The character and life-work of few men belonging to the
pre-Revolutionary era are better worth studying than are those of
James Otis, the patriot-orator of Massachusetts, who took so
prominent a part in opposing England's obnoxious Stamp Act and in
arousing the American Colonies to a sense of the outrage done
them by the issue of the arbitrary Writs of Assistance. Though
the records of his personal life are somewhat meagre, sufficient
is known of Otis's public career to interest students of his
country's history and entitle him to the admiration of all, as
one of the most earnest and eloquent advocates of Liberty in the
Nation's youth-time, and a sturdy and noble defender of its cause
at the critical era of England's injustice and oppression. No
man of the period, it may be hazarded, did more yeoman service
than Otis did in the cause of American Freedom, or was more
sensible of the rights of the Colonists and of the injustice done
them by the Motherland in her assaults on their civil and
political status in the years preceding the Revolution. Not only
was he one of the most fearless asserters of the great principles
for which our forefathers fought and bled, but few men better
than he saw more clearly the malign character of the arbitrary
acts imposed upon the Colonies that brought about separation and
laid the foundation of American independence. In resisting the
enforcement of these Acts, Otis was actuated not only by
disinterested and patriotic motives, but by a statesmanlike
discernment of their unconstitutional character and the wrong
they would inflict, in being inconsistent with the foundation
charter of the Massachusetts Colony. Like many of the
Revolutionary fathers, Otis was not at heart a rebel, or from the
outset disloyal to the Crown in its administration of the affairs
of the Colonies. His occupancy of the Crown post of
Advocate-General and his own well-known integrity and
conscientiousness forbid that idea, not to speak of his pride in
the fact that his ancestors were English and for generations had
held high judicial offices and militia appointments in the gift
of the King and the ministry of the period. But though by
tradition and training, at the outset of his career, a subject of
monarchy and a true man in his official relations with England,
Otis was at the same time ardent in his interests for the
wellbeing of the Colonies and zealous for their rights and
privileges. When these came into conflict, the stand he took was
staunchly patriotic, even to the sacrifice of his office and its
emoluments; while in espousing the popular cause against the King
and the ministry he stood forth, as John Adams expressed it, as
"a flame of fire," full of consuming zeal for his country and an
ardent upholder of its rights and prerogatives. In assuming this
attitude, that Otis's zeal and energy were at times unrestrained
and his language occasionally unguarded and overvehement, is
doubtless true; but this was certainly excusable in a man of his
ardent temperament and strength of character; while the situation
of affairs was such as to call not only for patriotic enthusiasm,
but for righteous indignation and heated denunciation, in a cause
that stirred to the depths the heart and brain of an impetuous
and commanding orator. Nor do we well to forget what this
consuming, patriotic passion and heated vindication of his
country's rights cost Otis, in the responsibility he felt and the
solicitation he manifested, especially in the middle and later
stages of his strenuous career, for the cause he had so keenly at
heart. Pathetic is the story of the ailment that clouded his
closing years; and only exculpatory can be the judgment now
passed upon the man and his work when we consider what the strain
was that he had long and anxiously borne and that revealed its
effects in periods of sad mental alienation and incipient
madness. To speak and write strongly on taxation and its
injustice, in the case of the Colonies, might well, however,
disturb the mental equilibrium of even a strong man, and the more
so when actively protesting, as Otis long continued to protest,
against unlawful encroachments upon the liberties of the Colonies
and the other arbitrary acts that then characterized the
administration of the Crown. Whatever it cost Otis personally to
engage in this defence, the result, as we all now know and admit,
was only and wholly beneficent--in the defeat of an unrighteous
autocracy, and the emancipation of a Continent from a fettering
and baleful administration.
