The Fourth Amendment
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.
During 1767 England enacted a few laws to generate more revenue in the American Colonies. One of those laws created a Board of Customs Commissioners to supervise revenue collection in America.
The Board of Customs Commissioners
The Board located itself in Boston on November 5, 1767. Their report home on February 12, 1768 sounded desperate. There was a shortage of seizures:
… our Officers in these northern parts have been greatly discouraged for want of support from Government.
Tho’ smugling has been carried to a very great height, yet six seizures only have been made in the New England Provinces, within the course of two years and a half; and only one prosecuted to effect. a second· was rescued out of the custody of our Officers at Falmouth who were at the same time attacked by a Mob; A third was rescued at Newbury, and the Officers greatly abused, A fourth was carried off clandestinely at New-London, while, under prosecution; the fifth and sixth were acquitted at Rhode Island, thro’ the combination and influence of the people. The Officers of this Port were resisted in the Summer 1766, at noonday, when endeavouring to enter the house of one Malcolm, and finding themselves unsupported against a numerous mob that was assembled, they were obliged to retire without making the seizure …
At present, there is not a Ship of War in the province, nor a company of Soldiers nearer than New York, which is two hundred and fifty miles distant from this place.
Three months later, the navy’s commander in chief of the North American station, Samuel Hood, responded. On May 2, he ordered Capt. John Corner “to proceed without loss of time with His Majesty’s ship Romney under your command to Boston … to be aiding and assisting unto the Commissioner of the Customs.” On June 10, two revenue officers went on board John Hancock’s sloop, the Liberty, at the end of Hancock’s wharf. They seized the ship and turned it over to the custody of the Romney.
When they saw the Liberty being taken, a mob came running onto the wharf. They threatened to throw the Romney’s people overboard. They pelted the officers with rocks and grabbed the mooring lines of the Liberty in a tug of war with the Romney. After the Romney towed the Liberty away, the mob beat up the two seizing revenue officers. Members of the Board of Customs Commissioners hid for the night. The Commissioners fled to Castle William on the Romney the following morning. They dispatched a missive to England covering the events. 
The Coming of the Troops
After September of 1768, an anonymous newspaper column about events in Boston began to appear in Boston, New York, Philadelphia, other parts of the country and in England. It was titled A Journal of the Times. It started with a report of the arrival of troops on September 28, 1768: “Advice received that the men of war and transports from Halifax, with about 900 troops from several parts of America were safe arrived at Nantasket Harbor.” Nantasket Peninsula is about 11 miles from Boston as the crow flies.
On October 1, 1768, 700 troops landed in Boston and marched through town to camp out in the Commons. An October 16, 1768 entry reported:
This day Capt. Jenkins arrived from London, who brought a print of August 13th, in which there is the following article,—”There are 4000 troops ordered for Boston, which it is thought will sufficiently intimidate those people to comply with the laws enacted in England; especially as the other colonies seem to have deserted them.
Another 2,000 troops arrived on October 24, 1768. A November 18, 1768 entry reported twelve ships of war plying the waters of Boston when the 64th and 65th Regiments landed with 500 men each.  A December 26, 1768 Journal entry reported:
This morning a vessel from Salem or Marblehead, having a cask of sugar on board, which it was supposed had not been properly cleared out, was seized by one of the custom-house officers, who brought a number of SOLDIERS! to assist and keep possession of said vessel, but upon discovery that the sugar had been reported at the Custom-House, she was soon released. It is very extraordinary that soldiers should be called in upon such occasions: It seems calculated to lead Administration to conceive that the quartering of troops in this town is necessary to enable the customhouse officers to discharge their duty.
The British Navigation Acts
The British Navy was called to Boston to enforce the British Navigation Acts. The Navigation Acts were a mercantile system enforced by the British Navy. The Acts were designed to raise revenue, increase economic production, expand markets and prevent home producers from being driven out of their occupations by cheaper, foreign competition. Enumerated colonial goods could only be exported to other ports within the Empire or to other countries after they were shipped to England first. Duties were imposed on importation of various goods such as, tea, British grown coffee, sugars, molasses, various wines and various cloths.
