Chapter 3

"The expected opposition ensued. Both gentlemen (that is, Colonel Otis and James Otis, Jr.) had been friends to the government. From this time they were at the head of every measure in opposition, not merely in those points which concerned the Governor in his administration, but in such as concerned the authority of Parliament; the opposition to which first began in this colony, and was moved and conducted by one of them, both in the Assembly and the town of Boston. From so small a spark, a great fire seems to have been kindled."

The statement of a partisan, especially if he be a beneficiary, must be taken with the usual allowance of salt.

It may be that the patriotic trend of the Otises was intensified a little by a personal pique in the matter referred to. But that either father or son was transferred from the king's party to the people's party by the failure of Colonel Otis to be appointed Chief Justice is not to be believed. Other stories are to be dismissed in the same manner.

One slander prevalent about the Custom House ran to the effect that James Otis had declared that he would set the province on fire even if he had to perish in the flames. The art of political lying was known even among our fathers.

Such was the situation of affairs when the sycophants of the foreign government in Boston undertook to enforce the Writs of Assistance. They soon found that they needed more assistance to do it. The banded merchants, and the patriots generally, said that the acts were illegal, and that they would not submit to the officers. The governor and his subordinates and the custom-house retinue in particular, said that the writs were legal, and that they should be enforced. The matter came to a clash and a trial.

The case as made up presented this question: Shall the persons employed in enforcing the Acts of Trade have the power to invoke generally the assistance of all the executive officers of the colony?

This issue was, in February of 1761, taken into court in the old Town House, afterwards the old State House, of Boston. There were sitting the five Judges of the Superior Court of the province. Chief Justice Hutchinson, still holding the office of Lieutenant-Governor, his membership in the Council, and his position of Judge of Probate, presided at the trial. Perhaps there was never in America an instance in which a high official so nearly fulfilled the part of "Pooh Bah."

The trial evoked an attendance of all who could be admitted, and of many more. The officers of the crown were out in full force, and resolute patriotism completed the crowd. John Adams was one of the spectators.

Another element in the dramatic situation was the fact that James Otis had, in the meantime, received the appointment to the crown office of Advocate General, to which an ample salary was attached. In this relation it would be his especial duty to support the petition of the custom-house officers in upholding the Writs of Assistance and in constraining the executive officers of the province to support them in doing so.

This contingency brought out the mettle of the man. When the revenue officers came to him with the request that he defend their case, he at once resigned his office, and this being known the merchants immediately sought his services as counsel to uphold their protest against the Writs. For his assistant they selected Mr. Oxenbridge Thatcher.

Otis accepted the invitation without a fee. His action involved the loss of his official position as well as his means of living.

It chanced at this time that his old law preceptor, Jeremiah Gridley, was selected as King's Attorney, and it fell to his lot to take the place which Otis would not accept. Thus master and pupil were brought face to face at the bar in the hottest legal encounter which preceded our rupture with the mother country.

The trial that ensued has been described by John Adams, an eye witness of the whole proceedings. He gives in his works a description of the conduct of the case as it was presented for and against the crown, and also notes of Otis's argument.

After the pleas were presented and other preliminary matters arranged, Mr. Gridley addressed the court in support of the government's position. He defended the petition of the custom-house officials as both legal and just. Two statutes of the time of Charles II, empowering the court of Exchequer to issue writs such as those which were now denied, were adduced. He then cited the statute of the sixth year of Queen Anne, which continued to inforce the processes which had been authorized in the twelfth and fourteenth years of the reign of Charles.

Still more to the point were the statutes of the seventh and eighth years of William III, which authorized the collection of revenue "in the British plantations" by officers who might search both public and private houses to find goods that had evaded the duty. These statutes Mr. Gridley claimed as a warrant for the like usage in America.

In answer to Gridley, Oxenbridge Thatcher,[1] himself a lawyer of no mean abilities, spoke for the counter petitioners. His plea was a strong confutation of Gridley's arguments. After this brief address Mr. Otis rose to continue the plea for the people.

Of the speech which followed we have no complete record or wholly satisfactory summary. It is to John Adams, and to the notes which he made on the occasion, that we must look for our opinion of what was, if we mistake not, the greatest and most effective oration delivered in the American colonies before the Revolution.

Such was the accepted belief of those who heard Otis, and witnessed the effect of his tremendous oratory.