This herald of and actor in the great drama of his time was born
at West Barnstable, formerly known as the Great Marshes, in
Massachusetts, on the 5th of February, 1723. He was one of
thirteen children, his father being Colonel James Otis (born in
1702), the son of Judge John Otis, whose immediate ancestor had
emigrated from England in the preceding century and settled in
New England at the town of Hingham, calling the region after the
old home of the family in the Motherland. This John Otis, who
was born in A.D. 1657, became a prominent man in the Settlement,
was a member of the Council of the Colony, and ultimately became
Chief-Justice of the Common Pleas and Probate Court. Otis's own
father (Colonel James Otis) likewise became a lawyer and
publicist, a colonel in the local militia, and rose to a high
post in the judiciary and was a member of the Council of
Massachusetts. He married Mary Alleyne and transmitted to the
future patriot, the subject of this sketch, the talents and many
of the characteristics of his progenitors. A brother of our
hero, Samuel Alleyne Otis, rose to prominence in the politics of
the State and as Secretary of the Senate administered to
Washington the oath of office as President, holding the Bible on
which he was sworn as honored chief of the future nation. A
sister, Mercy, an ardent and loyal patriot, married the notable
republican, James Warren of Plymouth, and lived herself to write
a compend of the "History of the American Revolution," together
with a collection of patriotic verse.
James Otis, whom we know as one of the most eloquent orators of
the Revolutionary era and an ardent promoter of American
independence, was educated for his career at Harvard, which
institution he entered as a freshman in 1739, having previously
been prepared for college by the Rev. Jonathan Russell. His
university course, so far as can be gathered from any account of
it that has come down to us, was not a notable one, though he had
a fair scholastic career and graduated at the age of nineteen in
1743. While popular after a fashion at college, he was a bit of
a recluse and a diligent student of literature, with a
predilection, it is said, for music, playing well on the violin.
After graduating, he wisely spent two years in general reading
before entering upon the study of the law, which he did in 1745
under James Gridley, a prominent jurist of Massachusetts and
sometime Crown Attorney-General. Three years later, he was
admitted to the bar, and in 1748 began to practice his profession
at Plymouth, Mass. In 1750, he removed to Boston, and there
became known as an advocate of note and high promise, actuated by
nice professional instincts, with a fine sense of honor, and
keenly appreciating, it is recorded, his responsibilities in his
relations with his clients, which led him to accept only such
cases as he could conscientiously defend and take retainers from.
This characteristic scruple in the lawyer gave him a high
standing in his profession, and naturally led to success at the
bar, besides winning for him the respect and admiration of troops
of warm and attached friends.
About this time he appears to have developed uncommon gifts as an
orator, and his rather irascible nature gave scope to his keen
wit and powers of sarcasm. His extensive reading and ultimate
study of good literary models naturally bore fruit in the
practice of the forensic art and gave him prestige at the bar, as
well as, later on, in taking to public life and to the advocacy
of the rights of the Colonists in the controversy with the Crown.
In 1755, when he had attained his thirtieth year, Otis married
Ruth Cunningham, the daughter of an influential Boston merchant.
The lady, from all accounts, was undemonstrative and devoid of
her husband's patriotic ardor, traits that did not tend to
domestic felicity or lead, on the wife's part, to a commanding
influence over her vehement and somewhat eccentric husband. The
fruit of the union was one son and two daughters. The son
entered the navy, but unhappily died in his eighteenth year. One
of the daughters, the elder of the two, probably under the
mother's influence, angered her father by espousing the English
cause and marrying a Captain Brown, a British officer on duty at
Boston. The marriage was a source of irritation and unhappiness
to Otis, who, after his son-in-law had fought and been wounded at
Bunker Hill, withdrew with his wife to England, and was there
disowned and cut off by the irate patriot, whose affection was
also dried up for the erring daughter. The younger daughter, on
the other hand, was a devoted and patriotic woman, who shared her
father's enthusiasm for the popular cause. She married Benjamin
Lincoln of Boston, but early became a widow.