The Navigation Acts relied on voluntary compliance by shipping merchants. Any voluntary system of taxation must include three essential features of enforcement. Government must probe for violations, assert penalties for non-compliance and establish rules that throw the task of proving compliance with the law upon the individual. The ease of proving was solved with a strict system of cockets and bonds.
Cockets were an inventory of the taxable cargo on board a ship upon which duties were paid. Cockets were required on all ships beyond two leagues (7 miles) from the coast of the colonies. They were stamped for a fee by a customs officer called a searcher. Under Section 29 of the 1764 Sugar Act, goods found on board that were not listed on the cocket were confiscated.
Bonds guaranteed payment of treble penalties in the event that those colonial goods which were supposed to go to England (or other ports in the Empire) ended up going somewhere else. Bonds had to be approved by the collector and were required to be obtained prior to each time goods were placed on board a ship. After the Sugar Act of 1764, loading without a bond was subject to forfeiture of ship and cargo. 
When a ship with bonded goods arrived at its destination, the export bond would be shown and a certificate of delivery to discharge the bond would be given by a customs official. The discharge certificate needed to be provided to Customs within 18 months from the date of the bond or the bond would be prosecuted for payment.
Upon arrival at a destination, the master of a ship was obligated to go ashore to make entry in the Custom House, provide the cocket, answer any questions and provide evidence of required bonds. Merchants notified of pending delivery would prepare a bill of entry that was submitted to the collector to calculate duties to be paid. Paperwork would be issued to permit the inspection and unloading of the shipped goods.
When ships were unloaded it was under the watchful eyes of customs officials. On the way to London, ships anchored at Gravesend and a tidesman was put on board to search the vessel. No person could go ashore unless they also had been searched. The goods were listed by the tidesman and checked off as they were loaded onto a small shallow draft boat or barge, called a lighter. The lighter took the goods and the tidewaiter to a loading platform jutting out into the water called a quay where the goods were turned over to a landwaiter. The landwaiter unpacked, searched and weighed the imported goods (or sniffed and tasted in the case of wine; or felt by hand in the case of fine cloths).
Any questionable or undeclared items would be sent to the King’s Storehouse. After inspection and payment of duties, the unloaded goods were released to the merchants. In the case of a dispute over a confiscation of a ship or goods, the burden of proof was on the owner to prove no violation had occurred.
In the American colonies, the above rules were used to bludgeon the Boston colonists with confiscations during 1768-1769. The regular sightings by the Boston colonists of vessels seized under military escort and turned over to the control of customs officials was a source of great distress. Enforcement of the Navigation Acts was the topic of forty-six Journal newspaper stories from September of 1768 through August of 1769. It was characterized as an attack on trade. Of those forty-six Journal newspaper stories, thirty-two of them involved seizures for picayune reasons unrelated to smuggling.
One example was when a ship frozen in at the Vineyard was seized for breaking bulk by selling lemons before they spoiled but before entry at the customhouse. Another example was when a seaman on the ship had his own private item for sale. That ship was seized because the item had not been declared on the ship’s cocket. One ship was seized for no current violations but on the allegation that it had “some time ago been employed in an illicit trade; and that they may oblige the owner to prove where and how she has been employed.” The seizure of John Hancock’s sloop, the Liberty, on June 10, 1768 was for loading 20 barrels of tar and 200 barrels of oil without a prior bond (loading before bonding was a universal practice of convenience).
The Journal complained that customs officers were threatening seizures for nonpayment of unnecessary and repetitious entry and clearance fees as ships traveled up and down the coast (despite an attorney general opinion that said intracoastal entry and clearance were not required). A typical search of a ship by customs officials was reported as follows:
… [a customs officer] came on board, bringing a number of other officers as assistants, who with dark langthorns, gimblets, spears for the piercing of casks, spits and other implements of modern introduction made a thorough rummage and search of the hold and cabbin, when happening to find a small case which contained scarce six quarts of foreign spirits, part of the captains sea stores to carry off same to his employer.
The Journal reports may have been sufficient to win the public relations battle. On June 21, 1769, the Journal reported that the troops would be leaving Boston over the protests of the Board of Customs Commissioners.
