. The language of 13 & 14 Car. 2, c. 11, §5(2) (1662), standing alone seems to envision
a general warrant, if the term “writ of assistance” is not held to incorporate the
ancient process. See note 12
below. The statute, 12 Car. 2, c. 19 (1660), was continued and confirmed long after
1662, however, leading to the conclusion that the Act of 1662 included only the special
warrant of the 1660 Act. Frese, “Legislation on Writs of Assistance,” 38 Col. Soc. Mass., Pubns.
335; compare Quincy, Reports (Appendix)
531–532. It could nevertheless be argued that the Act of 1660, which provided for
the issuance of warrants by officers other than the Barons of the Exchequer (who had
the sole power under the 1662 Act), was retained as an additional weapon in the battle
against illicit trade. The other Acts chiefly relied upon to support the special warrant
theory are 13 & 14 Car. 2, c. 3, §14 (1662), a provision of the Militia Act that general
warrants might issue to search for illegal arms; and 13 & 14 Car. 2, c. 33, §§15,
19 (1662), which provided such warrants for searches for unlicensed printed matter.
See Frese, “Legislation on Writs of Assistance,” 38 Col. Soc. Mass., Pubns.
336–351. Father Frese points to the contrast between the battle required to pass
even these measures, which were limited by numerous exclusions, and the ease with
which the less limited writs of assistance provision was passed, as evidence that
the latter embodied only special warrants. Id.
at 351–352. This difference might also be accounted for by a difference in the nature
of the evils sought to be remedied by the various acts. Insurrection and sedition
are political crimes; measures designed to control them may affect the liberties of
the entire populace. Smuggling is a crime with a financial motive; its suppression
is more likely to be localized in effect, harming only those who habitually live close
to or beyond a rule of law accepted by the majority. Other legislation of the same
Parliament provided for search without special warrant. See 13 & 14 Car. 2, c. 7,
§§7, 14 (Search of London leather workers' shops for prohibited leather); 13 & 14
Car. 2, c. 5, §8 (Search of Norfolk and Norwich shops and other locations for defective
yarns); 13 & 14 Car. 2, c. 32, §9 (Search of WestRiding shops and other locations
for illegally imported cloth). Father Frese argues that the matters involved in these
acts are too minor and local to be analogous to the Customs Act; moreover, they do
not authorize use of force. Frese, Writs of Assistance (dissertation) 99–104. Although
the latter objection has some merit, it could be argued that a customs measure bears
greater resemblance to this last class of statutes than to the Militia and Printing
Acts, thus accounting for a uniform silence as to the general search powers. In any
event, it is clear that the 1662 Parliament did not hesitate to convey such powers
when the occasion required.