By this time, Otis had become not only a man eminent in his
profession in Boston, but a powerful factor in the public life of
the city. The New England commonwealth was then beginning to be
greatly exercised over the aggressions of the Motherland, and
this was keenly watched by Otis, who took a lively and patriotic
interest in Colonial affairs. Beyond his profession, which had
closely engrossed him, he had heretofore taken little part in
public life; his leisure, indeed, he had employed more as a
student of books rather than of national affairs, as his work on
the "Rudiments of Latin Prosody," published in 1760, bears
witness. As the era of a conflict with England neared, he
however altered in this respect, and became a zealous advocate of
non-interference on the part of the Crown in the affairs of the
Colonies and an ardent protester against English oppression and
injustice. Soon grievances arose in the relations between the
Colonies and England which gave Otis the right to denounce the
Motherland and excite dissaffection among the people of the New
World. These grievances arose out of the strained commercial
relations between the two countries and the attempt of England to
devise and enforce irritating schemes of Colonial control. Of
these causes of outcry in the New World the two chief were the
revival and rigid execution of the English Navigation Acts,
designed to limit the freedom of the American Colonies in trading
with West Indian ports in American built vessels, and the
insistence, on the part of the Crown and the British government,
that the Colonies should be taxed for the partial support of
English garrisons in the country. In the development of trade in
the New World, the Colonies reasonably felt that they should not
be harassed by the mother country, and so they permitted commerce
to expand as it would; and when this was enjoined by England they
naturally resented interference by her and began to evade the
laws which she imposed upon the young country and bid defiance to
the Crown customs officers in the measures resorted to in the way
of restriction and imposed penalty. This attitude of the
Colonists in ignoring or defying English laws was soon now
specially emphasized when the Crown resorted to more stringent
measures to curb Colonial trade and impose heavy customs duties
on articles entering New World ports. Flagrant acts of evasion
followed, and defiant smuggling at length brought its legal
consequences--in the issue by the English Court of Exchequer of
search warrants, or Writs of Assistance, as they were called, by
which it was sought to put a stop to smuggling, by resorting to
humiliating arbitrary measures sure to be resented by the
Colonies. These Writs of Assistance empowered the King's
officers, or others delegated by them, to board vessels in port
and enter and search warehouses, and even the private homes of
the Colonists, for contraband goods and all importations that had
not paid toll to His Majesty's customs. This attempted rigid
execution of the Acts of Trade, together with other arbitrary
measures on the part of the Crown which followed, such as the
imposition of the Stamp Act, and the coercive levy of taxes to
pay part of the cost of maintaining English troops in the
Colonies, was soon to cost England dear and end in the loss of
her possessions in America and the rise of the New World
Republic.
One of the most active men in the Colonies to oppose this
Colonial policy of England was, as we know, the patriot James
Otis, at the time Advocate-General of the Crown, who took
strong ground against the Writs of Assistance, arguing that they
were not only arbitrary and despotic in their operation, but
unconstitutional in their imposition on the Colony, since they
were irreconcilable with the Colonial charters and a violation of
the rights and prerogatives of the people. Rather than uphold
them as a Crown officer, Otis resigned his post of
Advocate-General, and became a fervent pleader of the popular
cause and denouncer of the legal processes by which the Crown
sought to impose, with its authority, its obnoxious trammellings
and restrictions without the consent of and in defiance of the
inalienable rights of the American people. Otis not only
resisted the enforcement by the King's officers of the odious
warrants and denounced their arbitrary character, but inveighed
hotly against English oppression and all attempts of the Crown
and its deputy in the province, the Lieutenant-Governor of
Massachusetts, to restrict the liberties of the people and impose
unconstitutional laws upon the Colony. The Writs of Assistance
were, of course, defended by the representatives of the Crown in
the Colony, and on the plea that without some such legal process
the laws could not be executed, and that similar writs were in
existence in England and made use of there on the authority of
English statutes. The pleas against them advanced by Otis took
cognizance of the fact that the Writs were irreconcilable with
the charter of the Massachusetts Colony, that English precedent
for their enforcement had no application in America, and that
taxation by the Motherland and compulsory acts of the nature of
the Writs did open violence to the rights and liberties of the
people and were inherently arbitrary and despotic, being imposed
without the consent of the Colonies and to their grave hurt and
detriment. In pleading the Colonial cause against the Writs,
Otis struck a chord in the heart of the people which tingled and
vibrated, while stirring up such opposition to them that the
authorities were fain to hold their hand and await instructions
from the English ministry as to their withdrawal or enforcement.