Search and Seizure and the Collection of Revenue up to 1768
Prior to 1768, protections against undue government intrusion from revenue enforcement existed in various forms. They were often abandoned, perhaps because they made it harder to collect revenue. One protection that was argued about during the American Revolution was whether searching customs agents could break into your home to look for smuggled goods.
The home search issue discussion starts with the 1604 Seymayne’s Case written by celebrated jurist Lord Edward Coke. The case is often quoted for the phrase “a man’s home is his castle.” Seymayne’s Case addressed whether and when government agents could break into your home. Lord Coke held that only a King’s officer under a court issued warrant “may open the doors which are shut and break them.” Lord Coke also wrote that warrants to search a home should be based on a written record of facts and not suppositions:
One or more justice or justices of peace cannot make a warrant upon a bare surmise to break any mans house to search for a felon or for stolen goods, for their being created by act of parliament have no such authority granted unto them by any act of parliament… because justices of peace are judges of record, and ought to proceed upon record, and not upon surmises …
A warrant was not required to search a ship. Authority for that came from a July 26, 1660 statute which also included damages if ships were detained without just and reasonable cause:
XXII. The under Searcher or other Officers of Gravesend, having power to visite and search any Ship outward bound, shall not without just & reasonable cause deteyne any such ship under color of searching the goods therein laden above three tides after her arrival at Gravesend under paine of loss of their office & rendering damage to the Merchant & Owner of the Ship [an identical provision provided for “Searchers or other Officers of the Custome House in any of the out ports”] 
In September of 1660, Parliament added a provision to the statute to allow customs officials to search homes for landed goods by warrant in the daytime. The prior provision for damages for unreasonable detention was removed. Damages were only allowed for false information used to obtain the warrant:
… [regarding] any Goods … to be landed or conveyed away without due entry thereof first made … it shall be lawfull to … issue out a Warrant to any person or persons thereby enableing him or them … to enter into any House in the day time where such Goods are suspected to be concealed, and in case of resistance to breake open such Houses, and to seize and secure the same goods soe concealed, …
if the Information whereupon any House shall come to be searched shall prove to be false, that then and in such case the party injured shall recover his full damages and costs against the Informer by Action of Trespasse to bee therefore brought against such Informer.
A 1662 statute removed the warrant requirement and replaced it with what became known as a Writ of Assistance. The Writ was a perpetual general warrant that lasted for the lifetime of the King. The Writ allowed for limitless searches during daytime without any prior factual justification. Revenue officers could carry the Writ in their vest pockets while searching whatever vessels, buildings, trunks or packages they thought might contain smuggled goods. The 1662 revisions also removed damages for trespass. Searching agents were free from liability as long as they were acting under the statute.
And it shall be lawfull to or for any person or persons authorized by Writt of Assistance under the Seale of his Majestyes Court of Exchequer to take a Constable Headborough or other Publique Officer inhabiting neare unto the place and in the day time to enter and go into any House Shop Cellar Ware-house or Room or other place and in case of resistance to breake open Doores Chests Trunks and other Package there to seize and from thence to bring any kind of Goods & Merchandize whatsoever prohibited and uncustomed and to put and secure the same in his Majesties Store house in the Port next to the place where such seizure shall be made.
A 1736 statute allowed nighttime searches but only if there was probable cause to search:
it shall and may be lawful for the Officers of the Duties by this Act granted, or any of them, from time to time, and at all Times by Day and by Night (but if in the Night-time in the Presence of a Constable or other Officer of the Peace, Oath being first made by any such Officer or other Person before any justice of the Peace dwelling in or near such Place, of a probable Cause of suspecting the Concealment of any such Spirituous Liquors therein) to enter into all and every the said Warehouses, Storehouses, Shops, Cellars, Vaults, Rooms, or other Places made use of by any Retaler of any such Spirituous Liquors or Strong Waters …
Under a 1745 Act, officers were protected from liability when illegally seized property was returned to the claimant if the judge certified there was probable cause to seize.