Making all allowance for exaggeration, it seems to have been one of those inspired appeals by which History and Providence at critical epochs make themselves known to mankind. John Adams, then twenty-five years of age, passing from his notes of Thatcher's speech, says of the greater actor:

"But Otis was a flame of fire; with a promptitude of classical allusions, a depth of research, a rapid summary of historical events and dates, a profusion of legal authorities, a prophetic glance of his eyes into futurity, and a rapid torrent of impetuous eloquence, he hurried away all before him. American Independence was then and there born. The seeds of patriots and heroes, to defend the Non sine diis animosus infans, to defend the vigorous youth, were then and there sown. Every man of an immense crowded audience appeared to me to go away, as I did, ready to take arms against Writs of Assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born. In fifteen years, that is in 1776, he grew up to manhood, and declared himself free."

We may allow a little for the enthusiasm of a young patriot such as Adams, but there can be no doubt that his unmeasured eulogy was well deserved. Such was the description of Otis's speech.

As to the speech itself we have only a second-hand and inadequate report. Minot, in his "History of Massachusetts," presents what purports to be a tolerably full outline of the great address.

Mr. Otis spoke for five hours, during which time with his rather rapid utterance he would perhaps deliver an oration of 30,000 words. Minot's report appears to have been derived from Adams' notes done into full form by an unknown writer, who probably put in here and there some rather florid paragraphs of his own. At a subsequent period, Adams took up the subject and corrected Minot's report, giving the revised address to William Tudor, who used the same in his biography of James Otis. From these sources we are able to present a fair abstract of what were the leading parts of Otis's speech. In the beginning he said:

"May it please your Honors:

"I was desired by one of the court to look into the books, and consider the question now before them concerning Writs of Assistance. I have accordingly considered it, and now appear, not only in obedience to your order, but likewise in behalf of the inhabitants of this town, who have present another petition, and out of regard to the liberties of the subject. And I take this liberty to declare, that, whether under a fee or not (for in such a cause as this I despise a fee), I will to my dying day oppose, with all the powers and faculties God has given me, all such instruments of slavery on the one hand, and villainy on the other, as this Writ of Assistance is.

"It appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that was ever found in an English law-book. I must, therefore, beg your Honors' patience and attention to the whole range of an argument, that may, perhaps, appear uncommon in many things, as well as to points of learning that are more remote and unusual, that the whole tendency of my design may the more easily be perceived, the conclusions better descend, and the force of them be better felt.

"I shall not think much of my pains in this case, as I engaged in it from principle. I was solicited to argue this case as advocate-general; and because I would not, I have been charged with desertion from my office. To this charge I can give a very sufficient answer. I renounced that office, and I argue this case, from the same principle; and I argue it with the greater pleasure, as it is in favor of British liberty, at a time when we hear the greatest monarch upon earth declaring from his throne, that he glories in the name of Briton, and that the privileges of his people are dearer to him than the most valuable prerogatives of his crown; and it is in opposition to a kind of power, the exercise of which, in former periods of English history, cost one king of England his head, and another his throne.

"I have taken more pains in this case than I ever will take again, although my engaging in this and another popular case has raised much resentment. But I think I can sincerely declare, that I cheerfully submit myself to every odious name for conscience' sake; and from my soul I despise all those whose guilt, malice or folly, has made them my foes.

"Let the consequences be what they will, I am determined to proceed. The only principles of public conduct, that are worthy of a gentleman or a man, are to sacrifice estate, ease, health and applause, and even life, to the sacred calls of his country.

"These manly sentiments, in private life, make the good citizen; in public life, the patriot and the hero. I do not say that, when brought to the test, I shall be invincible. I pray God I may never be brought to the melancholy trial; but if ever I should, it will then be known how far I can reduce to practice principles which I know to be founded in truth. In the meantime, I will proceed to the subject of this writ."

After this introductory part we are obliged to fall back on the summary given by Mr. Adams. According to his report, Otis in the next place went into fundamentals and discussed the rights of man in a state of nature. In this part, the argument ran in an analagous vein to that of Rousseau in the Contrat Social that is, man in the first place is a sovereign subject only to the higher laws revealed in his own conscience. In this state he has a right to life, to liberty, to property.

Here the speaker fell into the manner of Jefferson in the opening paragraphs of the Declaration. It is to be noted that Otis presented the truth absolutely; he including negroes in the common humanity to whom inalienable rights belong.

Mr. Otis next took up the social compact, and showed that society is the individual enlarged and generalized. This brought him to the question before the court; for the conflict now on was a struggle of society, endowed with inalienable rights, against arbitrary authority and its abusive exercise.

