The Writs of Assistance Case
A. Background
1. After the French and Indian War, Parliament proclaims that colonists can’t move west
2. To pay for the war, Britain decides to raise customs revenue
a. This means they’ll have to cut down on smuggling, particularly in Boston
3. To cut down on smuggling, England begins issuing writs of assistance
a.
These are writs that allow people to get assistance of local official to
go into someone’s home/ shop, etc. to search for and seize smuggled
contraband
b. Series of Parliamentary/local statutes give courts authority to grant writs
4. Major discontent arises when courts start to grant general writs of assistance
B. The case
1. Hadley (Boston citizen) challenges the general WoA
a. His lawyer argues, on ideological grounds, that the writs destroy liberty
i. Special writs are OK—more procedural protection
ii. General writs aren’t—instruments of arbitrary power
(a). Arbitrariness is key: not under the rule of law
b. The government basically says “look at statutes and precedent” and rests
2. Hadley’s lawyer also makes a constitutional argument
a. Parliament didn’t have the power to pass the general WoA statute
b. “An act against the constitution is void” (quotes Coke)
c. This is a new application, though—Coke never argued that Parliament was under the Constitution, only the King!
i. If Parliament isn’t sovereign, who is?
ii. Moving toward popular sovereignty
3. Alas, Hadley loses (unenforceable—a mob stops the WoA)
a. John Adams: it was “then and there” that independence was born
IV. Key issue so far is the locus of sovereign power
A. Divine right of kings: first theory
B. King-in-Parliament / Parliamentary sovereignty
1. Where Parliament sits, so sits the People
2. King-in-Parliament has the power to change the rules, including constitutional norms
C. In America, the radical Whiggish idea that People themselves are sovereign is growing…
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