The response of the home government was that they should be
enforced, but little advantage was taken of this mandate in the
Colonies, since opposition to the Writs had, thanks to the
patriot Otis's denunciation of them, became almost universal;
while the people had been roused to a sharp sense of their
situation, in view of the tyrannous attitude of England towards
the Colonies, and the next step taken by the Crown, under Prime
Minister Grenville, in threatening them with the no less hated
Stamp Tax. This new fiscal infatuation on the part-of the
English ministry strained the relations of the Colonies toward
the Crown to almost the point of rupture. It was, moreover, an
unwise exhibition of English stubbornness and impolicy, since it
revealed the mistake which England fell into at the time of
considering the Settlements of the New World as Colonial
possessions to be held solely for the financial benefit of the
mother country, rather than for their own advancement and
material well-being. It is true, that the Seven Years' War,
which had been waged chiefly for the protection of the American
dependencies of the Crown, had left a heavy burden of debt upon
England which she naturally looked to the Colonies in some
measure to repay. But the Colonies had ready their argument--
they objected to being taxed without their consent, and without
representation in the British Parliament, besides being, as they
thought, sufficiently oppressed by the burden of customs' duties
already imposed upon them. The spirit of resistance therefore
grew, and was ere long to take a more determined and, to England,
fatal form, for the Stamp Act, though later on repealed, was
passed, in spite of the protests of the Colonial Assemblies and
the increasing soreness of feeling in America against the mother
country.
The like service James Otis did for the community of the New
World in opposing the Writs of Assistance he also did in opposing
the enforcement of the Stamp Act--remonstrances suggested by the
patriot's love of independence, and which, besides numberless
letters, speeches and addresses, drew from the
pre-Revolutionist's trenchant pen several able pamphlets, one
vindicating the action of the Massachusetts House of
Representatives, of which Otis was now a member, in protesting
against England's intolerance in laying grievous taxation on the
Colonies, and the others upholding the rights of the Colonies in
resisting the Crown's misgovernment, as well as its purpose to
tax the Colonies to defray some of the cost England had incurred
in prosecuting the French and Indian war. In these patriotic
services and labors, Otis, as a public man, took an active and
zealous part, besides conducting a large correspondence as
chairman of the House Committee of the Legislature on subjects
relating to the weal of the whole country. Nor were his duties
confined to these matters alone, for we find him at this period
engaged in controversies first with Governor Hutchinson, and then
with his successor, Governor Bernard, both of whom deemed Otis an
arch-rebel and incendiary--a man not only without the pale of
considerate treatment by lawfully constituted authority in the
Colonies, but the object of contumely and loathing by the
obsequious loyalists of the Motherland and all who desired her
continued dominance and supremacy in the country. History has
happily long since done justice to James Otis and seen him in a
fairer and far more worthy light--the light not only of a
patriot lover of liberty, but an ardent and invincible defender
of his country against autocratic encroachment, and a fearless
asserter of the principles which have become the foundation stone
of the American nation. In his masterful way, Otis was at times
heedlessly bitter and inveterate in his prejudices against the
mother country and the King's officers in the Colony; but we must
remember the strength as well as the ardor of his affection for
his native land and the righteousness of the cause he lovingly
espoused and so nobly advocated. We must remember also the
antagonisms he naturally aroused, and the hatreds of which he was
the object, on the part of loyal authority in the Colony which
feared while it traduced him. This is shown in the mishap that
befell him in a British coffeehouse in Boston, where he was
roughly assaulted by a man named Robinson, an ally of the revenue
officers whom he had denounced in an article in the Boston
Gazette, an attack that left its traces in the mental ailment
which afterwards distressingly incapacitated him and shortened
his bright public career. He nevertheless lived to see the
fruition of his hopes, in the throwing off by the Colonies of all
allegiance to Britain and take part himself in the battle of
Bunker Hill. The harvest reaped by his country from the seeds of
liberty he had planted in his day was such as might well cheer
him in the period of mental darkness which fell upon him and
regretfully clouded his closing years. Nor was he, in his own
era, without regard and honor among those who delighted in his
splendid patriotism, in the days of his manly strength, mental as
well as physical, and who held him in high esteem as a patriot
orator and the staunchly loyal tribune of the New World peoples.
In these days of flaccid patriotism and moral declension in
public life, his example may well stimulate and inspire. In his
wholehearted devotion to the hopes as well as to the interests of
the Colonies most notable was the polemical fervor with which he
espoused their cause and noble the stand he took for liberty and
independence.