The Writ of Assistance Arguments
After King George II died on October 25, 1760, application was made to the Massachusetts Superior Court for new Writs of Assistance. Colonial attorney James Otis argued against the Writ on behalf of sixty-three merchants of Massachusetts Bay. While Otis argued on February 24, 1761, an excited twenty-six-year-old John Adams sat in and took notes. According to Adams’s notes, Otis asserted that the old 1660 statute should govern. That was the statute that had required a onetime warrant based on facts. Otis also argued that there was “the priviledge of House.” A possibly innocent man should be as “secure in his house, as a Prince in his Castle.”
Otis made a third argument. The 1662 law permitting general unlimited seizures was unreasonable. For that, Otis said, the Writ of Assistance should not be allowed. His legal argument was based on a 150 year old case that had held that an unreasonable law should not be enforced. Otis lost the argument and the Writ was granted. Adams wrote over fifty-five years later, “Then and there the child Independance was born.”
The 150 year old case Otis had relied upon to argue that an unreasonable law was unenforceable was Bonham’s Case written by Lord Coke in 1610. Adam’s notes had the Bonham’s Case cite next to the statement “reason of ye common law to control an act of Parliament.”
Bonham had sued the College for false imprisonment. To prevail, Bonham would have to prove he was imprisoned illegally and that meant the law under which Bonham had been imprisoned would have to be illegal. When a judge declares a statute illegal it is called judicial review. In today’s world, when there is a constitutional issue to interpret, judicial review is derived from interpreting a higher law that is superior to the legislature. But, in 1610, Bonham was asking Lord Coke to throw out the King’s statute based on general legal principles. Striking a law based on a judge’s legal reasoning would place the judge above the King.Bonham’s Case involved the alleged false imprisonment of Thomas Bonham. Bonham was a London doctor who had been fined and imprisoned by the Royal College of Medicine for deficient medical practices. The fine was split one-half with the College and one-half with the King.
In his written opinion, Lord Coke reviewed three case precedents where courts had refused to enforce statutes. In one case, the statute was not enforced because, if enforced, it would upset too many settled principles of law. In another case there were two conflicting statutes and since only one could be enforced, the other was not enforced. In a third case, there was a penalty imposed upon the failure to perform a task which was impossible to be performed and that statute was not enforced. Coke concluded, following case precedent, that if a law was unreasonable or impossible to be performed, it was void.
Coke held that since the Royal College received one-half of the fines it had assessed, it was a party (i.e. someone who can benefit from the result) and a judge in the same case. Coke said it was impossible for a judge to be a party in a case in which the judge is ruling. Therefore, since the statute under which Bonham was imprisoned was impossible to be performed, it was void. When the King found out, he summoned Coke, removed Coke from the Bench and fired him as the official person who reported the holdings in cases.
Otis’s Bonham’s Case argument was rejected by the widely respected jurist, Sir William Blackstone, in his 1765 Commentaries on the laws of England:
… I know it is generally laid down more largely, that acts of parliament contrary to reason are void. But if parliament will positively enact a thing to be done which is unreasonable, I know of no power that can control it … to set the judicial power above the legislature would be subversive of all government. 
After the American Revolution, state constitutions included prohibitions against general warrants. John Adams wrote the 1780 Massachusetts Constitution. Article XIV appended the word “unreasonable” to searches and seizures for the first time:
Art. 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.
The 1780 Massachusetts Constitution was published on October 30, 1779. Before Sir William Blackstone passed away in February of 1780, he mysteriously left a handwritten note in the margin of his 1778 edition of his Commentaries. The note ended up as the additional language below in the 1783 edition:
But if Parliament will positively enact a thing to be done which is unreasonable, I know of no power in the ordinary forms of the Constitution that is vested with authority to control it …
No constitution existed to which Blackstone could have possibly referred other than the one written in 1779 by John Adams. A fair conclusion is that Adams had intended courts to have broad authority to review revenue enforcement for reasonableness.
When the debate over the Fourth Amendment started in the First Congress, the Amendment did not contain the phrase
“unreasonable searches and seizures.” That language was included after Adams’s “faithful friend” Elbridge Gerry proposed adding Adams’s phrase on August 17, 1789. Gerry, along with John Adams, was one of the Massachusetts cosigners of the Declaration of Independence.