The abusive exercise was shown in the attempts to enforce the Acts of Trade. Of this kind was the old Navigation Act, and of like character was the Importation Act. It was to enforce these that the Writs of Assistance had been devised. Mr. Otis then continued:

"Your Honors will find, in the old books concerning the office of a justice of the peace, precedents of general warrants to search suspected houses. But, in more modern books, you will find only special warrants to search such and such houses, specially named, in which the complainant has before sworn, that he suspects his goods are concealed; and will find it adjudged, that special warrants only are legal. In the same manner, I rely in it, that the writ prayed for in this petition, being general, is illegal. It is a power that places the liberty of every man in the hands of every petty officer.

"I say, I admit that special Writs of Assistance, to search special places, may be granted to certain persons on oath; but I deny that the writ now prayed for can be granted; for I beg leave to make some observations on the writ itself, before I proceed to other acts of Parliament.

"In the first place, the writ is universal, being directed to 'all and singular justices, sheriffs, constables, and all other officers and subjects;' so that, in short, it is directed to every subject in the King's dominions. Every one, with this writ, may be a tyrant in a legal manner, and may control, imprison, or murder, any one within the realm.

"In the next place it is perpetual; there is no return. A man is accountable to no person for his doings. Every man may reign secure in his petty tyranny, and spread terror and desolation around him, until the trump of the archangel shall excite different emotions in his soul.

"In the third place, a person with this writ, in the daytime, may enter all houses, shops, etc., at will, and command all to assist him.

"Fourthly, by this writ, not only deputies, etc., but even their menial servants, are allowed to lord it over us. What is this but to have the curse of Canaan with a witness on us? To be the servant of servants, the most despicable of God's creation?

"Now, one of the most essential branches of English liberty is the freedom of one's house. A man's house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and every thing in their way; and whether they break through malice or revenge, no man, no court, can inquire. Bare suspicion, without oath, is sufficient.

"This wanton exercise of this power is not a chimerical suggestion of a heated brain. I will mention some facts. Mr. Pew had one of these writs, and, when Mr. Ware succeeded him, he endorsed this writ over to Mr. Ware; so that these writs are negotiable from one officer to another; and so your Honors have no opportunity of judging the persons to whom this vast power is delegated. Another instance is this:

"Mr. Justice Walley had called this same Mr. Ware before him, by a constable, to answer for a breach of the Sabbath-day acts, or that of profane swearing. As soon as he had finished, Mr. Ware asked him if he had done. He replied, 'Yes.' 'Well, then,' said Mr. Ware, 'I will show you a little of my power. I command you to permit me to search your house for uncustomed goods;' and went on to search the house from the garret to the cellar; and then served the constable in the same manner.

"But to show another absurdity in this writ, if it be established, I insist upon it, every person, by the 14th of Charles the Second, has this power, as well as the custom-house officers. The words are, 'It shall be lawful for any person, or persons, authorized,' etc. What a scene does this open. Every man prompted by revenge, ill-humor, or wantonness, to inspect the inside of his neighbor's house, may get a Writ of Assistance. Others will ask it from self-defence; one arbitrary exertion will provoke another, until society be involved in tumult and in blood."

This extract may serve to show the Demosthenic power of James Otis as an orator. We cannot within our limits present many additional paragraphs from his great plea in the cause of his countrymen.

To the next division of his argument he confuted the position taken by Gridley with respect to the alleged legal precedents for the Writs of Assistance. He showed that the writs were wholly different from those provided for in the time of Charles II. Even if they had not been so, the epoch and the manner of King Charles had passed away. Neither could the Writs be justified by inferences and constructions deduced from any previous statutes of Parliament.

Besides, such odious Writs could never be enforced. They could never be enforced in the City of the Pilgrims. If the King of England should himself encamp with twenty thousand soldiers on the Common of Boston, he could not enforce such laws. He assailed the sugar tax with unmeasured invective. And over and above all, this despotic legislation was in direct conflict with the Charter of Massachusetts.

Here the orator broke forth in his most impassioned strain declaring that the British King, the British Parliament and the British nation, were all guilty of ingratitude and oppression in attempting to impose tyrannical enactment on the people of America. Thus he concluded his argument appeal.

Those who heard the oration were convulsed with excitement. The King's party was enraged. The patriots were inspired and defiant. It was in every respect a critical and a historic hour.