Like many men who have attained eminence in public life, James
Otis was the victim in his day of detraction and envy. A
specially malignant slander was current with reference to him and
his father at the period of the patriot's resigning his Crown
post of Advocate-General. The motive for throwing up his
appointment and pleading the people's cause against the Writs of
Assistance, it was at the time said, was the disappointment of
the Otis family at the Chief-Justiceship, then vacant, going to
Governor Hutchinson instead of to Colonel James Otis of
Barnstable, father of our hero. This aspersion of the fair name
of the Otises as patriots and high-minded gentlemen, and the
lying assertion that it was this disappointment that led the
Otises, father and son, to abandon the Crown's side for that of
the people, was cruelly false, and especially so as Hutchinson,
who got the post, repeats the falsehood in his "History of
Massachusetts" in explanation of the Otises turning their coats
and becoming partisans of the popular cause. Nothing could well
be more unjust and untrue, for both men were of far too honorable
a character and too ardently patriotic to justify the slander and
give even the slightest color to the misrepresentation. Were it
necessary more emphatically to characterize the slander as false,
one might confidently point to the happy relations of the Otises
with the other patriots of the time--to men of the stamp of the
two Adams statesmen, to Hancock, Randolph, Warren, and other
leaders of the Revolutionary era, as well as to the contemporary
repute and influence of both men in the heroic annals of the
Colonial period. The times were indeed trying and critical, and
at the outset of the movement for independence and relief from
the irritating aggressions of the Crown, the attitude, we may be
sure, was closely watched and not over truthfully reported, of
men of influence who took the patriot side and helped on the
great cause which was afterwards to be gloriously and
triumphantly crowned.
But we pass on to relate, in a few brief words, what remains yet
to be told of James Otis's career, and of the pathetic declining
days of the hero and his tragic end. While mind and body were
intact and working perfectly in unison, Otis continued to give
himself heart and soul to the cause he had so patriotically and
zealously espoused. Even when his malady showed itself, there
were brief returns of useful activity and old-time mental
alertness, only, however, to be followed by sad relapses into the
eclipse-period of his powers. At periods of respite from his
ailment, Otis took part fitfully in his duties as member of the
Massachusetts Legislature, of which body he had been Speaker, and
did what he could to further the work of legislation. He also at
this time appeared once or twice as an advocate in Court, and
also continued his correspondence in Committee of the General
Assembly with prominent men in the other Colonies, seeking
successfully cooperation with them in the great drama of the
time. But for the most part we now find him a considerately
cared-for guest of his old-time friend, Colonel Samuel Osgood, at
the latter's farmhouse at Andover. Here the distinguished
pre-Revolutionist had phenomenal premonitions of the coming
manner of his death, related to his sister, Mrs. Warren, to whom
the patriot on more than one occasion said, that when God in his
Providence should take him hence into the eternal world, he hoped
it would be by a stroke of lightning! This tragic fate was ere
long to be his, for on the afternoon of May 23rd, 1783, when Otis
was standing amid a family group at the door of the Osgood
homestead at Andover, a bolt from the blue flashed down from
aloft and felled the hero to the ground. Death was
instantaneous, and happily it left no mark or contortion on his
body, while his features had the repose and placidity of seeming
sleep. Thus passed the hero from the scenes of earth, and in a
sense fitly, for the period was that which saw the close of the
drama of the Revolution he had been instrumental in bringing
about, and the departure from the soil of the new-born Republic
of the last of the English soldiery.
[3]Historian, Biographer, Essayist, Author of a "Precis of
English History," a "Continuation of Grecian History," etc., and
for many years Editor of Self-Culture Magazine.--The Publishers.
JAMES 0TIS ON THE WRITS 0F ASSISTANCE February, 1761.
May it please your Honours: I was desired by one of the court to
look into the (law) 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 presented another petition, and out of regard to the
liberties of the subject. And I take this opportunity 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 villainly 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 ever was found in an English lawbook. I
must therefore beg your Honours' 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 cause, 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 cause from the same principle; and I
argue it with the greatest pleasure, as it is in favour 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 as it is in
opposition to a kind of power, the exercise of which in former
periods of history cost one king of England his head and another
his crown, I have taken more pains in this cause than I ever will
take again, although my engaging in this and another popular
cause 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 good citizens; 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.