The Slippery Slope
The justification made for the Writ of Assistance was that if government did not have sudden searching power, people would escape tax collection by sneaking away. In other words, the end justifies the means. That argument was made in 1768 by the British Attorney General William De Grey:
But it must be observed, that if such a General Writ of Assistants is not granted to the Officer, the true Intent of the Act may in almost every Case be evaded, for if he is obliged, every Time he knows, or has received information of prohibited or uncustomed Goods being concealed, to apply to the Supreme Court of Judicature for a Writ of Assistants, such concealed Goods may be conveyed away before the Writ can be obtained …
Justifying a government assertion of power by saying it will increase revenue is a slippery slope. Under that type of reasoning, an expansion of government power to collect revenue could be unlimited. John Adams created a limitation, reasonableness. For Adams, an assertion of government power to collect revenue was to be reasonable as determined by a particular judge.
Contrast the acceptance of general warrants in Boston with the rejection of general warrants in England when revenue was not involved. During the years 1763-1765, some British newspapers were critical of the government and the King. The Secretary of State issued general warrants allowing messengers to make surprise searches of the homes of three suspected men for seditious papers. The men sued for trespass and won because the warrants were illegal.
When Adams wrote the Massachusetts Constitution, it was after Boston had experienced reviled exposure to abuses from tax searches and seizures. Nowadays, the Fourth Amendment has generally been a matter of protecting privacy, largely in the criminal context and mostly on the issue of whether evidence obtained by illegal search can be admitted at trial. Our Supreme Court has said that the Fourth Amendment has no reference to Internal Revenue Service “proceedings for the recovery of debts.” Whether you believe that Fourth Amendment reasonableness applies to tax collection depends on what you believe its original purpose was and whether you believe that purpose is obsolete.
The circumstances that existed in 1768 and which exist today is that the need for revenue puts pressure on government to either find new revenue sources or collect from existing sources in new ways. Those efforts can mean more drastic collection methods. If the government tries new harsher methods of collecting revenue, those unprecedented methods can bubble up through the court system where judges similarly concerned with federal revenues might approve those new methods along with a concomitant expansion of federal power. For instance, in 1980, when presidential candidate Ronald Reagan was campaigning on a promise that he could balance the budget with top rate tax cuts, the Internal Revenue Service was trying to close the budget deficit by engaging in rampant nationwide seizures of property. Three years later, an extraordinary case reached the Supreme Court wherein it was held that under the taxing power the government could force the sale of your home even if you did not owe taxes, as long as it helped the government to collect revenue from someone else who did owe taxes. 
The Fourth Amendment could militate against such drastic means of revenue collection by requiring reasonableness. Consider, however, that if harsh collection methods are expected to generate more revenue, then reasonable methods would be expected to yield less revenue. A reluctance to reduce revenue might explain why federal courts have abandoned a Fourth Amendment reasonableness standard for revenue collection. Ironically, the failure of a court to render a legal opinion that could reduce revenue was the event that prompted John Adams to impose a Fourth Amendment reasonableness requirement in the first place. For Adams, a reasonableness requirement was a counterweight to the natural pressure on government and the courts to expand the power of government to collect revenue. Today, that purpose is not obsolete.
 Oliver Morton Dickerson, The Navigation Acts and the American Revolution (Philadelphia, PA: University of Pennsylvania Press, 1974), 195-196, 208
 G.G. Wolkins, “Hancock’s Sloop Liberty,” Massachusetts Historical Journal, March 1922,” Vol. 55, 241.
 Ibid., 264, 267.
 Ibid., 271.
 Ibid., 274-275.
 Oliver Morton Dickerson, Boston under Military Rule 1768-1769 (Da Capo Press, New York, 1970), i-xiii.
 Ibid., 1.
 Ibid., 2.
 Ibid., 6.
 Ibid., 18.
 Ibid., 23.
 Ibid., 40.
 Ibid., 12 n1, 10 n17.
 Ibid., 10-11.
 Ibid., 172-173; 195-197.
 Lawrence A. Harper, The English Navigation Laws (Octogon Books, Inc. New York), 85.
