Chapter 2

With the spread of his reputation Mr. Otis was summoned on legal business to distant parts. On one occasion he was called to Halifax to defend some prisoners under arrest for piracy; believing them to be innocent he convinced the court in an eloquent plea and secured the acquittal of the prisoners.

On another occasion he was summoned to Plymouth to defend some citizens of that town who had become involved in a riot on the anniversary of the Gunpowder Plot. It was the custom in the New England towns to observe this day with a mock procession, in which effigies representing the Pope, the Old Bad One, and James the Pretender, were carried through the streets to be consigned at the end to a bonfire. In this instance violence was done by some of the participants; windows were smashed, gates were broken down, etc. Mr. Otis conducted the defense, showing that the arrested persons taking part in a noisy anniversary, and committing acts that were innocent in spirit, if not innocent per se, ought not to be adjudged guilty of serious misdemeanor. This plea prevailed and the young men were acquitted.

It is to be greatly regretted that the legal pleas and addresses of James Otis have not been preserved. A volume of his speeches would reveal not only his style and character, but also much of the history of the times. The materials, however, are wanting. He kept a commonplace book in which most of his business letters of the period under consideration were recorded. But these give hardly a glimpse at the man, the orator, or his work. Tradition, however, is rife with the myth of his method and manner. He was essentially an orator. He had the orator's fire and passion; also the orator's eccentricities--his sudden high flights and transitions, his quick appeals and succession of images.

To these qualities of the orator in general Otis added the power of applying himself to the facts; also the power of cogent reasoning and masterful search for the truth which gained for him at length the fame of first orator of the revolution. The passion and vehemence of the man made him at times censorious and satirical. His manner towards his opponents was at times hard to bear. His wit was of that sarcastic kind which, like a hot wind, withers its object.

All of these dispositions seemed to increase his power and to augment his reputation, but they did not augment his happiness. His character as an advocate and as a man came out in full force during the first period of his Boston practice; that is, in the interval from 1750 to 1755.

On attaining his thirtieth year Mr. Otis came to the event of his marriage. He took in union, in the spring of 1755, Ruth Cunningham, daughter of a Boston merchant. From one point of view his choice was opportune, for it added to his social standing and also to his means. From another aspect, however, the marriage was less fortunate.

The Cunningham family was not well grounded in the principles of patriotism. The timid commercial spirit showed itself in the father, and with this the daughter sympathized. The sharp line of division between patriotism and loyalty had not yet been drawn --as it was drawn five years afterward. But it began to be drawn very soon after the marriage with serious consequences to the domestic peace of the family.

It appears that beside this general cause of divergence, the staid and unenthusiastic character of Mrs. Otis rather chilled the ardor of the husband, and he, for his part, by his vehemence and eccentricity, did not strongly conciliate her favor. There were times of active disagreement in the family, and in later years the marriage was rather a fact than a principle.

The result of Mr. Otis's marriage was a family of one son and two daughters. The son, who was given his father's name, showed his father's characteristics from childhood, and certainly a measure of his genius. The lad, however, entered the navy at the outbreak of the Revolution, became a midshipman, and died in his eighteenth year. The oldest daughter, Elizabeth, went wholly against her father's grain and purpose. Just before the beginning of the Revolution, but after the case had been clearly made up, she was married to a certain Captain Brown, at that time a British officer in Boston, cordially disliked, if not hated, by James Otis. Personally, Brown was respectable, but his cause was odious. He was seriously wounded in the Battle of Bunker Hill. Afterwards he was promoted and was given a command in England. Thither his wife went with him, and Mr. Otis discarded them both, if not with anathema at least with contempt.

It would appear that his natural affection was blotted out. At least his resentment was life-long, and when he came to make his will he described the circumstances and disinherited Elizabeth with a shilling. The fact that Mrs. Otis favored the unfortunate marriage, and perhaps brought it about--availing herself as it is said, of one of Mr. Otis's spells of mental aberration to carry out her purposes--aggravated the difficulty and made her husband's exasperation everlasting.

The younger daughter of the family shared her father's patriotism. She was married to Benjamin Lincoln, Jr., a young lawyer of Boston, whose father was General Benjamin Lincoln of revolutionary fame. The marriage was a happy one, but ultimately clouded with honorable grief. Two promising sons were born, but each died before reaching his majority. The father also died when he was twenty-eight years old. The wife and mother resided in Cambridge, and died there in 1806.

