There can be no prescription old enough to supercede the Law of Nature and the grant of God Almighty, who has given to all men a natural right to be free, and they have it ordinarily in their power to make themselves so, if they please.–James Otis, Jr.
James Otis, Jr. (2/5/1725-5/23/1783) of West Barnstable, Cape Cod, Massachusetts, began his tutelage under Reverend Jonathan Russell and, by fifteen, Otis entered Harvard College and graduated in 1743. He studied law for two years under Judge Jeremiah Gridley, a member of the General Court of Massachusetts. The young conservative (as Otis was earlier in life) then served the Boston vice-admiralty court as advocate general from 1756 to 1760.
In 1760, with the end of the French and Indian War and the accession of George III, his administration compelled customs officials in Massachusetts to apply for new “writs of assistance” in the king’s name. These writs were in effect, search warrants that gave customs inspectors the legal authority to inspect ships, warehouses, homes or wherever else they felt compelled to inspect. Smuggling was common in the colonies due, in part, to high tariffs on sugar and molasses. This encouraged American merchants to deal with French, Dutch and West Indies traders.
Royal officials in London tightened enforcement against smuggling by offering Massachusetts Governor Francis Bernard with a third of the fines collected from such activities. To aid the call for tighter enforcement, Governor Bernard appointed Thomas Hutchinson Chief Justice of Massachusetts. In doing so, Bernard passed over Otis’s father, Colonel James Otis, Sr. This action infuriated the Otis family and led to Otis’s resignation as the king’s advocate general with the vice-admiralty. After resigning, Otis offered assistance to the merchants in their attempt to stop execution of the new writs.
On February 24, 1761, a case came before the Superior Court of Massachusetts by Charles Paxton, the Surveyor of Customs for the Port of Boston, for writs of assistance. Jeremiah Gridley appeared for the customs office. Otis and an associate represented sixty-three Boston merchants, in opposition. Gridley argued the Court of Exchequer had the statutory authority to issue them, that the province law of 1699 had granted the Superior Court jurisdiction in Massachusetts over matters which the courts of King’s Bench, Common Pleas, or Exchequer have, and further that such warrants were necessary in the collection of taxes and in protecting the state from foreign and domestic subversives.
When Otis spoke, one critic described him as “a plump, round faced, smooth skinned, short necked, eagle eyed politician,” but John Adams attended the trial and wrote down the account in his diary and again some fifty years later, “Otis was a flame of fire!”
Otis relied on English law to prove that only special warrants were legal and attacked the writs as “instruments of slavery.” Defending the right to privacy, he proclaimed that the power to issue general search warrants placed “the liberty of every man in the hands of every petty officer.” In perhaps his most moving passage, Otis declared,
A man’s home is his castle, and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it is declared legal, would totally annihilate this privilege. Custom house office may enter our houses when they please and we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything 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. 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. Other’s will ask it from self-defense; one arbitrary action will promote another, until society be involved in tumult and blood.
Otis’s oration took some four or five hours and was not taken down stenographically, but it left an indelible impression on the young Adams. With a “profusion of legal authorities,” Adams tells us, “a prophetic glance of his eye into futurity, and a torrent of impetuous eloquence, he hurried away everything before him.” Adams continued, “every man of a crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance.” Adams concluded his summation of the event by pronouncing, “Then and there, the child Independence was born.” Otis challenged not just the royal governor of Massachusetts, not just Parliament, and not just the King, but also the entire British government, with a solid appeal to the Rule of Law. Thus began the American Revolution.
Following the Otis oration, the members of the bench had been swayed, with the exception of Chief Justice Hutchinson, who delayed the vote in an attempt to buy precious time. Hutchinson succeeded in having the writs upheld when, in November of that same year, the case was heard a second time. George III was the new monarch, and the Court of Exchequer routinely issued writs of assistance in England. The Massachusetts judges felt they could no longer refuse to issue them in the colonies as well. Hutchinson had won a temporary victory. In 1765, Hutchinson’s Boston home was destroyed by an angry mob.
Otis’s battle against the writs of assistance won him great public favor for a time. In May of 1761, he won election to the Massachusetts General Court. The news of the election reached a Worchester dinner party. Attending the party were John Adams and Brigadier Timothy Ruggles, who was chief justice of the Common Pleas Court and later a Tory exile. Ruggles declared to Adams, “Out of this election will arise a damned faction, which will shake the province to its knees.”
Ruggles’s prophetic prediction proved even more accurate than he expected for it was 1761 that triggered the Revolution, and the Otis family, father and son, set the wheels in motion. That same year, James Otis Sr. was reelected as Speaker of the House, and together, they succeeded in pushing through an act which forbid any writ which did not specify under oath, the person and place to be searched. However, under the advice of the Supreme Court, Governor Bernard refused to approve the legislation. Nonetheless, the public sentiment had shifted, and talk of an independent nation had begun.
In 1764, Prime Minister George Grenville and the British Parliament had imposed upon the colonies the Sugar Act. The new law placed tariffs on sugar, wine, coffee and other products, and spelled trouble for many American businesses. At the time the Sugar Act was passed by Parliament, Grenville had also submitted a resolution for a Stamp Tax.
Otis was vehemently opposed to the proposition of these new taxes and wrote a pamphlet entitled The Rights of the British Colonies Asserted and Approved. In this pamphlet, Otis denied any fundamental difference between internal and external taxes. The Parliament dismissed the pamphlet as propaganda while the emotions of the American colonials were sparked.
Otis became an instant celebrity and a month later was elected to a seat in the General Court (legislature). As time passed and the list of American grievances against the Crown grew, Otis played an ever more prominent role in advancing the colonists’ interests. In 1764, he headed the Massachusetts committee of correspondence. The following year he was a leading figure at the Stamp Act Congress in New York City. In 1765, the Stamp Act was passed and Otis stood as one of the Acts most vocal critics. Under the pseudonym “John Hampden,” Otis published in the Boston press a sweeping denial of Parliaments right to tax the colonies without representation.
Otis’s open advocacy of American rights grated on many officials’ nerves; his election to the speakership of the General Court in 1766 was voided by the governor’s veto. Undeterred, Otis teamed with Samuel Adams to confront the next crisis: enforcement of the Townshend Duties in 1767. The firebrand duo drafted a circular letter to enlist the other colonies in planned resistance to the new taxes.
Otis’s pamphlet to the Parliament drew resolute approval from the Whigs in England.
Otis began a gradual loss of his mental faculties. His continued verbal assaults grew worse. In 1769, Otis was in a coffeehouse brawl with a customs official and received substantial injuries to the head. This quickened the pace of his failing mental capacities and two years later, his old adversary, Thomas Hutchinson, appointed a sanity commission which found Otis to be a lunatic.
Throughout the remainder of his life, Otis had intermittent spells of clarity, but he played very little role in the Revolution. He was placed in the care of various friends and family members. While under the care of his sister, Mercy Otis Warren, at Watertown, Mass., he heard rumor of battle. On June 17, he slipped away unobserved, borrowed a musket from a roadside farmhouse and joined the minute men who were marching to the aid of the troops at Bunker Hill. He took an active part in the battle and afterwards made his way home again. In 1783, James Otis, Jr. was struck dead by a bolt of lightning while standing in the doorway of his sisters’ home. A tragic end to an outspoken leader who sent the colonists in the direction of a revolution.
This little bit of history should be remembered by the current administration in their endeavor to allow warrants without recourse to local judges’ permission. This is how the American Revolution was touched off. If the Bush administration is not careful, there is little doubt in my mind that there will be unintended consequences in America’s future!