 Ibid., 90 n18.
 Ibid., 181 n19.
 Section XII of the 1764 Sugar Act.
 Harper, The English Navigation Laws, 165 n19.
 Harper, The English Navigation Laws, 179 n1.
 Harper, The English Navigation Laws, 89-90, n19.
 Section XLV of the 1764 Sugar Act.
 Harper, The English Navigation Laws, 25 n8, 27, 48, 59, 63, 77, 84, 85, 102, 124-5.
 Ibid., 9-113 n8.
 Ibid., 77.
 Ibid., 79.
 Ibid., 9.
 Oliver M. Dickerson, “John Hancock Notorious Smuggler or Near Victim of British Revenue Racketeers,” The Mississippi Valley Historical Review, Vol. 22 No. 4 (Mar. 1946), 518-519.
 Ibid., 49, 59.
 Ibid., 77.
 Ibid., 111.
 Edwardo Coke, Coke’s Institutes, “The Fourth Part of the Institutes of the Laws of England, Concerning The Jurisdiction of Courts” (E. and R. Brooke, London, 1644), 176.
 Joseph Raphael Frese, Early Parliamentary Legislation on Writs of Assistance, Vol. 38 “Publications of the Colonial Society of Massachusetts,” 321; see also Danby Pickering, The Statutes at Large from the Thirty-ninth Year of Q. Elizabeth to the 12th year of K. Charles II. Inclusive Vol VII (Cambridge 1763), 418.
 Ibid., 80-81.
 Vol. 6, The Statutes at Large from the Third Year of the Reign of King George the Second to the Twentieth year of the Reign of King George the Second (London 1764), 219.
 The Statutes at Large From the Fifth Year of the Reign of King George the Third to the Tenth Year of the Reign of King George the Third, inclusive (London, 1771), 371 -372.
 Josiah Quincy, Jr., Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Providence of Massachusetts Bay Between 1761 and 1772 (Boston: Little, Brown and Company, 1865), 414, 471-476, 486.
 Letter from John Adams to William Tudor, 29 March 1817. http://founders.archives.gov/documents/Adams/99-02-02-6735
 Theodore F.T. Plucknett, “Bonham’s Case and Judicial Review,” 40 Harvard Law Review 30 (1926).
 William Blackstone, 1 Blackstone’s Commentaries (Oxford Clarendon Press, 1st ed. 1765), 91.
 John Adams to William D. Williamson, February 28, 1812, Maine Historical Society. See also, http://www.mass.gov/courts/court-info/sjc/edu-res-center/jn-adams/mass-constitution-1-gen.html#JohnAdamsDraftstheMassachusettsConstitution
 Francis Newton Thorpe, The Federal and State Constitutions, Colonial Charters, and Organic Laws of the State Territories and Colonies Now or Heretofore Forming The United States of America Vol. VI (Washington, DC: Government Printing Office, 1909), 3088.
 Plucknett, “Bonham’s Case and Judicial Review,” 60.
 Annals of Congress, 1st Congress, 783. Adams referred to Gerry as a “faithful friend” in his autobiography. http://www.masshist.org/digitaladams/archive/doc?id=A1_30&hi=1&query=faithful%20friend%20Elbridge%20Gerry&tag=text&archive=all&rec=13&start=10&numRecs=1082
 Josiah Quincy, Jr. Reports of Cases Argued and Adjudged, 452-454.
 Entick v. Carrington and Three Others, 19 Howell’s State Trials 1029; EWHC KB J98; 95 ER 807(1765); Wilkes v. Wood, 19 St. Tr. 1153, 98 ER 489 (1763) and Money v. Leach, 19 State Trial 1026 (1765).
 Den ex dem. Murray v. Hoboken Land & Imp. Co., 59 U.S. 272, 285 (1855).
 U.S. Government Printing Office, Internal Revenue Service Collection Practices; Impact on Small Businesses A Report prepared by the Subcommittee on Oversight of Government Management of the Committee on Governmental Affairs, United States Senate, October 8, 1980.
 United States v. Rodgers, 461 U.S. 677, 678 (1983).