessed is rather an abstract way of considering men than agreeable to the real and general course of nature. The truth is, as has been shown, men come into the world and into society at the same instant.  [i.e., we are part of and have obligations to society from the start – ed.]

Then came the shocker:

The Colonists are by the law of nature free born, as indeed all men are, white or black. No better reasons can be given, for enslaving those of any color than such as baron Montesquieu has humorously given, as the foundation of that cruel slavery exercised over the poor Ethiopians; which threatens one day to reduce both Europe and America to the ignorance and barbarity of the darkest ages. Does it follow that tis right to enslave a man because he is black? Will short curl’d hair like wool, instead of christian hair, as tis called by those, whose hearts are as hard as the nether millstone, help the argument? Can any logical inference in favour of slavery, be drawn from a flat nose, a long or a short face?

Nothing better can be said in favor of a trade, that is the most shocking violation of the law of nature, has a direct tendency to diminish the idea of the inestimable value of liberty, and makes every dealer in it a tyrant from the director of an African company to the petty chapman [peddler-ed.] in needles and pins on the unhappy coast.

It is a clear truth, that those who every day barter away other men’s liberty will soon care little for their own. To this cause must be imputed that ferocity, cruelty and brutal barbarity that has long marked the general character of the sugar-islanders. They can in general form no idea of government but that which in person, or by an overseer, the joint and several proper representative of a Creole,^* and of the D——l, is exercised over ten thousands of their fellow men, born with the same right to freedom, and the sweet enjoyments of liberty and life, as their unrelenting task masters, the overseers and planters. …

So, Otis has quickly leapt from the opposition to an apparently small act of tyranny, to demonstrating its coherence with enslaving those with skin of another color.

Unfortunately for the American cause, Otis’s effectiveness as a leader of the patriotic movement was short-lived. He became a member of the Sons of Liberty (1765), and a mentor to Sam Adams, but turned increasingly dysfunctional after being severely beaten by a Boston tax collector in 1769. He died in 1783 from the effects of a lightning strike.

His opposition to warrantless searches, however, has largely survived – so far.

For more insights into the causes of the American Revolution, see From Subject to Citizen: What Americans Need to Know about Their Revolution.

[1] Natural rights such as those identified in the Declaration, are properly seen as a subset of the law of nature, or natural law; the latter includes the obligations of individuals within society, not just his or her privileges. Otis’s fuller outlook appears in his 1764 pamphlet on The Rights of the British Colonies Asserted and Proved. Click here for extensive excerpts.

Tags: Fourth Amendment, illegal search, James Otis, Nancy Spannaus, search, Writs of Assistance