The second period in James Otis's life may be regarded as extending from 1755 to 1760; that is, from his thirtieth to his thirty-fifth year. It was in this period that he rose to eminence. Already distinguished as a lawyer, he now became more distinguished as a civilian and a man of public affairs.

He caught the rising interest as at the springing of the tide, and rose with it until it broke in lines of foam along the shores of New England. He gained the confidence of the patriot party, of which he was the natural leader. His influence became predominant. He was the peer of the two Adamses, and touched hands right and left with the foremost men of all the colonies.

It surprises us to note that at this time James Otis devoted a considerable section of his time to scholastic and literary pursuits. He was a student not only of men and affairs but of books. Now it was that the influence of his Harvard education was seen in both his studies and his works. We are surprised to find him engaged in the composition of a text-book which is still extant, and, however obsolete, by no means devoid of merits. The work was clearly a result left on his mind from his student days.

He composed and, in the year 1760, published, by the house of B. Mecom in Boston, a 72 page brochure entitled "The Rudiments of Latin Prosody with a Dissertation on Letters and the Principles of Harmony in Poetic and Prosaic Composition, collected from some of the best Writers."

The work is primarily a text in Latin Prosody in which the author thought himself to improve on the existing treatises on that subject. The afterpart of the pamphlet is devoted to a curious examination of the qualities of the letters of the Greek and Roman alphabets.

In this he attempts to teach the distinction between quantity and accent in the Greek language, but more particularly to describe the position and physiological action of the organs of speech in producing the elementary sounds in the languages referred to. The author declares his conviction that the growth of science had been seriously impeded by the inattention of people to the correct utterance of elementary sounds. He also points out the great abuses in the prevailing methods and declares that these abuses have so impeded the work of education "that many have remained children all their days."

Having written and published his work on Latin prosody, Mr. Otis next produced a similar work on the prosody of Greek. This, however, he did not publish, and he is said to have destroyed the manuscript at the time of burning his correspondence near the end of his life.

A conversation of James Otis is narrated by Francis Bowen, in Jared Sparks's "American Biography" in which the orator is represented, in speaking of the bad literary taste prevalent among the boys of the time, as saying, "These lads are very fond of talking about poetry and repeating passages of it. The poets they quote I know nothing of; but do you take care, James, [Otis was addressing James Perkins, Esq., of Boston] that you don't give in to this folly. If you want to read poetry, read Shakespeare, Milton, Dryden and Pope and throw all the rest into the fire; these are all that are worth reading." In this brief comment the severity of Otis's literary taste is indicated and also something of the rather abrupt and dogmatic character of his mind. His criticism, though true, can hardly be said to be judicious.

In order to understand the part which James Otis played in the great work of revolution and independence it is now necessary to note with care the conditions into which he was cast and with which he was environed at that period of his life when the man-fire flames highest and the audacity of the soul bounds furthest into the arena of danger.

Every man is the joint product of himself and his environment. His life is the resultant of the two forces by which he is held and balanced. At the time when James Otis reached his thirty-fifth year a condition had supervened in the American colonies which reacted upon his passionate and Patriotic nature so powerfully as to bring into full play all of his faculties and to direct the whole force of his nature against the tyrannical method of the mother country.

Let us look for a moment at the course of events which had preceded and which succeeded the crisis in James Otis's life, and made him the born leader of his countrymen in their first conflict for independence.

Great Britain had aforetime permitted the American colonists to plant themselves where, when, and as they would. Almost every colonial settlement had been an adventure. The emigrants from the other side of the Atlantic had been squeezed out by the hard discipline of church and state. In America they settled as they might.

"And England didn't look to know or care."

In the language of one of the bards of this age,

"That is England's awful way of doing business."

She permitted her persecuted children to brave the intolerable ocean in leaking ships, to reach the new world if they could, and survive if they might.

Notwithstanding this hard strain on the sentiment of the Pilgrims, the Cavaliers, and the Hugenots, they remained loyal to the mother country. They built their little states in the wilderness and were proud to christen their towns and villages with the cherished names of the home places in England. They defended themselves as well as they could against the inhospitality of nature, the neglect of the mother country, and the cruelty of savage races.

It was only when they grew and multiplied and flourished that our little seashore republics attracted the attention of the mother land and suggested to the ministers of the crown the possibility of plucking something from the new states which had now demonstrated their ability to exist and to yield an increase.

Meanwhile, for six generations, the colonists had developed their own social affairs and managed their own civil affairs according to the exegencies of the case and the principles of democracy. Their methods of government were necessarily republican.

