Impact on American Colonial Line of Thought of Bonham’s Case: James Otis and Writs of Assistance Case (1761)

Abstract

This popular dictum by judge Edward Coke as appeared in Bonham’s case refers to the constitutional theory of judicial review of legislation. Even if the ultimate meaning of dictum by Coke has been subject to a heated debate, Professor Plucknett was the first to outline the fact that «the answer found by Coke could be the idea of some basic law which limited the King and Parliament alternatively». Coke’s legal theory has a notable impact on American colonies. The men behind the American Revolution became inspired intellectually by the writings of Lord Coke, particularly by his Institutes. His dictum also became doctrine according to which a certain court could possibly consider invalid an act passed by a law making assembly limited by a basic right in case the given court believed that the act had acted beyond scope. James Otis, on the occasion of the popular case of writs of assistance (1761) was about to plead Coke’s case law concerning colonies. The Bostonian lawyer pleaded that such writs had the nature of general orders, even if in the old times there used to be this tradition of rendering general principles so as to search for stolen items. Nonetheless such tradition had been changed for decades, and judges of the peace merely rendered special orders, in order to search in such places as the ones listed in the orders, and thus such writ did not comply with general legal principles; it particularly opposed the privilege of the house, as «a man in peace is as safe at home as the lord of the manor, in spite of all debts and civil lawsuit of any sort». Last but not least, Otis will take general search order as «the worst tool in arbitrary power, the most devastating tool in British freedom and in general legal principles ever found in British case law».