In the first place, may it please your honours, I will admit that
writs of one kind may be legal; that is, special writs, directed
to special officers, and to search certain houses, etc.,
specially set forth in the writ, may be granted by the Court of
Exchequer at home, upon oath made before the Lord Treasurer by
the person who asks it, that he suspects such goods to be
concealed in those very places he desires to search. The Act of
14 Charles II., which Mr. Gridley[4] mentions, proves this. And
in this light the writ appears like a warrant from a Justice of
the Peace to search for stolen goods. Your honours 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 on it, that the writ prayed
for in this petition 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
domains. Every one with this writ may be a tyrant; if this
commission be legal, a tyrant in a legal manner, also, 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: t o be the servants 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 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. 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 Honours 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, 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 garret to cellar; and then served the
constable in the same manner! But to show another absurdity in
this writ, if it should be established, I insist upon it every
person, by the 14 Charles II., 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 neighbour'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!
Again, these writs are not returned. Writs, in their nature, are
temporary things. When the purposes for which they are issued
are answered, they exist no more; but these live forever; no one
can be called to account. Thus reason and the constitution are
both against this writ. Let us see what authority there is for
it. Not more than one instance can be found of it in all our
law-books; and that was in the zenith of arbitrary power, namely,
in the reign of Charles II., when star-chamber powers were pushed
to extremity by some ignorant clerk of the exchequer. But had
this writ been in any book whatever, it would have been illegal.
All precedents are under the control of the principles of law.
Lord Talbot (the Earl of Shrewsbury, an English peer of the era
of William and Mary) says it is better to observe these than any
precedents, though in the House of Lords the last resort of the
subject. No Acts of Parliament can establish such a writ; though
it should be made in the very words of the petition, it would be
void. An act against the constitution is void. But this proves
no more than what I before observed, that special writs may be
granted on oath and probable suspicion. The act of 7 and 8
William III. that the officers of the plantations shall have the
same powers, etc., is confined to this sense; that an officer
should show probable ground; should take his oath of it; should
do this before a magistrate; and that such magistrate, if he
think proper, should issue a special warrant to a constable to
search the places. That of 6 Anne can prove no more.
[4] Otis's opponent--his legal preceptor--who argued in favor of
the Writs.
JAMES OTIS ON THE STAMP ACT. An Oration Delivered Before the
Governor and Council In Boston, December 20, 1765.
It is with great grief that I appear before your Excellency
(Governor Hutchinson) and Honours (of the City Council) on this
occasion. A wicked and unfeeling minister (Earl Grenville) has
caused a people, the most loyal and affectionate that ever king
was blest with, to groan under the most insupportable oppression.
But I think, Sir, that he now stands upon the brink of inevitable
destruction; and trust that soon, very soon, he will feel the
full weight of his injured sovereign's righteous indignation. I
have no doubt, Sir, but that the loyal and dutiful
representations of nine provinces, the cries and supplications of
a distressed people, the united voice of all his Majesty's most
loyal and affectionate British-American subjects, will obtain all
that ample redress which they have a right to expect; and that
erelong they will see their cruel and insidious enemies, both at
home and abroad, put to shame and confusion.
My brother Adams has entered so largely into the validity of the
act, that I shall not enlarge on that head. Indeed, what has
been observed is sufficient to convince the most illiterate
savage that the Parliament of England had no regard to the very
first principles of their own liberties.
Only the preamble of that oppressive act is enough to rouse the
blood of every generous Briton.--"We your Majesty's subjects,
the commons of Great Britain, etc., do give and grant"--What?
Their own property? No! The treasure, the heart's blood of all
your Majesty's dutiful and affectionate British-American
subjects.
But the time is far spent. I will not tire your patience. It
was once a fundamental maxim that every subject had the same
right to his life, liberty, property, and the law that the King
had to his crown; and 'tis yet, I venture to say, as much as a
crown is worth, to deny the subject his law, which is his
birthright. 'Tis a first principle "that Majesty should not only
shine in arms, but be armed with the laws." The administration
of justice is necessary to the very existence of governments.
Nothing can warrant the stopping the course of justice but the
impossibility of holding courts, by reason of war, invasion,
rebellion, or insurrection. This was law at a time when the
whole island of Great Britain was divided into an infinite number
of petty baronies and principalities; as Germany is, at this day.
Insurrections then, and even invasions, put the whole nation into
such confusion that justice could not have her equal course;
especially as the kings in ancient times frequently sat as
judges. But war has now become so much of a science, and gives
so little disturbance to a nation engaged, that no war, foreign
or domestic, is a sufficient reason for shutting up the courts.