The military necessities which were ever at the door had taught our fathers the availability of arms as the final argument in the debate with wrong. The conflicts with the Indians and the experiences of the French and Indian war had shown that the Americans were able to hold their own in battle.

Under these conditions there was a natural growth of public opinion in the colonies tending to independence of action, and to indignant protest against foreign dictation. In the sixth decade of the eighteenth century many of the leading young men of America talked and wrote of independence as a thing desirable and possible.

In 1755, when James Otis was thirty years of age, his young friend, John Adams, sitting one day in his school house in Connecticut, wrote this in his diary: "In another century all Europe will not be able to subdue us. The only way to keep us from setting up for ourselves is to disunite us."

We thus note natural conditions as tending to produce a rebellion of the American colonies; also the inherited disposition of the colonists under the discipline of their times; also the growth of public opinion among the leading spirits--to which we must add the character of the reigning king and of the ministers to whom he entrusted his government as the general conditions antecedent to the revolutionary movement of our fathers.

But there were more immediate and forceful causes which operated to the same end. Among these should be mentioned as a prevailing influence the right of arbitrary government claimed by Great Britain and at length resisted by the colonists. The right of arbitrarily controlling the American states was shown in a number of specific acts which we must here discuss.

The first of these was the old Navigation Act of 1651. The measure adopted by the government of Cromwell had never been strenuously enforced. It was the peculiarity of all the early legislation of Great Britain relative to the colonies that it was either misdirected or permitted to lapse by disuse.

The colonies thus literally grew, with little home direction. After the navigation act had been nominally in force for eighty-two years it was revived and supplemented by another measure known as the Importation Act.

This statute, dating from the year 1733, was intended to be an actual device for controlling the commercial relations with the colonies. By the terms of the Act heavy duties were laid on all the sugar, molasses, and rum which should be imported into the colonies. The customs were exorbitant and were from the first evaded as far as possible by the American merchants.

This may be regarded as the first actual breach of justice on the one side and good faith on the other, as between the home government and the American dependencies of Great Britain.

The reader will note that the question at issue was from the first commercial. It was a question of taking something from the colonists and of giving no equivalent, either in value or political rights. Had the American colonists been willing to be taxed and searched without an equivalent, then would there have been no revolution.

It will be noted from the nature of the question that the issue, since it was a matter of the merchants, was also a matter of the cities. For the merchant and the city go together. With the country folk of the pre-revolutionary era, the faultfinding and dispute related always to political questions proper--to questions of rights as between the king and his subjects; to questions of institutional forms, the best method of governing, etc.

All of these matters, however, could have been easily adjusted, and if there were an "if" in history they would have been adjusted without revolution and without independence. The commercial question, however, involving money rights, and implying the privilege and power of the Mother Country to take from the Colonists their property, however small the amount, could but engender resistance, and if the claim were not relinquished could but lead to war and disruption.

The neglected growth of the Colonies had in the meantime established in the seaboard towns of America, usages and customs which were repugnant to British notions of regular and orderly government. The commercial life had taken a form of its own.

The Americans had built ships and warehouses. They had engaged in commerce as they would. They had made their trade as free as possible. They had ignored the old Navigation Act, and when the Importation Act was passed, it confronted a condition in America.

It applied to a state of affairs that already existed.

The American ship, trading with the West Indies and bringing back to Boston a cargo of molasses or rum, was met at custom house with an exorbitant requisition. The officer acting under the Importation Act, virtually said, "Stand and deliver."

If it were a British ship the resistance to the duty would be offered by the land merchants rather than by the sea traders; for the merchants did not desire that the cost of the merchandise to themselves and their customers should be doubled without some equivalent advantage. No equivalent advantage was either visible or invisible. What, therefore, should they do but first evade and then openly resist?

There was an epoch of evasion. This covered a period of about seventeen years, extending from 1733 to 1750. In the latter year an act was passed by Parliament forbidding the erection of iron works in America. The manufacture of steel was especially interdicted. The measure which was in reality directed against shipbuilding included a provision which forbade the felling of pines outside of enclosures. It was thus sought by indirection to prevent the creation of a merchant marine by the American Colonists and to limit their commerce to British ships. This measure like the Importation Act was also ignored and resisted. For eleven years the Americans persisted in their usual course, making iron, cutting pine timber and building ships, importing molasses and rum, evading the duties, and thus getting themselves into the category of smugglers.