What would the court do with the case? The action of that body was obscure and double. There seems to have been a disposition of the Associate Judges to decide for the counter-petitioners; but Chief Justice Hutchinson induced them to assent to his policy of withholding a decision. He accordingly announced that the court would decide the case at the ensuing session. He then wrote to the home government, and the records show that the decision was rendered for the petitioners. That is, for the Custom House officials, and in favor of the Writs.

The Chief Justice is also on record to the effect that he continued to issue the Writs; but if so, no officer of the king ever dared to present one of them in Boston! The famous (and infamous) Writs of Assistance were as dead as the mummies of Egypt.

It is from this point of view that the character and work of James Otis appear to the greatest historical advantage. There can be no doubt that his was the living voice which called to resistance, first Boston, then Massachusetts, then New England and then the world! For ultimately the world heard the sound thereof and was glad. The American Colonies resisted, and at length won their independence. The sparks fell in France, and the jets of flame ran together in a conflagration the light of which was seen over Europe, and if over Europe, then over the world. The Pre-revolutionist had cried out and mankind heard him. Resistance to tyranny became obedience to God.

We shall here sketch rapidly and briefly the unsteady way and unfortunate decline of James Otis down to the time of the eclipse of his intellect and his tragic death.

Three months after he had, according to John Adams; "breathed into the nation the breath of life," he was chosen to represent Boston in the legislature of the Commonwealth. All of his colleagues were patriots. Boston was in that mood.

There runs a story that when he was entering upon his duties he was counselled by a friend to curb his impetuosity and to gain leadership by the mastery of self--advice most salutary to one of his temperament. But it was much like advising General Putnam to be calm at Bunker Hill! Otis promised, however, that if his friends would warn him when his temperature was rising, he would command himself.

It is also narrated that his friends did attempt to pluck him by the coat, but he turned upon them demanding to know if he was a school boy to be called down!

At this time the relations between Governor Bernard and the Legislature were greatly strained. Otis rather increased the tension. A question arose about a financial measure whereby gold was to be exported and silver money retained as the currency of the colony--the former at less than its nominal value--in a manner to juggle the people into paying their obligations twice over. The argument became hot and the Council taking the side of the administration was opposed by the legislative assembly.

Chief Justice Hutchinson and James Otis got into a controversy which was bitter enough, and which may be illustrated with the following letter which James Otis addressed to the printer of a newspaper:

"Perhaps I should not have troubled you or the public with any thoughts of mine, had not his Honor the Lieutenant-Governor condescended to give me a personal challenge. This is an honor that I never had vanity enough to aspire after, and I shall ever respect Mr. Hutchinson for it so long as I live, as he certainly consulted my reputation more than his own when he bestowed it. A general officer in the army would be thought very condescending to accept, much more to give, a challenge to a subaltern. The honor of entering the lists with a gentleman so much one's superior in one view is certainly tempting; it is at least possible that his Honor may lose much; but from those who have and desire but little, but little can possibly be taken away.

"I am your humble servant, "JAMES OTIS, JR."

This controversy continued for some time, and it is thought that to it must be attributed much of the animosity displayed by the Chief Justice towards Otis in the "History of Massachusetts Bay."

Mr. Otis continued his aggressive policy in the session of the assembly held in 1762. It was at this session that the government in the hope of getting a sum of money adopted the ruse of creating an alarm relative to a French invasion of Newfoundland. But the patriots would have none of it. They went so far as to say that if arbitrary government was to be established in America, it made no difference whether the Americans should have King Stork or King Log. To this effect ran a resolution offered by James Otis:

"No necessity can be sufficient to justify a House of Representatives in giving up such a privilege; for it would be of little consequence to the people, whether they were subject to George or Louis, the King of Great Britain or the French King; if both were arbitrary, as both would be, if both could levy taxes without Parliament."

It is said that when this resolution was offered a loyalist member cried out in the Virginian manner, "Treason, treason." It was in this way that Mr. Otis gained the undying enmity of the King's party in America.

It was in the period following his legislative service that James Otis prepared his powerful pamphlet entitled "A Vindication of the Conduct of the House of Representatives of the Province of the Massachusetts Bay." In this work he traverses and justifies the course pursued by the patriot legislature during the sessions of his attendance.

Great was the joy of the American Colonies at the conclusion of the French and Indian War. The Treaty of Paris in February of 1763 conceded Canada to Great Britain and insured the predominance of English institutions in the New World.

The animosities of the Americans towards the mother country rapidly subsided. Meetings were held in the principal towns to ratify the peace. At the jubilee in Boston, James Otis presided.