But if it were, we are not in such a state, but far otherwise,
the whole people being willing and demanding the full
administration of justice. The shutting up of the courts is an
abdication, a total dissolution of government. Whoever takes
from the king his executive power, takes from the king his
kingship. "The laws which forbid a man to pursue his right one
way, ought to be understood with this equitable restriction, that
one finds judges to whom he may apply."
I can't but observe that cruel and unheard-of neglect of that
enemy to his king and country, the author of this Act, that, when
all business, the very life and being of a commercial state, was
to be carried on by the use of stamps, that wicked and execrable
minister never paid the least regard to the miseries of this
extensive continent, but suffered the time for the taking place
of the Act to elapse months before a single stamp was received.
Though this was a high piece of infidelity to the interest of his
royal master, yet it makes it evident that it could never be
intended, that if stamps were not to be had, it should put a stop
to all justice, which is, ipse facto, a dissolution of society.
It is a strange kind of law which we hear advanced nowadays, that
because one unpopular Act can't be carried into execution, that
therefore there shall be an end of all law. We are not the first
people who have risen to prevent the execution of a law; the very
people of England themselves rose in opposition to the famous
Jew-bill, and got that immediately repealed. And lawyers know
that there are limits, beyond which, if parliaments go, their
acts bind not.
The king is always presumed to be present in his courts, holding
out the law to his subjects; and when he shuts his courts, he
unkings himself in the most essential point. Magna Charter and
the other statutes are full, "that they will not defer, delay,
nor deny any man justice"; "that it shall not be commanded by the
Great Seal, or in any other way, to disturb or delay common
right." The judges of England are "not to counsel, or assent to
anything which may turn to the damage or disherison of the
crown." They are sworn not to deny to any man common right, by
the king's letters, nor none other man's, nor for none other
cause. Is not the dissolution of society a disherison of the
crown? The "justices are commanded that they shall do even law
and execution of right to all our subjects, rich and poor,
without having regard to any person, without letting to do right
for any letters or commandment which may come to them, or by any
other cause."
ANECDOTES AND CHARACTERISTICS OF OTIS, ETC. OTIS AND HIS FELLOW
PATRIOTS.
Professor Hosmer draws the following pictures of Otis and his
contemporaries:
"The splendid Otis, whose leadership was at first unquestioned,
was like the huge cannon on the man-of-war, in Victor Hugo's
story, that had broken from its moorings in the storm, and become
a terror to those whom it formerly defended. He was indeed a
great gun, from whom in the time of the Stamp Act had been sent
the most powerful bolts against unconstitutional oppression.
With lashings parted, however, as the storm grew violent he
plunged dangerously from side to side, almost sinking the ship,
all the more an object to dread from the calibre that had once
made him so serviceable. It was a melancholy sight, and yet a
great relief, when his friends saw him at last bound hand and
foot, and carried into retirement.
"Bowdoin, also, was not firm in health, and though most active
and useful in the Council, had thus far done little elsewhere.
Hawley, far in the interior, was often absent from the centre in
critical times, and somewhat unreliable through a strange
moodiness. Cushing was weak. Hancock was hampered by foibles
that some times quite canceled his merits. Quincy was a
brilliant youth, and, like a youth, sometimes fickle. We have
seen him ready to temporize, when to falter was destruction, as
at the time of the casting over of the tea; again in unwise
fervor, he would counsel assassination as a proper expedient.
Warren, too, could rush into extremes of rashness and ferocity,
wishing that he might wade to the knees in blood, and had just
reached sober, self-reliant manhood when he was taken off.
"John Adams showed only an intermittent zeal in the public cause
until the preliminary work was done, and Benjamin Church,
half-hearted and venal, early began the double-dealing which was
to bring him to a traitor's end. There was need in this group of
a man of sufficient ascendency, thorough intellect and character,
to win deference from all--wise enough to see always the supreme
end, to know what each instrument was fit for, and to bring all
forces to bear in the right way--a man of consummate adroitness,
to sail in torpedo-sown waters without exciting an explosion,
though conducting wires of local prejudice, class sensitiveness,
and personal foible on every hand led straight down to magazines
of wrath which might shatter the cause in a moment--a man having
resources of his own to such an extent that he could supplement
from himself what was wanting in others--always awake, though
others might want to sleep, always at work though others might be
tired--a man devoted, without thought of personal gain or fame,
simply and solely to the public cause. Such a man there was, and
his name was Samuel Adams."