It was this precise condition of affairs which led to a still more stringent measure on the part of the home government. It was determined in Parliament to put an end to the evasion and resistance of the American merchants and importers with respect to the existing laws. The customs should be collected. It was deemed best, however, that the new measure should issue from the judiciary.

An appeal was made to the Court of Exchequer in England for the granting of search warrants to be issued in America by the king's officers for the purpose of ferreting out contraband goods. These warrants granted by the Court of Exchequer were the Writs of Assistance, the name of which appears so frequently and with so much odium in the colonial history of the times. These writs were granted by the court under pressure of the ministry in the year 1760.

The Writs of Assistance were directed to the officers of the customs in America. But any officer could arm one of his subordinates, or indeed any other person whom he should designate, with one of the writs, and the person so appointed might act in the name of the king's officer.

The thing to be done was the examination of any place and all places where contraband goods might be supposed to be lodged. Whether there were evidence or no evidence, the case was the same. The document was a writ of arbitrary search.

Any house, public or private, might be entered at any time; any closet or any cellar might be opened. Neither the bridal chamber nor the room of the dead was sacred on the approach of any petty customs constable or deputy in whose hands a Writ of Assistance had been placed. The antecedent proceedings required no affidavit or any other legal formality. The object was to lay bare the whole privacy of a people on sheer suspicion of smuggling.

It could hardly be supposed that our fathers would tamely submit to such an odious and despotic procedure. To have done so would have been to subscribe to a statute for their own enslavement. Nor may we pass from the consideration of these writs and the resistance offered thereto by the patriots of all our colonies without noticing the un-English character of these laws.

Of a certainty Englishmen in whatever continent or island of this world would never tolerate such a tyrannical interference with their rights. This was demonstrated not only in America, but in England also.

The issuance in England of just such illegal and arbitrary warrants was one of the causes that led to the tremendous agitation headed by John Wilkes. The excitement in that controversy grew, and notwithstanding the repeated arrests of Wilkes and his expulsions from Parliament, his reelection was repeated as often, and his following increased until not only the ministry but the throne itself was shaken by the cry of "Wilkes and Liberty." Nor did this well-timed ebullition of human rights subside until the arbitrary warrants were annulled by a decision of the King's Bench.

It was the trial of this issue in America that brought on the Revolution. It was a great cause that had to be pleaded, and the occasion and the city and the man, were as great as the cause. The parties to it were clearly defined, and were set in sharp antagonism.

On the one side were the king's officers in the province, headed by the governor. This following included the officers of the customs in particular. It also included the not inconsiderable class of American respectabilities who were feeble in American sentiments, and who belonged by nature and affiliation to the established order. These were the loyalists, destined to be designated as Tories, and to become the bete noire of patriotism.

On the other side was a whole phalanx of the common people--a phalanx bounded on the popular side by the outskirt of society and on the high-up side by the intellectual and philosophical patriots who were as pronounced as any for the cause of their country, and with better reason than the reason of the many.

The officers of the province elected by the home folks were all patriots, but the appointed officers of the crown were quite unanimous for the prerogative of the crown, holding severe measures should be taken with the resisting colonists, and in particular that the Writs of Assistance were good law and correct policy.

We should here note the particular play of the personal forces in the year 1760. There were two notable deaths--the one notable in Massachusetts and the other in the world. The first was that of Chief Justice Stephen Sewall of Massachusetts, and the other was that of His Majesty George II, the

"Snuffy old drone from the German hive,"

as he is described by the "Autocrat of the Breakfast Table." The first was succeeded in office by Thomas Hutchinson, Lieutenant-Governor of the province under Sir Fraucis Bernard, who was appointed governor in this notable year 1760 as the successor of Thomas Pownall, who had succeeded Governor William Shirley.

Hutchinson--to use the adjective which John Adams was wont to apply to himself and other patriots to the manner born--was a Massachusettensian. He had sympathized with the people, but he now turned against them. Before Judge Sewall went away it was said and believed that Governor Shirley had promised the place of Chief Justice, when the same should be vacant, to no other than Colonel James Otis of Barnstable, father of the subject of this sketch.

But Governor Bernard, Shirley's second successor in office, took another view of the matter and appointed Lieutenant-Governor Hutchinson to the high office of Chief Justice.

It was the belief and allegation of the King's party that this appointment and this disappointment--the first of Hutchinson and the second of Colonel Otis--bore heavily on all the Otises, and indeed converted them from royalism to patriotism.

Chief Justice Hutchinson himself is on record to this effect. In his "History of Massachusetts," speaking of his own appointment to the judicial office, he says: